Trulite Glass and Aluminum Solutions, LLC v. Smith, et al.

Filing 44

PROTECTIVE ORDER signed by Magistrate Judge Allison Claire on 8/23/16. (Becknal, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TRULITE GLASS AND ALUMINUM
SOLUTIONS, LLC,,
Plaintiff,

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ORDER
v.
GEOFF SMITH, TYRONE YOUNT,
NATHAN WITKIN, BRYAN McNABB,
PATRICK J. SHASBY, JR., and
CALIFORNIA GLASS & MIRROR
CORP.,
Defendants.

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No. 2:16-cv-01798 JAM AC

The court has considered the proposed protective orders submitted by the parties. See

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ECF Nos. 35-1 (plaintiff’s Proposed Protective Order), 43 (defendants’ Proposed Protective

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Order). Good cause appearing, it is hereby ordered as follows:
PROTECTIVE ORDER.

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1.

PURPOSES AND LIMITATIONS

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Disclosure and discovery activity in this action will involve production of confidential,

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proprietary, or private information for which special protection from public disclosure and from

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use for any purpose other than prosecuting this litigation may be warranted. Accordingly, the

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Court hereby enters the following Protective Order. This Order does not confer blanket

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protections on all disclosures or responses to discovery, and the protection it affords from public
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disclosure and use extends only to the limited information or items that are entitled to confidential

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treatment under the applicable legal principles. As set forth in Section 14.4, below, this

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Protective Order does not entitle the parties to file confidential information under seal; Civil

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Local Rule 141 sets forth the procedures that must be followed and the standards that will be

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applied when a party seeks permission from the court to file material under seal.

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2.

DEFINITIONS

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2.1

Challenging Party: a Party or Non-Party that challenges the designation of

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information or items under this Order.
2.2

“CONFIDENTIAL” Information or Items: information (regardless of how it is

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generated, stored or maintained) or tangible things that qualify for protection under Federal Rule

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of Civil Procedure 26(c).

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2.3

Counsel (without qualifier): Outside Counsel of Record and House Counsel (as

well as their support staff).
2.4

Designated House Counsel: House Counsel who seek access to “HIGHLY

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information in this matter.
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Designating Party: a Party or Non-Party that designates information or items that it

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produces in disclosures or in responses to discovery as “CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY”.

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2.6

Disclosure or Discovery Material: all items or information, regardless of the

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medium or manner in which it is generated, stored, or maintained (including, among other things,

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testimony, transcripts, and tangible things), that are produced or generated in disclosures or

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responses to discovery in this matter.

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2.7

Expert: a person with specialized knowledge or experience in a matter pertinent to

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the litigation who (1) has been retained by a Party or its counsel to serve as an expert witness or

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as a consultant in this action, (2) is not a past or current employee of a Party or of a Party’s

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competitor, and (3) at the time of retention, is not anticipated to become an employee of a Party

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or of a Party’s competitor.

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2.8

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or

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Items: extremely sensitive “Confidential Information or Items,” disclosure of which to another

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Party or Non-Party would create a substantial risk of serious harm that could not be avoided by

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less restrictive means.

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2.9

Counsel does not include Outside Counsel of Record or any other outside counsel.

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House Counsel: attorneys who are employees of a party to this action. House

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Non-Party: any natural person, partnership, corporation, association, or other legal

entity not named as a Party to this action.

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2.11

Outside Counsel of Record: attorneys who are not employees of a party to this

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action but are retained to represent or advise a party to this action and have appeared in this action

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on behalf of that party or are affiliated with a law firm which has appeared on behalf of that party.

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consultants, retained experts, and Outside Counsel of Record (and their support staffs).

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Party: any party to this action, including all of its officers, directors, employees,

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Producing Party: a Party or Non-Party that produces Disclosure or Discovery

Material in this action.

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2.14

Professional Vendors: persons or entities that provide litigation support services

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(e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and

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organizing, storing, or retrieving data in any form or medium) and their employees and

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subcontractors.

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2.15

Protected Material: any Disclosure or Discovery Material that is designated as

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“CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”.

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2.16

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Party.

Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing

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3.

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The protections conferred by this Protective Order cover not only Protected Material (as

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defined above), but also (1) any information copied or extracted from Protected Material; (2) all

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copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony,

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conversations, or presentations by Parties or their Counsel that might reveal Protected Material.

SCOPE

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However, the protections conferred by this Protective Order do not cover the following

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information: (a) any information that is in the public domain at the time of disclosure to a

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Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as

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a result of publication not involving a violation of this Order, including becoming part of the

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public record through trial or otherwise; and (b) any information known to the Receiving Party

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prior to the disclosure through lawful means and under no obligation of confidentiality to the

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Designating Party or obtained by the Receiving Party after the disclosure from a source who

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obtained the information lawfully and under no obligation of confidentiality to the Designating

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Party. Any use of Protected Material at trial shall be governed by a separate agreement or order.

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Even after final disposition of this litigation, the confidentiality obligations imposed by

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this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court

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order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all

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claims and defenses in this action, with or without prejudice; and (2) final judgment herein after

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the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,

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including the time limits for filing any motions or applications for extension of time pursuant to

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applicable law.

DURATION

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5.

DESIGNATING PROTECTED MATERIAL

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5.1

Exercise of Restraint and Care in Designating Material for Protection. Each Party

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or Non-Party that designates information or items for protection under this Order must take care

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to limit any such designation to specific material that qualifies under the appropriate standards.

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To the extent it is practical to do so, the Designating Party must designate for protection only

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those parts of material, documents, items, or oral or written communications that qualify – so that

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other portions of the material, documents, items, or communications for which protection is not

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warranted are not swept unjustifiably within the ambit of this Order.

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If it comes to a Designating Party’s attention that information or items that it designated
for protection do not qualify for protection at all or do not qualify for the level of protection

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initially asserted, that Designating Party must promptly notify all other parties that it is

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withdrawing the mistaken designation.

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5.2

Manner and Timing of Designations. Except as otherwise provided in this Order

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(see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered,

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Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so

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designated before the material is disclosed or produced.

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Designation in conformity with this Order requires:
(a) for information in documentary form (e.g., paper or electronic documents, but
excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing

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Party affix the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’

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EYES ONLY” to each page of a document that contains protected material.

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A Party or Non-Party that makes original documents or materials available for inspection

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need not designate them for protection until after the inspecting Party has indicated which

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material it would like copied and produced. During the inspection and before the designation, all

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of the material made available for inspection shall be deemed “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY.” After the inspecting Party has identified the documents it wants

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copied and produced, the Producing Party must determine which documents, or portions thereof,

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qualify for protection under this Order. Then, before producing the specified documents, the

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Producing Party must affix the appropriate legend (“CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY”) to each page of the documents that contain

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Protected Material.

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(b) for testimony given in deposition or in other pretrial or trial proceedings, that

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the Designating Party identify on the record, before the close of the deposition, hearing, or other

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proceeding, all protected testimony and specify the level of protection being asserted. When it is

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impractical to identify separately each portion of testimony that is entitled to protection and it

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appears that substantial portions of the testimony may qualify for protection, the Designating

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Party may invoke on the record (before the deposition, hearing, or other proceeding is concluded)

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a right to have up to 21 days to identify the specific portions of the testimony as to which
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protection is sought and to specify the level of protection being asserted. Only those portions of

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the testimony that are appropriately designated for protection within the 21 days shall be covered

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by the provisions of this Protective Order. Alternatively, a Designating Party may specify, at the

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deposition or up to 21 days afterwards if that period is properly invoked, that the entire transcript

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shall be treated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY.”

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Parties shall give the other parties notice if they reasonably expect a deposition, hearing or

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other proceeding to include Protected Material so that the other parties can ensure that only

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authorized individuals who have signed the “Acknowledgment and Agreement to Be Bound”

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(Exhibit A) are present at those proceedings. The use of a document as an exhibit at a deposition

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shall not in any way affect its designation as “CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”

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Transcripts containing Protected Material shall have an obvious legend on the title page

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that the transcript contains Protected Material, and the title page shall be followed by a list of all

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pages (including line numbers as appropriate) that have been designated as Protected Material and

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the level of protection being asserted by the Designating Party. The Designating Party shall

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inform the court reporter of these requirements. Any transcript that is prepared before the

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expiration of a 21-day period for designation shall be treated during that period as if it had been

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designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its entirety unless

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otherwise agreed. After the expiration of that period, the transcript shall be treated only as

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actually designated.

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(c) for information produced in some form other than documentary and for any

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other tangible items, that the Producing Party affix in a prominent place on the exterior of the

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container or containers in which the information or item is stored the legend “CONFIDENTIAL”

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or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” If only a portion or portions

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of the information or item warrant protection, the Producing Party, to the extent practicable, shall

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identify the protected portion(s) and specify the level of protection being asserted.

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5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to

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designate qualified information or items does not, standing alone, waive the Designating Party’s

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right to secure protection under this Order for such material. Upon timely correction of a

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designation, the Receiving Party must make reasonable efforts to assure that the material is

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treated in accordance with the provisions of this Order.

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6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

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6.1

Timing of Challenges. Any Party or Non-Party may challenge a designation of

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confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality

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designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic

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burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to

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challenge a confidentiality designation by electing not to mount a challenge promptly after the

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original designation is disclosed.

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6.2

Meet and Confer. The Challenging Party shall initiate the dispute resolution

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process by providing written notice of each designation it is challenging and describing the basis

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for each challenge. To avoid ambiguity as to whether a challenge has been made, the written

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notice must recite that the challenge to confidentiality is being made in accordance with this

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specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge in

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good faith and must begin the process by conferring directly (in voice to voice dialogue; other

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forms of communication are not sufficient) within 14 days of the date of service of notice. In

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conferring, the Challenging Party must explain the basis for its belief that the confidentiality

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designation was not proper and must give the Designating Party an opportunity to review the

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designated material, to reconsider the circumstances, and, if no change in designation is offered,

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to explain the basis for the chosen designation. A Challenging Party may proceed to the next

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stage of the challenge process only if it has engaged in this meet and confer process first or

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establishes that the Designating Party is unwilling to participate in the meet and confer process in

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a timely manner.

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6.3

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Judicial Intervention. If the Parties cannot resolve a challenge without court

intervention, the Challenging Party shall file and serve a motion to challenge confidentiality
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within 21 days of the initial notice of challenge or within 14 days of the parties agreeing that the

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meet and confer process will not resolve their dispute, whichever is earlier. Each such motion

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must be accompanied by a competent declaration affirming that the movant has complied with the

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meet and confer requirements imposed in the preceding paragraph.

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The burden of persuasion in any such challenge proceeding shall be on the Designating

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Party. Frivolous challenges and those made for an improper purpose (e.g., to harass or impose

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unnecessary expenses and burdens on other parties) may expose the Challenging Party to

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sanctions. All parties shall continue to afford the material in question the level of protection to

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which it is entitled under the Designating Party’s designation until the court rules on the

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challenge.

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7.

ACCESS TO AND USE OF PROTECTED MATERIAL

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7.1

Basic Principles. A Receiving Party may use Protected Material that is disclosed

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or produced by another Party or by a Non-Party in connection with this case only for prosecuting,

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defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to

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the categories of persons and under the conditions described in this Order. When the litigation

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has been terminated, a Receiving Party must comply with the provisions of section 15 below

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(FINAL DISPOSITION).

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Protected Material must be stored and maintained by a Receiving Party at a location and

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in a secure manner that ensures that access is limited to the persons authorized under this Order.

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7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

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ordered by the court or permitted in writing by the Designating Party, a Receiving Party may

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disclose any information or item designated “CONFIDENTIAL” only to:

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(a) the Receiving Party’s Outside Counsel of Record in this action, including but

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not limited to employees, agents, contractors, vendors, paralegals, investigators, secretaries, and

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clerical personnel who are employed by and engaged in assisting such counsel in this proceeding

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and personnel of companies retained by such counsel to provide copying, document processing,

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e-discovery, and trial graphics services to whom it is reasonably necessary to disclose the

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information for this litigation and who have signed the “Acknowledgment and Agreement to Be

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Bound” that is attached hereto as Exhibit A;

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(b) the officers, directors, and employees (including House Counsel) of the

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Receiving Party to whom disclosure is reasonably necessary for this litigation and who have

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signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is

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reasonably necessary for this litigation and who have signed the “Acknowledgment and

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Agreement to Be Bound” (Exhibit A);

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(d) the court and its personnel;

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(e) court reporters and their staff, professional jury or trial consultants, and

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Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have

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signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(f) during their depositions, witnesses in the action to whom disclosure is

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reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound”

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(Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court. Pages of

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transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be

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separately bound by the court reporter and may not be disclosed to anyone except as permitted

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under this Protective Order.

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7.3

Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

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Information or Items. Unless otherwise ordered by the court or permitted in writing by the

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Designating Party, a Receiving Party may disclose any information or item designated “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to:

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(a) the Receiving Party’s Outside Counsel of Record in this action, , including but

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not limited to employees, agents, contractors, vendors, paralegals, investigators, secretaries, and

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clerical personnel who are employed by and engaged in assisting such counsel in this proceeding

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and personnel of companies retained by such counsel to provide copying, document processing,

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e-discovery, and trial graphics services to whom it is reasonably necessary to disclose the

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information for this litigation and who have signed the “Acknowledgment and Agreement to Be

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Bound” that is attached hereto as Exhibit A;

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(b) Designated House Counsel of the Receiving Party (1) who has no involvement

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in competitive decision-making, (2) to whom disclosure is reasonably necessary for this litigation,

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(3) who has signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), and (4) as to

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whom the procedures set forth in paragraph 7.4(a)(1), below, have been followed;

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(c) Experts of the Receiving Party (1) to whom disclosure is reasonably necessary

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for this litigation, (2) who have signed the “Acknowledgment and Agreement to Be Bound”

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(Exhibit A), and (3) as to whom the procedures set forth in paragraph 7.4(a)(2), below, have been

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followed;

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(d) the court and its personnel;

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(e) court reporters and their staff, professional jury or trial consultants, and

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Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have

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signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A).

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7.4

Procedures for Approving or Objecting to Disclosure of “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY Information or Items

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to Designated House Counsel or Experts.

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(a) Unless otherwise ordered by the court or agreed to in writing by the

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Designating Party, a Party that seeks to disclose to Designated House Counsel any information or

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item that has been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

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pursuant to paragraph 7.3(b) first must make a written request to the Designating Party that (1)

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sets forth the full name of the Designated House Counsel and the city and state of his or her

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residence, and (2) describes the Designated House Counsel’s current and reasonably foreseeable

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future primary job duties and responsibilities in sufficient detail to determine if House Counsel is

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involved, or may become involved, in any competitive decision-making.

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(b) A Party that makes a request and provides the information specified in the

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preceding respective paragraph may disclose the subject Protected Material to the identified

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Designated House Counsel or Expert unless, within 14 days of delivering the request, the Party
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receives a written objection from the Designating Party. Any such objection must set forth in

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detail the grounds on which it is based.

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(c) A Party that receives a timely written objection must meet and confer with the

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Designating Party (through direct voice to voice dialogue) to try to resolve the matter by

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agreement within seven days of the written objection. If no agreement is reached, the Party

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seeking to make the disclosure to Designated House Counsel or the Expert may file a motion

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seeking permission from the court to do so. Any such motion must describe the circumstances

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with specificity, set forth in detail the reasons why the disclosure to Designated House Counsel or

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the Expert is reasonably necessary, assess the risk of harm that the disclosure would entail, and

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suggest any additional means that could be used to reduce that risk. In addition, any such motion

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must be accompanied by a competent declaration describing the parties’ efforts to resolve the

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matter by agreement (i.e., the extent and the content of the meet and confer discussions) and

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setting forth the reasons advanced by the Designating Party for its refusal to approve the

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disclosure.

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In any such proceeding, the Party opposing disclosure to Designated House Counsel or the

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Expert shall bear the burden of proving that the risk of harm that the disclosure would entail

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(under the safeguards proposed) outweighs the Receiving Party’s need to disclose the Protected

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Material to its Designated House Counsel or Expert.

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8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
OTHER LITIGATION

If a Party is served with a subpoena or a court order issued in other litigation that compels

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disclosure of any information or items designated in this action as “CONFIDENTIAL” or

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” that Party must:

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(a) promptly notify in writing the Designating Party. Such notification shall
include a copy of the subpoena or court order;

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(b) promptly notify in writing the party who caused the subpoena or order to issue

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in the other litigation that some or all of the material covered by the subpoena or order is subject

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to this Protective Order. Such notification shall include a copy of this Protective Order; and
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(c) cooperate with respect to all reasonable procedures sought to be pursued by the
Designating Party whose Protected Material may be affected.

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If the Designating Party timely seeks a protective order, the Party served with the

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subpoena or court order shall not produce any information designated in this action as

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” before a

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determination by the court from which the subpoena or order issued, unless the Party has obtained

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the Designating Party’s permission. The Designating Party shall bear the burden and expense of

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seeking protection in that court of its confidential material.

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9.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED
IN THIS LITIGATION

(a)

The terms of this Order are applicable to information produced by a Non-Party in

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this action and designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY”. Such information produced by Non-Parties in connection with

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this litigation is protected by the remedies and relief provided by this Order.

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(b)

In the event that a Party is required, by a valid discovery request, to produce a

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Non-Party’s confidential information in its possession, and the Party is subject to an agreement

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with the Non-Party not to produce the Non-Party’s confidential information, then the Party shall:

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(1)

promptly notify in writing the Requesting Party and the Non-Party that

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some or all of the information requested is subject to a confidentiality agreement with a Non-

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Party;

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(2)

promptly provide the Non-Party with a copy of the Protective Order in this

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litigation, the relevant discovery request(s), and a reasonably specific description of the

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information requested; and

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(3)
(c)

make the information requested available for inspection by the Non-Party.

If the Non-Party fails to object or seek a protective order from this court within 14

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days of receiving the notice and accompanying information, the Receiving Party may produce the

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Non-Party’s confidential information responsive to the discovery request. If the Non-Party timely

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seeks a protective order, the Receiving Party shall not produce any information in its possession
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or control that is subject to the confidentiality agreement with the Non-Party before a

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determination by the court. Absent a court order to the contrary, the Non-Party shall bear the

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burden and expense of seeking protection in this court of its Protected Material.

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10.

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If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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Material to any person or in any circumstance not authorized under this Protective Order, the

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Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized

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disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected Material, (c)

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inform the person or persons to whom unauthorized disclosures were made of all the terms of this

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Order, and (d) request such person or persons to execute the “Acknowledgment and Agreement to

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Be Bound” that is attached hereto as Exhibit A.

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11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
PROTECTED MATERIAL

In accordance with Federal Evidence Rule 502(d), except when a Party intentionally and

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expressly waives attorney-client privilege or work product protection by disclosing information to

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an adverse Party as provided in Federal Evidence Rule 502(a), the production or disclosure of

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documents or other information subject to the attorney-client privilege, the work product doctrine,

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or other privilege or immunity shall not be deemed a waiver of a claim of privilege, either as to

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the specific information disclosed or as to any other related information. Further, the provisions

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of Federal Evidence Rule 502(b)(2) are inapplicable to the production of such information. If a

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Producing Party produces or otherwise discloses to a Receiving Party information that is subject

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to such privilege or immunity, the Producing Party shall promptly upon discovery of such

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disclosure so advise the Receiving Party in writing and request that the disclosed information be

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returned. The Receiving Party shall return all copies or extracts of the produced information

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within 5 business days of receipt of the request. Any notes or summaries referring or relating to

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any produced privileged material shall be destroyed. Nothing in this Order shall preclude the

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Receiving Party returning the produced material from contesting the claim of attorney-client

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privilege or work product protection and seeking an order compelling the production of
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information previously produced, but the Receiving Party shall not assert as a ground for

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compelling disclosure the fact or circumstances of the disclosure. This Order does not preclude a

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Party from intentionally and expressly waiving the attorney-client privilege or work product

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protection, and the provisions of Federal Evidence Rule 502(a) shall apply when the Producing

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Party uses or indicates that it may affirmatively use information produced under this Order to

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support a claim or defense in the case.

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12.

MISCELLANEOUS

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12.1

Right to Further Relief. Nothing in this Order abridges the right of any person to

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seek its modification by the court in the future.
12.2

Right to Assert Other Objections. No Party waives any right it otherwise would

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have to object to disclosing or producing any information or item on any ground not addressed in

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this Protective Order. Similarly, no Party waives any right to object on any ground to use in

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evidence of any of the material covered by this Protective Order.

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12.3

Filing Protected Material. Without written permission from the Designating Party

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or a court order secured after appropriate notice to all interested persons, a Party may not file in

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the public record in this action any Protected Material. A Party that seeks to file under seal any

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Protected Material must comply with Civil Local Rule 141.

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13.

SEALING OF DOCUMENTS

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13.1.

Requests to seal documents shall be made by motion before the same judge who

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will decide the matter related to that request to seal.
13.2.

The designation of documents (including transcripts of testimony) as confidential

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pursuant to this order does not automatically entitle the parties to file such a document with the

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court under seal. Parties are advised that any request to seal documents in this district is governed

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by Local Rule 141. In brief, Easter District of California Local Rule (“LR”) 141 provides that

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documents may only be sealed by a written order of the court after a specific request to seal has

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been made. LR. 141(a). However, a mere request to seal is not enough under the local rules. In

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particular, LR 141(b) requires that “[t]he ‘Request to Seal Documents’ shall set forth the statutory

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or other authority for sealing, the requested duration, the identity, by name or category, of persons
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to be permitted access to the document, and all relevant information.” LR. 141(b) (emphasis

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added).

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13.3

A request to seal material must normally meet the high threshold of showing that

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“compelling reasons” support secrecy; however, where the material is, at most, “tangentially

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related” to the merits of a case, the request to seal may be granted on a showing of “good cause.”

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Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1096-1102 (9th Cir. 2016), petition

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for cert. filed, ___ U.S.L.W. ___ (U.S. March 24, 2016) (No. 15-1211); Kamakana v. City and

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County of Honolulu, 447 F.3d 1172, 1178-80 (9th Cir. 2006).

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13.4

Nothing in this order shall limit the testimony of parties or non-parties, or the use

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of certain documents, at any court hearing or trial – such determinations will only be made by the

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court at the hearing or trial, or upon appropriate motion.

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14.

POST-ISSUANCE HANDLING

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14.1

With respect to motions regarding any disputes concerning this protective order

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which the parties cannot informally resolve, the parties shall follow the procedures outlined in

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LRule 251. Absent a showing of good cause, the court will not hear discovery disputes on an ex

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parte basis or on shortened time.

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14.2

The parties may not modify the terms of this Protective Order without the court’s

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approval. If the parties agree to a potential modification, they shall submit a stipulation and

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proposed order for the court’s consideration.

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14.3.

Pursuant to LR 141.1(f), the court will not retain jurisdiction over enforcement of

the terms of this Protective Order after the action is terminated.

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15.

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Within 60 days after the final disposition of this action, as defined in Section 4, each

FINAL DISPOSITION

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Receiving Party must return all Protected Material to the Producing Party or destroy such

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material. As used in this subdivision, “all Protected Material” includes all copies, abstracts,

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compilations, summaries, and any other format reproducing or capturing any of the Protected

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Material. Whether the Protected Material is returned or destroyed, the Receiving Party must

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submit a written certification to the Producing Party (and, if not the same person or entity, to the
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Designating Party) by the 60-day deadline that (1) identifies (by category, where appropriate) all

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the Protected Material that was returned or destroyed and (2) affirms that the Receiving Party has

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not retained any copies, abstracts, compilations, summaries or any other format reproducing or

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capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled to

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retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts,

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legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work

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product, and consultant and expert work product, even if such materials contain Protected

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Material. Any such archival copies that contain or constitute Protected Material remain subject to

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this Protective Order as set forth in Section 4 (DURATION).

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IT IS SO ORDERED.
DATED: August 23, 2016

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