Rillito River Solar LLC v. Bamboo Industries, LLC

Filing 17

PROTECTIVE ORDER signed by Magistrate Judge Carolyn K. Delaney on 7/28/2017 ORDERING that the stipulated protective order is APPROVED. (Reader, L)

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Kercsmar & Feltus PLLC
7150 East Camelback Road, Suite 285
Scottsdale, Arizona 85251
[phone]

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Eric B. Hull (#291167)
KERCSMAR & FELTUS PLLC
SeaRise Building
233 Wilshire Boulevard
Fourth Floor
Santa Monica, California 90401
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Gregory B. Collins (admitted pro hac vice)
Sean J. O’Hara (admitted pro hac vice)
KERCSMAR & FELTUS PLLC
7150 East Camelback Road, Suite 285
Scottsdale, Arizona 85251
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiff

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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Rillito River Solar LLC dba EcoFasten Solar, Case No. 2:17-cv-00181-TLN-CKD
an Arizona limited liability company,
Plaintiff,

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STIPULATED PROTECTIVE ORDER

v.
Bamboo Industries LLC dba SolarHooks, a
Delaware limited liability company,
Defendant.

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Subject to the approval of the Court, Plaintiff Rillito River Solar LLC, doing

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business as EcoFasten Solar, and Defendant Bamboo Industries LLC, doing business as

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STIPULATED PROTECTIVE ORDER

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SolarHooks, by and through their undersigned counsel, do hereby agree and stipulate to

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the entry by the Court of a protective order as follows:

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1.

In connection with discovery proceedings in this action, the parties

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hereby designate documents as “CONFIDENTIAL” or “ATTORNEYS’ EYES

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ONLY” under the terms of this Stipulation for Protective Order. The documents

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protected under this Order have not been made public and the disclosure of said

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documents would have the effect of causing harm.

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2.

The documents eligible for protection under this order specifically

include:
a. Contracts and evidence of actual and prospective dealings with third

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Kercsmar & Feltus PLLC
7150 East Camelback Road, Suite 285
Scottsdale, Arizona 85251
[phone]

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parties, which if disclosed to competitors (including the opposing

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party), customers, or vendors, would cause the parties competitive and

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business harms and would violate the third parties’ right to privacy;

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b. Financial information of the parties, which if disclosed to competitors

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(including the opposing party), customers, or vendors, would cause the

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parties competitive and business harms and is subject to a right of

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privacy;
c. Trade

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secret

and

proprietary

information

including

product

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development activities, which if disclosed to competitors (including

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the opposing party), customers, or vendors, would cause the parties

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competitive and business harms

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3.

Pursuant to this Order, any person or entity, whether or not a party to

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this action, may designate as “CONFIDENTIAL” or “ATTORNEYS’ EYES

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ONLY” any material that any person or entity produces in this action. All such

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designated material, all copies, excerpts and summaries thereof, and all information

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contained therein or derived therefrom shall hereinafter be referred to as

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“Confidential

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“ATTORNEYS’ EYES ONLY” shall be made in good faith.

Material.”

All

designations

of

“CONFIDENTIAL”

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STIPULATED PROTECTIVE ORDER

or

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4.

The receipt of documents or information designated as Confidential

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Material is not a concession, admission, or representation by the receiving party that

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such material, or any information contained therein, is in fact a trade secret or

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confidential information under applicable law. Furthermore, the designation of

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Confidential Material may not be used against any party in any proceeding and is

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made solely for the purposes of maintaining the confidentiality of such material, to

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the extent necessary for purposes of this litigation. A party shall not be deemed to

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have waived any privilege provided by law (including but not limited to a trade-

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secret privilege) by entering into this Order or marking information as Confidential

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Kercsmar & Feltus PLLC
7150 East Camelback Road, Suite 285
Scottsdale, Arizona 85251
[phone]

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Material under this Order.
5.

Any designation of Confidential Material pursuant to this Order shall

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be accomplished by employing the legend “CONFIDENTIAL” or “ATTORNEYS’

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EYES ONLY” as follows:

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a. in the case of documents, the legend shall be placed on or attached

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to each page of the document prior to its production in a manner not to

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interfere with the legibility of any information thereon (or in the case of

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materials produced in this matter before the effective date of this Order,

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within five (5) business days of the Court’s entry of this Order);

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b. in the case of electronically stored information, the legend shall be

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placed on each page of the document in a manner not to interfere with the

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legibility of any information thereon, provided, however, that documents

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produced in native format may be appropriately designated in the data upon

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production;
c. in the case of things, the legend shall be placed on or attached to the

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things;

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d. in the case of information incorporated in answers to

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interrogatories, the legend shall be placed on the designated pages of the

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interrogatory answers; and
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STIPULATED PROTECTIVE ORDER

e. in the case of depositions, designations of the portions of the

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deposition transcript (including exhibits) shall be made as follows:
i. by a statement to such effect on the record during the

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deposition;

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ii. for depositions that are not taken on an expedited basis

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and/or in advance of a preliminary injunction hearing, by the

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designating party in writing within twenty-one (21) calendar days of

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the receipt of the deposition transcript by notifying all parties to the

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matter in writing (including specific page and line numbers to be
designated); or

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Kercsmar & Feltus PLLC
7150 East Camelback Road, Suite 285
Scottsdale, Arizona 85251
[phone]

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iii. for depositions taken by the parties on an expedited basis in

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advance of a preliminary injunction hearing, by the designating party

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in writing within three (3) calendar days of the receipt of the

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deposition transcript by notifying all parties to the matter in writing

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(including specific page and line numbers to be designated).

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As to any portions of the deposition transcript and exhibits designated as

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prescribed in subsections (d)(ii) or (iii), the designating party shall list on a separate

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piece of paper the specific page and line number of the transcript containing

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Confidential

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“CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” and shall furnish a copy of

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the list to the non-designating party.

Material

and

whether

such

portions

are

designated

as

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The parties shall direct the reporter attending each deposition to place the

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following legend in bold type on the covers of all deposition transcripts: NOTICE:

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This deposition is subject to a Stipulated Protective Order and may contain

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CONFIDENTIAL or ATTORNEYS’ EYES ONLY testimony and/or exhibits.

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Whenever Confidential Material (whether designated “CONFIDENTIAL” or

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“ATTORNEYS’ EYES ONLY”) is to be discussed or disclosed in a deposition, the

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designating party for such Confidential Material shall have the right to require the
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STIPULATED PROTECTIVE ORDER

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exclusion from the room of any person who is not entitled to access to such

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Confidential Material. Any party’s introduction or other use of Confidential

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Material in a deposition shall not be deemed to waive the continued designation and

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treatment of such Confidential Material as “CONFIDENTIAL” or “ATTORNEYS’

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EYES ONLY.”

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6.

All properly designated portions of deposition transcripts (including

exhibits) shall be treated as “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY,”

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and access to any portion thereof shall be limited to those persons set forth in

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section 8 below until the expiration of the period for “CONFIDENTIAL” or

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“ATTORNEYS’ EYES ONLY” designations to be made as prescribed in sections

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Kercsmar & Feltus PLLC
7150 East Camelback Road, Suite 285
Scottsdale, Arizona 85251
[phone]

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5(d)(ii) or (iii). Except as otherwise provided in this Order, all Confidential Material

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and all copies, excerpts and summaries thereof and all material containing

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information derived therefrom, shall be used solely for purposes of this litigation

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and shall not be used for any other purposes including, without limitation, any

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business, commercial or competitive purpose. All documents or materials marked

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under this Order shall be carefully maintained in secure facilities and access to such

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information, document, thing, or material shall be permitted only to persons

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properly having access thereto under the terms of this Order. The file rooms and

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electronic databases secured by appropriate passwords used by counsel in the

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ordinary course of business are considered to be “secure facilities” under this

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provision.

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7.

Confidential Material designated as “CONFIDENTIAL” may be

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disclosed, summarized, described, revealed or otherwise made available, in whole or

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in part, only in accordance with the terms of this Order and only to the following

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persons:

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a. representatives of the parties directly involved in the prosecution or

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defense of this action, including managers, directors, officers, and employees

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STIPULATED PROTECTIVE ORDER

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of the parties, but solely for the purpose of assisting counsel in the conduct of

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this litigation;

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b. counsel for the parties in this action, whether outside or in-house,

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and regular and temporary employees of such counsel to the extent necessary

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to assist counsel in the conduct of this litigation;

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c. any consultant or expert (including both testifying experts and

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consulting experts) retained or consulted by any party for the purpose of

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testifying or rendering assistance or providing opinions in this action

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including, but not limited to, independent experts and consultants, but only to

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the extent necessary to assist counsel in the conduct of this litigation;

Kercsmar & Feltus PLLC
7150 East Camelback Road, Suite 285
Scottsdale, Arizona 85251
[phone]

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d. any former employee of a party or any other person who is

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participating in the litigation as a deponent, witness or potential witness,

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where it appears on the face of the Confidential Material or from other

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documents or testimony that the witness had lawfully generated or received

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the Confidential Material prior to and apart from this litigation;

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e. the Court and its employees;

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f. any mediator engaged in this matter;

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g. court reporters and videographers; and

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h. vendors involved in copying, organizing, converting, storing, or

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retrieving Confidential Material.

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8.

Confidential Material designated as “ATTORNEYS’ EYES ONLY”

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shall be limited to the parties’ information that they allege to be trade secret,

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confidential, or business information, or other information protected by a legal

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privilege (but all parties reserve the right to seek production of this information as

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merely confidential or public in this lawsuit). Confidential Material designated as

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“ATTORNEYS’ EYES ONLY” may be disclosed, summarized, described, revealed

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or otherwise made available, in whole or in part, only in accordance with the terms

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of this Order and only to individuals described in sections 7(b) through (h).
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STIPULATED PROTECTIVE ORDER

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9.

The parties shall in good faith avoid filing Confidential Material with

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the Court to the extent possible. However, if a party reasonably determines that it is

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necessary to file or seek admission of Confidential Material with the Court, or is

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required to file or seek admission of any Confidential Material in any pleading,

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chart, brief, affidavit, motion, exhibit, transcript or other document containing such

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Confidential Material, the party shall do so in compliance with the Court’s rules for

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filing documents under seal. Rule 141 sets forth the procedures that must be

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followed and reflects the standards that will be applied when a Party seeks

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permission from the court to file material under seal. This Order does not authorize

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Kercsmar & Feltus PLLC
7150 East Camelback Road, Suite 285
Scottsdale, Arizona 85251
[phone]

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the filing of any document under seal.
10.

This Order has no effect upon, and shall not apply to (i) any producing

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party’s use of its own Confidential Material for any purpose or (ii) any person’s use

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of documents or other information properly obtained or developed independently of

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discovery in this action.

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A non-party witness (including retained or consulted with experts)

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shall not be given access to Confidential Material unless and until such person

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agrees in writing, in the form attached hereto as Exhibit “A,” that he/she is aware of

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the existence of contents of this Order and that he/she agrees to be bound by its

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terms. Counsel for the party giving such person access to the Confidential Material

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shall be responsible for securing such a writing and shall be the custodian of the

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writing.

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12.

If the non-designating party objects to the designation of a document

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or information as Confidential Material, the non-designating party shall serve a

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written objection on the designating party. The designating party may apply to the

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Court for protection within fourteen (14) calendar days of receiving such objection.

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The burden rests upon the designating party to demonstrate that the designation is

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proper. Until the Court enters an order changing the document’s designation,

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however, the document shall be treated as Confidential Material as provided in this
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STIPULATED PROTECTIVE ORDER

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Order. None of the parties to this action is obliged to challenge the designation of

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any Confidential Material at the time of receipt, disclosure, or designation thereof,

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and a failure to do so shall not preclude a subsequent challenge and shall not

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constitute a concession, admission, or representation that such material, or any

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information contained therein, is in fact a trade secret or confidential information

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under applicable law.

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13.

Inadvertent failure to designate any material that a producing party

claims should be Confidential Material will not be deemed as a waiver of the right

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to make that designation. The party to whom such inadvertent disclosure is made

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shall, upon written request by the producing party, thereafter treat such material as

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Kercsmar & Feltus PLLC
7150 East Camelback Road, Suite 285
Scottsdale, Arizona 85251
[phone]

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Confidential Material in accordance with this Order. Upon receipt of such written

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notice, the party who received the previously undesignated Confidential Material

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shall make reasonable efforts to prevent further use or disclosure of the information

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contained in the previously undesignated Confidential Material by persons other

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than those authorized in accordance with sections 7 and 8 hereof for access to such

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information.

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14.

In the event of inadvertent disclosure of any Confidential Material to a

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person not authorized for access to such material in accordance with section 7 or 8

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of this Order, the party responsible for having made, and any party with knowledge

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of, such disclosure shall immediately inform counsel for the party whose

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Confidential Material has been disclosed of all known relevant information

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concerning the nature and circumstances of the disclosure. The responsible party

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also shall promptly take all reasonable measures to: (i) ensure that no further or

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greater unauthorized disclosure or use of such information or materials is made; and

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(ii) retrieve the material from the person or persons not authorized to receive such

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material and inform that person of this Order. Each party shall cooperate in good

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faith in that effort. Nothing shall prevent disclosure beyond the terms of this Order if

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the party designating the Confidential Material expressly consents to such disclosure
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STIPULATED PROTECTIVE ORDER

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in a particular instance, either in writing or on the record of any proceeding in this

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action, or if the Court, following notice to all parties, orders such disclosure.

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Nothing in this Order shall prohibit counsel for a party from disclosing

Confidential Material to any person who was an author, addressee, or carbon copy

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recipient of such document. Regardless of any designation under this Protective

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Order, if a document or testimony makes reference to the actual or alleged conduct

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or statements of a person who is a potential witness, counsel may discuss such

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conduct or statements with such witness without revealing any portion of the

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document or testimony other than that which specifically refers to such conduct or

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statement, and such discussion shall not constitute disclosure in violation of this

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Kercsmar & Feltus PLLC
7150 East Camelback Road, Suite 285
Scottsdale, Arizona 85251
[phone]

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Protective Order.

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16.

On good cause shown, the Court may amend or modify any of the

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tenets of this Order so as to further the ends of justice or to resolve any problems

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which may arise stemming from or relating to this Order. The parties by stipulation

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may provide for exceptions to this Order. The existence of this Order shall not be

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used as a basis to compel the disclosure of information. Nor shall the existence of

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this Order be used as a basis to prevent another party from seeking greater

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protection than the protection provided by this Order.

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17.

The provisions of this Order shall continue to be binding throughout

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and after the conclusion of this action and shall not terminate at the conclusion of

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this action.

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18.

Within thirty (30) calendar days after receiving notice of the final

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disposition of this action, all parties and persons bound by this Order shall either (a)

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return all Confidential Material designated as “ATTORNEYS’ EYES ONLY” or

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“CONFIDENTIAL,” including all copies thereof and information stored in

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computers and on computer disks and tapes, computer extracts, computer entries,

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notes, memoranda, and other papers containing information therefrom, upon written

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request by the producing party; or (b) certify that all Confidential Material
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STIPULATED PROTECTIVE ORDER

designated as “ATTORNEYS’ EYES ONLY” or “CONFIDENTIAL” in their

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possession has been destroyed. However, outside counsel for the parties shall be

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entitled to retain their respective litigation files, including all court papers,

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deposition transcripts, trial transcripts, exhibits used in affidavits, exhibits used at

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depositions, exhibits used at trial, and all attorney work product containing, quoting,

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discussing or analyzing Confidential Material designated as “CONFIDENTIAL” or

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“ATTORNEYS’ EYES ONLY”, provided that such counsel, and the employees of

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such counsel, shall not disclose such transcripts, exhibits or attorney work product

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to any person except as provided in this Order. The Confidential Material designated

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as “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” kept by counsel pursuant

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Kercsmar & Feltus PLLC
7150 East Camelback Road, Suite 285
Scottsdale, Arizona 85251
[phone]

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to this section shall be maintained in accordance with the terms of this Order. “Final

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disposition of this action,” as used above, means after all appeal periods have

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expired or after the execution of a settlement agreement among the parties and the

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filing of pleadings necessary to finally dispose of all claims in this action.
19.

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With regard to Confidential Material filed with the Court pursuant to

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the terms of this Order, such material shall be disposed of in conformance with the

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Court rules.
20.

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Should any person who received Confidential Material subject to this

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Protective Order receive any request for such information, whether through formal

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compulsory process or lawful authority of this Court or any other Court or duly

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empowered authority or tribunal, prior to responding thereto, such person shall

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promptly serve written notice of the receipt of such request on counsel for all parties

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hereto in order to allow such parties to move an appropriate court, authority, or

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tribunal for a ruling regarding the necessity of compliance therewith. Absent a

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ruling from the appropriate court, authority, or tribunal on said motion, the person or

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party receiving the request shall not disclose Confidential Material in response

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thereto and shall thereafter do so only insofar as the court, authority, or tribunal may

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direct.
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STIPULATED PROTECTIVE ORDER

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21.

The provisions of this Order shall be deemed binding on the parties

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upon their execution of the stipulation for this Order’s entry to facilitate the

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exchange of Confidential Material before this Order has been signed and entered.

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22.

Any party may apply to the Court for additional protection in respect

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of Confidential Material beyond that provided for herein. Entry of this Protective

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Order is without prejudice to the right of the parties to apply for future

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modifications of this Protective Order.
EXHIBIT A

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ACKNOWLEDGMENT OF CONFIDENTIALITY DESIGNATIONS AND
AGREEMENT TO BE BOUND BY TERMS OF COURT ORDER

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Kercsmar & Feltus PLLC
7150 East Camelback Road, Suite 285
Scottsdale, Arizona 85251
[phone]

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I, __________________, hereby acknowledge that I may receive confidential

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information in connection with the following case:

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Rillito River Solar LLC v. Bamboo Industries LLC, Case No. 2:17-cv-00181-

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TLN-CKD, currently pending in the United States District Court for the Eastern

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District of California.

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I hereby certify my understanding that if I receive designated confidential

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information it is being provided to me pursuant to the terms and restrictions of the

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Protective Order entered on _______________, ____, in this case. I further certify

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that I have been given a copy of and have read the terms of that Protective Order,

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that I agree to be bound by its terms, and that I submit to the jurisdiction of the

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Court for purposes of enforcing that Protective Order.

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Dated this _____ day of _______________, _______.

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___________________________________

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Signature

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____________________________________

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Printed Name

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STIPULATED PROTECTIVE ORDER

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SO STIPULATED this 27th day of July, 2017.

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KERCSMAR & FELTUS PLLC

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By: /s/ Sean J. O’Hara
Gregory B. Collins
Sean J. O’Hara
7150 East Camelback Road, Suite 285
Scottsdale, Arizona 85251
Attorneys for Plaintiff

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LEE & HAYES PLLC

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By: /s/Andrew Strickland (as authorized on 7/27/17)
Andrew G. Strickland
William B. Dyer III
1175 Peachtree Street NE
100 Colony Square, Georgia 30361
Attorneys for Defendant

Kercsmar & Feltus PLLC
7150 East Camelback Road, Suite 285
Scottsdale, Arizona 85251
[phone]

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ORDER

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IT IS SO ORDERED:

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Dated: July 28, 2017

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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STIPULATED PROTECTIVE ORDER