Tucker Durnford v. MusclePharm Corp.

Filing 13

ORDER by Judge Haywood S. Gilliam, Jr. Granting 12 Stipulated Protective Order. (ndrS, COURT STAFF) (Filed on 3/31/2015)

1 MICHAEL F. RAM [SBN 104805]
[e-mail]

2 RAM, OLSON, CEREGHINO & KOPCZYNSKI LLP
555 Montgomery Street, Suite 820

3 San Francisco, CA 94111

Telephone: [phone]

4 Facsimile: [phone]
5 Attorneys for Plaintiff
6

TUCKER DURNFORD

7 ALAN J. DROSTE [SBN 105616]
[e-mail]

8 KING PARRET & DROSTE LLP
450 Newport Center Drive, Suite 500

9 Newport Beach, CA 92660

Telephone: [phone]

10 Facsimile: [phone]
11 Attorneys for Defendant
12

MUSCLEPHARM CORPORATION

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14

UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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SAN FRANCISCO

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18
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TUCKER DURNFORD, on behalf of
himself and all others similarly situated,

Honorable Haywood S. Gilliam, Jr.
Plaintiff,

20

v.

21
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Case No. 3:15-cv-00413-HSG

MUSCLEPHARM CORPORATION,

STIPULATED PROTECTIVE ORDER FOR
LITIGATION INVOLVING PATENTS,
HIGHLY SENSITIVE CONFIDENTIAL
INFORMATION AND/OR TRADE SECRETS

Defendant.

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1.

PURPOSES AND LIMITATIONS

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Disclosure and discovery activity in this action are likely to involve production of

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confidential, proprietary, or private information for which special protection from public

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disclosure and from use for any purpose other than prosecuting or defending this litigation may be

28

warranted. Accordingly, the parties hereby stipulate to and petition the court to enter the
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STIPULATED PROTECTIVE ORDER

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following Stipulated Protective Order. The parties acknowledge that this Order does not confer

2

blanket protections on all disclosures or responses to discovery and that the protection it affords

3

from public disclosure and use extends only to the limited information or items that are entitled to

4

confidential treatment under the applicable legal principles. The parties further acknowledge, as

5

set forth in Section 12, below, that this Stipulated Protective Order does not entitle them to file

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confidential information under seal; Civil Local Rule 79-5 sets forth the procedures that must be

7

followed and the standards that will be applied when a party seeks permission from the court to

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file material under seal.

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2.
2.1

DEFINITIONS

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

information or items under this Order.
2.2

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

13

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

14

of Civil Procedure 26(c).

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2.3

Counsel: Outside Counsel of Record and In-House Counsel (as well as their

respective support staff).
2.4

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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2.5

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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2.6

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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STIPULATED PROTECTIVE ORDER

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2.7

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or

2

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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2.8

In-House Counsel: attorneys (as well as support staff) who are employees of a

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party to this action. In-House Counsel does not include Outside Counsel of Record or any other

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outside counsel.

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2.9

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

entity not named as a Party to this action.
2.10

Outside Counsel of Record: attorneys (as well as support staff) who are not

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employees of a party to this action but are retained to represent or advise a party to this action and

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have appeared in this action on behalf of that party or are affiliated with a law firm which has

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appeared on behalf of that party.

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2.11

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

consultants, retained experts, and Outside Counsel of Record.
2.12

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

Material in this action.
2.13

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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2.14

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

“CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”
2.15

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

Producing Party.

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3.

SCOPE

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The protections conferred by this Stipulation and Order cover not only Protected Material

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(as defined above), but also (1) any information copied or extracted from Protected Material; (2)
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STIPULATED PROTECTIVE ORDER

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

2

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

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However, the protections conferred by this Stipulation and 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 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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4.

DURATION

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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.

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5.
5.1

DESIGNATING PROTECTED MATERIAL

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

26

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

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Mass, indiscriminate, or routinized designations are prohibited. Designations that are

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shown to be clearly unjustified or that have been made for an improper purpose (e.g., to
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STIPULATED PROTECTIVE ORDER

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unnecessarily encumber or retard the case development process or to impose unnecessary

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expenses and burdens on other parties) expose the Designating Party to sanctions.

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If it comes to a Designating Party’s attention that information or items that it designated

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for protection do not qualify for protection at all or do not qualify for the level of protection

5

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:

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(a) for information in documentary form (e.g., paper or electronic documents, but

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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 that contains protected material. If only a portion or portions of the

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material on a page qualifies for protection, the Producing Party also must clearly identify the

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protected portion(s) (e.g., by making appropriate markings in the margins) and must specify, for

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each portion, the level of protection being asserted.

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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 that contains Protected

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Material. If only a portion or portions of the material on a page qualifies for protection, the
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Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate

2

markings in the margins) and must specify, for each portion, the level of protection being

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asserted.

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

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

6

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 Stipulated Protective Order. Alternatively, a Designating Party may

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specify, at the deposition or up to 21 days afterwards if that period is properly invoked, that the

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entire transcript shall be treated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY.”

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

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hearing or other proceeding to include Protected Material so that the other parties can

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ensure that only authorized individuals who have signed the “Acknowledgment and

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Agreement to Be Bound” (Exhibit A) are present at those proceedings. The use of a

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document as an exhibit at a deposition shall not in any way affect its designation as

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

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

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page that the transcript contains Protected Material, and the title page shall be followed by

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a list of all pages (including line numbers as appropriate) that have been designated as

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Protected Material and the level of protection being asserted by the Designating Party. The

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Designating Party shall inform the court reporter of these requirements. Any transcript

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that is prepared before the expiration of a 21-day period for designation shall be treated
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STIPULATED PROTECTIVE ORDER

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during that period as if it had been designated “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY” in its entirety unless otherwise agreed. After the expiration

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of that period, the transcript shall be treated only as actually designated.

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

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

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

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

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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.
6.1

CHALLENGING CONFIDENTIALITY DESIGNATIONS

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

19

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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STIPULATED PROTECTIVE ORDER

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

2

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,

4

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

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

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intervention, the Designating Party shall file and serve a motion to retain confidentiality under

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Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) within 21 days

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of the initial notice of challenge or within 14 days of the parties agreeing that the meet and confer

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process will not resolve their dispute, whichever is earlier.

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

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and confer requirements imposed in the preceding paragraph. Failure by the Designating Party to

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make such a motion including the required declaration within 21 days (or 14 days, if applicable)

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shall automatically waive the confidentiality designation for each challenged designation. In

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addition, the Challenging Party may file a motion challenging a confidentiality designation at any

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time if there is good cause for doing so, including a challenge to the designation of a deposition

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transcript or any portions thereof. Any motion brought pursuant to this provision must be

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

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and confer requirements imposed by the preceding paragraph.

Each such motion must be

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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. Unless the Designating Party has waived the confidentiality designation by failing to

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file a motion to retain confidentiality as described above, all parties shall continue to afford the

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material in question the level of protection to which it is entitled under the Producing Party’s

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designation until the court rules on the challenge.
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STIPULATED PROTECTIVE ORDER

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7.
7.1

ACCESS TO AND USE OF PROTECTED MATERIAL

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

3

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

4

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

5

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

6

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

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DISPOSITION).

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Protected Material must be stored and maintained by a Receiving Party at a location and
in a secure manner that ensures that access is limited to the persons authorized under this Order.
7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered

11

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

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information or item designated “CONFIDENTIAL” only to:

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(a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees

14

of said Outside Counsel of Record to whom it is reasonably necessary to disclose the information

15

for this litigation and who have signed the “Acknowledgment and Agreement to Be Bound” that

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is attached hereto as Exhibit A;

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

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

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“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 Professional

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

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

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

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necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A),
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STIPULATED PROTECTIVE ORDER

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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

3

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

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under this Stipulated Protective Order.

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(g) the author or recipient of a document containing the information or a custodian or
other person who otherwise possessed or knew the information.
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, as well as employees

12

of said Outside Counsel of Record to whom it is reasonably necessary to disclose the information

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for this litigation and who have signed the “Acknowledgment and Agreement to Be Bound” that

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is attached hereto as Exhibit A;

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(b) Experts of the Receiving Party (1) to whom disclosure is reasonably necessary for this

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

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

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(c) the court and its personnel;

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

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

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

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(e) the author or recipient of a document containing the information or a custodian or
other person who otherwise possessed or knew the information.
7.4

Procedures

for

Approving

or

Objecting

to

Disclosure

of

“HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items to Designated In-House

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Counsel or Experts.

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(a)(1) Unless otherwise ordered by the court or agreed to in writing by the Designating

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Party, a Party that seeks to disclose to Designated In-House Counsel any information or item that
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has been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” pursuant to

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paragraph 7.3(b) first identify the In-House Counsel to the Designating Party that (1) sets forth

3

the full name of the Designated In-House Counsel and the city and state of his or her residence,

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and (2) describes the Designated In-House Counsel’s current and reasonably foreseeable future

5

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

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

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(a)(2) Unless otherwise ordered by the court or agreed to in writing by the Designating

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Party, a Party that seeks to disclose to an Expert (as defined in this Order) any information or item

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

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

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the general categories of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

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information that the Receiving Party seeks permission to disclose to the Expert, (2) sets forth the

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full name of the Expert and the city and state of his or her primary residence, (3) attaches a copy

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of the Expert’s current resume, (4) identifies the Expert’s current employer(s), (5) identifies each

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person or entity from whom the Expert has received compensation or funding for work in his or

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her areas of expertise or to whom the expert has provided professional services, including in

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connection with a litigation, at any time during the preceding five years, and (6) identifies (by

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name and number of the case, filing date, and location of court) any litigation in connection with

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which the Expert has offered expert testimony, including through a declaration, report, or

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testimony at a deposition or trial, during the preceding five years.

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

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respective paragraphs may disclose the subject Protected Material to the identified Designated In-

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House Counsel or Expert unless, within 14 days of delivering the request, the Party receives a

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written objection from the Designating Party. Any such objection must set forth in detail the

25

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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STIPULATED PROTECTIVE ORDER

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

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as provided in Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable)

3

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

4

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

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or 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

9

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 In-House Counsel or

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

13

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

14

Material to its Designated In-House Counsel or Expert.

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8.

PROTECTED MATERIAL SUBPOENAED

16

OR ORDERED PRODUCED IN OTHER LITIGATION

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

18

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

19

“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 in the

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

24

Protective Order. Such notification shall include a copy of this Stipulated 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.

27

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

28

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

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

2

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

3

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

4

seeking protection in that court of its confidential material – and nothing in these provisions

5

should be construed as authorizing or encouraging a Receiving Party in this action to disobey a

6

lawful directive from another court.

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9.

8

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

9

(a)

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

10

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

11

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

12

this litigation is protected by the remedies and relief provided by this Order. Nothing in these

13

provisions should be construed as prohibiting a Non-Party from seeking additional protections.

14

(b)

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

15

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

16

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

17

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

18

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

19

Party;

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2. promptly provide the Non-Party with a copy of the Stipulated Protective

21

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

22

the information requested; and

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3. make the information requested available for inspection by the Non-Party.
(c)

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

25

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

26

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

27

seeks a protective order, the Receiving Party shall not produce any information in its possession

28

or control that is subject to the confidentiality agreement with the Non-Party before a
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STIPULATED PROTECTIVE ORDER

1

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

2

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

3

10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

4

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

5

Protected Material to any person or in any circumstance not authorized under this Stipulated

6

Protective Order, the Receiving Party must immediately (a) notify in writing the Designating

7

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

8

the Protected Material, (c) inform the person or persons to whom unauthorized disclosures were

9

made of all the terms of this Order, and (d) request such person or persons to execute the

10

“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A.

11

11.

INADVERTENT PRODUCTION OF PRIVILEGED

12

OR OTHERWISE PROTECTED MATERIAL

13

When a Producing Party gives notice to Receiving Parties that certain inadvertently

14

produced material is subject to a claim of privilege or other protection, the obligations of the

15

Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This

16

provision is not intended to modify whatever procedure may be established in an e-discovery

17

order that provides for production without prior privilege review. Pursuant to Federal Rule of

18

Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a

19

communication or information covered by the attorney-client privilege or work product

20

protection, the parties may incorporate their agreement in the stipulated protective order

21

submitted to the court.

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23
24
25

12.
12.1

MISCELLANEOUS

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

seek its modification by the court in the future.
12.2

Right to Assert Other Objections. By stipulating to the entry of this Protective

26

Order no Party waives any right it otherwise would have to object to disclosing or producing any

27

information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no

28
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STIPULATED PROTECTIVE ORDER

1

Party waives any right to object on any ground to use in evidence of any of the material covered

2

by this Protective Order.

3

12.3

Filing Protected Material. Without written permission from the Designating Party

4

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

5

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

6

Protected Material must comply with Civil Local Rule 79-5. Protected Material may only be filed

7

under seal pursuant to a court order authorizing the sealing of the specific Protected Material at

8

issue. Pursuant to Civil Local Rule 79-5, a sealing order will issue only upon a request

9

establishing that the Protected Material at issue is privileged, protectable as a trade secret, or

10

otherwise entitled to protection under the law. If a Receiving Party's request to file Protected

11

Material under seal pursuant to Civil Local Rule 79-5(e) is denied by the court, then the

12

Receiving Party may file the Protected Material in the public record pursuant to Civil Local Rule

13

79-5(e)(2) unless otherwise instructed by the court.

14

13.

FINAL DISPOSITION

15

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

16

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

17

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

18

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

19

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

20

submit a written certification to the Producing Party (and, if not the same person or entity, to the

21

Designating Party) by the 60-day deadline that (1) identifies (by category, where appropriate) all

22

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

23

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

24

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

25

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

26

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

27

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

28
3:14-cv-00413-HSG

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STIPULATED PROTECTIVE ORDER

1

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

2

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

3

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

4 Dated: March 31, 2015
5

Respectfully Submitted,
/S/ Michael F. Ram
MICHAEL F. RAM [SBN 104805]
[e-mail]
RAM, OLSON, CEREGHINO &
KOPCZYNSKI LLP
555 Montgomery Street, Suite 820
San Francisco, CA 94111
Telephone: [phone]
Facsimile: [phone]

6
7
8
9
10

Attorneys for Plaintiff
TUCKER DURNFORD

11
12 Dated: March 31, 2015
13

Respectfully Submitted,
/S/ Alan J. Droste
ALAN J. DROSTE [SBN 105616]
[e-mail]
KING PARRET & DROSTE LLP
450 Newport Center Drive, Suite 500
Newport Beach, CA 92660
Telephone: [phone]

14
15
16
17

Attorneys for Defendant
MUSCLEPHARM CORPORATION

18
19

PURSUANT TO STIPULATION, IT IS SO ORDERED.

20

DATED: ___________________
3/31/2015

21

_____________________________________
Honorable Haywood S. Gilliam, Jr.
United States District Judge

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26
27
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3:14-cv-00413-HSG

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STIPULATED PROTECTIVE ORDER

1

ATTESTATION RE AUTHORIZATION

2

I, Alan J. Droste, hereby declare as follows:

3

1.

Pursuant to Local Rule 5-1(i)(3), as the filer of the document entitled STIPULATED

4 PROTECTIVE ORDER FOR LITIGATION INVOLVING PATENTS, HIGHLY SENSITIVE
5 CONFIDENTIAL INFORMATION AND/OR TRADE SECRETS, I hereby attest that
6 concurrence in the filing of the document has been obtained from Plaintiff’s counsel Michael F.
7 Ram.
8

I declare under penalty of perjury that the foregoing is true and correct. Executed this 31st

9

day of March, 2015, in Newport Beach, California.

10

/S/ Alan J. Droste
Alan J. Droste

11

[e-mail]
Telephone: [phone]

12
13
14
15
16
17
18
19
20
21
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24
25
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27
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3:14-cv-00413-HSG

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STIPULATED PROTECTIVE ORDER

1

EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3

I, _______________________________________________ [print or type full name], of

4

________________________________________________________ [print or type full address],

5

declare under penalty of perjury under the laws of the United States that I have read in its entirety

6

and understand the Stipulated Protective Order that was issued by the United States District Court

7

for the Northern District of California on January 28, 2015, in the case of Durnford vs.

8

MusclePharm Corporation, Case No. 3:15-cv-00413-HSG.

9

I agree to comply with and to be bound by all the terms of this Stipulated Protective Order

10

and I understand and acknowledge that failure to so comply could expose me to sanctions and

11

punishment in the nature of contempt. I solemnly promise that I will not disclose in any manner

12

any information or item that is subject to this Stipulated Protective Order to any person or entity

13

except in strict compliance with the provisions of this Order.

14

I further agree to submit to the jurisdiction of the United States District Court for the

15

Northern District of California for the purpose of enforcing the terms of this Stipulated Protective

16

Order, even if such enforcement proceedings occur after termination of this action.

17

I hereby appoint _____________________________________ [print or type full name] of

18

____________________________________________________________ [print or type full

19

address and telephone number] as my California agent for service of process in connection with

20

this action or any proceedings related to enforcement of this Stipulated Protective Order.

21
22

Date: _________________________________

23

City and State where sworn and signed: ______________________________________________

24

Printed name: ______________________________
[printed name]

25
26
27
28

Signature: __________________________________
[signature]

3:14-cv-00413-HSG

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STIPULATED PROTECTIVE ORDER

1

CERTIFICATE OF SERVICE – CM/ECF

2 I, Alan J. Droste, hereby certify and declare as follows:
3
4

1. I am over the age of 18 years and am not a party to the within cause. I am employed in
the County of Orange, State of California.

5

2.

My business address is 450 Newport Center Drive, Suite 500, Newport Beach, CA

3.

On March 31, 2015, I served a true copy of the attached document titled exactly:

6 92660.
7
8
9

STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING PATENTS, HIGHLY
SENSITIVE CONFIDENTIAL INFORMATION AND/OR TRADE SECRETS

10 by filing through the CM/ECF system and thereby causing it to be served via electronic mail to all
11 persons appearing on the docket sheet to receive service in this case, as listed below:
12
13
14
15
16
17
18
19
20
21
22
23

Michael Francis Ram
Email: [e-mail]
Matt J. Malone
Susan S. Brown
Email: [e-mail]
Ram, Olson, Cereghino & Kopczynski LLP
555 Montgomery Street
Suite 820
San Francisco, CA 94111

Counsel for Plaintiff

Beth Ellen Terrell
Email: [e-mail]
Mary Bondy Reiten
Email: [e-mail]
Terrell Marshall Daudt & Willie PLLC
936 North 34th Street, Suite 300
Seattle, WA 98103-8869
I certify and declare under penalty of perjury that the foregoing is true and correct.
Executed this 31st day of March, 2015, in Newport Beach, California.

24

/S/ Alan J. Droste
Alan J. Droste

25

[e-mail]
Telephone: [phone]

26
27
28
3:14-cv-00413-HSG

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STIPULATED PROTECTIVE ORDER