Jianbao Copper & Aluminum Co., Ltd. v. American Metal Group, Inc. et al

Filing 26

STIPULATED PROTECTIVE ORDER. Signed by Judge Beeler on 12/2/2011. (lblc1, COURT STAFF) (Filed on 12/2/2011)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 OAKLAND DIVISION 11 12 JIANBAO COPPER & ALUMINUM CO., LTD., 13 Plaintiff, 14 CASE NO. CV 112520 LB PROTECTIVE ORDER V. 15 AMERICAN METAL GROUP, INC., et al., Action Filed: Trial Date: May 24, 2011 August 6, 2012 16 Defendants. 17 18 19 1. 20 PURPOSES AND LIMITATIONS Disclosure and discovery activity in this action are likely to involve production of 21 confidential, proprietary, or private information for which special protection from public 22 disclosure and from use for any purpose other than prosecuting this litigation may be 23 warranted. Accordingly, the parties hereby stipulate to and petition the court to enter the 24 following Stipulated Protective Order. The parties acknowledge that this Order does not 25 confer blanket protections on all disclosures or responses to discovery and that the 26 protection it affords from public disclosure and use extends only to the limited information 27 or items that are entitled to confidential treatment under the applicable legal principles. 28 The parties further acknowledge, as set forth in Section 12.3, below, that this Stipulated 3881252.1 II PROTECTIVE ORDER CV 11-2520 LB 1 Protective Order does not entitle them to file confidential information under seal; Civil 2 Local Rule 79-5 and General Order 62 set forth the procedures that must be followed and 3 the standards that will be applied when a party seeks permission from the court to file 4 material under seal. 5 2. 6 7 8 9 DEFINITIONS 2.1 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 generated, stored or maintained) or tangible things that qualify for protection under 10 Federal Rule of Civil Procedure 26(c). 11 2.3 Counsel (without qualifier): Outside Counsel of Record and House 12 Counsel (as well as their support staff). 13 14 15 2.4 Designating Party: a Party or Non-Party that designates information or items that it produces in disclosures or in responses to discovery as "CONFIDENTIAL." 2.5 Disclosure or Discovery Material: all items or information, regardless of 16 the medium or manner in which it is generated, stored, or maintained (including, among 17 other things, testimony, transcripts, and tangible things), that are produced or generated 18 in disclosures or responses to discovery in this matter. 19 2.6 Expert: a person with specialized knowledge or experience in a matter 20 pertinent to the litigation who has been retained by a Party or its counsel to serve as an 21 expert witness or as a consultant in this action. 22 2.7 House Counsel: attorneys who are employees of a party to this action. 23 House Counsel does not include Outside Counsel of Record or any other outside 24 counsel. 25 2.8 Non-Party: any natural person, partnership, corporation, association, or 26 other legal entity not named as a Party to this action. 27 2.9 Outside Counsel of Record: attorneys who are not employees of a party 28 to this action but are retained to represent or advise a party to this action and have 3881252.1 PROTECTIVE ORDER CV 11-2520 LB I 2 I appeared in this action on behalf of that party or are affiliated with a law firm which has I appeared on behalf of that party. 2.10 Party: any party to this action, including all of its officers, directors, 3 4 employees, consultants, retained experts, and Outside Counsel of Record (and their 5 I support staffs). 2.11 Producing Party: a Party or Non-Party that produces Disclosure or 6 7 Discovery Material in this action. 2.12 Professional Vendors: 8 9 persons or entities that provide litigation support services (e.g., photocopying, videotaping, translating, preparing exhibits or 10 I demonstrations, and organizing, storing, or retrieving data in any form or medium) and 11 I their employees and subcontractors. 2.13 Protected Material: any Disclosure or Discovery Material that is 12 13 designated as "CONFIDENTIAL." 2.14 Receiving Party: a Party that receives Disclosure or Discovery Material 14 15 from a Producing Party. 16 17 3. SCOPE The protections conferred by this Stipulation and Order cover not only Protected 18 Material (as defined above), but also (I) any information copied or extracted from 19 Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected 20 Material; and (3) any testimony, conversations, or presentations by Parties or their 21 Counsel that might reveal Protected Material. However, the protections conferred by this 22 Stipulation and Order do not cover the following information: (a) any information that is in 23 the public domain at the time of disclosure to a Receiving Party or becomes part of the 24 public domain after its disclosure to a Receiving Party as a result of publication not 25 involving a violation of this Order, including becoming part of the public record through 26 trial or otherwise; and (b) any information known to the Receiving Party prior to the 27 disclosure or obtained by the Receiving Party after the disclosure from a source who 28 obtained the information lawfully and under no obligation of confidentiality to the 3881252.1 PROTECTIVE ORDER CV 11-2520 LB Designating Party. Any use of Protected Material at trial shall be governed by a separate I 2 agreement or order. 3 4. DURATION Even after final disposition of this litigation, the confidentiality obligations imposed 4 5 by this Order shall remain in effect until a Designating Party agrees otherwise in writing or 6 a court order otherwise directs. Final disposition shall be deemed to be the later of (1) 7 dismissal of all claims and defenses in this action, with or without prejudice; and (2) final 8 judgment herein after the completion and exhaustion of all appeals, rehearings, remands, 9 trials, or reviews of this action, including the time limits for filing any motions or 10 applications for extension of time pursuant to applicable law. 11 5. 12 DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. 13 Each Party or Non-Party that designates information or items for protection under this 14 Order must take care to limit any such designation to specific material that qualifies under 15 the appropriate standards. The Designating Party must designate for protection only 16 those parts of material, documents, items, or oral or written communications that qualify - 17 so that other portions of the material, documents, items, or communications for which 18 protection is not warranted are not swept unjustifiably within the ambit of this Order. Mass, indiscriminate, or routinized designations are prohibited. Designations that 19 20 are shown to be clearly unjustified or that have been made for an improper purpose (e.g., 21 to unnecessarily encumber or retard the case development process or to impose 22 unnecessary expenses and burdens on other parties) expose the Designating Party to 23 sanctions. 24 If it comes to a Designating Party’s attention that information or items that it 25 I designated for protection do not qualify for protection, that Designating Party must I promptly notify all other Parties that it is withdrawing the mistaken designation. 26 5.2 Manner and Timing of Designations. Except as otherwise provided in 27 I 28 this Order (see, e.g., second paragraph of section. 5.2(a) below), or as otherwise 3881252.1 PROTECTIVE ORDER CV 11-2520 LB 1 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection under 2 this Order must be clearly so designated before the material is disclosed or produced 3 4 Designation in conformity with this Order requires: (a) for information in documentary form (e.g., paper or electronic 5 I documents, but excluding transcripts of depositions or other pretrial or trial proceedings), 6 I that the Producing Party affix the legend "CONFIDENTIAL" to each page that contains 7 8 protected material. If only a portion or portions of the material on a page qualifies for I protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by 9 making appropriate markings in the margins). 10 A Party or Non-Party that makes original documents or materials available for 11 inspection need not designate them for protection until after the inspecting Party has 12 indicated which material it would like copied and produced. During the inspection and 13 before the designation, all of the material made available for inspection shall be deemed 14 "CONFIDENTIAL." After the inspecting Party has identified the documents it wants 15 I copied and produced, the Producing Party must determine which documents, or portions 16 thereof, qualify for protection under this Order. Then, before producing the specified 17 documents, the Producing Party must affix the "CONFIDENTIAL" legend to each page 18 that contains Protected Material. If only a portion or portions of the material on a page 19 1 qualifies for protection, the Producing Party also must clearly identify the protected 20 portion(s) (e.g., by making appropriate markings in the margins). 21 (b) for testimony given in deposition or in other pretrial or trial 22 1 proceedings, that the Designating Party identify on the record, before the close of the 23 deposition, hearing, or other proceeding, all protected testimony. 24 (c) for information produced in some form other than documentary and 25 for any other tangible items, that the Producing Party affix in a prominent place on the 26 exterior of the container or containers in which the information or item is stored the 27 legend "CONFIDENTIAL." If only a portion or portions of the information or item warrant 28 protection, the Producing Party, to the extent practicable, shall identify the protected 3881252.1 PROTECTIVE ORDE CV 11-2520 LB 1 portion(s). 2 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 3 I failure to designate qualified information or items does not, standing alone, waive the 4 5 6 I Designating Party’s right to secure protection under this Order for such material. Upon I timely correction of a designation, the Receiving Party must make reasonable efforts to I assure that the material is treated in accordance with the provisions of this Order. 7 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 8 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 9 I designation of confidentiality at any time. Unless a prompt challenge to a Designating 10 Party’s confidentiality designation is necessary to avoid foreseeable, substantial 11 unfairness, unnecessary economic burdens, or a significant disruption or delay of the 12 litigation, a Party does not waive its right to challenge a confidentiality designation by 13 electing not to mount a challenge promptly after the original designation is disclosed. 14 15 6.2 Meet and Confer. The Challenging Party shall initiate the dispute I resolution process by providing written notice of each designation it is challenging and 16 describing the basis for each challenge. To avoid ambiguity as to whether a challenge 17 has been made, the written notice must recite that the challenge to confidentiality is being 18 made in accordance with this specific paragraph of the Protective Order. The parties 19 shall attempt to resolve each challenge in good faith and must begin the process by 20 conferring directly (in voice to voice dialogue; other forms of communication are not 21 sufficient) within 14 days of the date of service of notice. In conferring, the Challenging 22 Party must explain the basis for its belief that the confidentiality designation was not 23 proper and must give the Designating Party an opportunity to review the designated 24 material, to reconsider the circumstances, and, if no change in designation is offered, to 25 explain the basis for the chosen designation. A Challenging Party may proceed to the 26 next stage of the challenge process only if it has engaged in this meet and confer 27 process first or establishes that the Designating Party is unwilling to participate in the 28 meet and confer process in a timely manner. 3881252.1 PROTECTIVE ORDER CV 11-2520 LB I 2 3 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without I court intervention, the Designating Party shall file and serve a motion to retain I confidentiality under Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5 and 4 General Order 62, if applicable) within 21 days of the initial notice of challenge or within 5 114 days of the parties agreeing that the meet and confer process will not resolve their 6 I dispute, whichever is earlier. Each such motion must be accompanied by a competent 7 declaration affirming that the movant has complied with the meet and confer 8 requirements imposed in the preceding paragraph. Failure by the Designating Party to 9 make such a motion including the required declaration within 21 days (or 14 days, if 10 applicable) shall automatically waive the confidentiality designation for each challenged 11 designation. In addition, the Challenging Party may file a motion challenging a 12 confidentiality designation at any time if there is good cause for doing so, including a 13 challenge to the designation of a deposition transcript or any portions thereof. Any 14 motion brought pursuant to this provision must be accompanied by a competent 15 declaration affirming that the movant has complied with the meet and confer 16 17 18 requirements imposed by the preceding paragraph. The burden of persuasion in any such challenge proceeding shall be on the I Designating Party. Frivolous challenges, and those made for an improper purpose (e.g., 19 to harass or impose unnecessary expenses and burdens on other parties) may expose 20 the Challenging Party to sanctions. Unless the Designating Party has waived the 21 I confidentiality designation by failing to file a motion to retain confidentiality as described 22 above, all parties shall continue to afford the material in question the level of protection to 23 which it is entitled under the Producing Party’s designation until the court rules on the 24 challenge. 25 7. ACCESS TO AND USE OF PROTECTED MATERIAL 26 7.1 Basic Principles. A Receiving Party may use Protected Material that is 27 I disclosed or produced by another Party or by a Non-Party in connection with this case 28 only for prosecuting, defending, or attempting to settle this litigation. Such Protected 3881252.1 PROTECTIVE ORDER CV 11-2520 LB ii Material may be disclosed only to the categories of persons and under the conditions 21 described in this Order. When the litigation has been terminated, a Receiving Party must 31 comply with the provisions of section 13 below (FINAL DISPOSITION). 4 5 6 7 Protected Material must be stored and maintained by a Receiving Party at a I location and in a secure manner that ensures that access is limited to the persons I authorized under this Order. 7.2 Disclosure of "CONFIDENTIAL" Information or Items. Unless otherwise 8 ordered by the court or permitted in writing by the Designating Party, a Receiving Party 9 may disclose any information or item designated "CONFIDENTIAL" only to: (a) 10 11 the Receiving Party’s Outside Counsel of Record in this action, as well as employees of said Outside Counsel of Record to whom it is reasonably necessary 12 to disclose the information for this litigation and who have signed the "Acknowledgment 13 and Agreement to Be Bound" that is attached hereto as Exhibit A; (b) 14 the officers, directors, and employees (including House Counsel) of 15 the Receiving Party to whom disclosure is reasonably necessary for this litigation and 16 who have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A); (c) 17 Experts (as defined in this Order) of the Receiving Party to whom 18 disclosure is reasonably necessary for this litigation and who have signed the 19 "Acknowledgment and Agreement to Be Bound" (Exhibit A); 20 (d) the court and its personnel; 21 (e) court reporters and their staff, professional jury or trial consultants, 22 I mock jurors, and Professional Vendors to whom disclosure is reasonably necessary for 23 this litigation and who have signed the "Acknowledgment and Agreement to Be Bound" 24 (Exhibit A); 25 (f) during their depositions, witnesses in the action to whom disclosure 26 is reasonably necessary and who have signed the "Acknowledgment and Agreement to 27 Be Bound" (Exhibit A), unless otherwise agreed by the Designating Party or ordered by 28 the court. Pages of transcribed deposition testimony or exhibits to depositions that reveal 3881252.1 PROTECTIVE ORDER CV 11-2520 LB 1 Protected Material must be separately bound by the court reporter and may not be 2 disclosed to anyone except as permitted under this Stipulated Protective Order. 3 (g) the author or recipient of a document containing the information or a 4 custodian or other person who otherwise possessed or knew the information. 5 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION 6 7 If a Party is served with a subpoena or a court order issued in other litigation that 8 compels disclosure of any information or items designated in this action as 9 "CONFIDENTIAL," that Party must: 10 11 12 13 (a) promptly notify in writing the Designating Party. Such notification shall include a copy of the subpoena or court order; (b) promptly notify in writing the party who caused the subpoena or order to issue in the other litigation that some or all of the material covered by the 14 subpoena or order is subject to this Protective Order. Such notification shall include a 15 16 17 18 copy of this Stipulated Protective Order; and (c) cooperate with respect to all reasonable procedures sought to be I pursued by the Designating Party whose Protected Material may be affected. If the Designating Party timely seeks a protective order, the Party served with the 19 subpoena or court order shall not produce any information designated in this action as 20 "CONFIDENTIAL" before a determination by the court from which the subpoena or order 21 issued, unless the Party has obtained the Designating Party’s permission. The 22 Designating Party shall bear the burden and expense of seeking protection in that court 23 of its confidential material - and nothing in these provisions should be construed as 24 authorizing or encouraging a Receiving Party in this action to disobey a lawful directive 25 from another court. 26 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION 27 28 (a) The terms of this Order are applicable to information produced by a -9- 3881252.1 PROTECTIVE ORDER CV 11-2520 LB I Non-Party in this action and designated as "CONFIDENTIAL." Such information 2 produced by Non-Parties in connection with this litigation is protected by the remedies 3 1 and relief provided by this Order. Nothing in these provisions should be construed as 4 prohibiting a Non-Party from seeking additional protections. (b) 5 6 In the event that a Party is required, by a valid discovery request, to produce a Non-Party’s confidential information in its possession, and the Party is subject 7 to an agreement with the Non-Party not to produce the Non-Party’s confidential 8 information, then the Party shall: (1) 9 promptly notify in writing the Requesting Party and the Non- 10 Party that some or all of the information requested is subject to a confidentiality 11 agreement with a Non-Party; (2) 12 13 promptly provide the Non-Party with a copy of the Stipulated Protective Order in this litigation, the relevant discovery request(s), and a reasonably 14 specific description of the information requested; and (3) 15 16 make the information requested available for inspection by the II Non-Party. (c) 17 If the Non-Party fails to object or seek a protective order from this 18 court within 14 days of receiving the notice and accompanying information, the Receiving 19 Party may produce the Non-Party’s confidential information responsive to the discovery 20 request. If the Non-Party timely seeks a protective order, the Receiving Party shall not 21 produce any information in its possession or control that is subject to the confidentiality 22 agreement with the Non-Party before a determination by the court.’ Absent a court order 23 to the contrary, the Non-Party shall bear the burden and expense of seeking protection in 24 this court of its Protected Material. 25 26 27 28 1 The purpose of this provision is to alert the interested parties to the existence of confidentiality rights of a Non-Party and to afford the Non-Party an opportunity to protect its confidentiality interests in this court. 3881252.1 PROTECTIVE ORDER CV 11-2520 LB 1 110. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 2 3 4 5 6 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed I Protected Material to any person or in any circumstance not authorized under this I Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing the I Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve all I unauthorized copies of the Protected Material, (c) inform the person or persons to whom 7 unauthorized disclosures were made of all the terms of this Order, and (d) request such 8 person or persons to execute the "Acknowledgment and Agreement to Be Bound" that is 9 attached hereto as Exhibit A. 10 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL 11 12 13 When a Producing Party gives notice to Receiving Parties that certain I inadvertently produced material is subject to a claim of privilege or other protection, the 14 obligations of the Receiving Parties are those set forth in Federal Rule of Civil Procedure 15 26(b)(5)(B). This provision is not intended to modify whatever procedure may be 16 I established in an e-discovery order that provides for production without prior privilege 17 review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the parties reach 18 an agreement on the effect of disclosure of a communication or information covered by 19 the attorney-client privilege or work product protection, the parties may incorporate their 20 agreement in the stipulated protective order submitted to the court. 21 22 23 24 25 12. MISCELLANEOUS 12.1 Right to Further Relief. Nothing in this Order abridges the right of any I 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 I Protective Order no Party waives any right it otherwise would have to object to disclosing 26 or producing any information or item on any ground not addressed in this Stipulated 27 Protective Order. Similarly, no Party waives any right to object on any ground to use in 28 evidence of any of the material covered by this Protective Order. 3881252.1 PROTECTIVE ORDER CV 11-2520 LB 1 2 3 4 5 6 12.3 Filing Protected Material. Without written permission from the I Designating Party or a court order secured after appropriate notice to all interested I persons, a Party may not file in the public record in this action any Protected Material. A I Party that seeks to file under seal any Protected Material must comply with Civil Local I Rule 79-5 and General Order 62. Protected Material may only be filed under seal I pursuant to a court order authorizing the sealing of the specific Protected Material at 7 issue. Pursuant to Civil Local Rule 79-5 and General Order 62, a sealing order will issue 8 I only upon a request establishing that the Protected Material at issue is privileged, 9 protectable as a trade secret, or otherwise entitled to protection under the law. If a 10 Receiving Party’s request to file Protected Material under seal pursuant to Civil Local 11 Rule 79-5(d) and General Order 62 is denied by the court, then the Receiving Party may 12 file the information in the public record pursuant to Civil Local Rule 79-5(e) unless 13 otherwise instructed by the court. 14 15 13. FINAL DISPOSITION Within 60 days after the final disposition of this action, as defined in paragraph 4, 16 I each Receiving Party must return all Protected Material to the Producing Party or destroy 17 such material. As used in this subdivision, "all Protected Material" includes all copies, 18 I abstracts, compilations, summaries, and any other format reproducing or capturing any of 19 the Protected Material. Whether the Protected Material is returned or destroyed, the 20 Receiving Party must submit a written certification to the Producing Party (and, if not the 21 same person or entity, to the Designating Party) by the 60 day deadline that (1) identifies. 22 (by category, where appropriate) all the Protected Material that was returned or 23 destroyed and (2)affirms that the Receiving Party has not retained any copies, abstracts, 24 compilations, summaries or any other format reproducing or capturing any of the 25 Protected Material. Notwithstanding this provision, Counsel are entitled to retain an 26 I archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, 27 legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney 28 work product, and consultant and expert work product, even if such materials contain 3881252.1 PROTECTIVE ORDER CV 11-2520 LB S R NIA r RT A H ER FO el Beele aur Judge L LI UNIT ED DERED O OR IT IS S NO CV 11-2520 LB RT U O December 2, 2011 S DISTRICT TE C TA N D IS T IC T R OF C ii EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND [print or type full name], of I, 3 [print or type full address], declare under penalty of perjury that I 4 5 have read in its entirety and understand the Stipulated Protective Order that was issued 6 by the United States District Court for the Northern District of California on [date] in the 7 case of 8 [insert formal name of the case and the number and initials assigned to it by the court]. I agree to comply with and to be bound by all the terms of 9 this Stipulated Protective Order and I understand and acknowledge that failure to so 10 comply could expose me to sanctions and punishment in the nature of contempt. I 11 solemnly promise that I will not disclose in any manner any information or item that is 12 subject to this Stipulated Protective Order to any person or entity except in strict 13 compliance with the provisions of this Order. F further agree to submit to the jurisdiction of the United States District Court for 14 15 the Northern District of California for the purpose of enforcing the terms of this Stipulated 16 Protective Order, even if such enforcement proceedings occur after termination of this 17 action. I hereby appoint 18 [print or type full name] of [print or type full address and telephone 19 20 number] as my California agent for service of process in connection with this action or 21 any proceedings related to enforcement of this Stipulated Protective Order. 22 Date: 23 City and State where sworn and signed: 24 Printed name: [printed name] 25 26 Signature: [signature] 27 28 3881252.1 EXHIBIT A CV 11-2520 LB

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