Sever, et al v. Icon Aircraft, Inc. et al

Filing 36

ORDER by Judge Haywood S. Gilliam, Jr. Granting 35 Stipulated Protective Order. (ndrS, COURT STAFF) (Filed on 7/23/2018)

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Scott D. Cunningham (State Bar No.: 200413)
Email: [e-mail]
Ivy L. Nowinski (State Bar No.: 268564)
Email: [e-mail]
Condon & Forsyth LLP
1901 Avenue of the Stars, Suite 850
Los Angeles, California 90067-6010
Telephone: [phone]
Facsimile: [phone]
- and David J. Harrington (Pro Hac Vice)
Email: [e-mail]
CONDON & FORSYTH LLP
7 Times Square
New York, New York 10036
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant
ICON AIRCRAFT, INC.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ESRA SEVER, individually, and as
) Case No. 4:18-cv-00584-HSG
parent and natural guardian of her minor )
children, A.S. and B.S., et al.,
) STIPULATED PROTECTIVE
) ORDER
Plaintiffs,
)
)
vs.
)
)
ICON AIRCRAFT, INC.; MATTHEW )
WOODRUFF, an individual; KURT
)
PARKER, an individual, EDWARD
)
ELLIS KARKOW as Personal
)
Representative of the Estate of Jon
)
Karkow (deceased); and DOES 1 through)
12,
)
)
Defendants.
)
)

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INTRODUCTION
Disclosure and discovery activity in this action are likely to involve
production of confidential, proprietary, or private information for which special
STIPULATED PROTECTIVE ORDER
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protection from public disclosure and from use for any purpose other than

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prosecuting this litigation may be warranted. Accordingly, the parties hereby

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stipulate to and petition the court to enter the following Stipulated Protective

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Order. The parties acknowledge that this Order does not confer blanket protections

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

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

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entitled to confidential treatment under the applicable legal principles. The parties

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further acknowledge, as set forth in Section 12.3, below, that this Stipulated

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Protective Order does not entitle them to file confidential information under seal;

CONDON & FORSYTH LLP

Civil Local Rule 79-5 sets forth the procedures that must be followed and the

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

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material under seal.

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PROTECTIVE ORDER
Based upon the foregoing and based upon the stipulation of the Parties, and
good cause appearing, IT IS ORDERED as follows:
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Any Party may designate items of discovery or other information

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produced or disclosed to any other Party as confidential and subject to the terms of

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this protective order, so long as any such designation is made in good faith. Items,

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including documents, tangible things or information, may be designated as

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confidential if a Party believes in good faith the information contains trade secrets,

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personal information, competitively sensitive information, proprietary or otherwise

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confidential information that may be the subject of a protective order under Rule

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26 of the Federal Rules of Civil Procedure. All documents designated as

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confidential under this Order shall be marked prior to production by placing the

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legend “CONFIDENTIAL” on each page of the document. Except as otherwise

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adjudicated by the Court, all items so marked, and all copies, prints, summaries, or

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other reproductions of such information, shall be subject to this Order.

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2.

Unless otherwise directed by the Court or through prior written

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agreement of the Parties, and subject to the limitations of Paragraph 1 above,

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information and documents subject to this Order shall not be used or shown,

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disseminated, copied, or in any way communicated to anyone for any purpose

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whatsoever, other than as required for the litigation of this action, including any

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appeals. Any copies, excerpts, summaries, analyses, or other disclosures of, or

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references to, the substance or contents of any information designated as

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confidential shall be protected to the same extent as the underlying information.

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Except as provided for below and in the paragraphs that follow, the Parties shall

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keep all confidential information and documents strictly confidential from all

CONDON & FORSYTH LLP

persons. The information and documents subject to this Order may be disclosed

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Los Angeles, California 90067-6010
Telephone: [phone]

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only to:

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(a) The actual named Parties, in the case of individual (non-corporate)

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Parties in this action;

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(b) In the case of corporate Parties in this action, officers, directors,

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insurers, in-house counsel and current and former employees of such

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corporations deemed reasonably necessary by counsel for the

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prosecution, defense, trial or appeal of this action, including

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employees and former employees of such Parties who testify as

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pretrial or trial witnesses in connection with this action;

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(c) Counsel (and their staff) who represent the Parties in this action;

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(d) Experts or consultants retained by counsel, whether or not they are

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expected to testify;

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(e) The Court and court personnel for any purpose the Court finds

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necessary;

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(f) Jurors and court personnel at trial of this case; and

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(g) Stenographic and/or videographic personnel hired to record testimony.

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3.

Disclosures shall be made to such persons identified in Paragraph 2,

and such persons may review such disclosures, only as necessary for purposes of
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litigating this action. The persons identified in Paragraph 2 shall not otherwise

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disseminate the information and documents subject to this Order, or the substance

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of such information or documents.

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4.

Counsel (and counsel’s staff) for the receiving Parties will abide by,

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and be bound by, the provisions of this Protective Order, and will use due care to

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ensure that the provisions of the Protective Order are known and adhered to by

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clients, all persons under counsel’s supervision and/or control and any person, firm

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or corporation who has been retained by counsel to act on the receiving Party’s

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behalf in connection with this litigation.

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5.

With respect to deposition testimony and any document marked as an

CONDON & FORSYTH LLP

1901 Avenue of the Stars, Suite 850
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exhibit thereto, the designation of confidentiality may be made on the record at the

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time of the deposition, and the designated testimony shall be subject to the full

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protection of this Order, unless challenged in accordance with the procedures of

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Paragraph 14. In the case of testimony not so designated during the course of a

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deposition, counsel may so designate confidential testimony, within thirty (30)

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days of the deposition testimony and/or exhibits which contain confidential

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material, in which case the designated testimony and/or exhibits shall be subject to

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the full protections of this Order. Until the thirty (30) day period for notification

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has elapsed, deposition transcripts in their entirety and all exhibits are to be

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considered as confidential and proprietary and subject to the provisions of this

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Protective Order. If, prior to and/or during the course of a deposition, a witness

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refuses to be bound by the terms of the Protective Order, the deposition shall be

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adjourned until application can be made to the Court regarding the deposition.

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6.

Each person given access to documents and information subject to this

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Order, except those persons identified in paragraph 2(c), (e), and (f) above, must

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acknowledge this Order and agree, in writing, to be bound by all its terms and

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conditions. This requirement must be satisfied by obtaining the signature of the

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person or persons on a copy of the Agreement to Be Bound by Protective Order,
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attached as Exhibit “A” hereto. By agreeing to be bound by this Order, each

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person consents to the jurisdiction of this Court over his or her person for any

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proceedings involving alleged improper disclosure of documents or information

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protected by this Order. Each Party shall maintain the original signed written

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agreements and a verified list of all experts, consultants or persons to whom the

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information and documents or copies thereof were revealed. The list of signatories

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shall not be revealed to any other person or persons except through court order,

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which shall only be granted upon a showing of good cause. The Party that appears

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to have improperly disseminated the protected document or information shall be

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required to produce its list of signatories to the Agreement to Be Bound by

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Protective Confidentiality Order to the Party having claimed confidentiality.

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7.

If a Party intends to submit to the Court a document marked as

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confidential either before or during trial, that Party or any other Party may request

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that such document be placed under seal. If the Parties agree, such request shall be

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presented to the Court as a stipulated motion. Otherwise, the request shall be

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presented to the Court as a contested motion. Compelling reasons must be shown

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for the under seal filing. The purpose of this provision is to avoid placing

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documents under seal unnecessarily.

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8.

Neither this Order nor the designation of any item as confidential shall

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be construed as an admission that such document, information or testimony would

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be admissible in evidence in this litigation or in any other proceeding. In addition,

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this Protective Order does not, of itself, require the production of any information

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or documents; nor does the existence of this Order constitute an admission or

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finding that any material marked as confidential is entitled to protection under

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applicable law.

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9.

Nothing in this Order shall be deemed a waiver of any Party’s right to:

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(a) oppose discovery on grounds other than that the same constitutes or contains

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confidential information, or (b) object on any ground to the admission in evidence,
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at the trial of this action, of any confidential information.
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If any Party wishes to petition the Court to modify this Order or its

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application to certain documents or information, the Party shall follow all

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applicable Federal Rules of Civil Procedure and Local Rules in petitioning the

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Court for relief.

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11.

All Parties, within sixty (60) days of the final conclusion of all aspects

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of this litigation, or a dismissed Party within thirty (30) days of that Party’s

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dismissal with prejudice prior to the final conclusion of all aspects of this

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litigation, shall:

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(a) Provide to the Party’s counsel that originally produced confidential

CONDON & FORSYTH LLP

1901 Avenue of the Stars, Suite 850
Los Angeles, California 90067-6010
Telephone: [phone]

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information a copy of all Agreements executed pursuant to paragraph 6,

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above; and

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(b) Retrieve all such confidential information, including all copies thereof

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and all documents identifying such confidential information, in that

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party’s possession, custody or control, or in the possession, custody or

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control of all such persons to whom the confidential information was

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disseminated pursuant to paragraph 6, and either: 1) return all such

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confidential information to the Party’s counsel that originally produced

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the confidential information (redacting any work product of the receiving

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counsel) at the producing counsel’s business office or any subsequent

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address designated by that counsel, or 2) completely destroy all such

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confidential information; and

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(c) Upon written request, provide a declaration under the penalty of perjury

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stating that a good faith effort was made to retrieve all such confidential

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information received and/or disseminated, and that all such confidential

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information has been either returned or destroyed as indicated in

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subparagraph (a) and (b) above.

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12.

Up and until the commencement of trial, but not thereafter, the

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provisions of this Order relating to the confidentiality of protected documents and

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information shall remain in full force and effect and continue to be binding, except

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with respect to documents or information that are publicly available. This Court

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retains jurisdiction over all persons provided access to confidential materials or

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information for enforcement of the provisions of this Order up and until trial is

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commenced, but not thereafter.

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13.

Nothing in this Order shall be deemed to preclude any Party from

respect to the confidentiality of documents or information. Nor shall any provision

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of this Order be deemed to preclude any Party from challenging the validity of the

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CONDON & FORSYTH LLP

seeking or obtaining, on the appropriate showing, additional protection with

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1901 Avenue of the Stars, Suite 850
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Telephone: [phone]

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confidentiality of any materials or information so designated.

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14.

If a Party elects to challenge the designation of confidentiality

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(“Challenging Party”) of any document, information or testimony, the Challenging

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Party shall notify the Party who designated the challenged document (“Designating

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Party”) as confidential of its challenge, in writing. Once the challenge is raised,

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the Parties shall promptly confer and make reasonable and good faith efforts to

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resolve the disagreement without intervention by the Court. If they are unable to

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resolve their differences in good faith within ten (10) days of receipt of the

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challenge, the Challenging Party shall request a ruling from the Court with respect

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to the confidential treatment of the information at issue within thirty (30) days of

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completion of the meet and confer efforts. The Designating Party shall have the

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burden to prove that the challenged document, information or testimony is entitled

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to protection under applicable law. Until such time as the Parties’ contentions

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regarding the confidentiality of documents, information or testimony are fully and

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finally adjudicated, all documents, testimony or other materials designated by

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defendants as confidential shall retain their confidential status. Nothing in this

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agreement shall be deemed to alter, modify or reduce the burden on any party

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asserting a privilege to make out all elements of the privilege claimed.
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15.

It is recognized by the Parties to this Protective Order that documents

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or testimony may be designated inadvertently or erroneously as confidential, or

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that such a designation inadvertently or erroneously may be omitted with respect to

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documents or information that are entitled to such protection. Any Party to this

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Protective Order may correct its designation or lack thereof within a reasonable

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time and shall, at its own expense, furnish to all counsel copies of the documents

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for which there is a change in designation.

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16.

It is recognized by the Parties that documents or testimony stamped as

Any receiving Party may correct this inadvertent disclosure without sanction by

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CONDON & FORSYTH LLP

confidential may be inadvertently disclosed to third parties by a receiving Party.

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immediately bringing it to the attention of the producing Party by letter to the

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producing Party’s counsel in which the third Party is identified by name and

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address. The receiving Party shall further provide an affidavit of counsel

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confirming that to the best of his or her knowledge the documents and any copies

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thereof were recovered from the third party.

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17.

All documents or information produced by the Parties prior to the

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entry of this Protective Order by the Court shall be subject to the provisions of this

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Protective Order to the same extent as if such Protective Order had been entered by

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the Court as of the date such documents or information were produced. Producing

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Parties shall have thirty (30) days from the date of entry of this Order to designate

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already-produced materials as confidential. However, documents or information

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obtained through means other than discovery in this action shall not be subject to

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this Protective Order.

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18.

In the event that any person identified in paragraph 2 above who has

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been provided access to confidential information produced in this action (“Person

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Served”): (a) is served with a subpoena in another action, or (b) is served with a

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demand in another action to which he or she is a party, or (c) is served with any

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other legal process by one not a Party to this litigation, seeking information that
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has been produced in this action by another Party and which is subject to this

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Protective Order, the Person Served shall give prompt written notice of such event

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to counsel of record for the Party that produced the information. Upon receipt of

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written notice, the Party which produced the information shall advise the Person

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Served of that Party’s position with respect to the protected information.

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Thereafter, the Party which produced the information shall assume responsibility

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for prosecuting any objection to the discovery requests, subpoena or demand, and

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the Person Served shall cooperate to the extent necessary to preserve the

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confidentiality of the information. Should the person seeking access to

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information take action to enforce such discovery requests, subpoena, demand, or

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other legal process, the Person Served shall set forth in his response the existence

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of this Stipulated Protective Order. Nothing herein shall be construed as requiring

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the receiving Party to challenge or appeal any order requiring production of the

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information.

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19.

This Order shall not prejudice the Parties’ rights or arguments

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regarding whether documents or information used at trial do or do not remain

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confidential. Such issues will be taken up as a separate matter upon motion of any

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Party.

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20.

It is understood by the Parties that this Stipulated Protective Order

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may be executed in one or more counterparts, each of which shall be deemed an

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original.

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Dated: July 20, 2018

NELSON & FRAENKEL LLP

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By:/s/ Carlos F. Llinas Negret
STUART R. FRAENKEL
CARLOS F. LLINAS NEGRET
NICOLE C. ANDERSEN

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-and-

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MICHAEL S. DANKO
CLAIRE Y. CHOO
DANKO MEREDITH APC

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Attorneys for Plaintiff
ESRA SEVER

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CONDON & FORSYTH LLP

1901 Avenue of the Stars, Suite 850
Los Angeles, California 90067-6010
Telephone: [phone]

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ATTESTED that all other
signatories listed, and on whose
behalf this document is
submitted, concur in its content
and have authorized its filing:
Dated: July 20, 2018

CONDON & FORSYTH LLP

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By:/s/ Ivy L. Nowinski
SCOTT D. CUNNINGHAM
IVY L. NOWINSKI

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-and-

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DAVID J. HARRINGTON
CONDON & FORSYTH LLP
7 Times Square
New York, NY 10036
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Defendant
ICON AIRCRAFT, INC.

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STIPULATED PROTECTIVE ORDER
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APPROVED AS TO FORM:

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EXHIBIT “A”

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AGREEMENT TO BE BOUND BY PROTECTIVE ORDER

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I, the undersigned, acknowledge that I will be receiving documents that have

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been designated confidential and subject to the terms of the Stipulated Protective

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Order entered in the above-captioned case. I understand that such confidential

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material is to be provided to me pursuant to the terms and restrictions of the

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aforementioned Protective Order and acknowledge that I have been given a copy

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1901 Avenue of the Stars, Suite 850
Los Angeles, California 90067-6010
Telephone: [phone]

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of and have read that Protective Order. I understand that any use by me of

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documents or information designated confidential under the Stipulated Protective

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Order, or any portion or summaries thereof, in any manner contrary to the

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provisions of the Stipulated Protective Order, will subject me to the sanctions of

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the Court. I hereby agree to be bound by all of its terms.

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I declare under penalty of perjury under the laws of the United States that
the foregoing is true and correct.
Dated this ____ day of _________________, _______.

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________________________________________
Signature

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________________________________________
Printed Name

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________________________________________
Witness

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________________________________________
Printed Name

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STIPULATED PROTECTIVE ORDER
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IT IS SO ORDERED.

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Dated: _________________, 2018
July 23
_________________________________
Honorable Haywood S. Gilliam, Jr.
United States District Judge

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CONDON & FORSYTH LLP

1901 Avenue of the Stars, Suite 850
Los Angeles, California 90067-6010
Telephone: [phone]

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STIPULATED PROTECTIVE ORDER
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