Eclectic Properties East, LLC et al v. The Marcus & Millichap Company et al

Filing 251

STIPULATION AND ORDER AS AMENDED BY THE COURT re 246 Stipulation filed by Paul A. Morabito. Signed by Magistrate Judge Howard R. Lloyd on 1/25/2010. (hrllc1, COURT STAFF) (Filed on 1/25/2010)

Download PDF
** E-filed January 25, 2010 ** 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -0Case No.: 09-CV-00511-RMW (HL) UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ­ SAN JOSE DIVISION ECLECTIC PROPERTIES EAST, LLC, a California Limited Liability Company, et al., Plaintiffs, vs. THE MARCUS & MILLICHAP COMPANY, a California corporation, et al., Defendants. Case No.: 09-CV-00511-RMW (HL) [P R O P O SE D] P R O T E C T I VE O R DE R R E C O NF I DE NT I AL DO C UM E NT S AND I NF O R M AT I O N AS AMENDED BY THE COURT DATE: January 22, 2010 TIME: 9:00h a.m. CTRM: 6, 4t Floor [Filed Concurrently With: - Joint Stipulation] [PROPOSED] PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS AND INFORMATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5. 4. 2. 1. ORDER Based on the joint stipulation of Plaintiffs Eclectic Properties East, LLC, et al. and Defendants The Marcus & Millichap Company, et al. (collectively the "Parties"), and for good cause shown, the Court enters the following Order for the protection of confidential material in this action pursuant to Fed.R.Civ.P. 26(c). In connection with (i) the Court-ordered jurisdictional discovery in this case, (ii) initial disclosures, and/or (iii) discovery in this case, the Parties anticipate that they will be required to produce certain documents that will contain confidential medical information, proprietary data, trade secrets, confidential research and development data, and/or other commercially sensitive information .(hereafter "Confidential Documents"). The parties may designate as "Confidential Documents" such information that, based on a good-faith determination, qualifies for protection under the standards developed under Fed. R. Civ. P. 26(c). 3. Confidential Documents may be produced for examination and inspection in this action pursuant to this Order. These documents shall be marked or stamped "Confidential" by the party attempting to so designate the document, which designation shall be made in good faith. The Parties shall limit the use and dissemination of all Confidential Documents pursuant to this Order, and only for the purpose of litigating this action, and for no other purpose. unless otherwise ordered by the Court. The production of any Confidential Document pursuant to this Order is not to be interpreted or deemed to be a waiver by any party of any objections or privileges that might apply to the use of the Confidential Document in any proceeding or for any purpose, including, but not limited to, objections and challenges to personal jurisdiction. -1Case No.: 09-CV-00511-RMW (HL) [PROPOSED] PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS AND INFORMATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6. Under no circumstances, other than those specifically enumerated in this Order, or in a subsequent order of the Court, shall any party or person obtaining a Confidential Document disclose, provide, share, describe, comment on or disseminate a Confidential Document or its contents to persons other than the following: (a) (b) and its personnel the Court, pursuant to paragraph 9 of this Order; counsel of record for a party to this action (including the paralegal, clerical and secretarial staff employed by such counsel); and (c) "Qualified Persons" designated below: (i) a party or an officer, director or employee of a party deemed necessary by counsel to aid in the prosecution, defense or settlement of this action; (ii) testifying and non-testifying experts or consultants (together with their clerical staff) retained by such counsel to assist in the prosecution, defense or settlement of this action; (iii) (iv) court reporter(s) employed in this action; a witness at any deposition or other proceeding in this action; and (v) any other person as to whom the Parties agree in writing. , including the author of the document or the original source of the information. 7. Any Confidential Documents and their contents may be disclosed to and discussed with persons identified in paragraph 6(c) only after that person is provided a copy of this Order, and executes a non-disclosure agreement in the form of Attachment A hereto. Counsel of record providing the Confidential Document to any such person shall maintain the written agreement of any such person agreeing to be bound by this Order. -2Case No.: 09-CV-00511-RMW (HL) [PROPOSED] PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS AND INFORMATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8. The persons to whom Confidential Documents are provided shall not make any copies or use any Confidential Document or its contents for any purpose whatsoever, except as permitted in this Order. 9. If any party or counsel of record files or submits a Confidential Document or any confidential portion thereof to the Court, the Confidential Document or any confidential portion thereof shall be accompanied by an seek leave from the Court to application pursuant to Local Rule 79-5 to file the Confidential Document or any confidential portion thereof under seal. The application shall be directed to the judge to whom the papers are directed. Pending the ruling on the application, the papers or portions thereof subject to the sealing application shall be lodged under seal. Prior to disclosure at trial or a hearing of materials or information designated "Confidential," the parties may seek from the Court further protections against public disclosure. 10. If any party or counsel of record objects to the designation of a Confidential Document as "Confidential" within the meaning of this Order, the parties shall resolve their dispute pursuantof persuasion in any such challenge shall be pursuant to Local Rules 7 and 37. The burden to Local Rule 37. Until the Court enters the Confidential Document, the parties shall first meet and confer in good faith to resolve their dispute prior to filing a motion on an the designatingregarding the confidentialityorder, ifConfidential Document, the of order, if any, party. Until the Court enters an of the any, regarding the confidentiality Parties shall continue to protect the Confidential Document pursuant to this Order. If the Court finds that any party designated a document as "Confidential" in bad faith, said party shall reimburse the moving party for its reasonable attorneys' fees and costs incurred in challenging said designation. 11. If any Confidential Document is used in any proceeding in this case, including any deposition, the document shall not lose its confidential status through such use, and the Parties shall take all steps reasonably required to protect the confidentiality of the document during any such use--except that if this matter -3Case No.: 09-CV-00511-RMW (HL) [PROPOSED] PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS AND INFORMATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 proceeds to trial, any Confidential Document or any confidential portion thereof that is filed with the Court will become presumptively public and available to all members of the public, including the press, unless sufficient cause is shown in advance of trial to proceed otherwise. 12. All depositions or portions of depositions taken in this action that contain confidential information may be designated "Confidential" and thereby obtain the protections accorded other "Confidential" documents. Confidentiality designations for depositions shall be made either on the record or by written notice to the other party within 10 days of receipt of the transcript. Unless otherwise agreed, depositions shall be treated as "Confidential" during the 10-day period following receipt of the transcript, or until receipt of the notice referred to in this subparagraph, whichever occurs sooner. The deposition of any witness (or any portion of such deposition) that encompasses "Confidential" information shall be taken only in the presence of persons who are qualified to have access to such information. 13. Any party who inadvertently fails to identify documents as "Confidential" shall, promptly upon discovery of its oversight, provide written notice of the error and substitute appropriately-designated documents. Any party receiving such improperly designated documents shall retrieve such documents from persons not entitled to receive those documents and, upon receipt of the substitute documents, shall return or destroy the improperly-designated documents. 14. Nothing in this Order shall be interpreted or deemed in any way to affect or establish the admissibility of any Confidential Document in any proceeding. Nothing in this Order shall be interpreted or deemed in any way to -4- Case No.: 09-CV-00511-RMW (HL) [PROPOSED] PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS AND INFORMATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 suggest that the Court itself had made a determination regarding the confidential nature of the information. 15. Within 60 days of the final termination of this litigation, whether by settlement or by final judgment in a Court of last resort, all Confidential Documents and copies of any Confidential Documents in the possession, custody or control of the Parties, their counsel of record, and any persons provided Confidential Documents pursuant to paragraph 6(b)-(c), shall either be returned to the party producing the Confidential Document or destroyed. All notes, memoranda, summaries or other documents in the possession, custody or control of any such persons referring, describing or relating to Confidential Documents shall be destroyed. Counsel of record shall obtain the return of all Confidential Documents and related documents from persons they provided such documents to pursuant to paragraph 6(b)-(c). Counsel of record must certify in writing within the 60 day period that they have conducted a good faith inquiry into the return or destruction of Confidential Documents and that to the best of their knowledge all Confidential Documents have been returned or destroyed. 16. This Order shall survive the final termination of this action unless otherwise agreed by the Parties in writing or ordered by the Court. For a period of six months after the final termination of this action, this Court will retain jurisdiction to enforce the terms of this protective order. 17. Nothing in this Order shall be deemed a waiver of the attorney-client, work product or any other privilege, or of the right of any of the Parties to oppose production of any information or documents as being outside the scope of discovery authorized by the Federal Rules of Civil Procedure or otherwise. 18. A producing party may produce a redacted version of information, documents or things that it contends is protected from disclosure by the attorney-5Case No.: 09-CV-00511-RMW (HL) [PROPOSED] PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS AND INFORMATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 client privilege, the attorney-work product immunity or any other identified applicable privilege or immunity, identifying where the privileged or immune material was redacted with the designation "Redacted-Privileged." In the event that a Party inadvertently or mistakenly produces information, documents or things that are protected from disclosure under the attorney-client privilege, work-product immunity or any other identified applicable privilege or immunity, such production shall not prejudice such claim or otherwise constitute a waiver of any claim of attorney-client privilege, work-product immunity or any other identified applicable privilege or immunity. A producing party may promptly (from the time when the producing party discovers it has inadvertently or mistakenly produced such information) notify the receiving Party of the inadvertent production in writing and request that the inadvertently produced information, documents or things be returned to the producing Party. Within three (3) business days of receiving such notice and request, the receiving Party shall return or destroy the inadvertently or mistakenly produced information, documents or things identified by the producing Party. The receiving Party shall also destroy extra copies or summaries of, or notes relating to, any such inadvertently or mistakenly produced information, except that the receiving Party may retain one copy of such material for the purpose of submitting such material to the Court under seal. The receiving party may challenge the claim of privilege or immunity asserted by the producing Party upon motion to the Court only after the receiving Party has destroyed or returned the inadvertently produced document to the producing Party. pursuant to Local Rule 7 seeking leave pursuant to Local Rule 79-5 to assert a good-faith 19. Nothing in this Order shall be construed to limit, restrict or otherwise affect the ability of the Parties to seek the production of documents, testimony or any information from any source. -6- Case No.: 09-CV-00511-RMW (HL) [PROPOSED] PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS AND INFORMATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Qualified Persons 20. The Parties, counsel of record, and persons receiving copies of Confidential Documents shall be bound by the terms and conditions of this Order. 21. Nothing in this protective order shall affect any party's right, or the Court's power, to impose sanctions for conduct relating to the production and use of documents in this lawsuit. IT IS SO ORDERED. 25 Dated: January ___, 2010 ________________________________ ____ The Honorable Howard M.Lloyd Ronald R. Whyte Magistrate United States District Court Judge -7- Case No.: 09-CV-00511-RMW (HL) [PROPOSED] PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS AND INFORMATION 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Signature: __________________________________ [signature] Date: _________________________________ City and State where sworn and signed: _________________________________ Printed name: ______________________________ [printed name] I, _____________________________ [print or type full name], of _________________ [print or type full address], declare under penalty of perjury that I have read in its entirety and understand the Stipulated Protective Order that was issued by the United States District Court for the Northern District of California on [date] in the case of ___________ [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 this Stipulated Protective Order and I understand and acknowledge that failure to so comply could expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I will not disclose in any manner any information or item that is subject to this Stipulated Protective Order to any person or entity except in strict compliance with the provisions of this Order. I further agree to submit to the jurisdiction of the United States District Court for the Northern District of California for the purpose of enforcing the terms of this Stipulated Protective Order, even if such enforcement proceedings occur after termination of this action. I hereby appoint __________________________ [print or type full name] of _______________________________________ [print or type full address and telephone number] as my California agent for service of process in connection with this action or any proceedings related to enforcement of this Stipulated Protective Order.

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?