HP Hood LLC v. Stremicks Heritage Foods LLC

Filing 35

ORDER granting 33 Joint Motion for Protective Order. Signed by Magistrate Judge Anthony J. Battaglia on 4/8/10. (kaj)

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 HP HOOD LLC, v. Plaintiff, UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) Civil No.09cv1663 LAB (AJB) ORDER GRANTING JOINT MOTION FOR PROTECTIVE ORDER (Doc No. 33)

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STREMICKS HERITAGE FOODS LLC, Defendants.

The Court recognizes that at least some of the documents and information ("materials") being sought through discovery in the above-captioned action are, for competitive reasons, normally kept confidential by the parties. For purposes of this Order, "parties" shall also include any non-party who produced materials in this action. The parties have agreed to be bound by the terms of this Stipulated Protective Order ("Order") in this action. The materials to be exchanged throughout the course of the litigation between the parties may contain trade secret or other confidential research, technical, cost, price, marketing or other commercial information, as is contemplated by Federal Rule of Civil Procedure 26(c)(7). The purpose of this Order is to protect the confidentiality of such materials as much as practical during the litigation. THEREFORE: /// /// /// 1

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DEFINITIONS 1. The term "Confidential Information" will mean and include information contained or disclosed

in any materials, including documents, portions of documents, answers to interrogatories, responses to requests for admissions, trial testimony, deposition testimony, and transcripts of trial testimony and depositions, including data, summaries, and compilations derived therefrom that is deemed to be Confidential Information by any party to which it belongs. 2. The term "materials" will include, but is not limited to: documents; correspondence; memoranda;

bulletins; blueprints; specifications; customer lists or other material that identify customers or potential customers; price lists or schedules or other matter identifying pricing; minutes; telegrams; letters; statements; cancelled checks; contracts; invoices; drafts; books of account; worksheets; notes of conversations; desk diaries; appointment books; expense accounts; recordings; photographs; motion pictures; compilations from which information can be obtained and translated into reasonably usable form through detection devices; sketches; drawings; notes (including laboratory notebooks and records); reports; instructions; disclosures; other writings; models and prototypes and other physical objects. 3. The term "counsel" will mean outside counsel of record, and other attorneys, paralegals,

secretaries, and other support staff employed in the law firms identified below: Sunstein Kann Murphy & Timbers, LLC; Sheppard, Mullin, Richter & Hampton LLP; Rutan & Tucker , LLP. GENERAL RULES 4. Each party to this litigation that produces or discloses any materials, answers to interrogatories,

responses to requests for admission, trial testimony, deposition testimony, and transcripts of trial testimony and depositions, or information that the producing party believes should be subject to this Protective Order may designate the same as "CONFIDENTIAL" or "CONFIDENTIAL - FOR COUNSEL ONLY." a. Designation as "CONFIDENTIAL": Any party may designate information as "CONFIDEN-

TIAL" only if, in the good faith belief of such party and its counsel, the unrestricted disclosure of such information could be potentially prejudicial to the business or operations of such Party. b. Designation as "CONFIDENTIAL - FOR COUNSEL ONLY": Any party may designate

information as "CONFIDENTIAL - FOR COUNSEL ONLY" only if, in the good faith belief of such 2

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party and its counsel, the information is among that considered to be most sensitive by the party, including but not limited to trade secret or other confidential research, development, financial or other commercial information. Notwithstanding any other provision of this Order, Hood's in-house counsel shall not be precluded from seeing information relating to the design, development or decision to make, use, sell or offer to sell the accused bottles, even if any such documents are designated "CONFIDENTIAL - FOR COUNSEL ONLY." 5. In the event the producing party elects to produce materials for inspection, no marking need be

made by the producing party in advance of the initial inspection. For purposes of the initial inspection, all materials produced will be considered as "CONFIDENTIAL - FOR COUNSEL ONLY," and must be treated as such pursuant to the terms of this Order. Thereafter, upon selection of specified materials for copying by the inspecting party, the producing party must, within a reasonable time prior to producing those materials to the inspecting party, mark the copies of those materials that contain Confidential Information with the appropriate confidentiality marking. 6. Whenever a deposition taken on behalf of any party involves a disclosure of Confidential

Information of any party: a. Confidential Information may be disclosed to a deponent, where the deponent does not otherwise

qualify above to have access to such Confidential Information, only if the Producing Party has had an opportunity to review the Confidential Information sought to be disclosed and has not interposed an objection. If the Producing Party interposes an objection, then the Confidential Information shall not be disclosed until the parties have resolved the issue themselves or upon entry of a relevant court order. Any documents designated as Confidential which are disclosed to a deponent at his/her deposition shall not be retained by the deponent. b. the deposition or portions of the deposition must be designated as containing Confidential

Information subject to the provisions of this Order; such designation must be made on the record whenever possible, but a party may designate portions of depositions as containing Confidential Information after transcription of the proceedings; [A] party will have until fourteen (14) days after receipt of the deposition transcript to inform the other party or parties to the action of the portions - by

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page and line number - of the transcript to be designated "CONFIDENTIAL" or "CONFIDENTIAL FOR COUNSEL ONLY." c. the disclosing party will have the right to exclude from attendance at the deposition, during such

time as the Confidential Information is to be disclosed, any person other than the deponent, counsel (including their staff and associates), the court reporter, the videographer (if the deposing party chooses to use one), and the person(s) agreed upon pursuant to paragraph 8 below; and d. the originals of the deposition transcripts and all copies of the deposition must bear the legend

"CONFIDENTIAL" or "CONFIDENTIAL - FOR COUNSEL ONLY," as appropriate, and the original or any copy ultimately presented to a court for filing must not be filed unless it can be accomplished under seal, identified as being subject to this Order, and protected from being opened except by order of this Court. 7. All Confidential Information designated as "CONFIDENTIAL" or "CONFIDENTIAL - FOR

COUNSEL ONLY" must not be disclosed by the receiving party to anyone other than those persons designated within this order and must be handled in the manner set forth below and, in any event, must not be used for any purpose other than in connection with this litigation, unless and until such designation is removed either by agreement of the parties, or by order of the Court. 8. Information designated "CONFIDENTIAL - FOR COUNSEL ONLY" must be viewed only by

counsel (as defined in paragraph 3) of the receiving party, and by independent experts under the conditions set forth in this Paragraph. The right of any independent expert to receive any Confidential Information will be subject to the advance approval of such expert by the producing party or by permission of the Court. The party seeking approval of an independent expert must provide the producing party with the name and curriculum vitae of the proposed independent expert - showing employment/consulting history, including any prior employment or affiliation with any of the Parties, any known competitor of the Parties, any Person or entity involved in the dairy, beverage or bottling industries - and an executed copy of the form attached hereto as Exhibit A, in advance of providing any Confidential Information of the producing party to the expert. Any objection by the producing party to an independent expert receiving Confidential Information must be made in writing within five (5) business days following receipt of the identification of the proposed expert. Confidential Information 4

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may be disclosed to an independent expert if the five (5) business day period has passed and no objection has been made. The approval of independent experts must not be unreasonably withheld. 9. Information designated "CONFIDENTIAL" must be viewed only by counsel (as defined in

paragraph 3) of the receiving party, by independent experts (pursuant to the terms of paragraph 8), and by the additional individuals listed below, provided each such individual has read this Order in advance of disclosure and has agreed in writing to be bound by its terms: a. b. Employees who are required to participate in policy decisions with reference to this action; Technical personnel of the parties with whom Counsel for the parties find it necessary to consult,

in the discretion of such counsel, in preparation for trial of this action; and c. 10. Stenographic and clerical employees associated with the individuals identified above. With respect to material designated "CONFIDENTIAL" or "CONFIDENTIAL - FOR COUN-

SEL ONLY," any person indicated on the face of the document to be its originator, author or a recipient of a copy of the document, may be shown the same. 11. All information which has been designated as "CONFIDENTIAL" or "CONFIDENTIAL -FOR

COUNSEL ONLY" by the producing or disclosing party, and any and all reproductions of that information, must be retained in the custody of the counsel for the receiving party identified in paragraph 3, except that independent experts authorized to view such information under the terms of this Order may retain custody of copies such as are necessary for their participation in this litigation. 12. Before any materials produced in discovery, answers to interrogatories, responses to requests for

admissions, deposition transcripts, or other documents which are designated as Confidential Information are filed with the Court for any purpose, the party seeking to file such material must seek permission of the Court to file the material under seal. Nothing will be accepted for filing under seal with the Court without separate prior order by the judge before whom the hearing or proceeding will take place. Such order must be sought by ex parte application by the affected party with appropriate notice to opposing counsel. 13. At any stage of these proceedings, any party may object to a designation of the materials as

Confidential Information. The party objecting to confidentiality must notify, in writing, counsel for the designating party of the objected-to materials and the grounds for the objection. If the dispute is not 5

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resolved consensually between the parties within seven (7) calendar days of receipt of such a notice of objections, the objecting party may move the Court for a ruling on the objection. The materials at issue must be treated as Confidential Information, as designated by the designating party, until the Court has ruled on the objection or the matter has been otherwise resolved. 14. All Confidential Information must be held in confidence by those inspecting or receiving it, and

must be used only for purposes of this action. Counsel for each party, and each person receiving Confidential Information must take reasonable precautions to prevent the unauthorized or inadvertent disclosure of such information. If Confidential Information is disclosed to any person other than a person authorized by this Order, the party responsible for the unauthorized disclosure must immediately bring all pertinent facts relating to the unauthorized disclosure to the attention of the other parties and, without prejudice to any rights and remedies of the other parties, make every effort to prevent further disclosure by the party and by the person(s) receiving the unauthorized disclosure. 15. No party will be responsible to another party for disclosure of Confidential Information under

this Order if the information in question is not labeled or otherwise identified as such in accordance with this Order. 16. If a party, through inadvertence, produces any Confidential Information without labeling or

marking or otherwise designating it as such in accordance with this Order, the designating party may give written notice to the receiving party that the document or thing produced is deemed Confidential Information, and that the document or thing produced should be treated as such in accordance with that designation under this Order. The receiving party must treat the materials as confidential, once the designating party so notifies the receiving party. If the receiving party has disclosed the materials before receiving the designation, the receiving party must notify the designating party in writing of each such disclosure. Counsel for the parties will agree on a mutually acceptable manner of labeling or marking the inadvertently produced materials as "CONFIDENTIAL" or "CONFIDENTIAL - FOR COUNSEL ONLY" - subject to the Protective Order. 17. Any Producing Party that inadvertently or unintentionally produces material subject to

attorney-client privilege or work-product immunity may so designate the Produced Material by notifying the Receiving Parties promptly upon discovery of the error. The inadvertent or unintentional 6

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production of material subject to attorney-client privilege or work-product immunity will not be deemed to constitute a waiver of such privilege, immunity, or rights, or any other privilege, immunity, or rights that would otherwise attach to such material, irrespective of whether such inadvertent production would be deemed a "waiver" under Fed. R. Evid. 502. Upon a request from any Producing Party who has inadvertently produced discovery material that it believes is privileged or protected, each Receiving Party shall immediately return such Produced Material and all copies to the Producing Party. Nothing herein shall prevent any Receiving Party from preparing a record for its own use containing the production numbers (Bates range) of the inadvertently Produced Material, along with its date, author and recipients, so as to identify the inadvertently Produced Material to the Court in any motion to compel the production of such Material. 18. Nothing within this order will prejudice the right of any party to object to the production of any

discovery material on the grounds that the material is protected as privileged or as attorney work product. 19. Nothing in this Order will bar counsel from rendering advice to their clients with respect to this

litigation and, in the course thereof, relying upon any information designated as Confidential Information, provided that the contents of the information must not be disclosed. 20. This Order will be without prejudice to the right of any party to oppose production of any

information for lack of relevance or any other ground other than the mere presence of Confidential Information. The existence of this Order must not be used by either party as a basis for discovery that is otherwise improper under the Federal Rules of Civil Procedure. 21. Nothing within this order will be construed to prevent disclosure of Confidential Information if

such disclosure is required by law or by order of the Court. 22. Upon final termination of this action, including any and all appeals, counsel for each party must,

within sixty (60) days of a request from the producing party, return all Confidential Information to the party that produced the information, including any copies, excerpts, and summaries of that information, or must destroy same at the option of the receiving party, and must purge all such information from all machine-readable media on which it resides. Notwithstanding the foregoing, counsel for each party may retain all pleadings, briefs, memoranda, motions, and other documents filed with the Court that refer to 7

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or incorporate Confidential Information, and will continue to be bound by this Order with respect to all such retained information. Further, attorney work product materials that contain Confidential Information need not be destroyed, but, if they are not destroyed, the person in possession of the attorney work product will continue to be bound by this Order with respect to all such retained information. 23. The restrictions and obligations set forth within this order will not apply to any information that:

(a) the parties agree should not be designated Confidential Information; (b) the parties agree, or the Court rules, is already public knowledge; (c) the parties agree, or the Court rules, has become public knowledge other than as a result of disclosure by the receiving party, its employees, or its agents in violation of this Order; or (d) has come or will come into the receiving party's legitimate knowledge independently of the production by the designating party. Prior knowledge must be established by pre-production documentation. 24. The restrictions and obligations within this order will not be deemed to prohibit discussions of

any Confidential Information with anyone if that person already has or obtains legitimate possession of that information. 25. 26. 27. Transmission by facsimile or email is acceptable for all notification purposes within this order. This Order maybe modified by agreement of the parties, subject to approval by the Court. The Court may modify the terms and conditions of this Order for good cause, or in the interest of

justice, or on its own order at any time in these proceedings. The parties prefer that the Court provide them with notice of the Court's intent to modify the Order and the content of those modifications, prior to entry of such an order.

IT IS SO ORDERED

DATED: April 8, 2010 Hon. Anthony J. Battaglia U.S. Magistrate Judge United States District Court

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