Bona Fide Conglomerate, Inc. v. SourceAmerica et al

Filing 396

PROTECTIVE ORDER re 360 . Signed by Magistrate Judge Andrew G. Schopler on 4/14/17.(dlg)

1
1
2
2
3
3
4
4
5
5
6
6
7
78

UNITED STATES DISTRICT COURT

89

SOUTHERN DISTRICT OF CALIFORNIA

9
10
10
11
12
11

BONA FIDE CONGLOMERATE, INC., Case No.: 14cv0751 GPC (AGS)
Plaintiff,

PROTECTIVE ORDER

v.

13
12
14
13
15
14

SOURCEAMERICA, et al.,
Defendants.

16
15
17
16
18
17
19
18
20
19
21
20
22
21
23
22
24
23
25

AND RELATED COUNTER-CLAIMS

The Court recognizes that the parties to this action may be required to produce
or disclose documents and information through discovery that is normally kept
confidential. The parties have agreed to be bound by the terms of this Protective
Order Regarding Confidential Information (“Protective Order”) in this action.
The documents and information to be exchanged throughout the course of the
litigation between the parties may contain sensitive and confidential financial and

24
26 business information and other sensitive, confidential, proprietary, personal, or trade
25 secret information, meriting legal protection from disclosure under Federal Rule of
27
26 Civil Procedure 26(c)(1)(G) and other applicable statutory and common law. The
28
27
28

1

Case No. 14cv0751 GPC (AGS)

11 purpose of this Protective Order is to protect the confidentiality of such materials as
22 much as practical during the litigation. THEREFORE:
33 1.

DEFINITIONS.

44

The following definitions shall apply to this Protective Order:

5
5
6
6
7
7
8
8
9
9
10
10
11
11
12
12
13

a.

The “Action” shall mean and refer to the above-captioned matter and to

all actions now or later consolidated with the Action, and any appeal from the Action
or from any other action consolidated at any time under the above-captioned matter,
through final judgment.
b.

“Materials” shall include, but shall not be 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

13
14 conversations; desk diaries; appointment books; expense accounts; recordings;
14 photographs; motion pictures; compilations from which information can be obtained
15
15 and translated into reasonably usable form through detection devices; sketches;
16
16 drawings; notes (including laboratory notebooks and records); reports; instructions;
17
18
17 disclosures; other writings; models and prototypes and other physical objects.
19
18

c.

“Confidential Document” shall mean any Materials that any Designating

20
19 Party (as defined below) designates as “Confidential” or “Confidential – For Counsel
21
20 Only” in the manner set forth in this Protective Order; provided, however, that by
22
21 agreeing to this Protective Order, no party waives the right to challenge any other
23
22
24
23
25
24
26
25
27

party’s designation of any Materials as “Confidential” or “Confidential – For Counsel
Only.”
d.

“Confidential Information” shall mean any information not made

available to the general public that concerns or relates to trade secret, business,
financial, and/or personal information.

28
2

Case No. 14cv0751 GPC (AGS)

e.

11

“Designating Party” shall mean any party in this Action designating

22 information or Material as “Confidential” or “Confidential – For Counsel Only.”

f.

33

“Receiving Party” shall mean any party in this Action receiving

44 Confidential Documents or Confidential Information of a Designating Party.
5
5
6
6
7
7
8
8
9
9
10
10
11
11
12
12
13

g.

“Legend” as used herein shall mean a stamp or similar insignia stating

“Confidential” or “Confidential – For Counsel Only,” or other appropriate term or
terms identifying the level of confidentiality of the Materials.
h.

When reference is made in this Protective Order to any document, the

singular shall include the plural, and plural shall include the singular.
2.

DESIGNATION OF DOCUMENTS
a.

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

13
14 that the producing party believes should be subject to this Protective Order may
14 designate the same as “Confidential” or “Confidential – For Counsel Only.”
15
15
16

b.

The Designating Party may designate a document as “Confidential” or

16
17

“Confidential – For Counsel Only” by affixing the appropriate Legend to all copies of

18
17

the document at the time of production. Except as provided herein, the Designating

19
18

Party must make document designations at the time of production or within fourteen

20
19

(14) days of the entry of this Protective Order, whichever is later.

21
20
22
21

c.

A party may designate as “Confidential” or “Confidential – For Counsel

Only” a document produced by someone else by informing in writing all parties of

23 the control number of such document within seven (7) days of that party’s receipt of
22
24 the document or within fourteen (14) of the entry of this Protective Order, whichever
23
25 is later.
24
26
d.
All parties receiving written notice of such designation shall affix the
25
27 appropriate Legend to all pages of any copy or copies of such document in their
28 possession.
3

Case No. 14cv0751 GPC (AGS)

e.

11

Any party may designate a deposition or hearing transcript (or any

22 portion thereof or exhibit thereto) as “Confidential” or “Confidential – For Counsel
33 Only” by:

i.

44

Making such designation on the record during the deposition or

5
hearing (in which case the stenographer shall affix the appropriate Legend to
5
6
the cover page and all designated pages of the transcript and all copies thereof);
6
7
or
7
8
ii.
Informing counsel for all other parties of such designation in
8
9
writing within seven (7) days after receipt of the transcript (in which case any
9
10
party in possession of an original or copy of the transcript shall affix the
10
11
appropriate Legend to the cover page and all designated pages and exhibits).
11
12
f.
Whenever a deposition taken on behalf of any party involves a
12
13 disclosure of Confidential Information of any party, the Designating Party will have
13
14

the right to exclude from attendance at the deposition:

14
15

i.

Any person other than those persons identified in paragraph 3(b),

below, during the time such “Confidential” information is to be disclosed,.

15
16
16
17

ii.

Any person other than those persons identified in paragraph 3(c),

18
17

below, during the time such “Confidential – For Counsel Only” information is

19
18

to be disclosed.

20
19 3.
21
20

PROVISIONS AND LIMITATIONS OF USE
a.

All Confidential Documents and Confidential Information in this Action

22
21 shall be used by the Receiving Party solely for purposes of the prosecution, defense,
23
22
24
23
25
24
26
25
27

or settlement of this Action, including, without limitation, discovery, motions, briefs,
and preparation for trial, and for no other purpose, except as otherwise stated within
this Protective Order. This Protective Order does not necessarily permit the use of
Confidential Documents or Confidential Information at trial. At the time of preparing
a joint exhibit list, the parties shall fashion an order governing the use of Confidential

28
4

Case No. 14cv0751 GPC (AGS)

11 Documents and Confidential Information at trial, and, if necessary, shall bring any
22 disputes to the Court for resolution.
33

b.

Unless the Designating Party agrees otherwise, and subject to the

44 provisions of Sections 4 and 10 below, documents designated “Confidential” and any
5
5
6
6
7
7
8
8
9
9
10
10
11
11
12
12
13

summaries, charts or notes made therefrom, and any facts or information contained
therein or derived therefrom, shall not be disclosed to any person except: (i) the Court
and its officers; (ii) designated counsel of record and employees of designated counsel
of record; (iii) in-house counsel for a party and in-house counsel staff working on this
litigation; (iv) the parties to this Action, including any current employees, officials or
agents of such parties; (v) independent contractors, experts, consultants or advisors
who are employed or retained by, or on behalf of, any of the parties or counsel for the
parties to this Action to assist in preparation of the trial; (vi) stenographic reporters
who are involved in depositions or any Court hearings or proceedings; (vii) any

13
14 originator, author, or recipient of the Confidential Document and Confidential
14 Information; and (viii) any other person as to whom the parties agree in writing that
15
15 disclosure is appropriate.
16
16
17

c.

Unless the Designating Party agrees otherwise, and subject to the

18
17 provisions of Sections 4 and 10 below, documents designated “Confidential – For
19
18 Counsel Only” and any summaries, charts or notes made therefrom, and any facts or
20
19 information contained therein or derived therefrom, shall not be disclosed to any
21
20 persons other than those identified in subparagraphs 3(b)(i), (ii), (v), (vi), (vii), and
22
21 (viii), above.
23
22
24
23
25
24
26
25
27

d.

“Designated counsel of record” in Section 3(b)(ii), above, are limited to

counsel of record in this Action, which includes all attorneys of the firms or offices
that have appeared in this Action on behalf of a party, either in person or in writing, as
well as attorneys retained by the parties from the law firms of Weil, Gotshal, &
Manges LLP and White, Cooper, & Cooper for related, ancillary litigation. Other than

28 persons as expressly set forth in this Section, no other counsel shall be permitted
5

Case No. 14cv0751 GPC (AGS)

11 access to documents designated “Confidential – For Counsel Only” in this Action
22 unless otherwise agreed to by all of the parties in writing. Documents designated
33 “Confidential – For Counsel Only” shall not be disclosed to a party, or to any officer,
44 director, employee or agent of a party, unless otherwise agreed by the Designating
5
5
6
6
7
7
8
8
9
9
10
10
11
11
12
12
13

Party in writing or as expressly provided herein.
4.

DUTY TO INFORM OF ORDER/SIGNATURE.
a.

Duty to Inform of Order. Confidential Documents or Confidential

Information may be disclosed to the persons permitted under Section 3, only after
such persons have been provided with, and have reviewed, a copy of this Protective
Order, and/or informed of the terms and restrictions of this Protective Order. In
addition, such person must acknowledge that they understand they are bound by and
have to abide by the terms of this Protective Order.
b.

Persons Required to Sign Order. Confidential Documents or

13
14 Confidential Information may be disclosed to persons referred to in Sections 3(b)(v)
14 and (viii) and only after these persons have been provided with a copy of this
15
15 Protective Order and have signed a statement in the form attached hereto as Exhibit
16
16 "A." This statement shall be provided to counsel of the Designating Party prior to the
17
18
17 Receiving Party disclosing the Confidential Documents or Confidential Information to
19
18 the person referred to in Sections 3(b)(v) and (vii).
20
19 5.

COPIES
All copies of any Confidential Documents or documents containing Confidential

21
20

22
21 Information shall also constitute, and be treated as, Confidential Documents as
23
22
24
23
25
24
26
25
27

provided in this Protective Order. Any person making, or causing to be made, copies
of any Confidential Documents or documents containing Confidential Information,
shall make certain that each copy bears the appropriate Legend pursuant to the
requirements of this Protective Order.
//

28 / / /
6

Case No. 14cv0751 GPC (AGS)

11 6.

AGREEMENT TO MAINTAIN CONFIDENTIALITY
a.

22

All Confidential Information must be held in confidence by those

33 inspecting or receiving it, and must be used only for purposes of this Action. Counsel
44 for each party, and each person receiving Confidential Information must take
5
5
6
6
7
7
8
8
9
9
10
10
11
11
12
12
13

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.
b.

Unless and until otherwise ordered by the Court or otherwise agreed by

the parties in writing, all documents designated as “Confidential” or “Confidential –

13
14 For Counsel Only” shall be treated as such under this Protective Order.
14
15

c.

No party will be responsible to another party for disclosure of

15 Confidential Information under this Protective Order if the information in question is
16
16 not properly designated as such.
17
18
17 7.
19
18

OBJECTIONS TO DESIGNATION
Following the receipt of documents marked “Confidential” or “Confidential –

20
19 For Counsel Only,” any party to the Action may object to the designation of such
21
20 document and seek a modification of such designation by serving a written objection
22
21 on the Designating Party. Thereafter, the objecting party shall first make a good-faith
23
22
24
23
25
24
26
25
27

effort to resolve such dispute with counsel for the Designating Party. If the objecting
party and the Designating Party are unable to resolve the objection, the parties shall
jointly move the Court for an order with respect to the disputed information by no
later than thirty (30) days from the objecting party’s receipt of the Confidential
Information. After a prima facie showing by the objecting party as to the grounds for

28 its objection to the designation of the document, the Designating Party shall have the
7

Case No. 14cv0751 GPC (AGS)

11 burden to show that the document is correctly designated as “Confidential” or
22 “Confidential – For Counsel Only.” Any such motion shall comply with paragraph 9,
33 below, and the Court’s Local Rules and e-filing procedures.
44 8.
5
5
6
6
7
7
8
8
9
9
10
10
11
11
12
12
13

SEPARATE PROTECTIVE ORDER OR MODIFICATION OF THIS
PROTECTIVE ORDER
This Protective Order shall be without prejudice to the right of the parties to the

Action to present a motion to the Court for a separate protective order as to any
particular document or information, including restrictions differing from those
specified in this Protective Order. In addition, this Protective Order shall not be
deemed to prejudice the parties in any way in any future application for modification
of this Protective Order.
9.

FILING CONFIDENTIAL MATERIAL
a.

No Materials bearing a “Confidential” or “Confidential – For Counsel

13
14 Only” Legend shall be filed in the public record of this Action. Before any Materials
14 produced in discovery, answers to interrogatories, responses to requests for
15
15 admissions, deposition transcripts, or other documents which are designated as
16
16 “Confidential” or “Confidential – For Counsel Only” are filed with the Court for any
17
18
17 purpose, the party seeking to file such material must seek permission of the Court to
19
18 file the material under seal.
20
19

b.

No document shall be filed under seal unless counsel secures a court

21
20 order allowing the filing of a document under seal. An application to file a document
22
21 under seal shall be served on opposing counsel, and on the person or entity that has
23
22
24
23
25
24
26
25
27

custody and control of the document, if different from opposing counsel. If opposing
counsel, or the person or entity who has custody and control of the document, wishes
to oppose the application, they must contact the chambers of the presiding judge to
notify the judge’s staff that an opposition to the application will be filed.

28
8

Case No. 14cv0751 GPC (AGS)

c.

11

The parties shall follow and abide by applicable law, including the

22 Court’s Local Rules, CM/ECF Administrative Policies and Procedures, and Judge
33 Curiel’s applicable chambers rules, with respect to filing documents under seal.
44 10.
5
5
6
6
7
7
8
8
9
9
10
10
11
11
12
12
13

SUMMARIES
Any Receiving Party who obtains access to Materials designated as

“Confidential” or “Confidential – For Counsel Only” under this Protective Order shall
not make copies, abstracts, extracts, analyses, summaries, or other Materials which
contain, reflect or disclose Confidential Information, except for use in this litigation or
as otherwise provided herein, and each such copy, abstract, extract, analysis,
summary, or other Materials which contains, reflects or discloses Confidential
Documents or Confidential Information, is to be treated in accordance with the
provisions of this Protective Order.

All copies made by a Receiving Party of

Materials stamped “Confidential” or “Confidential – For Counsel Only” in accordance

13
14 with Paragraph 2 of this Protective Order shall again be stamped with the respective
14 designation if the original stamp was not reproduced in the duplicating process.
15
15 11.
16
16
17
18
17

INADVERTENT PRODUCTION OF CONFIDENTIAL OR
PRIVILEGED DOCUMENTS OR INFORMATION
a.

If a party, through inadvertence, produces any Confidential Information

19
18 without labeling or marking or otherwise designating it as such in accordance with
20
19 this Order, the Designating Party may give written notice to the Receiving Party that
21
20 the document or thing produced is deemed Confidential Information, and that the
22
21 document or thing produced should be treated as such in accordance with that
23
22
24
23
25
24
26
25
27

designation under this Protective 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 notification, 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

28 marking

the

inadvertently

produced

materials
9

as

“CONFIDENTIAL”

or

Case No. 14cv0751 GPC (AGS)

11 “CONFIDENTIAL – FOR COUNSEL ONLY” - SUBJECT TO PROTECTIVE
22 ORDER.
33

b.

If a producing party determines that it has produced a document or data

44 to which it wishes to assert a claim of privilege or protection, counsel for the
5
5
6
6
7
7
8
8
9
9
10
10
11
11
12
12
13

producing party shall notify the recipient promptly of its claim.

As part of the

notification, the producing party’s counsel shall identify, by Bates Number, the
document as to which the producing party is asserting a claim of privilege or
protection.

Upon receiving notice of a claim of privilege or protection by the

producing party regarding a produced document or data, the recipient shall segregate,
with promptness and in accordance with Fed. R. Civ. P. 26(b)(5)(B), the specified
document or data, as well as any copies thereof, and the recipient shall not use the
information in the specified document or data, except as provided by Fed. R. Civ. P.
26(b)(5)(B), until after the claim is resolved. If the Court upholds – or if the recipient

13
14 does not challenge within a reasonable time – the producing party’s claim of privilege
14 as to the produced document or data, the recipient shall return or dispose of the
15
15 specified document or data, as well as any copies thereof.
16
16
17

c.

The recipient shall immediately notify the producing party’s counsel

18
17 upon identification of any document or data that appears to be potentially privileged
19
18 or protected. Such notification shall not waive the recipient’s ability to challenge any
20
19 assertion of privilege or protection made by the producing party as to the identified
21
20 document. As part of the notification, the recipient shall identify, by Bates Number,
22
21 the document or data at issue. The recipient shall segregate the specified document or
23
22
24
23
25
24
26
25
27

data, as well as any copies thereof, from the other materials, and the recipient shall not
use the information in the potentially privileged or protected document or data, except
as provided by Fed. R. Civ. P. 26(b)(5)(B), for a period of 14 days after the date on
which the recipient notifies the producing party’s counsel. Within the 14-day period,
or any other period of time agreed to by the parties, the producing party shall

28 determine whether it will assert a claim of privilege or protection as to the identified
10

Case No. 14cv0751 GPC (AGS)

11 document, and its counsel shall notify the recipient of its determination. If counsel for
22 either party disputes an assertion of privilege, the matter must be resolved by the
33 Court, and the disputed information must not be used or disseminated in any manner
44 unless and until the Court determines the scope of protection for such information.
5
5
6
6
7
7
8
8
9
9
10
10
11
11
12
12
13

12. EVIDENTIARY OBJECTIONS NOT WAIVED
Notwithstanding anything to the contrary contained within this Protective
Order, all objections as to admissibility of any Confidential Document or Confidential
Information are reserved and are not waived by any terms of this Protective Order.
13.

SUBPOENA OF CONFIDENTIAL DOCUMENT OR CONFIDENTIAL
INFORMATION
If at any time any Confidential Document or Confidential Information is

subpoenaed, or otherwise requested by any other person or entity purporting to have
authority to require the production of any such document or information, the party to

13
14 whom the subpoena or other request is directed shall give written notice within three
14 (3) business days thereof to the Designating Party and shall make no disclosure unless
15
.
15 seven (7) days have elapsed or the Designating Party has consented in writing.
16
16 14.
17

CONTINUATION OF PROTECTION AFTER DISPOSITION

18
17

The termination of proceedings in the Action shall not relieve any Receiving

19
18 Party from the obligation of maintaining the confidentiality of all Confidential
20
19 Documents and Confidential Information produced and designated pursuant to this
21
20 Protective Order, unless all of the parties to the Action agree otherwise. Upon the
22
21 final disposition of the Action, the parties shall automatically promptly return any
23
22
24
23
25
24
26
25
27

Confidential Documents (and all copies made thereof) to the Designating Party from
whom such Confidential Documents or documents containing Confidential
Information were obtained or provided to counsel for the Designating Party
certification in writing that all such Confidential Documents and documents
containing Confidential Information have been destroyed; provided, however, that the

28 parties shall be entitled to keep in their possession any court filings, attorney work
11

Case No. 14cv0751 GPC (AGS)

11 product, deposition transcripts or hearing transcripts, all of which shall continue to be
22 governed by this Protective Order.

The Court retains and shall have continuing

33 jurisdiction over the parties and recipients of Confidential Documents and/or
44 Confidential Information for enforcement of this Protective Order following
5
5
6
6
7
7
8
8
9
9
10
10
11
11
12
12
13

termination of this Action.
15.

RESERVATION OF RIGHTS AND OBJECTIONS
a.

The parties hereby retain all rights, privileges, and objections to the

production of any document or tangible thing as set forth under federal law and court
authority interpreting such applicable law. Entry of this Protective Order does not
waive any of the parties’ rights, privileges, and objections to the production of any
document or tangible thing under federal law and court authority interpreting such
applicable law.
b.

The Court may modify the terms and conditions of this Order for good

13
14 cause, or in the interest of justice, or on its own order at any time in these proceedings.
14 The parties prefer that the Court provide them with notice of the Court’s intent to
15
15 modify the Order and the content of those modifications, prior to entry of such an
16
16 order.
17
18
17 IT IS SO ORDERED.
19
18 Dated: April 14, 2017
20
19
21
20
22
21
23
22
24
23
25
24
26
25
27
28
12

Case No. 14cv0751 GPC (AGS)