Hill Phoenix, Inc. v. Classic Refrigeration SoCal, Inc. ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 HILL PHOENIX INC., a Delaware Case No. 8:19-cv-00695-DOC (JDEx) 11 corporation, PROTECTIVE ORDER 12 Plaintiff, 13 v. [Discovery Document: Referred to Magistrate Judge John D. Early] 14 CLASSIC REFRIGERATION SOCAL, INC., a California corporation; THOMAS 15 DAVID LOWE, an individual; DAVID ROGERS, an individual; and TRAVIS 16 VANDERLOON, an individual, 17 Defendants. 18 19 1. PURPOSES AND LIMITATIONS 20 Discovery in this action is likely to involve production of confidential, 21 22 proprietary, or private information for which special protection from public 23 disclosure and from use for any purpose other than pursuing this litigation may be 24 warranted. Accordingly, the following Protective Order is necessary to safeguard 25 against public disclosure of the confidential and proprietary information at issue in 26 this dispute. The parties acknowledge that this Order does not confer blanket 27 protections on all disclosures or responses to discovery and that the protection it 28 affords from public disclosure and use extends only to the limited information or 1 items that are entitled to confidential treatment under the applicable legal 2 principles. 3 2. GOOD CAUSE STATEMENT AND FACTUAL BACKGROUND 4 This is an action for trade secret misappropriation and for breach of certain 5 confidentiality agreements. Plaintiff alleges that this action is likely to involve the 6 production, exchange, and examination of confidential information (including 7 information that Plaintiff alleges is trade secret) or other confidential research, 8 development, or commercial information (including information implicating 9 privacy rights of third parties), information otherwise generally unavailable to the 10 public, or which may be privileged or otherwise protected from disclosure under 11 state or federal statutes, court rules, case decisions, or common law. The disclosure 12 of this information, according to Plaintiff, has the potential to cause competitive 13 harm to Plaintiff. Accordingly, special protection of this information from public 14 disclosure and from use for any purpose other than prosecution of this action is 15 warranted. 16 By way of example, Plaintiff alleges that its trade secret and confidential 17 information includes customer and pricing lists, wage and hour margin 18 19 information, job costing templates, and past confidential bids made by Plaintiff to 20 its customers or potential customers, all of which Plaintiff has accused Defendants 21 of misappropriating—an allegation that Defendants deny. Plaintiff further alleges 22 that the information will include internal business information concerning the 23 individual and corporate Defendants, including bids they have made to customers, 24 corporate financial information, and individual wage and salary details. 25 Defendants, again, dispute that any information in this case is highly confidential 26 or constitutes trade secret information. 27 Nevertheless, to expedite the flow of information, to facilitate the prompt 28 resolution of disputes over confidentiality of discovery materials, to adequately 1 protect information the parties are entitled to keep confidential, to ensure that the 2 parties are permitted reasonable and necessary uses of such material in preparation 3 for and in the conduct of trial, to address their handling at the end of the litigation, 4 and to serve the ends of justice, this Protective Order should be entered as an order 5 of the Court. 6 The parties shall not designate information as confidential for tactical 7 reasons. The parties may designate information as confidential only when there is 8 a good faith belief that the information has been maintained in a confidential, non- 9 public manner, and there is good cause why it should not be part of the public 10 record of this case. 11 3. ACKNOWLEDGMENT OF UNDER SEAL FILING PROCEDURE 12 The parties further acknowledge, as set forth in Section 14.3, below, that this 13 Protective Order does not entitle them to file confidential information under seal; 14 Local Civil Rule 79-5 sets forth the procedures that must be followed and the 15 standards that will be applied when a Party seeks permission from the court to file 16 material under seal. There is a strong presumption that the public has a right of 17 access to judicial proceedings and records in civil cases. In connection with non- 18 19 dispositive motions, good cause must be shown to support a filing under seal. See 20 Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), 21 Phillips v. Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar- 22 Welbon v. Sony Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even 23 stipulated protective orders require good cause showing), and a specific showing of 24 good cause or compelling reasons with proper evidentiary support and legal 25 justification, must be made with respect to Protected Material that a Party seeks to 26 file under seal. The parties’ mere designation of Disclosure or Discovery Material 27 as CONFIDENTIAL does not—without the submission of competent evidence by 28 1 declaration, establishing that the material sought to be filed under seal qualifies as 2 confidential, privileged, or otherwise protectable—constitute good cause. 3 Further, if a Party requests sealing related to a dispositive motion or trial, 4 then compelling reasons, not only good cause, for the sealing must be shown, and 5 the relief sought shall be narrowly tailored to serve the specific interest to be 6 protected. See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir. 7 2010). For each item or type of information, document, or thing sought to be filed 8 or introduced under seal, the Party seeking protection must articulate compelling 9 reasons, supported by specific facts and legal justification, for the requested sealing 10 order. Again, competent evidence supporting the application to file documents 11 under seal must be provided by declaration. 12 Any document that is not confidential, privileged, or otherwise protectable 13 in its entirety will not be filed under seal if the confidential portions can be 14 redacted. If documents can be redacted, then a redacted version for public viewing, 15 omitting only the confidential, privileged, or otherwise protectable portions of the 16 document, shall be filed. Any application that seeks to file documents under seal in 17 their entirety should include an explanation of why redaction is not feasible. 18 19 4. DEFINITIONS 20 4.1 Action: this pending federal lawsuit. 21 4.2 Challenging Party: a Party or Non-Party that challenges the 22 designation of information or items under this Order. 23 4.3 “CONFIDENTIAL” Information or Items: information (regardless of 24 how it is generated, stored or maintained) or tangible things that qualify for 25 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 26 the Good Cause Statement. 27 4.4 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” 28 Information or Items: information (regardless of how it is generated, stored or 1 maintained) or tangible things that qualify for protection under Federal Rule of 2 Civil Procedure 26(c), as specified above in the Good Cause Statement, and the 3 disclosure of which would put the Producing Party at a competitive disadvantage. 4 4.5 Counsel: Outside Counsel of Record and House Counsel (as well as 5 their support staff). 6 4.6 Designating Party: a Party or Non-Party that designates information or 7 items that it produces in disclosures or in responses to discovery as 8 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 9 ONLY.” 10 4.7 Disclosure or Discovery Material: all items or information, regardless 11 of the medium or manner in which it is generated, stored, or maintained (including, 12 among other things, testimony, transcripts, and tangible things), that are produced 13 or generated in disclosures or responses to discovery. 14 4.8 Expert: a person with specialized knowledge or experience in a matter 15 pertinent to the litigation who has been retained by a Party or its counsel to serve 16 as an expert witness or as a consultant in this Action. 17 4.8 House Counsel: attorneys who are employees of a Party to this 18 19 Action. House Counsel does not include Outside Counsel of Record or any other 20 outside counsel. 21 4.9 Non-Party: any natural person, partnership, corporation, association or 22 other legal entity not named as a Party to this action. 23 4.10 Outside Counsel of Record: attorneys who are not employees of a 24 Party to this Action but are retained to represent a Party to this Action and have 25 appeared in this Action on behalf of that Party or are affiliated with a law firm that 26 has appeared on behalf of that Party, and includes support staff. 27 28 1 4.11 Party: any Party to this Action, including all of its officers, directors, 2 employees, consultants, retained experts, and Outside Counsel of Record (and their 3 support staffs). 4 4.12 Producing Party: a Party or Non-Party that produces Disclosure or 5 Discovery Material in this Action. 6 4.13 Professional Vendors: persons or entities that provide litigation 7 support services (e.g., photocopying, videotaping, translating, preparing exhibits or 8 demonstrations, and organizing, storing, or retrieving data in any form or medium) 9 and their employees and subcontractors. 10 4.14 Protected Material: any Disclosure or Discovery Material that is 11 designated as “CONFIDENTIAL” or as “HIGHLY CONFIDENTIAL – 12 ATTORNEYS’ EYES ONLY.” 13 4.15 Receiving Party: a Party that receives Disclosure or Discovery 14 Material from a Producing Party. 15 5. SCOPE 16 The protections conferred by this Protective Order cover not only Protected 17 Material (as defined above), but also (1) any information copied or extracted from 18 19 Protected Material; (2) all copies, excerpts, summaries, or compilations of 20 Protected Material; and (3) any testimony, conversations, or presentations by 21 Parties or their Counsel that might reveal Protected Material. 22 Any use of Protected Material at trial shall be governed by the orders of the 23 trial judge and other applicable authorities. This Order does not govern the use of 24 Protected Material at trial. 25 6. DURATION 26 Once a case proceeds to trial, information that was designated as 27 CONFIDENTIAL, HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY, 28 or maintained pursuant to this protective order or introduced as an exhibit at trial 1 becomes public and will be presumptively available to all members of the public, 2 including the press, unless compelling reasons supported by specific factual 3 findings to proceed otherwise are made to the trial judge in advance of the trial. 4 See Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause” showing for 5 sealing documents produced in discovery from “compelling reasons” standard 6 when merits-related documents are part of court record). Accordingly, the terms of 7 this protective order do not extend beyond the commencement of the trial. 8 7. DESIGNATING PROTECTED MATERIAL 9 7.1 Exercise of Restraint and Care in Designating Material for 10 Protection. Each Party or Non-Party that designates information or 11 items for protection under this Order must take care to limit any such designation 12 to specific material that qualifies under the appropriate standards. The Designating 13 Party must designate for protection only those parts of material, documents, items 14 or oral or written communications that qualify so that other portions of the 15 material, documents, items or communications for which protection is not 16 warranted are not swept unjustifiably within the ambit of this Order. 17 Mass, indiscriminate or routinized designations are prohibited. Designations 18 19 that are shown to be clearly unjustified or that have been made for an improper 20 purpose (e.g., to unnecessarily encumber the case development process or to 21 impose unnecessary expenses and burdens on other parties) may expose the 22 Designating Party to sanctions. 23 If it comes to a Designating Party’s attention that information or items that it 24 designated for protection do not qualify for protection, that Designating Party must 25 promptly notify all other Parties that it is withdrawing the inapplicable designation. 26 7.2 Manner and Timing of Designations. Except as otherwise provided in 27 this Order, or as otherwise stipulated or ordered, Disclosure of Discovery Material 28 1 that qualifies for protection under this Order must be clearly so designated before 2 the material is disclosed or produced. 3 Designation in conformity with this Order requires: 4 (a) for information in documentary form (e.g., paper or electronic 5 documents, but excluding transcripts of depositions or other pretrial or trial 6 proceedings), that the Producing Party affix at a minimum, the legend 7 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”) or “HIGHLY 8 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” (hereinafter “HIGHLY 9 CONFIDENTIAL legend”), to each page that contains protected material. If only a 10 portion of the material on a page qualifies for protection, the Producing Party also 11 must clearly identify the protected portion(s) (e.g., by making appropriate 12 markings in the margins). 13 A Party or Non-Party that makes original documents available for inspection 14 need not designate them for protection until after the inspecting Party has indicated 15 which documents it would like copied and produced. During the inspection and 16 before the designation, all of the material made available for inspection shall be 17 deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” After the 18 19 inspecting Party has identified the documents it wants copied and produced, the 20 Producing Party must determine which documents, or portions thereof, qualify for 21 protection under this Order. Then, before producing the specified documents, the 22 Producing Party must affix the “CONFIDENTIAL legend” or “HIGHLY 23 CONFIDENTIAL legend” to each page that contains Protected Material. If only a 24 portion of the material on a page qualifies for protection, the Producing Party also 25 must clearly identify the protected portion(s) (e.g., by making appropriate 26 markings in the margins). 27 28 1 (b) for testimony given in depositions that the Designating Party 2 identifies the Disclosure or Discovery Material on the record, before the close of 3 the deposition all protected testimony. 4 (c) for information produced in some form other than documentary 5 and for any other tangible items, that the Producing Party affix in a prominent 6 place on the exterior of the container or containers in which the information is 7 stored the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – 8 ATTORNEYS’ EYES ONLY.” If only a portion or portions of the information 9 warrants protection, the Producing Party, to the extent practicable, shall identify 10 the protected portion(s). 11 7.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 12 failure to designate qualified information or items does not, standing alone, waive 13 the Designating Party’s right to secure protection under this Order for such 14 material. Upon timely correction of a designation, the Receiving Party must make 15 reasonable efforts to assure that the material is treated in accordance with the 16 provisions of this Order. 17 8. CHALLENGING CONFIDENTIALITY DESIGNATIONS 18 19 8.1. Timing of Challenges. Any Party or Non-Party may challenge a 20 designation of confidentiality at any time that is consistent with the Court’s 21 Scheduling Order. 22 8.2 Meet and Confer. The Challenging Party shall initiate the dispute 23 resolution process under Local Rule 37-1 et seq. 24 8.3 Joint Stipulation. Any challenge submitted to the Court shall be via a 25 joint stipulation pursuant to Local Rule 37-2. 26 8.4 Burden. The burden of persuasion in any such challenge proceeding 27 shall be on the Designating Party. Frivolous challenges, and those made for an 28 improper purpose (e.g., to harass or impose unnecessary expenses and burdens on 1 other parties) may expose the Challenging Party to sanctions. Unless the 2 Designating Party has waived or withdrawn the confidentiality designation, all 3 parties shall continue to afford the material in question the level of protection to 4 which it is entitled under the Producing Party’s designation until the Court rules on 5 the challenge. 6 9. ACCESS TO AND USE OF PROTECTED MATERIAL 7 9.1 Basic Principles. A Receiving Party may use Protected Material that is 8 disclosed or produced by another Party or by a Non-Party in connection with this 9 Action only for prosecuting, defending or attempting to settle this Action. Such 10 Protected Material may be disclosed only to the categories of persons and under 11 the conditions described in this Order. When the Action has been terminated, a 12 Receiving Party must comply with the provisions of section 15 below (FINAL 13 DISPOSITION). 14 Protected Material must be stored and maintained by a Receiving Party at a 15 location and in a secure manner that ensures that access is limited to the persons 16 authorized under this Order. 17 9.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 18 19 otherwise ordered by the court or permitted in writing by the Designating Party, a 20 Receiving Party may disclose any information or item designated 21 “CONFIDENTIAL” only to: 22 (a) the Receiving Party’s Outside Counsel of Record in this Action, as 23 well as employees of said Outside Counsel of Record to whom it is reasonably 24 necessary to disclose the information for this Action; 25 (b) the officers, directors, and employees (including House Counsel) 26 of the Receiving Party to whom disclosure is reasonably necessary for this Action; 27 (c) Experts (as defined in this Order) of the Receiving Party to whom 28 disclosure is reasonably necessary for this Action and who have signed the 1 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 2 (d) the court and its personnel; 3 (e) court reporters and their staff; 4 (f) professional jury or trial consultants, mock jurors, and Professional 5 Vendors to whom disclosure is reasonably necessary for this Action and who have 6 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 7 (g) the author or recipient of a document containing the information or 8 a custodian or other person who otherwise possessed or knew the information; 9 (h) during their depositions, witnesses, and attorneys for witnesses, in 10 the Action to whom disclosure is reasonably necessary provided: (1) the deposing 11 party requests that the witness sign the form attached as Exhibit A hereto; and (2) 12 they will not be permitted to keep any confidential information unless they sign the 13 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 14 agreed by the Designating Party or ordered by the court. Pages of transcribed 15 deposition testimony or exhibits to depositions that reveal Protected Material may 16 be separately bound by the court reporter and may not be disclosed to anyone 17 except as permitted under this Protective Order; and 18 19 (i) any mediators or settlement officers and their supporting personnel, 20 mutually agreed upon by any of the parties engaged in settlement discussions. 21 9.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 22 ONLY” Information or Items. Unless otherwise ordered by the court or permitted 23 in writing by the Designating Party, a Receiving Party may disclose any 24 information or item designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ 25 EYES ONLY” only to: the individuals listed in section 9.2, above, except for those 26 listed in subsections (b) and (h), unless consented to by the Designating Party or as 27 otherwise permitted by the Court. 28 1 10. PROTECTED MATERIAL SUBPOENAED OR ORDERED 2 PRODUCED IN OTHER LITIGATION 3 If a Party is served with a subpoena or a court order issued in other litigation 4 that compels disclosure of any information or items designated in this Action as 5 “CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 6 ONLY” that Party must: 7 (a) promptly notify in writing the Designating Party. Such notification 8 shall include a copy of the subpoena or court order; 9 (b) promptly notify in writing the party who caused the subpoena or 10 order to issue in the other litigation that some or all of the material covered by the 11 subpoena or order is subject to this Protective Order. Such notification shall 12 include a copy of this Protective Order; and 13 (c) cooperate with respect to all reasonable procedures sought to be 14 pursued by the Designating Party whose Protected Material may be affected. If the 15 Designating Party timely seeks a protective order, the Party served with the 16 subpoena or court order shall not produce any information designated in this action 17 as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 18 19 ONLY” before a determination by the court from which the subpoena or order 20 issued, unless the Party has obtained the Designating Party’s permission. The 21 Designating Party shall bear the burden and expense of seeking protection in that 22 court of its confidential material and nothing in these provisions should be 23 construed as authorizing or encouraging a Receiving Party in this Action to 24 disobey a lawful directive from another court. 25 11. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO 26 BE PRODUCED IN THIS LITIGATION 27 (a) The terms of this Order are applicable to information produced by 28 a Non-Party in this Action and designated as “CONFIDENTIAL” or “HIGHLY 1 CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Such information produced 2 by Non-Parties in connection with this litigation is protected by the remedies and 3 relief provided by this Order. Nothing in these provisions should be construed as 4 prohibiting a Non-Party from seeking additional protections. 5 (b) In the event that a Party is required, by a valid discovery request, 6 to produce a Non-Party’s confidential information in its possession, and the Party 7 is subject to an agreement with the Non-Party not to produce the Non-Party’s 8 confidential information, then the Party shall: 9 (1) promptly notify in writing the Requesting Party and the Non-Party 10 that some or all of the information requested is subject to a confidentiality 11 agreement with a Non-Party; 12 (2) promptly provide the Non-Party with a copy of the Protective 13 Order in this Action, the relevant discovery request(s), and a reasonably specific 14 description of the information requested; and 15 (3) make the information requested available for inspection by the 16 Non-Party, if requested. 17 (c) If the Non-Party fails to seek a protective order from this court 18 19 within 14 days of receiving the notice and accompanying information, the 20 Receiving Party may produce the Non-Party’s confidential information responsive 21 to the discovery request. If the Non-Party timely seeks a protective order, the 22 Receiving Party shall not produce any information in its possession or control that 23 is subject to the confidentiality agreement with the Non-Party before a 24 determination by the court. Absent a court order to the contrary, the Non-Party 25 shall bear the burden and expense of seeking protection in this court of its 26 Protected Material. 27 / / / 28 / / / 1 12. UNAUTHORIZED DISCLOSURE OF PROTECTED 2 MATERIAL 3 If a Receiving Party learns that, by inadvertence or otherwise, it has 4 disclosed Protected Material to any person or in any circumstance not authorized 5 under this Protective Order, the Receiving Party must immediately (a) notify in 6 writing the Designating Party of the unauthorized disclosures, (b) use its best 7 efforts to retrieve all unauthorized copies of the Protected Material, (c) inform the 8 person or persons to whom unauthorized disclosures were made of all the terms of 9 this Order, and (d) request such person or persons to execute the 10 “Acknowledgment an Agreement to Be Bound” attached hereto as Exhibit A. 11 13. INADVERTENT PRODUCTION OF PRIVILEGED OR 12 OTHERWISE PROTECTED MATERIAL 13 13.1 When a Producing Party gives notice to Receiving Parties that certain 14 inadvertently produced material is subject to a claim of privilege or other 15 protection, the obligations of the Receiving Parties are those set forth in Federal 16 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify 17 whatever procedure may be established in an e-discovery order that provides for 18 19 production without prior privilege review. 20 Pursuant to Federal Rule of Evidence 502(d) and (e), the parties agree to the 21 following procedures for the inadvertent disclosure of privileged materials. 22 13.2 For the purpose of this order, “Protected Information” means 23 documents and information in any form, including electronically stored 24 information (“ESI”), protected from discovery by the attorney-client privilege, the 25 work-product doctrine as defined in the Federal Rules of Civil Procedure and 26 applicable judicial interpretations, and any other recognized privilege or protection 27 with regard to discovery; 28 1 13.3 The production of Protected Information shall not constitute a waiver 2 of the Producing Party’s right to assert any privilege or protection with respect to 3 those documents in this or in any other proceeding. Moreover, the mere production 4 of Protected Information, without further use of that Protected Information in 5 testimony, at trial, or on any motion other than a motion to compel as contemplated 6 by section 13.5, shall not be deemed “intentional” pursuant to Fed. R. Evid. 7 502(a)(1). 8 13.4 Upon written notice of recall from the Producing Party of the 9 production of Protected Information, the Requesting Party must—unless it contests 10 the claim of privilege or protection in accordance with section 13.5—within fifteen 11 days of receipt of that recall notice, (i) return or destroy all copies of the produced 12 Protected Information and (ii) provide a written certification of counsel that the 13 produced Protected Information designated in the recall notice has been returned or 14 destroyed. Within ten days of receipt of the notification that the produced Protected 15 Information has been returned or destroyed, the Producing Party shall produce a 16 privilege log with respect to the produced Protected Information; 17 13.5 If the Requesting Party contests the claim of privilege or protection 18 19 made in a recall notice, the Requesting Party must follow the procedure outlined in 20 Local Rule 37 for bringing a motion to compel. The motion must be accompanied 21 by an appropriate request to the Court to seal any portions of the motion and any 22 exhibits filed therewith that contain Protected Information, in accordance with 23 applicable local rules of this Court. The Requesting Party must take reasonable 24 measures to prevent any further dissemination of the produced Protected 25 Information pending resolution of the motion to compel; 26 13.6 Within fifteen days of an order denying a motion to compel regarding 27 produced Protected Information, the requesting party must (i) return or destroy all 28 copies of the produced Protected Information and (ii) provide a certification of 1 counsel that the produced Protected Information designated in the notice has been 2 returned or destroyed. Within ten days of the receipt of the notification that the 3 produced Protected Information has been returned or destroyed, the Producing 4 Party shall produce a privilege log with respect to the produced Protected 5 Information; 6 13.7 If the notice from the Producing Party of the production of attorney- 7 client privileged or work-product protected information is made during or prior to 8 a deposition, the Requesting Party may not use the produced Protected Information 9 at the deposition in any manner except for the limited purpose of questioning the 10 witness to ascertain the strength of the claim of privilege or protection; 11 13.8 If the Producing Party is required to produce documents previously 12 withheld as Protected Information, and such documents were the subject of an 13 instruction to a deponent not to answer questions at a deposition, that Producing 14 Party will bear the expense of producing the deponent at a re-scheduled deposition 15 to address the document(s) previously withheld as Protected Information; 16 13.9 The Producing Party retains the burden of establishing the privileged 17 or protected nature of the produced Protected Information. Nothing in this Order 18 19 shall limit the right of either party to petition the Court for an in camera review of 20 the produced Protected Information; 21 13.10 Where the requesting party becomes aware of produced Protected 22 Information on its own review, that party shall promptly notify the Producing Party 23 in writing of such production. Within ten days of the receipt of that notice, the 24 Producing Party must notify the requesting party in writing whether it intends to 25 recall the produced documents. That recall notice shall be treated as a recall notice 26 as contemplated by section 13.4; 27 13.11 Nothing contained herein is intended to or shall serve to limit a 28 Party’s right to conduct a review of documents, ESI, or information (including 1 metadata) for relevance, responsiveness, and/or desegregation of privileged and/or 2 protected information before production; 3 13.12 The Parties may stipulate to extend the time periods set forth in 4 sections 13.4, 13.5, 13.6 or 13.10 without filing the stipulation and procuring a 5 court order approving the stipulation. 6 14. MISCELLANEOUS 7 14.1 Right to Further Relief. Nothing in this Order abridges the right of any 8 person to seek its modification by the Court in the future. 9 14.2 Right to Assert Other Objections. No Party waives any right it 10 otherwise would have to object to disclosing or producing any information or item 11 on any ground not addressed in this Protective Order. Similarly, no Party waives 12 any right to object on any ground to use in evidence of any of the material covered 13 by this Protective Order. 14 14.3 Filing Protected Material. A Party that seeks to file under seal any 15 Protected Material must comply with Local Civil Rule 79-5. Protected Material 16 may only be filed under seal pursuant to a court order authorizing the sealing of the 17 specific Protected Material. If a Party’s request to file Protected Material under 18 19 seal is denied by the court, then the Receiving Party may file the information in the 20 public record unless otherwise instructed by the court. 21 15. FINAL DISPOSITION 22 After the final disposition of this Action, as defined in section 6, within 23 60 days of a written request by the Designating Party, each Receiving Party must 24 return all Protected Material to the Producing Party or destroy such material. As 25 used in this subdivision, “all Protected Material” includes all copies, abstracts, 26 compilations, summaries, and any other format reproducing or capturing any of the 27 Protected Material. Whether the Protected Material is returned or destroyed, the 28 Receiving Party must submit a written certification to the Producing Party (and, if not the same person or entity, to the Designating Party) by the 60-day deadline that 2 (1) identifies (by category, where appropriate) all the Protected Material that was ° returned or destroyed and (2) affirms that the Receiving Party has not retained any ‘ copies, abstracts, compilations, summaries or any other format reproducing or ° capturing any of the Protected Material. Notwithstanding this provision, Counsel ° are entitled to retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence, deposition 9 and trial exhibits, expert reports, attorney work product, and consultant and expert 10 work product, even if such materials contain Protected Material. Any such archival copies that contain or constitute Protected Material remain subject to this Protective Order as set forth in Section 6 (DURATION). 3 16. VIOLATION 14 Any violation of this Order may be punished by appropriate measures 15 || including, without limitation, contempt proceedings and/or monetary sanctions. 16 7 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 18 19 || DATED: August 21, 2019 20 21 / yon KE 4 22 N D. EARLY 33 nited States Magistrate Judge 24 25 26 27 28 18 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 4 I, _____________________________ [print or type full name], of 5 _________________ [print or type full address], declare under penalty of perjury 6 that I have read in its entirety and understand the Protective Order that was issued 7 by the United States District Court for the Central District of California on August 8 21, 2019 in the case of Hill Phoenix, Inc. v. Classic Refrigeration SoCal, Inc., No. 9 8:19-cv-00695 DOC (JDEx). I agree to comply with and to be bound by all the 10 terms of this Protective Order and I understand and acknowledge that failure to so 11 comply could expose me to sanctions and punishment in the nature of contempt. I 12 solemnly promise that I will not disclose in any manner any information or item 13 that is subject to this Protective Order to any person or entity except in strict 14 compliance with the provisions of this Order. 15 I further agree to submit to the jurisdiction of the United States District 16 Court for the Central District of California for enforcing the terms of this 17 Protective Order, even if such enforcement proceedings occur after termination of 18 this action. I hereby appoint __________________________ [print or type full 19 name] of _______________________________________ [print or type full 20 address and telephone number] as my California agent for service of process in 21 connection with this action or any proceedings related to enforcement of this 22 23 Protective Order. 24 25 Date: ______________________________________ 26 City and State where sworn and signed: _________________________________ 27 Printed name: _______________________________ 28 Signature: __________________________________