Lawrence Michael Doherty Jr. v. MicroBilt Corporation ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 Lawrence Michael Doherty Jr., 11 Case No. 2:22-cv-03891-SPG-PVC Plaintiff, 12 STIPULATED PROTECTIVE v. ORDER 13 MicroBilt Corporation et al, 14 Defendant. 15 16 17 18 1. INTRODUCTION 19 1.1 PURPOSES AND LIMITATIONS 20 Discovery in this action is likely to involve production of confidential, 21 proprietary, or private information for which special protection from public disclosure 22 and from use for any purpose other than prosecuting this litigation may be warranted. 23 Accordingly, the parties hereby stipulate to and petition the Court to enter the 24 following Stipulated Protective Order. The parties acknowledge that this Order does 25 not confer blanket protections on all disclosures or responses to discovery and that 26 the protection it affords from public disclosure and use extends only to the limited 27 information or items that are entitled to confidential treatment under the applicable 1 that this Stipulated Protective Order does not entitle them to file confidential 2 information under seal; Civil Local Rule 79-5 sets forth the procedures that must be 3 followed and the standards that will be applied when a party seeks permission from 4 the court to file material under seal. 5 1.2 GOOD CAUSE STATEMENT 6 This action is likely to involve trade secrets, pricing lists and other valuable 7 research, development, commercial, financial, technical and/or proprietary 8 information for which special protection from public disclosure and from use for any 9 purpose other than prosecution of this action is warranted. Such confidential and 10 proprietary materials and information consist of, among other things, consumer 11 information the disclosure of which is regulated by federal and/or state law, 12 confidential business or financial information, sensitive personal information, 13 information regarding confidential business practices, corporate policies and 14 procedures, or other confidential research, internal metrics, development, 15 commercial, or financial information (including information implicating privacy 16 rights of third parties), information otherwise generally unavailable to the public, or 17 which may be privileged or otherwise protected from disclosure under state or federal 18 statutes, court rules, case decisions, or common law. 19 Accordingly, to expedite the flow of information, to facilitate the prompt 20 resolution of disputes over confidentiality of discovery materials, to adequately 21 protect information the parties are entitled to keep confidential, to ensure that the 22 parties are permitted reasonable necessary uses of such material in preparation for and 23 in the conduct of trial, to address their handling at the end of the litigation, and to 24 serve the ends of justice, a protective order for such information is justified in this 25 matter. It is the intent of the parties that information will not be designated as 26 confidential for tactical reasons and that nothing be so designated without a good faith 27 belief that it has been maintained in a confidential, non-public manner, and there is 1 2. DEFINITIONS 2 2.1 Action: this pending federal law suit, Doherty v. MicroBilt Corporation 3 et al., No.: 2:22-cv-03891-SPG-PVC. 4 2.2 Challenging Party: a Party or Non-Party that challenges the designation 5 of information or items under this Order. 6 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 7 how it is generated, stored or maintained) or tangible things that qualify for protection 8 under Federal Rule of Civil Procedure 26(c), and as specified above in the Good 9 Cause Statement. 10 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their 11 support staff). 12 2.5 Designating Party: a Party or Non-Party that designates information or 13 items that it produces in disclosures or in responses to discovery as 14 “CONFIDENTIAL” 15 2.6 Disclosure or Discovery Material: all items or information, regardless 16 of the medium or manner in which it is generated, stored, or maintained (including, 17 among other things, testimony, transcripts, and tangible things), that are produced or 18 generated in disclosures or responses to discovery in this matter. 19 2.7 Expert: a person with specialized knowledge or experience in a matter 20 pertinent to the litigation who has been retained by a Party or its counsel to serve as 21 an expert witness or as a consultant in this Action. 22 2.8 House Counsel: attorneys who are employees of a party to this Action. 23 House Counsel does not include Outside Counsel of Record or any other outside 24 counsel. 25 2.9 Non-Party: any natural person, partnership, corporation, association, or 26 other legal entity not named as a Party to this action. 27 2.10 Outside Counsel of Record: attorneys who are not employees of a party 1 appeared in this Action on behalf of that party or are affiliated with a law firm which 2 has appeared on behalf of that party, and includes support staff. 3 2.11 Party: any party to this Action, including all of its officers, directors, 4 employees, consultants, retained experts, and Outside Counsel of Record (and their 5 support staffs). 6 2.12 Producing Party: a Party or Non-Party that produces Disclosure or 7 Discovery Material in this Action. 8 2.13 Professional Vendors: persons or entities that provide litigation support 9 services (e.g., photocopying, videotaping, translating, preparing exhibits or 10 demonstrations, and organizing, storing, or retrieving data in any form or medium) 11 and their employees and subcontractors. 12 2.14 Protected Material: any Disclosure or Discovery Material that is 13 designated as “CONFIDENTIAL” 14 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material 15 from a Producing Party. 16 17 3. SCOPE 18 The protections conferred by this Stipulation and Order cover not only 19 Protected Material (as defined above), but also (1) any information copied or extracted 20 from Protected Material; (2) all copies, excerpts, summaries, or compilations of 21 Protected Material; and (3) any testimony, conversations, or presentations by Parties 22 or their Counsel that might reveal Protected Material. 23 Any use of Protected Material at trial will be governed by the orders of the trial 24 judge. This Order does not govern the use of Protected Material at trial. 25 26 4. DURATION 27 Once a case proceeds to trial, all of the information that was designated as 1 exhibit at trial becomes public and will be presumptively available to all members of 2 the public, 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. See 4 Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1180-81 (9th Cir. 2006) 5 (distinguishing “good cause” showing for sealing documents produced in discovery 6 from “compelling reasons” standard when merits-related documents are part of court 7 record). Accordingly, the terms of this protective order do not extend beyond the 8 commencement of the trial. 9 Even after final disposition of this litigation, the confidentiality obligations 10 imposed by this Order will remain in effect until a Designating Party agrees otherwise 11 in writing or a court order otherwise directs. Final disposition will be deemed to be 12 the later of (1) dismissal of all claims and defenses in this Action, with or without 13 prejudice; and (2) final judgment herein after the completion and exhaustion of all 14 appeals, rehearings, remands, trials, or reviews of this Action, including the time 15 limits for filing any motions or applications for extension of time pursuant to 16 applicable law. 17 18 5. DESIGNATING PROTECTED MATERIAL 19 5.1 Exercise of Restraint and Care in Designating Material for Protection. 20 Each Party or Non-Party that designates information or items for protection under this 21 Order must take care to limit any such designation to specific material that qualifies 22 under the appropriate standards. The Designating Party must designate for protection 23 only those parts of material, documents, items, or oral or written communications that 24 qualify so that other portions of the material, documents, items, or communications 25 for which protection is not warranted are not swept unjustifiably within the ambit of 26 this Order. 27 Mass, indiscriminate, or routinized designations are prohibited. Designations 1 purpose (e.g., to unnecessarily encumber the case development process or to impose 2 unnecessary expenses and burdens on other parties) may expose the Designating Party 3 to sanctions. 4 If it comes to a Designating Party’s attention that information or items that it 5 designated for protection do not qualify for protection, that Designating Party must 6 promptly notify all other Parties that it is withdrawing the inapplicable designation. 7 5.2 Manner and Timing of Designations. Except as otherwise provided in 8 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 9 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 10 under this Order must be clearly so designated before the material is disclosed or 11 produced. 12 Designation in conformity with this Order requires: 13 (a) for information in documentary form (e.g., paper or electronic documents, 14 but excluding transcripts of depositions or other pretrial or trial proceedings), that the 15 Producing Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter 16 “CONFIDENTIAL legend”) , to each page that contains protected material. If only a 17 portion or portions of the material on a page qualifies for protection, the Producing 18 Party also must clearly identify the protected portion(s) (e.g., by making appropriate 19 markings in the margins). 20 A Party or Non-Party that makes original documents available for inspection 21 need not designate them for protection until after the inspecting Party has indicated 22 which documents it would like copied and produced. During the inspection and before 23 the designation, all of the material made available for inspection will be deemed 24 “CONFIDENTIAL.” After the inspecting Party has identified the documents it wants 25 copied and produced, the Producing Party must determine which documents, or 26 portions thereof, qualify for protection under this Order. Then, before producing the 27 specified documents, the Producing Party must affix the “CONFIDENTIAL legend” 1 material on a page qualifies for protection, the Producing Party also must clearly 2 identify the protected portion(s) (e.g., by making appropriate markings in the 3 margins). 4 (b) for testimony given in depositions, that the Designating Party designates 5 Protected Material within thirty (30) days of receiving the transcript of the testimony. 6 (c) for information produced in some form other than documentary and for any 7 other tangible items, that the Producing Party affix in a prominent place on the exterior 8 of the container or containers in which the information is stored the legend 9 “CONFIDENTIAL” If only a portion or portions of the information warrants 10 protection, the Producing Party, to the extent practicable, will identify the protected 11 portion(s). 12 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 13 failure to designate qualified information or items does not, standing alone, waive the 14 Designating Party’s right to secure protection under this Order for such material. 15 Upon timely correction of a designation, the Receiving Party must make reasonable 16 efforts to assure that the material is treated in accordance with the provisions of this 17 Order. 18 19 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 20 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 21 designation of confidentiality at any time that is consistent with the Court’s 22 Scheduling Order. 23 6.2 Meet and Confer. The Challenging Party will initiate the dispute 24 resolution process (and, if necessary, file a discovery motion) under Local Rule 37.1 25 et seq. 26 6.3 The burden of persuasion in any such challenge proceeding will be on 27 the Designating Party. Frivolous challenges, and those made for an improper purpose 1 expose the Challenging Party to sanctions. Unless the Designating Party has waived 2 or withdrawn the confidentiality designation, all parties will continue to afford the 3 material in question the level of protection to which it is entitled under the Producing 4 Party’s designation until the Court rules on the challenge. 5 6 7. ACCESS TO AND USE OF PROTECTED MATERIAL 7 7.1 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 the 11 conditions described in this Order. When the Action has been terminated, a Receiving 12 Party must comply with the provisions of section 13 below (FINAL DISPOSITION). 13 Protected Material must be stored and maintained by a Receiving Party at a 14 location and in a secure manner that ensures that access is limited to the persons 15 authorized under this Order. 16 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 17 otherwise ordered by the court or permitted in writing by the Designating Party, a 18 Receiving Party may disclose any information or item designated 19 “CONFIDENTIAL” only to: 20 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well 21 as employees of said Outside Counsel of Record to whom it is reasonably necessary 22 to disclose the information for this Action; 23 (b) the officers, directors, and employees (including House Counsel) of the 24 Receiving Party to whom disclosure is reasonably necessary for this Action; 25 (c) Experts (as defined in this Order) of the Receiving Party to whom 26 disclosure is reasonably necessary for this Action and who have signed the 27 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 1 (e) court reporters and their staff; 2 (f) professional jury or trial consultants, mock jurors, and Professional 3 Vendors to whom disclosure is reasonably necessary for this Action and who have 4 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 5 (g) the author or recipient of a document containing the information or a 6 custodian or other person who otherwise possessed or knew the information; 7 (h) during their depositions, witnesses, and attorneys for witnesses, in the 8 Action to whom disclosure is reasonably necessary provided: (1) the deposing party 9 requests that the witness sign the form attached as Exhibit A hereto; and (2) they will 10 not be permitted to keep any confidential information unless they sign the 11 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 12 agreed by the Designating Party or ordered by the court. Pages of transcribed 13 deposition testimony or exhibits to depositions that reveal Protected Material may be 14 separately bound by the court reporter and may not be disclosed to anyone except as 15 permitted under this Stipulated Protective Order; and 16 (i) any mediator or settlement officer, and their supporting personnel, 17 mutually agreed upon by any of the parties engaged in settlement discussions. 18 19 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 20 IN OTHER LITIGATION 21 If a Party is served with a subpoena or a court order issued in other litigation 22 that compels disclosure of any information or items designated in this Action as 23 “CONFIDENTIAL” that Party must: 24 (a) promptly notify in writing the Designating Party. Such notification will 25 include a copy of the subpoena or court order; 26 (b) promptly notify in writing the party who caused the subpoena or order 27 to issue in the other litigation that some or all of the material covered by the subpoena 1 or order is subject to this Protective Order. Such notification will include a copy of 2 this Stipulated Protective Order; and 3 (c) cooperate with respect to all reasonable procedures sought to be pursued 4 by the Designating Party whose Protected Material may be affected. 5 If the Designating Party timely seeks a protective order, the Party served with 6 the subpoena or court order will not produce any information designated in this action 7 as “CONFIDENTIAL” before a determination by the court from which the subpoena 8 or order issued, unless the Party has obtained the Designating Party’s permission. The 9 Designating Party will bear the burden and expense of seeking protection in that court 10 of its confidential material and nothing in these provisions should be construed as 11 authorizing or encouraging a Receiving Party in this Action to disobey a lawful 12 directive from another court. 13 14 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 15 PRODUCED IN THIS LITIGATION 16 (a) The terms of this Order are applicable to information produced by a 17 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information 18 produced by Non-Parties in connection with this litigation is protected by the 19 remedies and relief provided by this Order. Nothing in these provisions should be 20 construed as prohibiting a Non-Party from seeking additional protections. 21 (b) In the event that a Party is required, by a valid discovery request, to 22 produce a Non-Party’s confidential information in its possession, and the Party is 23 subject to an agreement with the Non-Party not to produce the Non-Party’s 24 confidential information, then the Party will: 25 (1) promptly notify in writing the Requesting Party and the Non-Party 26 that some or all of the information requested is subject to a confidentiality agreement 27 with a Non-Party; 1 (2) promptly provide the Non-Party with a copy of the Stipulated 2 Protective Order in this Action, the relevant discovery request(s), and a reasonably 3 specific description of the information requested; and 4 (3) make the information requested available for inspection by the Non- 5 Party, if requested. 6 (c) If the Non-Party fails to seek a protective order from this court within 7 14 days of receiving the notice and accompanying information, the Receiving Party 8 may produce the Non-Party’s confidential information responsive to the discovery 9 request. If the Non-Party timely seeks a protective order, the Receiving Party will not 10 produce any information in its possession or control that is subject to the 11 confidentiality agreement with the Non-Party before a determination by the court. 12 Absent a court order to the contrary, the Non-Party will bear the burden and expense 13 of seeking protection in this court of its Protected Material. 14 15 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 16 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 17 Protected Material to any person or in any circumstance not authorized under this 18 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 19 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts 20 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or 21 persons to whom unauthorized disclosures were made of all the terms of this Order, 22 and (d) request such person or persons to execute the “Acknowledgment and 23 Agreement to Be Bound” that is attached hereto as Exhibit A. 24 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 25 PROTECTED MATERIAL 26 When a Producing Party gives notice to Receiving Parties that certain 27 inadvertently produced material is subject to a claim of privilege or other protection, 1 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure 2 may be established in an e-discovery order that provides for production without prior 3 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the 4 parties reach an agreement on the effect of disclosure of a communication or 5 information covered by the attorney-client privilege or work product protection, the 6 parties may incorporate their agreement in the stipulated protective order submitted 7 to the court. 8 9 12. MISCELLANEOUS 10 12.1 Right to Further Relief. Nothing in this Order abridges the right of any 11 person to seek its modification by the Court in the future. 12 12.2 Right to Assert Other Objections. By stipulating to the entry of this 13 Protective Order no Party waives any right it otherwise would have to object to 14 disclosing or producing any information or item on any ground not addressed in this 15 Stipulated Protective Order. Similarly, no Party waives any right to object on any 16 ground to use in evidence of any of the material covered by this Protective Order. 17 12.3 Filing Protected Material. A Party that seeks to file under seal any 18 Protected Material must comply with Civil Local Rule 79-5. Protected Material may 19 only be filed under seal pursuant to a court order authorizing the sealing of the specific 20 Protected Material at issue. If a Party's request to file Protected Material under seal 21 is denied by the court, then the Receiving Party may file the information in the public 22 record unless otherwise instructed by the court. 23 24 13. FINAL DISPOSITION 25 After the final disposition of this Action, as defined in paragraph 4, within 60 26 days of a written request by the Designating Party, each Receiving Party must return 27 all Protected Material to the Producing Party or destroy such material. As used in this 1 || summaries, and any other format reproducing or capturing any of the Protected 2 || Material. Whether the Protected Material is returned or destroyed, the Receiving 3 || Party must submit a written certification to the Producing Party (and, if not the same 4 || person or entity, to the Designating Party) by the 60 day deadline that (1) identifies 5 || (by category, where appropriate) all the Protected Material that was returned or 6 || destroyed and (2) affirms that the Receiving Party has not retained any copies, 7 || abstracts, compilations, summaries or any other format reproducing or capturing any 8 || of the Protected Material. Notwithstanding this provision, Counsel are entitled to 9 || retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing 10 || transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert 11 || reports, attorney work product, and consultant and expert work product, even if such 12 || materials contain Protected Material. Any such archival copies that contain or 13 || constitute Protected Material remain subject to this Protective Order as set forth in 14 || Section 4 (DURATION). 15 16 || 14. Any willful violation of this Order may be punished by civil or criminal 17 || contempt proceedings, financial or evidentiary sanctions, reference to disciplinary 18 || authorities, or other appropriate action at the discretion of the Court. 19 99 || FOR GOOD CAUSE SHOWN BY THE PARTIES’ STIPULATION, IT IS SO ORDERED. 21 22 Nh— 23 DATED: December 1, 2023 fuk 24 HON. PEDRO V. CASTILLO 0 United States Magistrate Judge 26 27 28 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 4 I, _____________________________ [full name], of _________________ 5 [full address], declare under penalty of perjury that I have read in its entirety and 6 understand the Stipulated Protective Order that was issued by the United States 7 District Court for the Central District of California on [date] in the case of Doherty 8 v. MicroBilt Corporation et al., No.: 2:22-cv-03891-SPG-PVC. I agree to comply 9 with and to be bound by all the terms of this Stipulated Protective Order and I 10 understand and acknowledge that failure to so comply could expose me to sanctions 11 and punishment in the nature of contempt. I solemnly promise that I will not 12 disclose in any manner any information or item that is subject to this Stipulated 13 Protective Order to any person or entity except in strict compliance with the 14 provisions of this Order. 15 I further agree to submit to the jurisdiction of the United States District Court 16 for the Central District of California for the purpose of enforcing the terms of this 17 Stipulated Protective Order, even if such enforcement proceedings occur after 18 termination of this action. I hereby appoint __________________________ [full 19 name] of _______________________________________ [full address and 20 telephone number] as my California agent for service of process in connection with 21 this action or any proceedings related to enforcement of this Stipulated Protective 22 Order. 23 Date: ______________________________________ 24 City and State where signed: _________________________________ 25 26 Printed name: _______________________________ 27