Topalsson GmbH v. Bayerische Motoren Werke AG ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 Topalsson GmbH, Case No. 2:23-CV-01823-WLH-PVCx 12 Plaintiff, 13 v. STIPULATED PROTECTIVE ORDER 14 O’Gara Coach Company, LLC; Rusnak/Pasadena Corporation; 15 indiGO European Motorcars, LLC; Orange County British Motorcars 16 LLC; and Westlake Coach Company, LLC, 17 Defendants. 18 19 20 1. INTRODUCTION 21 1.1 PURPOSES AND LIMITATIONS 22 Discovery in this action is likely to involve production of confidential, 23 proprietary, or private information for which special protection from public 24 disclosure and from use for any purpose other than prosecuting this litigation may 25 be warranted. Accordingly, the parties hereby stipulate to and petition the Court to 26 enter the following Stipulated Protective Order. The parties acknowledge that this 27 Order does not confer blanket protections on all disclosures or responses to 1 only to the limited information or items that are entitled to confidential treatment 2 under the applicable legal principles. The parties further acknowledge, as set forth 3 in Section 13.4, below, that this Stipulated Protective Order does not entitle them to 4 file confidential information under seal; Civil Local Rule 79-5 sets forth the 5 procedures that must be followed and the standards that will be applied when a party 6 seeks permission from the court to file material under seal. 7 1.2 GOOD CAUSE STATEMENT 8 Good cause exists for entry of this Stipulated Protective Order because this 9 action for alleged copyright infringement of software is likely to involve proprietary 10 information such as the parties’ confidential source code and financial information 11 for which special protection from public disclosure and from use for any purpose 12 other than prosecution of this action is warranted. “Confidential source code and 13 confidential business information that would harm a party’s competitive standing 14 meet the compelling reasons standard, and thus also meet the ‘less exacting’ good 15 cause standard.” Skillz Platform Inc. v. AviaGames Inc., No. 21-CV-02436-BLF, 16 2024 WL 40185, at *2 (N.D. Cal. Jan. 3, 2024) (collecting cases). 17 Based on information requested, including that described herein, the Parties 18 anticipate that they will disclose sensitive source code, financial, and/or proprietary 19 information. Confidential source code, financial, and/or proprietary information of 20 third parties may also be disclosed. It is important that this information remain 21 protected and not be readily available due to the protection of business competition 22 interests. The unrestricted or unprotected disclosure of such source code, financial 23 and/or business information would result in prejudice or harm to the producing party 24 and third parties by revealing their information which could result in loss of 25 business and/or violation of federal and state laws and regulations regarding the 26 exportation of technical data. 27 Accordingly, to expedite the flow of information, to facilitate the prompt 1 protect information the Parties are entitled to keep confidential, to ensure that the 2 Parties are permitted reasonable necessary uses of such material in preparation for 3 and in the conduct of trial, to address their handling at the end of the litigation, and 4 serve the ends of justice, a protective order for such information is justified in this 5 matter. It is the intent of the parties that information will not be designated as 6 confidential for tactical reasons and that nothing be so designated without a good 7 faith belief that it has been maintained in a confidential, non-public manner, and 8 there is good cause why it should not be part of the public record of this case. 9 10 2. DEFINITIONS 11 2.1 Action: Topalsson GmbH v. O’Gara Coach Company, LLC et al., No. 12 2:23-CV-01823-WLH-PVCx (C.D. Cal.). 13 2.2 Challenging Party: a Party or Non-Party that challenges the 14 designation of information or items under this Order. 15 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 16 how it is generated, stored or maintained) or tangible things that qualify for 17 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 18 the Good Cause Statement. 19 2.4 Counsel (without qualifier): Outside Counsel of Record and House 20 Counsel (as well as their support staff). 21 2.5 Designating Party: a Party or Non-Party that designates information or 22 items that it produces in disclosures or in responses to discovery as 23 “CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 24 ONLY,” or as “HIGHLY CONFIDENTIAL – SOURCE CODE.” 25 2.6 Disclosure or Discovery Material: all items or information, regardless 26 of the medium or manner in which it is generated, stored, or maintained (including, 27 among other things, testimony, transcripts, and tangible things), that are produced or 1 2.7 Expert: a person with specialized knowledge or experience in a matter 2 pertinent to the litigation who has been retained by a Party or its counsel to serve as 3 an expert witness or as a consultant in this Action. 4 2.8 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” 5 Information or Items: extremely sensitive “Confidential Information or Items,” 6 disclosure of which to another Party or Non-Party would create a substantial risk of 7 serious harm that could not be avoided by less restrictive means, and as specified 8 above in the Good Cause Statement. 9 2.9 “HIGHLY CONFIDENTIAL – SOURCE CODE”: Information or 10 Items: extremely sensitive “Confidential Information or Items” representing 11 computer code and associated comments and revision histories, formulas, 12 engineering specifications, or schematics that define or otherwise describe in detail 13 the algorithms or structure of software or hardware designs, disclosure of which to 14 another Party or Non-Party would create a substantial risk of serious harm that could 15 not be avoided by less restrictive means, and as specified above in the Good Cause 16 Statement. 17 2.10 House Counsel: attorneys who are employees of a party to this Action. 18 House Counsel does not include Outside Counsel of Record or any other outside 19 counsel. 20 2.11 Non-Party: any natural person, partnership, corporation, association, or 21 other legal entity not named as a Party to this Action. 22 2.12 Outside Counsel of Record: attorneys who are not employees of a 23 party to this Action but are retained to represent or advise a party to this Action and 24 have appeared in this Action on behalf of that party or are affiliated with a law firm 25 which has appeared on behalf of that party, and includes support staff. 26 2.13 Party: any party to this Action, including all of its officers, directors, 27 employees, consultants, retained experts, and Outside Counsel of Record (and their 1 2.14 Producing Party: a Party or Non-Party that produces Disclosure or 2 Discovery Material in this Action. 3 2.15 Professional Vendors: persons or entities that provide litigation 4 support services (e.g., photocopying, videotaping, translating, preparing exhibits or 5 demonstrations, and organizing, storing, or retrieving data in any form or medium) 6 and their employees and subcontractors. 7 2.16 Protected Material: any Disclosure or Discovery Material that is 8 designated as “CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL – 9 ATTORNEYS’ EYES ONLY,” or as “HIGHLY CONFIDENTIAL – SOURCE 10 CODE.” 11 2.17 Receiving Party: a Party that receives Disclosure or Discovery 12 Material from a Producing Party. 13 14 3. SCOPE 15 The protections conferred by this Stipulation and Order cover not only 16 Protected Material (as defined above), but also (1) any information copied or 17 extracted from Protected Material; (2) all copies, excerpts, summaries, or 18 compilations of Protected Material; and (3) any testimony, conversations, or 19 presentations by Parties or their Counsel that might reveal Protected Material. 20 Any use of Protected Material at trial will be governed by the orders of the 21 trial judge. This Order does not govern the use of Protected Material at trial. 22 23 4. DURATION 24 Even after final disposition of this litigation, the confidentiality obligations 25 imposed by this Order will remain in effect until a Designating Party agrees 26 otherwise in writing or a court order otherwise directs. Final disposition will be 27 deemed to be the later of (1) dismissal of all claims and defenses in this Action, with 1 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action, 2 including the time limits for filing any motions or applications for extension of time 3 pursuant to applicable law. 4 5 5. DESIGNATING PROTECTED MATERIAL 6 5.1 Exercise of Restraint and Care in Designating Material for Protection. 7 Each Party or Non-Party that designates information or items for protection under 8 this Order must take care to limit any such designation to specific material that 9 qualifies under the appropriate standards. The Designating Party must designate for 10 protection only those parts of material, documents, items, or oral or written 11 communications that qualify so that other portions of the material, documents, 12 items, or communications for which protection is not warranted are not swept 13 unjustifiably within the ambit of this Order. 14 Mass, indiscriminate, or routinized designations are prohibited. Designations 15 that are shown to be clearly unjustified or that have been made for an improper 16 purpose (e.g., to unnecessarily encumber the case development process or to impose 17 unnecessary expenses and burdens on other parties) may expose the Designating 18 Party to sanctions. 19 If it comes to a Designating Party’s attention that information or items that it 20 designated for protection do not qualify for protection, that Designating Party must 21 promptly notify all other Parties that it is withdrawing the inapplicable designation. 22 5.2 Manner and Timing of Designations. Except as otherwise provided in 23 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 24 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 25 under this Order must be clearly so designated before the material is disclosed or 26 produced. 27 Designation in conformity with this Order requires: 1 (a) for information in documentary form (e.g., paper or electronic documents, 2 but excluding transcripts of depositions or other pretrial or trial proceedings), that 3 the Producing Party affix at a minimum, the legend “CONFIDENTIAL” or 4 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY 5 CONFIDENTIAL – SOURCE CODE,” to each page that contains protected 6 material. If only a portion or portions of the material on a page qualifies for 7 protection, the Producing Party also must clearly identify the protected portion(s) 8 (e.g., by making appropriate markings in the margins) and must specify, for each 9 portion, the level of protection being asserted. 10 A Party or Non-Party that makes original documents, materials, or source 11 code available for inspection need not designate them for protection until after the 12 inspecting Party has indicated which documents it would like copied and produced. 13 During the inspection and before the designation, all of the material made available 14 for inspection will be deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’ 15 EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” if source code. 16 After the inspecting Party has identified the documents it wants copied and 17 produced, the Producing Party must determine which documents, or portions 18 thereof, qualify for protection under this Order. Then, before producing the specified 19 documents, the Producing Party must affix the appropriate legend 20 (“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 21 ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE”) to each page that 22 contains Protected Material. If only a portion or portions of the material on a page 23 qualifies for protection, the Producing Party also must clearly identify the protected 24 portion(s) (e.g., by making appropriate markings in the margins) and must specify, 25 for each portion, the level of protection being asserted. 26 (b) for testimony given in depositions or in other pretrial or trial proceedings 27 that the Designating Party identify the Disclosure or Discovery Material on the 1 testimony and specify the level of protection being asserted. When it is impractical 2 to identify separately each portion of testimony that is entitled to protection and it 3 appears that substantial portions of the testimony may qualify for protection, the 4 Designating Party may invoke on the record (before the deposition, hearing, or other 5 proceeding is concluded) a right to have up to 21 days to identify the specific 6 portions of the testimony as to which protection is sought and to specify the level of 7 protection being asserted. Only those portions of the testimony that are 8 appropriately designated for protection within the 21 days shall be covered by the 9 provisions of this Stipulated Protective Order. Alternatively, a Designating Party 10 may specify, at the deposition, hearing, or other proceeding, or up to 21 days 11 afterwards if that period is properly invoked, that the entire transcript shall be 12 treated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ 13 EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE.” 14 Parties shall give the other parties reasonable notice (a minimum of two 15 business days) if they reasonably expect a deposition, hearing or other proceeding to 16 include Protected Material so that the other parties can ensure that only authorized 17 individuals who have signed the “Acknowledgment and Agreement to Be Bound” 18 (Exhibit A) are present at those proceedings. The use of a document as an exhibit at 19 a deposition shall not in any way affect its designation as “CONFIDENTIAL” or 20 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY 21 CONFIDENTIAL – SOURCE CODE.” 22 Transcripts containing Protected Material shall have an obvious legend on the 23 title page that the transcript contains Protected Material, and the title page shall be 24 followed by a list of all pages (including line numbers as appropriate) that have been 25 designated as Protected Material and the level of protection being asserted by the 26 Designating Party. The Designating Party shall inform the court reporter of these 27 requirements. Any transcript that is prepared before the expiration of a 21-day 1 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its entirety unless 2 otherwise agreed. After the expiration of that period, the transcript shall be treated 3 only as actually designated. 4 (c) for information produced in some form other than documentary and for 5 any other tangible items, that the Producing Party affix in a prominent place on the 6 exterior of the container or containers in which the information or item is stored the 7 legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ 8 EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE.” If only a 9 portion or portions of the information warrants protection, the Producing Party, to 10 the extent practicable, will identify the protected portion(s). 11 5.3 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 material. 14 Upon timely correction of a designation, the Receiving Party must make reasonable 15 efforts to assure that the material is treated in accordance with the provisions of this 16 Order. 17 18 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 19 6.1 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 6.2 Meet and Confer. The Challenging Party will initiate the dispute 23 resolution process (and, if necessary, file a discovery motion) under Local Rule 37.1 24 et seq. 25 6.3 The burden of persuasion in any such challenge proceeding will be on 26 the Designating Party. Frivolous challenges, and those made for an improper 27 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 1 Party has waived or withdrawn the confidentiality designation, all parties will 2 continue to afford the material in question the level of protection to which it is 3 entitled under the Producing Party’s designation until the Court rules on the 4 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 12 Receiving Party must comply with the provisions of section 14 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 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 18 otherwise ordered by the court or permitted in writing by the Designating Party, a 19 Receiving Party may disclose any information or item designated 20 “CONFIDENTIAL” only to: 21 (a) the Receiving Party’s Outside Counsel of Record in this Action, as 22 well as employees of said Outside Counsel of Record to whom it is reasonably 23 necessary to disclose the information for this Action and who have signed the 24 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 25 (b) up to three identified officers, directors, and employees (including 26 House Counsel) of the Receiving Party to whom disclosure is reasonably necessary 27 for this Action and who have signed the “Acknowledgment and Agreement to Be 1 (c) Experts (as defined in this Order) of the Receiving Party to whom 2 disclosure is reasonably necessary for this Action and who have signed the 3 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 4 (d) the Court and its personnel; 5 (e) court reporters and their staff; 6 (f) professional jury or trial consultants, mock jurors, and Professional 7 Vendors to whom disclosure is reasonably necessary for this Action and who have 8 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 9 (g) the author or recipient of a document containing the information or a 10 custodian or other person who otherwise possessed or knew the information; 11 (h) during their depositions, witnesses, and attorneys for witnesses, in the 12 Action to whom disclosure is reasonably necessary provided: (1) the deposing party 13 requests that the witness sign the form attached as Exhibit A hereto; and (2) they 14 will not be permitted to keep any confidential information unless they sign the 15 “Acknowledgment and Agreement to Be Bound” (Exhibit A),1 unless otherwise 16 agreed by the Designating Party or ordered by the court. Pages of transcribed 17 deposition testimony or exhibits to depositions that reveal Protected Material may 18 be separately bound by the court reporter and may not be disclosed to anyone except 19 as permitted under this Stipulated Protective Order. Documents marked HIGHLY 20 CONFIDENTIAL – SOURCE CODE will not be attached to any deposition 21 transcript but will instead be referred to during the deposition by Bates Numbers; 22 and 23 (i) any mediator or settlement officer, and their supporting personnel, 24 mutually agreed upon by any of the parties engaged in settlement discussions. 25 7.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 26 27 1 For avoidance of doubt, a witness may be shown any document on which they are listed as an 1 ONLY” and “HIGHLY CONFIDENTIAL – SOURCE CODE” Information or 2 Items. Unless otherwise ordered by the court or permitted in writing by the 3 Designating Party, a Receiving Party may disclose any information or item 4 designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or 5 “HIGHLY CONFIDENTIAL – SOURCE CODE” only to: 6 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well 7 as employees of said Outside Counsel of Record to whom it is reasonably necessary 8 to disclose the information for this litigation and who have signed the 9 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 10 (b) up to three Experts of the Receiving Party (1) to whom disclosure is 11 reasonably necessary for this litigation, (2) who have signed the “Acknowledgment 12 and Agreement to Be Bound” (Exhibit A), and (3) as to whom the procedures set 13 forth in paragraph 7.4(a), below, have been followed; 14 (c) the Court and its personnel; 15 (d) court reporters and their staff, professional jury or trial consultants, 16 mock jurors, and Professional Vendors to whom disclosure is reasonably necessary 17 for this litigation and who have signed the “Acknowledgment and Agreement to Be 18 Bound” (Exhibit A); and 19 (e) the author or recipient of a document containing the information or a 20 custodian or other person who otherwise possessed or knew the information. 21 7.4 Procedures for Approving or Objecting to Disclosure of 22 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY 23 CONFIDENTIAL – SOURCE CODE” Information or Items to Experts. 24 (a) Unless otherwise ordered by the court or agreed to in writing by the 25 Designating Party, a Party that seeks to disclose to an Expert (as defined in this 26 Order) any information or item that has been designated “HIGHLY 27 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY 1 a written request to the Designating Party that (1) identifies the general categories of 2 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY 3 CONFIDENTIAL – SOURCE CODE” information that the Receiving Party seeks 4 permission to disclose to the Expert, (2) sets forth the full name of the Expert and 5 the city and state of his or her primary residence, (3) attaches a copy of the Expert’s 6 current resume, (4) identifies the Expert’s current employer(s), (5) identifies each 7 person or entity from whom the Expert has received compensation or funding for 8 work in his or her areas of expertise or to whom the expert has provided 9 professional services, including in connection with a litigation, at any time during 10 the preceding five years, 2 and (6) identifies (by name and number of the case, filing 11 date, and location of court) any litigation in connection with which the Expert has 12 offered expert testimony, including through a declaration, report, or testimony at a 13 deposition or trial, during the preceding five years. 14 (b) A Party that makes a request and provides the information specified in 15 the preceding respective paragraphs may disclose the subject Protected Material to 16 the identified Expert unless, within 14 days of delivering the request, the Party 17 receives a written objection from the Designating Party. Any such objection must 18 set forth in detail the grounds on which it is based. 19 (c) A Party that receives a timely written objection must meet and confer 20 with the Designating Party (through direct voice to voice dialogue) to try to resolve 21 the matter by agreement within seven days of the written objection. If no agreement 22 is reached, the Party seeking to make the disclosure to the Expert will initiate the 23 dispute resolution process (and, if necessary, file a discovery motion) under Local 24 Rule 37.1 et seq. 25 In any such proceeding, the Party opposing disclosure to the Expert shall bear 26 27 2 If the Expert believes any of this information is subject to a confidentiality obligation to a third- party, then the Expert should provide whatever information the Expert believes can be disclosed 1 the burden of proving that the risk of harm that the disclosure would entail (under 2 the safeguards proposed) outweighs the Receiving Party’s need to disclose the 3 Protected Material to its Expert. 4 5 8. SOURCE CODE 6 (a) To the extent production of source code becomes necessary in this case, 7 a Producing Party may designate source code as “HIGHLY CONFIDENTIAL - 8 SOURCE CODE” if it comprises or includes confidential, proprietary or trade secret 9 source code. 10 (b) Protected Material designated as “HIGHLY CONFIDENTIAL – 11 SOURCE CODE” will be subject to all of the protections afforded to “HIGHLY 12 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information, and may be 13 disclosed only to the individuals to whom “HIGHLY CONFIDENTIAL – 14 ATTORNEYS’ EYES ONLY” information may be disclosed, as set forth in 15 Paragraphs 7.3 and 7.4. 16 (c) Any source code produced in discovery shall be made available for 17 inspection, in a format allowing it to be reasonably reviewed and searched, during 18 normal business hours (which shall be deemed as 9:00 a.m. to 5:00 p.m. local time 19 Monday through Friday) or at other mutually agreeable times, at (1) an office of the 20 Producing Party’s counsel or (2) another mutually agreed upon location. Any 21 location under (1) or (2) will be within the United States. The source code shall be 22 made available for inspection on a secured computer in a secured room without 23 Internet access or network access to other computers, and the Receiving Party shall 24 not copy, remove, or otherwise transfer any portion of the source code onto any 25 recordable media or recordable device. Use or possession of any input/output 26 device (e.g., external keyboard, mouse, external monitor, USB memory stick, 27 mobile phone or tablet, camera or any camera-enabled device, CD, floppy disk, 1 network or external system, etc.) is prohibited while accessing the computer 2 containing the source code. The computer containing source code will be made 3 available for inspection during regular business hours, upon reasonable notice to the 4 producing party. After the source code is first collected and made available, 5 reasonable notice will not be less than 3 business days in advance of the requested 6 inspection. The Producing Party may visually monitor the activities of the 7 Receiving Party’s representatives during any source code review, but only to ensure 8 that there is no unauthorized recording, copying, or transmission of the source code. 9 (d) The Receiving Party may request paper copies of limited portions of 10 source code that are reasonably necessary for the preparation of court filings, 11 pleadings, expert reports, or other papers, or for deposition or trial, but shall not 12 request paper copies for the purposes of reviewing the source code other than 13 electronically as set forth in paragraph (c) in the first instance. Within 5 business 14 days of receiving the Receiving Party’s request, the Producing Party shall provide a 15 copy of the requested source code in paper form including bates numbers and the 16 label “HIGHLY CONFIDENTIAL - SOURCE CODE.” At the Requesting Party’s 17 request, up to two additional sets (or subsets) of printed source code may be 18 requested and provided by the Producing Party. The Producing Party may challenge 19 the amount of source code requested in hard copy form pursuant to the dispute 20 resolution procedure and timeframes set forth in Local Rule 37.1 et. seq. The burden 21 of persuasion in any such challenge proceeding shall be on the Receiving Party for 22 purposes of dispute resolution. 23 (e) The Receiving Party shall maintain a record of any individual who has 24 inspected any portion of the source code in electronic or paper form. The Receiving 25 Party shall maintain all paper copies of any printed portions of the source code in a 26 secured, locked area under the direct control or counsel responsible for maintaining 27 the security and confidentiality of the designated materials or individuals authorized 1 protective order. Any paper copies designated “HIGHLY CONFIDENTIAL – 2 SOURCE CODE” shall be stored or viewed only at (i) the offices of outside counsel 3 for the Receiving Party, (ii) the offices of outside experts or consultants who have 4 been approved to access source code; (iii) the site where any deposition is taken (iv) 5 the Court; or (v) any intermediate location necessary to transport the information to 6 a hearing, trial, or deposition. The Receiving Party shall not create any electronic or 7 other images of the paper copies and shall not convert any of the information 8 contained in the paper copies into any electronic format. The Receiving Party shall 9 only make additional paper copies if such additional copies are (1) necessary to 10 prepare court filings, pleadings, or other papers (including a testifying expert’s 11 expert report), (2) necessary for deposition, or (3) otherwise necessary for the 12 preparation of its case. Any paper copies used during a deposition shall be retrieved 13 by the Receiving Party at the end of each day and must not be given to or left with a 14 court reporter or any other unauthorized individual. 15 (f) The Receiving Party’s outside counsel and/or expert shall be entitled to 16 take notes relating to the source code but may not copy any portion of the source 17 code into the notes. No copies of all or any portion of the source code may leave the 18 room in which the source code is inspected except as otherwise provided herein. 19 Further, no other written or electronic record of the source code is permitted except 20 as otherwise provided herein. 21 (g) A list of names of persons who will view the source code will be provided 22 to the producing party in conjunction with any written (including email) notice 23 requesting inspection. 24 (h) The Receiving Party’s outside counsel shall maintain a log of all copies of 25 the source code (received from a Producing Party) that are delivered by the 26 Receiving Party to any person. The log shall include the names of the recipients and 27 reviewers of copies and locations where the copies are stored. Upon request by the 1 descriptions of the security measures employed by the Receiving Party and/or 2 person that receives a copy of any portion of the source code. 3 4 9 PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 5 IN OTHER LITIGATION 6 If a Party is served with a subpoena or a court order issued in other litigation 7 that compels disclosure of any information or items designated in this Action as 8 “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 9 ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE,” that Party must: 10 (a) promptly notify in writing the Designating Party. Such notification 11 will include a copy of the subpoena or court order; 12 (b) promptly notify in writing the party who caused the subpoena or order 13 to issue in the other litigation that some or all of the material covered by the 14 subpoena or order is subject to this Protective Order. Such notification will include 15 a copy of this Stipulated Protective Order; and 16 (c) cooperate with respect to all reasonable procedures sought to be 17 pursued by the Designating Party whose Protected Material may be affected. 18 If the Designating Party timely seeks a protective order, the Party served with 19 the subpoena or court order will not produce any information designated in this 20 Action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ 21 EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” before a 22 determination by the court from which the subpoena or order issued, unless the 23 Party has obtained the Designating Party’s permission. The Designating Party will 24 bear the burden and expense of seeking protection in that court of its confidential 25 material and nothing in these provisions should be construed as authorizing or 26 encouraging a Receiving Party in this Action to disobey a lawful directive from 27 another court. 1 10. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 2 PRODUCED IN THIS LITIGATION 3 (a) The terms of this Order are applicable to information produced by a 4 Non-Party in this Action and designated as “CONFIDENTIAL” or “HIGHLY 5 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY 6 CONFIDENTIAL – SOURCE CODE.” Such information produced by Non-Parties 7 in connection with this litigation is protected by the remedies and relief provided by 8 this Order. Nothing in these provisions should be construed as prohibiting a Non- 9 Party from seeking additional protections. 10 (b) In the event that a Party is required, by a valid discovery request, to 11 produce a Non-Party’s confidential information in its possession, and the Party is 12 subject to an agreement with the Non-Party not to produce the Non-Party’s 13 confidential information, then the Party will: 14 (1) promptly notify in writing the Requesting Party and the Non-Party 15 that some or all of the information requested is subject to a confidentiality 16 agreement with a Non-Party; 17 (2) promptly provide the Non-Party with a copy of the Stipulated 18 Protective Order in this Action, the relevant discovery request(s), and a reasonably 19 specific description of the information requested; and 20 (3) make the information requested available for inspection by the 21 Non-Party, if requested. 22 (c) If the Non-Party fails to seek a protective order from this court within 23 14 days of receiving the notice and accompanying information, the Receiving Party 24 may produce the Non-Party’s confidential information responsive to the discovery 25 request. If the Non-Party timely seeks a protective order, the Receiving Party will 26 not produce any information in its possession or control that is subject to the 27 confidentiality agreement with the Non-Party before a determination by the court. 1 Absent a court order to the contrary, the Non-Party will bear the burden and expense 2 of seeking protection in this court of its Protected Material. 3 4 11. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 5 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 6 Protected Material to any person or in any circumstance not authorized under this 7 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 8 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts 9 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or 10 persons to whom unauthorized disclosures were made of all the terms of this Order, 11 and (d) request such person or persons to execute the “Acknowledgment and 12 Agreement to Be Bound” that is attached hereto as Exhibit A. 13 14 12. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 15 PROTECTED MATERIAL 16 When a Producing Party gives notice to Receiving Parties that certain 17 inadvertently produced material is subject to a claim of privilege or other protection, 18 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 19 Procedure 26(b)(5)(B). This provision is not intended to modify whatever 20 procedure may be established in an e-discovery order that provides for production 21 without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and 22 (e), insofar as the parties reach an agreement on the effect of disclosure of a 23 communication or information covered by the attorney-client privilege or work 24 product protection, the parties may incorporate their agreement in the stipulated 25 protective order submitted to the court. 26 27 1 13. MISCELLANEOUS 2 13.1 Right to Further Relief. Nothing in this Order abridges the right of any 3 person to seek its modification by the Court in the future. 4 13.2 Right to Assert Other Objections. By stipulating to the entry of this 5 Protective Order no Party waives any right it otherwise would have to object to 6 disclosing or producing any information or item on any ground not addressed in this 7 Stipulated Protective Order. Similarly, no Party waives any right to object on any 8 ground to use in evidence of any of the material covered by this Protective Order. 9 13.3 Export Control. Disclosure of Protected Material shall be subject to all 10 applicable laws and regulations relating to the export of technical data contained in 11 such Protected Material, including the release of such technical data to foreign 12 persons or nationals in the United States or elsewhere. The Producing Party shall be 13 responsible for identifying any such controlled technical data, and the Receiving 14 Party shall take measures necessary to ensure compliance. 15 13.4 Filing Protected Material. A Party that seeks to file under seal any 16 Protected Material must comply with Civil Local Rule 79-5. Protected Material may 17 only be filed under seal pursuant to a court order authorizing the sealing of the 18 specific Protected Material at issue. If a Party's request to file Protected Material 19 under seal is denied by the court, then the Receiving Party may file the information 20 in the public record unless otherwise instructed by the court. 21 13.5 Violations. Any willful violation of this Order may be punished by civil 22 or criminal contempt proceedings, financial or evidentiary sanctions, reference to 23 disciplinary authorities, or other appropriate action at the discretion of the Court. 24 25 14. FINAL DISPOSITION 26 After the final disposition of this Action, as defined in paragraph 4, within 60 27 days of a written request by the Designating Party, each Receiving Party must return 1 || this subdivision, “all Protected Material” includes all copies, abstracts, compilations, 2 || summaries, and any other format reproducing or capturing any of the Protected 3 || Material. Whether the Protected Material is returned or destroyed, the Receiving 4 || Party must submit a written certification to the Producing Party (and, if not the same 5 || person or entity, to the Designating Party) by the 60 day deadline that (1) identifies 6 || (by category, where appropriate) all the Protected Material that was returned or 7 || destroyed and (2) affirms that the Receiving Party has not retained any copies, 8 || abstracts, compilations, summaries or any other format reproducing or capturing any 9 || of the Protected Material. Notwithstanding this provision, Counsel are entitled to 10 || retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing 11 || transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert 12 || reports, attorney work product, and consultant and expert work product, even if such 13 || materials contain Protected Material. Any such archival copies that contain or 14 || constitute Protected Material remain subject to this Protective Order as set forth in 15 || Section 4 (DURATION). 16 17 8 FOR GOOD CAUSE SHOWN BY THE PARTIES’ STIPULATION, IT IS SO 19 ORDERED. 20 . 21 fu □□ 9 DATED: March 15, 2024 eee HON. PEDRO V. CASTILLO 3 United States Magistrate Judge 24 25 26 27 28 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _____________________________ [full name], of 4 ________________________________________________________________ 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] 8 in the case of Topalsson GmbH v. O’Gara Coach Company LLC et. al., Case No. 9 2:23-cv-1823-WLH-PVC (C.D. Cal.). I agree to comply with and to be bound by all 10 the terms of this Stipulated Protective Order and I understand and acknowledge that 11 failure to so comply could expose me to sanctions and punishment in the nature of 12 contempt. I solemnly promise that I will not disclose in any manner any information 13 or item that is subject to this Stipulated Protective Order to any person or entity 14 except in strict compliance with the 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 ___________________________________________________________ 20 [full address and telephone number] as my California agent for service of process 21 in connection with this action or any proceedings related to enforcement of this 22 Stipulated Protective Order. 23 Date: ______________________________________ 24 City and State where signed: _________________________________ 25 26 Printed name: _______________________________ 27 Signature: __________________________________