Gunner Concrete, Inc. v. ProAll International Manufacturing, Inc. ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SOUTHERN DIVISION 11 DOUGLAS SCOTT MILNE, II, an Case No.: 8:23-cv-02212-JVS-JDE 12 individual; GENEVA MILNE, an individual; and GUNNER CONCRETE, 13 INC., a California Corporation, STIPULATED PROTECTIVE ORDER RE CONFIDENTIAL 14 Plaintiffs, DESIGNATIONS 15 v. 16 PROALL INTERNATIONAL MANUFACTURING, INC., a Canadian 17 company; STEVE BOND, an individual; and GERALD GAUBERT, an individual, 18 Defendants. 19 20 Based on the Parties’ Stipulation (Dkt. 37), and for good cause shown, the 21 Court finds and orders as follows. 22 23 1. PURPOSES AND LIMITATIONS 24 Discovery in this action is likely to involve production of confidential, 25 proprietary or private information for which special protection from public 26 disclosure and from use for any purpose other than pursuing this litigation may be 27 warranted. Accordingly, the parties hereby stipulate to and petition the Court to 28 enter the following Stipulated Protective Order. The parties acknowledge that this 1 Order does not confer blanket protections on all disclosures or responses to 2 discovery and that the protection it affords from public disclosure and use extends 3 only to the limited information or items that are entitled to confidential treatment 4 under the applicable legal principles. 5 2. GOOD CAUSE STATEMENT 6 This action is likely to involve financial documents including bank 7 statements, customer and pricing lists and other valuable research, development, 8 commercial, financial, technical and/or proprietary information for which special 9 protection from public disclosure and from use for any purpose other than 10 prosecution of this action is warranted. Such confidential and proprietary materials 11 and information consist of, among other things, confidential business or financial 12 information, information regarding confidential business practices, or other 13 confidential research, development, or commercial information (including 14 information implicating privacy rights of third parties), information otherwise 15 generally unavailable to the public, or which may be privileged or otherwise 16 protected from disclosure under state or federal statutes, court rules, case decisions, 17 or common law. Accordingly, to expedite the flow of information, to facilitate the 18 prompt resolution of disputes over confidentiality of discovery materials, to 19 adequately protect information the parties are entitled to keep confidential, to 20 ensure that the parties are permitted reasonable necessary uses of such material in 21 preparation for and in the conduct of trial, to address their handling at the end of 22 the litigation, and serve the ends of justice, a protective order for such information 23 is justified in this matter. It is the intent of the parties that information will not be 24 designated as confidential for tactical reasons and that nothing be so designated 25 without a good faith belief that it has been maintained in a confidential, non-public 26 manner, and there is good cause why it should not be part of the public record of 27 this case. 28 / / / 1 3. ACKNOWLEDGMENT OF UNDER SEAL FILING PROCEDURE 2 The parties further acknowledge, as set forth in Section 14.3, below, that this 3 Stipulated Protective Order does not entitle them to file confidential information 4 under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed 5 and the standards that will be applied when a party seeks permission from the court 6 to file material under seal. There is a strong presumption that the public has a right 7 of access to judicial proceedings and records in civil cases. In connection with non- 8 dispositive motions, good cause must be shown to support a filing under seal. See 9 Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), 10 Phillips v. Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar- 11 Welbon v. Sony Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even 12 stipulated protective orders require good cause showing), and a specific showing of 13 good cause or compelling reasons with proper evidentiary support and legal 14 justification, must be made with respect to Protected Material that a party seeks to 15 file under seal. The parties’ mere designation of Disclosure or Discovery Material 16 as CONFIDENTIAL does not— without the submission of competent evidence by 17 declaration, establishing that the material sought to be filed under seal qualifies as 18 confidential, privileged, or otherwise protectable—constitute good cause. 19 Further, if a party requests sealing related to a dispositive motion or trial, 20 then compelling reasons, not only good cause, for the sealing must be shown, and 21 the relief sought shall be narrowly tailored to serve the specific interest to be 22 protected. See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir. 23 2010). For each item or type of information, document, or thing sought to be filed 24 or introduced under seal, the party seeking protection must articulate compelling 25 reasons, supported by specific facts and legal justification, for the requested sealing 26 order. Again, competent evidence supporting the application to file documents 27 under seal must be provided by declaration. 28 / / / 1 Any document that is not confidential, privileged, or otherwise protectable 2 in its entirety will not be filed under seal if the confidential portions can be 3 redacted. If documents can be redacted, then a redacted version for public viewing, 4 omitting only the confidential, privileged, or otherwise protectable portions of the 5 document, shall be filed. Any application that seeks to file documents under seal in 6 their entirety should include an explanation of why redaction is not feasible. 7 4. DEFINITIONS 8 4.1 Action: Gunner Concrete Inc., et al. v. Proall International 9 Manufacturing, Inc. et al. Central District Case No.: 8:23-cv-02212-JVS-JDE 10 4.2 Challenging Party: a Party or Non-Party that challenges the 11 designation of information or items under this Order. 12 4.3 “CONFIDENTIAL” Information or Items: information (regardless of 13 how it is generated, stored or maintained) or tangible things that qualify for 14 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 15 the Good Cause Statement. 16 4.4 Counsel: Outside Counsel of Record and House Counsel (as well as 17 their support staff). 18 4.5 Designating Party: a Party or Non-Party that designates information or 19 items that it produces in disclosures or in responses to discovery as 20 “CONFIDENTIAL.” 21 4.6 Disclosure or Discovery Material: all items or information, regardless 22 of the medium or manner in which it is generated, stored, or maintained (including, 23 among other things, testimony, transcripts, and tangible things), that are produced 24 or generated in disclosures or responses to discovery. 25 4.7 Expert: a person with specialized knowledge or experience in a matter 26 pertinent to the litigation who has been retained by a Party or its counsel to serve 27 as an expert witness or as a consultant in this Action. 28 / / / 1 4.8 House Counsel: attorneys who are employees of a party to this 2 Action. House Counsel does not include Outside Counsel of Record or any other 3 outside counsel. 4 4.9 Non-Party: any natural person, partnership, corporation, association or 5 other legal entity not named as a Party to this action. 6 4.10 Outside Counsel of Record: attorneys who are not employees of a 7 party to this Action but are retained to represent a party to this Action and have 8 appeared in this Action on behalf of that party or are affiliated with a law firm that 9 has appeared on behalf of that party, and includes support staff. 10 4.11 Party: any party to this Action, including all of its officers, directors, 11 employees, consultants, retained experts, and Outside Counsel of Record (and their 12 support staffs). 13 4.12 Producing Party: a Party or Non-Party that produces Disclosure or 14 Discovery Material in this Action. 15 4.13 Professional Vendors: persons or entities that provide litigation 16 support services (e.g., photocopying, videotaping, translating, preparing exhibits or 17 demonstrations, and organizing, storing, or retrieving data in any form or medium) 18 and their employees and subcontractors. 19 4.14 Protected Material: any Disclosure or Discovery Material that is 20 designated as “CONFIDENTIAL.” 21 4.15 Receiving Party: a Party that receives Disclosure or Discovery 22 Material from a Producing Party. 23 5. SCOPE 24 The protections conferred by this Stipulation and Order cover not only 25 Protected Material (as defined above), but also (1) any information copied or 26 extracted from Protected Material; (2) all copies, excerpts, summaries, or 27 compilations of Protected Material; and (3) any testimony, conversations, or 28 presentations by Parties or their Counsel that might reveal Protected Material. 1 Any use of Protected Material at trial shall be governed by the orders of the 2 trial judge and other applicable authorities. This Order does not govern the use of 3 Protected Material at trial. 4 6. DURATION 5 Once a case proceeds to trial, information that was designated as 6 CONFIDENTIAL or maintained pursuant to this protective order used or 7 introduced as an exhibit at trial becomes public and will be presumptively 8 available to all members of the public, including the press, unless compelling 9 reasons supported by specific factual findings to proceed otherwise are made to the 10 trial judge in advance of the trial. See Kamakana, 447 F.3d at 1180-81 11 (distinguishing “good cause” showing for sealing documents produced in 12 discovery from “compelling reasons” standard when merits-related documents are 13 part of court record). Accordingly, the terms of this protective order do not extend 14 beyond the commencement of the trial. 15 7. DESIGNATING PROTECTED MATERIAL 16 7.1 Exercise of Restraint and Care in Designating Material for Protection. 17 Each Party or Non-Party that designates information or items for protection 18 under this Order must take care to limit any such designation to specific material 19 that qualifies under the appropriate standards. The Designating Party must 20 designate for protection only those parts of material, documents, items or oral or 21 written communications that qualify so that other portions of the material, 22 documents, items or communications for which protection is not warranted are not 23 swept unjustifiably within the ambit of this Order. 24 Mass, indiscriminate or routinized designations are prohibited. Designations 25 that are shown to be clearly unjustified or that have been made for an improper 26 purpose (e.g., to unnecessarily encumber the case development process or to 27 impose unnecessary expenses and burdens on other parties) may expose the 28 Designating Party to sanctions. 1 If it comes to a Designating Party’s attention that information or items that it 2 designated for protection do not qualify for protection, that Designating Party must 3 promptly notify all other Parties that it is withdrawing the inapplicable designation. 4 7.2 Manner and Timing of Designations. Except as otherwise provided in 5 this Order, or as otherwise stipulated or ordered, Disclosure of Discovery Material 6 that qualifies for protection under this Order must be clearly so designated before 7 the material is disclosed or produced. 8 Designation in conformity with this Order requires: 9 (a) for information in documentary form (e.g., paper or electronic 10 documents, but excluding transcripts of depositions or other pretrial or trial 11 proceedings), that the Producing Party affix at a minimum, the legend 12 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that 13 contains protected material. If only a portion of the material on a page qualifies for 14 protection, the Producing Party also must clearly identify the protected portion(s) 15 (e.g., by making appropriate markings in the margins). 16 A Party or Non-Party that makes original documents available for inspection 17 need not designate them for protection until after the inspecting Party has indicated 18 which documents it would like copied and produced. During the inspection and 19 before the designation, all of the material made available for inspection shall be 20 deemed “CONFIDENTIAL.” After the inspecting Party has identified the 21 documents it wants copied and produced, the Producing Party must determine 22 which documents, or portions thereof, qualify for protection under this Order. 23 Then, before producing the specified documents, the Producing Party must affix 24 the “CONFIDENTIAL legend” to each page that contains Protected Material. If 25 only a portion of the material on a page qualifies for protection, the Producing 26 Party also must clearly identify the protected portion(s) (e.g., by making 27 appropriate markings in the margins). 28 / / / 1 (b) for testimony given in depositions that the Designating Party identifies 2 the Disclosure or Discovery Material on the record, before the close of the 3 deposition all protected testimony. 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 is stored the legend 7 “CONFIDENTIAL.” If only a portion or portions of the information warrants 8 protection, the Producing Party, to the extent practicable, shall identify the 9 protected portion(s). 10 7.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 11 failure to designate qualified information or items does not, standing alone, waive 12 the Designating Party’s right to secure protection under this Order for such 13 material. Upon timely correction of a designation, the Receiving Party must make 14 reasonable efforts to assure that the material is treated in accordance with the 15 provisions of this Order. 16 8. CHALLENGING CONFIDENTIALITY DESIGNATIONS 17 8.1. Timing of Challenges. Any Party or Non-Party may challenge a 18 designation of confidentiality at any time that is consistent with the Court’s 19 Scheduling Order. 20 8.2 Meet and Confer. The Challenging Party shall initiate the dispute 21 resolution process under Local Rule 37-1 et seq. 22 8.3 Joint Stipulation. Any challenge submitted to the Court shall be via a 23 joint stipulation pursuant to Local Rule 37-2. 24 8.4 The burden of persuasion in any such challenge proceeding shall be 25 on the Designating Party. Frivolous challenges, and those made for an improper 26 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 27 parties) may expose the Challenging Party to sanctions. Unless the Designating 28 Party has waived or withdrawn the confidentiality designation, all parties shall 1 continue to afford the material in question the level of protection to which it is 2 entitled under the Producing Party’s designation until the Court rules on the 3 challenge. 4 9. ACCESS TO AND USE OF PROTECTED MATERIAL 5 9.1 Basic Principles. A Receiving Party may use Protected Material that is 6 disclosed or produced by another Party or by a Non-Party in connection with this 7 Action only for prosecuting, defending or attempting to settle this Action. Such 8 Protected Material may be disclosed only to the categories of persons and under 9 the conditions described in this Order. When the Action has been terminated, a 10 Receiving Party must comply with the provisions of section 15 below (FINAL 11 DISPOSITION). 12 Protected Material must be stored and maintained by a Receiving Party at a 13 location and in a secure manner that ensures that access is limited to the persons 14 authorized under this Order. 15 9.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 16 otherwise ordered by the court or permitted in writing by the Designating Party, a 17 Receiving Party may disclose any information or item designated 18 “CONFIDENTIAL” only to: 19 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well 20 as employees of said Outside Counsel of Record to whom it is reasonably 21 necessary to disclose the information for this Action; 22 (b) the officers, directors, and employees (including House Counsel) of the 23 Receiving Party to whom disclosure is reasonably necessary for this Action; 24 (c) Experts (as defined in this Order) of the Receiving Party to whom 25 disclosure is reasonably necessary for this Action and who have signed the 26 “Acknowledgment and Agreement to Be Bound” (Exhibit A) 27 (d) the court and its personnel; 28 (e) court reporters and their staff; 1 (f) professional jury or trial consultants, mock jurors, and Professional 2 Vendors to whom disclosure is reasonably necessary for this Action and who have 3 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 4 (g) the author or recipient of a document containing the information or a 5 custodian or other person who otherwise possessed or knew the information; 6 (h) during their depositions, witnesses, and attorneys for witnesses, in the 7 Action to whom disclosure is reasonably necessary provided: (1) the deposing 8 party requests that the witness sign the form attached as Exhibit A hereto; and (2) 9 they will not be permitted to keep any confidential information unless they sign the 10 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 11 agreed by the Designating Party or ordered by the court. Pages of transcribed 12 deposition testimony or exhibits to depositions that reveal Protected Material may 13 be separately bound by the court reporter and may not be disclosed to anyone 14 except as permitted under this Stipulated Protective Order; and 15 (i) any mediators or settlement officers and their supporting personnel, 16 mutually agreed upon by any of the parties engaged in settlement discussions. 17 10. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 18 IN OTHER LITIGATION 19 If a Party is served with a subpoena or a court order issued in other litigation 20 that compels disclosure of any information or items designated in this Action as 21 “CONFIDENTIAL,” that Party must: 22 (a) promptly notify in writing the Designating Party. Such notification shall 23 include a copy of the subpoena or court order; 24 (b) promptly notify in writing the party who caused the subpoena or order to 25 issue in the other litigation that some or all of the material covered by the subpoena 26 or order is subject to this Protective Order. Such notification shall include a copy 27 of this Stipulated Protective Order; and 28 / / / 1 (c) cooperate with respect to all reasonable procedures sought to be pursued 2 by the Designating Party whose Protected Material may be affected. If the 3 Designating Party timely seeks a protective order, the Party served with the 4 subpoena or court order shall not produce any information designated in this action 5 as “CONFIDENTIAL” before a determination by the court from which the 6 subpoena or order issued, unless the Party has obtained the Designating Party’s 7 permission. The Designating Party shall bear the burden and expense of seeking 8 protection in that court of its confidential material and nothing in these provisions 9 should be construed as authorizing or encouraging a Receiving Party in this Action 10 to disobey a lawful directive from another court. 11 11. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO 12 BE PRODUCED IN THIS LITIGATION 13 (a) The terms of this Order are applicable to information produced by a Non- 14 Party in this Action and designated as “CONFIDENTIAL.” Such information 15 produced by Non-Parties in connection with this litigation is protected by the 16 remedies and relief provided by this Order. Nothing in these provisions should be 17 construed as prohibiting a Non-Party from seeking additional protections. 18 (b) In the event that a Party is required, by a valid discovery request, to 19 produce a Non-Party’s confidential information in its possession, and the Party is 20 subject to an agreement with the Non-Party not to produce the Non-Party’s 21 confidential information, then the Party shall: 22 (1) promptly notify in writing the Requesting Party and the Non-Party that 23 some or all of the information requested is subject to a confidentiality agreement 24 with a Non-Party; 25 (2) promptly provide the Non-Party with a copy of the Stipulated Protective 26 Order in this Action, the relevant discovery request(s), and a reasonably specific 27 description of the information requested; and 28 / / / 1 (3) make the information requested available for inspection by the Non- 2 Party, if requested. 3 (c) If the Non-Party fails to seek a protective order from this court within 14 4 days of receiving the notice and accompanying information, the Receiving Party 5 may produce the Non-Party’s confidential information responsive to the discovery 6 request. If the Non-Party timely seeks a protective order, the Receiving Party shall 7 not produce any information in its possession or control that is subject to the 8 confidentiality agreement with the Non-Party before a determination by the court. 9 Absent a court order to the contrary, the Non-Party shall bear the burden and 10 expense of seeking protection in this court of its Protected Material. 11 12. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 12 If a Receiving Party learns that, by inadvertence or otherwise, it has 13 disclosed Protected Material to any person or in any circumstance not authorized 14 under this Stipulated Protective Order, the Receiving Party must immediately (a) 15 notify in writing the Designating Party of the unauthorized disclosures, (b) use its 16 best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform 17 the person or persons to whom unauthorized disclosures were made of all the terms 18 of this Order, and (d) request such person or persons to execute the 19 “Acknowledgment an Agreement to Be Bound” attached hereto as Exhibit A. 20 13. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 21 PROTECTED MATERIAL 22 When a Producing Party gives notice to Receiving Parties that certain 23 inadvertently produced material is subject to a claim of privilege or other 24 protection, the obligations of the Receiving Parties are those set forth in Federal 25 Rule of Civil\ Procedure 26(b)(5)(B). This provision is not intended to modify 26 whatever procedure may be established in an e-discovery order that provides for 27 production without prior privilege review. Pursuant to Federal Rule of Evidence 28 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure 1 of a communication or information covered by the attorney-client privilege or 2 work product protection, the parties may incorporate their agreement in the 3 stipulated protective order submitted to the court. 4 14. MISCELLANEOUS 5 14.1 Right to Further Relief. Nothing in this Order abridges the right of any 6 person to seek its modification by the Court in the future. 7 14.2 Right to Assert Other Objections. By stipulating to the entry of this 8 Protective Order, no Party waives any right it otherwise would have to object to 9 disclosing or producing any information or item on any ground not addressed in 10 this Stipulated Protective Order. Similarly, no Party waives any right to object on 11 any ground to use in evidence of any of the material covered by this Protective 12 Order. 13 14.3 Filing Protected Material. A Party that seeks to file under seal any 14 Protected Material must comply with Local Civil Rule 79-5. Protected Material 15 may only be filed under seal pursuant to a court order authorizing the sealing of the 16 specific Protected Material. If a Party’s request to file Protected Material under 17 seal is denied by the court, then the Receiving Party may file the information in the 18 public record unless otherwise instructed by the court. 19 15. FINAL DISPOSITION 20 After the final disposition of this Action, as defined in paragraph 6, within 21 60 days of a written request by the Designating Party, each Receiving Party must 22 return all Protected Material to the Producing Party or destroy such material. As 23 used in this subdivision, “all Protected Material” includes all copies, abstracts, 24 compilations, summaries, and any other format reproducing or capturing any of the 25 Protected Material. Whether the Protected Material is returned or destroyed, the 26 Receiving Party must submit a written certification to the Producing Party (and, if 27 not the same person or entity, to the Designating Party) by the 60-day deadline that 28 (1) identifies (by category, where appropriate) all the Protected Material that was 1 returned or destroyed and (2) affirms that the Receiving Party has not retained any 2 | copies, abstracts, compilations, summaries or any other format reproducing or 3 | capturing any of the Protected Material. Notwithstanding this provision, Counsel 4 jjare entitled to retain an archival copy of all pleadings, motion papers, trial, 5 | deposition, and hearing transcripts, legal memoranda, correspondence, deposition 6 |and trial exhibits, expert reports, attorney work product, and consultant and expert 7 | work product, even if such materials contain Protected Material. Any such archival 8 ||copies that contain or constitute Protected Material remain subject to this g || Protective Order as set forth in Section 6 (DURATION). 10 | 16. MIOQLATION 11 Any violation of this Order may be punished by appropriate measures 12 | including, without limitation, contempt proceedings and/or monetary sanctions. 13 14 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 15 16 | DATED: April 10, 2024 17 iF dL. 18 19 Si D. EARLY nited States Magistrate Judge 20 21 22 23 24 25 26 27 28 —e—e—aesesea aes eee