Rehrig Pacific Company v. Polymer Logistics (Israel), Ltd. ( 2019 )

1 SCOTT B. LIEBERMAN, Cal. Bar No. 208764 slieberman@ftrlfirm.com 2 FINLAYSON TOFFER ROOSEVELT & LILLY LLP 3 15615 Alton Parkway, Suite 250 Irvine, California 92618 4 Telephone: 949-759-3810 Facsimile: 949-759-3812 5 STEVEN SUSSER (MI Bar No. P52940)* 6 ssusser@cgolaw.com JOHN E. CARLSON (MI Bar No. P51379)* 7 jcarlson@cgolaw.com MICHAEL ALEXANDER SZYPA, JR. (MI Bar No. P79696)* 8 aszypa@cgolaw.com JESSICA ZILBERBERG (MI Bar No. 81038)* 9 jzilberberg@cgolaw.com CARLSON, GASKEY & OLDS, P.C. 10 400 W. Maple Road, Suite 350 Birmingham, Michigan 48009 11 Telephone: 248-988-8360 Facsimile: 248-988-8363 12 *Admitted Pro Hac Vice 13 Attorneys for Plaintiff REHRIG PACIFIC COMPANY 14 UNITED STATES DISTRICT COURT 15 CENTRAL DISTRICT OF CALIFORNIA 16 17 REHRIG PACIFIC COMPANY, Case No. 2:19-cv-04952-MWF-RAO 18 Plaintiff, 19 v. DISCOVERY MATTER 20 POLYMER LOGISTICS (ISRAEL), LTD. and POLYMER LOGISTICS, STIPULATED PROTECTIVE 21 INC. ORDER 22 Defendants. Complaint Filed: July 25, 2018 23 Action Transferred: June 6, 2019 Trial Date: February 23, 2021 24 25 26 27 1 1. A. PURPOSES AND LIMITATIONS 2 Discovery in this action is likely to involve production of confidential, 3 proprietary or private information for which special protection from public disclosure 4 and from use for any purpose other than prosecuting this litigation may be warranted. 5 Accordingly, the parties hereby stipulate to and petition the Court to enter the 6 following Stipulated Protective Order. The parties acknowledge that this Order does 7 not confer blanket protections on all disclosures or responses to discovery and that 8 the protection it affords from public disclosure and use extends only to the limited 9 information or items that are entitled to confidential treatment under the applicable 10 legal principles. 11 B. GOOD CAUSE STATEMENT 12 This action is likely to involve Protected Information such as trade secrets, 13 customer and pricing lists and other valuable research, development, commercial, 14 financial, technical and/or proprietary information for which special protection from 15 public disclosure and from use for any purpose other than prosecution of this action 16 is warranted. Accordingly, absent a specific order by this Court, Protected 17 Information shall be used by a receiving party solely in connection with this litigation, 18 and not for any business, competitive, or governmental purpose or function, for patent 19 prosecution or product design, or for any other litigation, and such information shall 20 not be disclosed to anyone except as provided herein. The fact that information is 21 designated as Protected Information under this Order shall not determine or affect 22 what a trier of fact may find to be confidential or proprietary. 23 Protected Information consists of “Confidential Information,” “Highly 24 Confidential – Outside Counsel’s Eyes Only” information, and “Highly Confidential 25 – Outside Counsel’s Eyes Only – Prosecution Bar” information. 26 As a general guideline, information or materials designated as “Confidential” 27 shall be those things that may be disclosed to the parties for the purposes of the 1 of such information or materials include materials a producing party reasonably and 2 in good faith believes contain or disclose information that the producing party, in the 3 ordinary course of business, does not or would not publicly disclose, or information 4 that a party is under a preexisting obligation to maintain as confidential. 5 As a further general guideline, information or materials designated as “Highly 6 Confidential - Outside Counsel’s Eyes Only” or “Highly Confidential - Outside 7 Counsel’s Eyes Only - Prosecution Bar” shall be those things of a proprietary 8 business or technical nature that would be of value to a competitor or potential 9 customer of the producing party or third party holding the proprietary rights thereto, 10 and that should be protected from disclosure. Examples of such information or 11 materials include a producing party’s trade secrets; confidential technical or 12 business information; technical practices, methods or other know-how; present or 13 future marketing plans; product profit data or other projections; financial data; 14 business strategy; confidential agreements or relationships with third parties; or 15 materials that a producing party is under a preexisting obligation to a third party to 16 treat as confidential. Materials will only be designated “Highly Confidential- 17 Outside Counsel’s Eyes Only - Prosecution Bar” if such materials relate to technical 18 information regarding current or potential future products which technical 19 information is nonpublic manufacturing processes or methods, materials 20 specifications, design alternatives, and/or patent prosecution, licensing strategy or 21 enforcement. 22 Accordingly, to expedite the flow of information, to facilitate the prompt 23 resolution of disputes over confidentiality of discovery materials, to adequately 24 protect information the parties are entitled to keep confidential, to ensure that the 25 parties are permitted reasonable necessary uses of such material in preparation for and 26 in the conduct of trial, to address their handling at the end of the litigation, and serve 27 the ends of justice, a protective order for such information is justified in this matter. 1 tactical reasons and that nothing be so designated without a good faith belief that it 2 has been maintained in a confidential, non-public manner, and there is good cause 3 why it should not be part of the public record of this case. 4 C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL 5 The parties further acknowledge, as set forth in Section 12.3, below, that this 6 Stipulated Protective Order does not entitle them to file confidential information 7 under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed and 8 the standards that will be applied when a party seeks permission from the court to file 9 material under seal. 10 There is a strong presumption that the public has a right of access to judicial 11 proceedings and records in civil cases. In connection with non-dispositive motions, 12 good cause must be shown to support a filing under seal. See Kamakana v. City and 13 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors 14 Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics, Inc., 15 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders require good 16 cause showing), and a specific showing of good cause or compelling reasons with 17 proper evidentiary support and legal justification, must be made with respect to 18 Protected Material that a party seeks to file under seal. The parties’ mere designation 19 of Disclosure or Discovery Material as Protected Information does not — without the 20 submission of competent evidence by declaration, establishing that the material 21 sought to be filed under seal qualifies as confidential, privileged, or otherwise 22 protectable — constitute good cause. 23 Further, if a party requests sealing related to a dispositive motion or trial, then 24 compelling reasons, not only good cause, for the sealing must be shown, and the relief 25 sought shall be narrowly tailored to serve the specific interest to be protected. See 26 Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). For each item 27 or type of information, document, or thing sought to be filed or introduced under seal 1 articulate compelling reasons, supported by specific facts and legal justification, for 2 the requested sealing order. Again, competent evidence supporting the application to 3 file documents under seal must be provided by declaration. 4 Any document that is not confidential, privileged, or otherwise protectable in 5 its entirety will not be filed under seal if the confidential portions can be redacted. If 6 documents can be redacted, then a redacted version for public viewing, omitting only 7 the confidential, privileged, or otherwise protectable portions of the document, shall 8 be filed. Any application that seeks to file documents under seal in their entirety 9 should include an explanation of why redaction is not feasible. 10 11 2. DEFINITIONS 12 2.1 Action: Rehrig Pacific Company v. Polymer Logistics (Israel) Ltd. and 13 Polymer Logistics Inc., Case No. 2:19-cv-04952-MWE-RAO. 14 2.2 Challenging Party: a Party or Non-Party that challenges the designation of 15 information or items under this Order. 16 2.3 Counsel: Outside Counsel of Record and House Counsel (as well as their 17 support staff). 18 2.4 Designating Party: a Party or Non-Party that designates information or 19 items that it produces in disclosures or in responses to discovery as Protected 20 Information. 21 2.5 Disclosure or Discovery Material: all items or information, regardless of 22 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 or 24 generated in disclosures or responses to discovery in this matter. 25 2.6 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 as 27 an expert witness or as a consultant in this Action. 1 2.7 House Counsel: attorneys who are employees of a party to this Action. 2 House Counsel does not include Outside Counsel of Record or any other outside 3 counsel. 4 2.8 Non-Party: any natural person, partnership, corporation, association or 5 other legal entity not named as a Party to this action. 6 2.9 Outside Counsel of Record: attorneys who are not employees of a party to 7 this Action but are retained to represent or advise 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 2.10 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 2.11 Producing Party: a Party or Non-Party that produces Disclosure or 14 Discovery Material in this Action. 15 2.12 Professional Vendors: persons or entities that provide litigation support 16 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 2.13 Protected Information: any Disclosure or Discovery Material that is 20 designated as “Confidential,” “Highly Confidential – Outside Counsel’s Eyes Only,” 21 or “Highly Confidential – Outside Counsel’s Eyes Only – Prosecution Bar.” 22 2.14 Receiving Party: a Party that receives Disclosure or Discovery Material 23 from a Producing Party. 24 25 3. SCOPE 26 The protections conferred by this Stipulation and Order cover not only 27 Protected Information (as defined above), but also (1) any information copied or 1 compilations of Protected Information; and (3) any testimony, conversations, or 2 presentations by Parties or their Counsel that might reveal Protected Information. 3 Any use of Protected Information at trial shall be governed by the orders of the 4 trial judge. This Order does not govern the use of Protected Information at trial. 5 6 4. DURATION 7 Once a case proceeds to trial, information that was designated as “Confidential,” 8 “Highly Confidential – Outside Counsel’s Eyes Only,” or “Highly Confidential – 9 Outside Counsel’s Eyes Only – Prosecution Bar” or maintained pursuant to this 10 protective order used or introduced as an exhibit at trial becomes public and will be 11 presumptively available to all members of the public, including the press, unless 12 compelling reasons supported by specific factual findings to proceed otherwise are 13 made to the trial judge in advance of the trial. See Kamakana, 447 F.3d at 1180-81 14 (distinguishing “good cause” showing for sealing documents produced in discovery 15 from “compelling reasons” standard when merits-related documents are part of court 16 record). Accordingly, the terms of this protective order do not extend beyond the 17 commencement of the trial. 18 19 5. DESIGNATING PROTECTED MATERIAL 20 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each 21 Party or Non-Party that designates information or items for protection under this 22 Order must take care to limit any such designation to specific material that qualifies 23 under the appropriate standards. The Designating Party must designate for protection 24 only those parts of material, documents, items or oral or written communications that 25 qualify so that other portions of the material, documents, items or communications 26 for which protection is not warranted are not swept unjustifiably within the ambit of 27 this Order. 1 Mass, indiscriminate or routinized designations are prohibited. Designations 2 that are shown to be clearly unjustified or that have been made for an improper 3 purpose (e.g., to unnecessarily encumber the case development process or to impose 4 unnecessary expenses and burdens on other parties) may expose the Designating Party 5 to sanctions. 6 If it comes to a Designating Party’s attention that information or items that it 7 designated for protection do not qualify for protection, that Designating Party must 8 promptly notify all other Parties that it is withdrawing the inapplicable designation. 9 5.2 Manner and Timing of Designations. Except as otherwise provided in this 10 Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated 11 or ordered, Disclosure or Discovery Material that qualifies for protection under this 12 Order must be clearly so designated before the material is disclosed or produced. 13 Designation in conformity with this Order requires: 14 (a) for information in documentary form (e.g., paper or electronic documents, 15 but excluding transcripts of depositions or other pretrial or trial proceedings), that 16 the Producing Party affix at a minimum, the legend “Confidential,” “Highly 17 Confidential – Outside Counsel’s Eyes Only,” or “Highly Confidential – Outside 18 Counsel’s Eyes Only – Prosecution Bar” (hereinafter “legend”), together with the 19 identification of the producing party, to each page that contains Protected 20 Information at the time such documents are produced or disclosed, or as soon 21 thereafter as the producing party becomes aware of the confidential nature of the 22 information or material disclosed and sought to be protected hereunder. No liability 23 or sanctions, however, shall arise or be imposed for any disclosure by a receiving 24 party prior to designation to those not authorized to view the materials under this 25 Order. If only a portion of the material on a page qualifies for protection, the 26 Producing Party also must clearly identify the protected portion(s) (e.g., by making 27 appropriate markings in the margins). 1 A Party or Non-Party that makes original documents available for inspection 2 need not designate them for protection until after the inspecting Party has indicated 3 which documents it would like copied and produced. During the inspection and before 4 the designation, all of the material made available for inspection shall be deemed 5 “Highly Confidential – Outside Counsel’s Eyes Only – Prosecution Bar.” After the 6 inspecting Party has identified the documents it wants copied and produced, the 7 Producing Party must determine which documents, or portions thereof, qualify for 8 protection under this Order. Then, before producing the specified documents, the 9 Producing Party must affix the legend to each page that contains Protected 10 Information. If only a portion of the material on a page qualifies for protection, the 11 Producing Party also must clearly identify the protected portion(s) (e.g., by making 12 appropriate markings in the margins). 13 (b) for testimony given in depositions or other pretrial testimony that the 14 Designating Party identifies the Disclosure or Discovery Material (i) by a statement 15 on the record, by Counsel, during such deposition or other pretrial proceeding, that 16 the entire transcript or a portion thereof shall be designated as “Confidential,” 17 “Highly Confidential – Outside Counsel’s Eyes Only,” or “Highly Confidential - 18 Outside Counsel’s Eyes Only - Prosecution Bar,” as appropriate, hereunder; or (ii) 19 by written notice of such designation sent by counsel to all parties no later than 20 seven (7) calendar days after counsel for the producing party receives (electronically 21 or otherwise) the transcript of the deposition. The Parties shall treat all deposition 22 and other pretrial testimony as “Highly Confidential - Outside Counsel’s Eyes 23 Only” hereunder until the expiration of seven (7) calendar days after the transcript is 24 delivered to counsel. In the event of a designation after the seven (7) day period, no 25 liability or sanctions shall arise or be imposed for any disclosure by a receiving 26 party to persons not authorized to view the materials prior to the other’s party’s 27 designation under this Order. The Parties may modify this procedure for any 1 deposition or proceeding or otherwise by written stipulation, without further order of 2 the Court; provided, however, that any such modification is subject to review by the 3 Court, if appropriate. If any Protected Information is disclosed during the course of 4 a deposition, that portion of the deposition record reflecting such Protected 5 Information shall be sealed and stamped with the designated degree of 6 confidentiality, and access thereto shall be limited pursuant to the other terms of this 7 Order. With respect to any testimony elicited during any deposition, whenever 8 Counsel for any Party deems that any question or line of questioning calls for or has 9 resulted in disclosure of Protected Information and that any person in attendance at 10 the deposition who is not the witness being examined and who is not qualified to 11 receive such information pursuant to this Order, then such person shall be excluded 12 from those portions of the proceeding during which disclosure of the Protected 13 Information occurs. 14 (c) for information produced in some form other than documentary and for 15 any other tangible items, such as electronic media, video tape, or similar materials, 16 that the Producing Party affix in a prominent place on the exterior of the container 17 or containers in which the information is stored the legend at the time such 18 documents are produced or disclosed, or as soon thereafter as the producing party 19 becomes aware of the confidential nature of the information or material disclosed 20 and sought to be protected hereunder. No liability or sanctions, however, shall arise 21 or be imposed for any disclosure by a receiving party prior to designation to those 22 not authorized to view the materials under this Order. If only a portion or portions of 23 the information warrants protection, the Producing Party, to the extent practicable, 24 shall identify the protected portion(s). 25 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure 26 to designate qualified information or items does not, standing alone, waive the 27 Designating Party’s right to secure protection under this Order for such material. 1 efforts to assure that the material is treated in accordance with the provisions of this 2 Order. 3 4 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 5 6.1 Timing of Challenges. A Party may challenge a Designating Party’s 6 designation of Protected Information at any time by serving a written objection upon 7 the Designating Party. The Designating Party shall notify the Challenging Party in 8 writing of the bases for the asserted designation within five (5) business days after 9 receiving any written objection. 10 6.2 Meet and Confer. The Challenging Party shall initiate the dispute 11 resolution process under Local Rule 37.1 et seq. within three (3) business days after 12 the Challenging Party has received the notice of the bases for the asserted 13 designation. 14 6.3 To the extent the Designating Party and Challenging Party are unable to 15 reach an agreement as to the designation, the Challenging Party may make an 16 appropriate application to this Court, with Protected Information portions thereof to 17 be kept under seal, requesting that specifically identified documents, information, 18 and/or deposition testimony be excluded from the provisions of this Order or 19 downgraded in terms of the degree of protection provided. Until a dispute over the 20 asserted designation is finally resolved by the parties or the Court, all parties and 21 persons shall treat the information or materials in question as designated. 22 6.4 The burden of persuasion in any such challenge proceeding shall be on the 23 Designating Party. Frivolous challenges, and those made for an improper purpose 24 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may 25 expose the Challenging Party to sanctions. Unless the Designating Party has waived 26 or withdrawn the confidentiality designation, all parties shall continue to afford the 27 material in question the level of protection to which it is entitled under the Producing 1 6.5 No Party shall be obligated to challenge the propriety of the designation 2 of any Protected Information, and a failure to do so shall not preclude any 3 subsequent objection to such designation or motion to seek permission to disclose 4 such material or the information contained therein to persons not identified in this 5 Order, or from otherwise modifying the provisions of this Order. 6 7 7. ACCESS TO AND USE OF PROTECTED MATERIAL 8 7.1 Basic Principles. A Receiving Party may use Protected Information that is 9 disclosed or produced by another Party or by a Non-Party in connection with this 10 Action only for prosecuting, defending or attempting to settle this Action. Such 11 Protected Material may be disclosed only to the categories of persons and under the 12 conditions described in this Order. When the Action has been terminated, a Receiving 13 Party must comply with the provisions of section 13 below (FINAL 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 otherwise 18 ordered by the court or permitted in writing by the Designating Party, a Receiving 19 Party may disclose any information or item designated “Confidential” or copies or 20 extracts therefrom and compilations and summaries thereof, may be disclosed, 21 summarized, described, characterized, or otherwise communicated or made available 22 in whole or in part only to: 23 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well as 24 employees of said Outside Counsel of Record to whom it is reasonably necessary to 25 disclose the information for this Action; 26 (b) subject to and conditioned upon compliance with paragraph 7.4 of this 27 Order, no more than one House Counsel of the Receiving Party to whom disclosure 1 “Acknowledgment and Agreement to Be Bound” (Exhibit A) (a copy of such signed 2 agreement shall be maintained by Counsel for the Party providing such access); 3 (c) subject to and conditioned upon compliance with paragraph 7.4 of this 4 Order, Experts (as defined in this Order) of the Receiving Party including their 5 administrative assistants, secretaries and other members of the clerical and 6 administrative staffs of those Experts, or consultants whose advice and consultation 7 are being or will be used by such party in connection with this proceeding, including 8 any motions in this proceeding, to whom disclosure is reasonably necessary for this 9 Action and who have signed the “Acknowledgment and Agreement to Be Bound” 10 (Exhibit A) (a copy of such signed agreement shall be maintained by Counsel for the 11 Party providing such access); 12 (d) the court and its personnel; 13 (e) court reporters and their staff; 14 (f) professional jury or trial consultants, mock jurors, and Professional Vendors 15 to whom disclosure is reasonably necessary for this Action and who have signed the 16 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 17 (g) the author or recipient of a document containing the information or a 18 custodian or other person who otherwise possessed or knew the information; 19 (h) during their depositions, witnesses, and attorneys for witnesses, in the 20 Action to whom disclosure is reasonably necessary provided: (1) the deposing party 21 requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will 22 not be permitted to keep any confidential information unless they sign the 23 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 24 agreed by the Designating Party or ordered by the court. Pages of transcribed 25 deposition testimony or exhibits to depositions that reveal Protected Material may be 26 separately bound by the court reporter and may not be disclosed to anyone except as 27 permitted under this Stipulated Protective Order; 1 (i) any mediator or settlement officer, and their supporting personnel, mutually 2 agreed upon by any of the parties engaged in settlement discussions; 3 (j) any clerical service provider that is independent of the parties and is engaged 4 by counsel of record to perform clerical-type services in connection with this 5 litigation, e.g., photocopying, imaging, computer data entry, and the like, provided 6 that such service provider or providers have agreed to be bound by and comply with 7 this Protective Order; 8 (k) employees of the Designating Party; and 9 (l) Any other person whom the parties agree upon in writing or the Court, on 10 notice and motion, approves. 11 7.3 Disclosure of “Highly Confidential – Outside Counsel’s Eyes Only” or 12 “Highly Confidential - Outside Counsel’s Eyes Only - Prosecution Bar” Information 13 or Items. Unless otherwise ordered by the court or permitted in writing by the 14 Designating Party, a Receiving Party may disclose, summarize, describe, characterize 15 or otherwise communicate any information or item designated “Highly Confidential 16 – Outside Counsel’s Eyes Only,” “Highly Confidential - Outside Counsel’s Eyes Only 17 - Prosecution Bar,” or copies or extracts therefrom and compilations and summaries 18 thereof, in whole or in part, only to the persons described in paragraphs 7.2 (a) and 19 (c)-(l). 20 7.4 Procedure for Qualifying House Counsel and Experts to Receive Protected 21 Information. 22 (a) The Party seeking to disclose Protected Information to any persons listed in 23 Paragraph 7.2(c) herein shall provide, by overnight courier, email or fax, the other 24 Parties with a current resume or curriculum vitae of such person, which shall identify 25 their past and present employment, as well as persons or entities with whom the 26 consultant has been engaged in any consulting relationships for the last five years as 27 well as a brief description of the subject matter of that consulting work, and a copy of 1 (b) The Party seeking to disclose Confidential Information to House Counsel 2 listed in Paragraph 7.2(b) herein shall provide, by overnight courier, email or fax, the 3 other parties with each such person’s name and title, and a copy of a completed and 4 signed “Acknowledgment and Agreement to Be Bound” (Exhibit A). 5 (c) If a Party believes that disclosure of Protected Information to a person 6 disclosed pursuant to Paragraphs 7.4(a)-(b) could injure or prejudice the Designating 7 Party, that Party may object, in writing, within 5 business days of the receipt of the 8 and a copy of a completed and signed “Acknowledgment and Agreement to Be 9 Bound” (Exhibit A) and information enumerated above to the Party who selected the 10 person; no Protected Information may be provided to such person prior to the 11 expiration of that 5-business day time period. No Party may unreasonably object to 12 the provision of Protected Information to such persons. If the Parties cannot resolve 13 their dispute on the terms of disclosure and a party objects pursuant to the provisions 14 of this paragraph, the Party seeking disclosure may seek an order from the Court 15 permitting disclosure of Protected Information to such person, or other appropriate 16 relief. Under this paragraph, it shall be the burden of the party opposing disclosure to 17 demonstrate why such employee should be denied access to Protected Information. 18 No such person as to whom timely objection is made shall receive Protected 19 Information unless and until all such objections are resolved. Should any House 20 Counsel cease to be employed by the respective party or otherwise be prevented from 21 involvement in this case, the parties will agree in writing to a replacement pursuant to 22 this paragraph. 23 24 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN 25 OTHER LITIGATION 26 If a Party (a) is subpoenaed in another action, (b) is served with a demand in 27 another action to which it is a party, or (c) is served with any other legal process by 1 one not a party to this action seeking discovery of any Protected Information that was 2 produced by someone other than the Party, that Party must: 3 (a) give prompt actual written notice, by hand or facsimile transmission, within 4 ten (10) days of receipt of such subpoena, demand or legal process, to those who 5 produced the Protected Information, shall furnish the producing party with a copy of 6 said subpoena or other process or order, shall object to its production by setting forth 7 the existence of this Protective Order ; 8 (b) promptly notify in writing the party who caused the subpoena or order to 9 issue in the other litigation that some or all of the material covered by the subpoena 10 or order is subject to this Protective Order. Such notification shall include a copy of 11 this Stipulated Protective Order; and 12 (c) cooperate with respect to all reasonable procedures sought to be pursued by 13 the Designating Party whose Protected Material may be affected. 14 If the Designating Party timely seeks a protective order, the Party served with 15 the subpoena or court order shall not produce any Protected Information before a 16 determination by the court from which the subpoena or order issued, unless the Party 17 has obtained the Designating Party’s permission. The Designating Party shall bear the 18 burden and expense of seeking protection in that court of its confidential material and 19 nothing in these provisions should be construed as authorizing or encouraging a 20 Receiving Party in this Action to disobey a lawful directive from another court. 21 Nothing herein shall be construed as requiring the party or anyone else covered by 22 this Protective Order to challenge or appeal any order requiring production of 23 information or material covered by this Protective Order, or to subject itself to any 24 penalties for noncompliance with any legal process or order, or to seek any relief from 25 this Court. 26 27 1 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED 2 IN THIS LITIGATION 3 (a) The terms of this Order are applicable to information produced by a Non- 4 Party in this Action and designated as Protected Information. Such information 5 produced by Non-Parties in connection with this litigation is protected by the 6 remedies and relief provided by this Order. Nothing in these provisions should be 7 construed as prohibiting a Non-Party from seeking additional protections. In order to 8 expedite Non-Party discovery, a copy of this Order and a letter generally informing 9 the Non-Party of its right to invoke the protections set out herein shall be served with 10 all such discovery. 11 (b) In the event that a Party is required, by a valid discovery request, to produce 12 a Non-Party’s confidential information in its possession, and the Party is subject to an 13 agreement with the Non-Party not to produce the Non-Party’s confidential 14 information, then the Party shall: 15 (1) promptly notify in writing the Requesting Party and the Non-Party 16 that some or all of the information requested is subject to a confidentiality agreement 17 with a Non-Party; 18 (2) promptly provide the Non-Party with a copy of the Stipulated 19 Protective Order in this Action, the relevant discovery request(s), and a reasonably 20 specific description of the information requested; and 21 (3) make the information requested available for inspection by the Non- 22 Party, if requested. 23 (c) If the Non-Party fails to seek a protective order from this court within 14 24 days of receiving the notice and accompanying information, the Receiving Party may 25 produce the Non-Party’s confidential information responsive to the discovery request. 26 If the Non-Party timely seeks a protective order, the Receiving Party shall not produce 27 any information in its possession or control that is subject to the confidentiality 1 order to the contrary, the Non-Party shall bear the burden and expense of seeking 2 protection in this court of its Protected Information. 3 4 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 5 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 6 Protected Information 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 Information, (c) inform the person 10 or 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 11. 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). The Producing Party shall promptly upon discovery of such 20 inadvertent disclosure advise the Receiving Party in writing and request that the item 21 or items of information be returned. In that event, the disclosure shall not serve as a 22 waiver of any privilege or immunity. Immediately upon receiving notice of 23 inadvertent production under this paragraph, the Receiving Party shall sequester the 24 subject material and shall not use said material for any purpose unless and until the 25 responding party objection to the producing party’s claim to privilege or immunity is 26 resolved. Under this paragraph, it shall be the burden of responding party challenging 27 the Producing Party’s assertion of any privilege or immunity to demonstrate why such 1 claim to privilege or immunity under this paragraph by serving a written objection 2 upon the producing party within three (3) business days of notice of inadvertent 3 production. The Producing Party shall notify the challenging party in writing of the 4 bases for the asserted privilege or immunity within five (5) business days after 5 receiving any written objection. The producing party and challenging party shall 6 confer in good faith as to the validity of the assertion of privilege or immunity within 7 three (3) business days after the challenging party has received the notice of the bases 8 for the assertion. To the extent the producing party and challenging party are unable 9 to reach an agreement as to the designation, the challenging party may make an 10 appropriate application to this Court, with confidential portions thereof to be kept 11 under seal. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the parties 12 reach an agreement on the effect of disclosure of a communication or information 13 covered by the attorney-client privilege or work product protection, the parties may 14 incorporate their agreement in the stipulated protective order submitted to the court. 15 The provisions of this paragraph shall not apply to any disclosure when the material 16 disclosed is relied upon by the producing party during trial or in support of any 17 position taken before the Court. 18 Any Producing Party who inadvertently fails to designate Protected 19 Information or otherwise wishes to change the designation of confidentiality under 20 this Order, may later do so, and such document/information shall be treated by all 21 other parties as being so designated from the time of the notification in writing of 22 the inadvertent designation. A Producing Party shall correct its failure to mark an 23 item as Protected Information in writing accompanied by substitute copies of each 24 item, container or folder, appropriately marked with the proper confidentiality 25 designation pursuant to this Order. The inadvertent disclosure of Protected 26 Information by the Producing Party in producing discovery, regardless of whether 27 the information was designated as such at the time of disclosure, shall not be treated 1 as to the specific information disclosed or as to any other information relating 2 thereto or on the same or related subject, and each party agrees to make reasonable 3 efforts to preserve the confidentiality of the inadvertently disclosed information. As 4 soon as the Receiving Party has notice of the inadvertent production, the receiving 5 party must endeavor in good faith to obtain all copies of the document which it 6 distributed or disclosed to persons not authorized to access such information by 7 Paragraphs 7, above, as well as any copies made by such persons. 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 Local Civil 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 is 21 denied by the court, then the Receiving Party may file the information in the public 22 record unless otherwise instructed by the court. 23 12.4 Any attorney representing a Receiving Party, whether House Counsel or 24 Outside Counsel of Record, and any person associated with a Receiving Party and 25 permitted to receive a Producing Party’s information designated “Highly 26 Confidential - Outside Counsel’s Eyes Only - Prosecution Bar,” who obtains, 27 receives, views, or otherwise learns, in whole or in part, the producing party’s 1 under this Order shall not prepare, prosecute, supervise, or assist in the preparation 2 or prosecution of any patent application pertaining to the collapsible crates of the 3 patents asserted by any party in this action on behalf of the receiving party or its 4 acquirer, successor, predecessor, or other affiliate during the pendency of this action 5 and for one year after its conclusion, including any appeals. 6 Materials will only be designated “Highly Confidential - Outside Counsel’s 7 Eyes Only - Prosecution Bar” if those materials relate to technical information 8 regarding current or potential future products. Technical information regarding 9 current or potential future products is nonpublic manufacturing processes or 10 methods, materials specifications, design alternatives, and/or patent prosecution, 11 licensing strategy or enforcement. Each party shall facilitate compliance with this 12 order by separately producing documents designated “Highly Confidential - Outside 13 Counsel’s Eyes Only - Prosecution Bar” on a separately designated FTP site or on a 14 CD which is clearly marked and separate from production of any other documents. 15 To ensure compliance with the purpose of this provision, each Receiving Party shall 16 create an “Ethical Wall” between those persons who view materials designated 17 “Highly Confidential - Outside Counsel’s Eyes Only - Prosecution Bar” and any 18 individuals who, on behalf of the Party or its acquirer, successor, predecessor, or 19 other affiliate, prepare, prosecute, supervise or assist in the preparation or 20 prosecution of any patent application and/or claim amendment in any such post 21 grant proceeding pertaining to the collapsible crates of the patents in-suit. This 22 paragraph does not affect any attorney’s ability to participate in post-grant 23 proceedings (including reexamination, inter partes review, or other AIA procedure, 24 except for claim amendment in any such post grant proceeding) before the U.S. 25 Patent & Trademark Office or to disclose any prior art or undesignated information 26 provided as part of the P.R. 3-3 or 3-4 disclosures by any party to any individuals 27 who, on behalf of the receiving party, prepare, prosecute, supervise or assist in the 1 preparation or prosecution of any patent application pertaining to the collapsible 2 crates of the patents-in-suit. 3 12.5 Entering into, agreeing to, and/or producing or receiving Protected 4 Information or otherwise complying with the terms of this Protective Order shall 5 not: 6 (a) operate as an admission by any party that any Protected Information 7 contains or reflects trade secrets, proprietary or commercially sensitive information, 8 or any other type of confidential information; 9 (b) operate as an admission by any party that the restrictions and 10 procedures set forth herein constitute or do not constitute adequate protection for 11 any particular Protected Information; 12 (c) prejudice in any way the rights of the parties to object to the 13 production of documents they consider not subject to discovery; 14 (d) prejudice in any way the rights of any party to object to the 15 authenticity or admissibility into evidence of any document, testimony or other 16 evidence subject to this Protective Order; 17 (e) prejudice in any way the rights of a party to seek a determination by 18 the Court whether any information or material should be subject to the terms of this 19 Protective Order; 20 (f) prejudice in any way the rights of a party to petition the Court for a 21 further protective order relating to any purportedly confidential information or 22 persons to whom such information may be disclosed; 23 (g) prejudice in any way the rights of a party to make a showing that 24 information or materials of proprietary or competitive value, but which is not 25 specifically included in the category of “Highly Confidential - Outside Counsel’s 26 Eyes Only” or “Highly Confidential - Outside Counsel’s Eyes Only - Prosecution 27 Bar” information, is properly designated “Highly Confidential - Outside Counsel’s 1 Eyes Only’’ or “Highly Confidential - Outside Counsel’s Eyes Only - Prosecution 2 Bar’” or 3 (h) prevent the parties to this Order from agreeing in writing or on the 4 record during a deposition or hearing in this action to alter or waive the provisions 5 or protections provided for herein with respect to any particular information or 6 material produced by the parties. 7 12.6 This Order has no effect upon, and shall not apply to, a party’s use or 8 disclosure of its own Protected Information for any purpose. Nothing contained 9 herein shall impose any restrictions on the use or disclosure by a party of Protected 10 Information obtained lawfully by such party independently of any proceedings in 11 this action, or which: 12 (a) was already known to such party by lawful means prior to 13 acquisition from, or disclosure by, another party in this action; 14 (b) is or becomes publicly known through no fault or act or omission of 15 such party; or 16 (c) is rightfully received by such party from a third party which has 17 authority to provide such information or material and without restriction as to 18 disclosure. 19 20 13. FINAL DISPOSITION 21 Within 60 days after receiving notice of the entry of an order, judgment or 22 decree finally disposing of this Action, including any appeals therefrom, each 23 Receiving Party must return all Protected Information to the Producing Party or 24 destroy such material. As used in this subdivision, “all Protected Information” 25 includes all copies, abstracts, compilations, summaries, excerpts and any other format 26 reproducing or capturing any of the Protected Information. Whether the Protected 27 Information is returned or destroyed, the Receiving Party must submit a written 1 Designating Party) by the 60 day deadline that (1) identifies (by category, where 2 appropriate) all the Protected Material that was returned or destroyed and (2) affirms 3 that the Receiving Party has not retained any copies, abstracts, compilations, 4 summaries or any other format reproducing or capturing any of the Protected 5 Information. No extra efforts need be taken to destroy automatic electronic back-ups, 6 besides any steps regularly implemented to ‘recycle’ back-up storage media. 7 Notwithstanding this provision, Outside Counsel of Record are entitled to retain an 8 archival copy of all pleadings, motion papers, trial, deposition, and hearing 9 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert 10 reports, attorney work product, and consultant and expert work product, even if such 11 materials contain Protected Information. Any such archival copies that contain or 12 constitute Protected Information remain subject to this Protective Order as set forth 13 in Section 4 (DURATION). All materials returned to the Parties or their Counsel by 14 the Court likewise shall be disposed of in accordance with this paragraph. 15 16 14. VIOLATION 17 Any violation of this Order may be punished by appropriate measures 18 including, without limitation, contempt proceedings and/or monetary sanctions. 19 Pursuant to Local Rule 5-4.3.4(a)(2)(i), the undersigned counsel for Rehrig certifies 20 that the content of this document is acceptable to counsel for Defendants, and that 21 Mr. Eastham has provided his authorization to affix his electronic signature to this 22 document. 23 / / / 24 / / / 25 26 27 1 |} DATED: October 7, 2019 2 FINLAYSON TOFFER ROOSEVELT & LILLY □□□ 3 4 5 By /s/ Scott B. Lieberman SCOTT B. LIERERMAN 6 And CARLSON, GASKEY & OLDS, P.C., 7 STEVEN SUSSER*, JOHN E. CARLSON* MICHAEL ALEXANDER SZYPA, JR.* 8 JESSICA ZILBERBERG* 9 Attorneys for Plaintiff REHRIG PACIFIC COMPANY 10 *Admitted Pro Hac Vice DATED: October 7, 2019 12 MINTZ LEVIN COHN FERRIS GLOVSKY AND POPEO PC 13 14 By /s/_Eric J. Eastham Id ERIC J. EASTHAM 16 And ADAM P. SAMANSKY* JOSEPH D. RUTKOWSKI* 17 PETER J. CUOMO* 18 Attorneys for Defendants POLYMER LOGISTICS (ISRAEL), LTD. 19 and POLYMER LOGISTICS, INC. 20 *Admitted Pro Hac Vice 21 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 22 23 Rapedea a, Dated: October 9, 2019 = 95 HON. ROZELLA A. OLIVER United States Magistrate Judge 27 28 24 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 4 I, _____________________________ [print or type full name], of 5 _________________ [print or type full address], declare under penalty of perjury 6 that I have read in its entirety and understand the Stipulated Protective Order that 7 was issued by the United States District Court for the Central District of California 8 on _______________ in the case of Rehrig Pacific Company v. Polymer Logistics 9 (Israel), Ltd. et al., Case No. 2:19-cv-04952-MWF-RAO. I agree to comply with 10 and to be bound by all the terms of this Stipulated Protective Order and I understand 11 and acknowledge that failure to so comply could expose me to sanctions and 12 punishment in the nature of contempt. I solemnly promise that I will not disclose in 13 any manner any information or item that is subject to this Stipulated Protective 14 Order to any person or entity except in strict compliance with the provisions of this 15 Order. I further agree to submit to the jurisdiction of the United States District 16 Court for the Central District of California for enforcing the terms of this Stipulated 17 Protective Order, even if such enforcement proceedings occur after termination of 18 this action. I hereby appoint __________________________ [print or type full 19 name] of _______________________________________ [print or type full address 20 and telephone number] as my California agent for service of process in connection 21 with this action or any proceedings related to enforcement of this Stipulated 22 Protective Order. 23 Date: ______________________________________ 24 City and State where sworn and signed: _________________________________ 25 Printed name: _______________________________ 26 Signature: __________________________________ 27 1 CERTIFICATE OF SERVICE 2 3 I am employed in the County of Orange; I am over the age of eighteen years and not a party to the within entitled action; my business address is 15615 Alton 4 Parkway, Suite 250, Irvine, California 92618. I am a registered user of the CM/ECF system for the United States District Court for the Central District of California. 5 On October 7, 2019, I electronically filed the foregoing document with the 6 Clerk of the Court using the CM/ECF system. To the best of my knowledge, all counsel to be served in this action are registered CM/ECF users and will be served 7 by the CM/ECF system. 8 I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. 9 Executed on October 7, 2019, at Irvine, California. 10 11 12 /s/ Scott B. Lieberman SCOTT B. LIEBERMAN 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27