DCR Marketing Inc. v. U.S. Alliance Group, Inc. ( 2020 )

1 MATTHEW A. HODEL (SB# 93962) Email: mhodel@hodelwilks.com 2 FRED L. WILKS (SB# 205403) 3 Email: fwilks@hodelwilks.com HODEL WILKS LLP 4 4 Park Plaza, Suite 640 5 Irvine, California 92614 6 Telephone: (949) 450-4470 7 Attorneys for Plaintiff/Counter-Defendant 8 DCR Marketing, Inc. 9 UNITED STATES DISTRICT COURT 10 11 CENTRAL DISTRICT OF CALIFORNIA 12 DCR MARKETING INC., ) Case No. 8:19-cv-01897-JVS-DFM ) 13 ) Plaintiff, ) STIPULATION AND PROTECTIVE 14 ) ORDER ) 15 v. ) ) ) 16 U.S. ALLIANCE GROUP, INC., dba ) 17 Alternative Payments International, ) ) Defendants. ) 18 ) 19 20 21 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 pursuing this litigation may be 25 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 28 1 discovery and that the protection it affords from public disclosure and use extends 2 only to the limited information or items that are entitled to confidential treatment 3 under the applicable legal principles. 4 2. GOOD CAUSE STATEMENT 5 This action involves credit card and electronic transaction processing for 6 third parties. Thus it is likely to involve trade secrets, customer and pricing lists, 7 private customer financial information 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 confidential research, development, or commercial information (including 13 information implicating privacy rights of third parties), information otherwise 14 generally unavailable to the public, or which may be privileged or otherwise 15 protected from disclosure under state or federal statutes, court rules, case decisions, 16 or common law. Accordingly, to expedite the flow of information, to facilitate the 17 prompt resolution of disputes over confidentiality of discovery materials, to 18 adequately protect information the parties are entitled to keep confidential, to 19 ensure that the parties are permitted reasonable necessary uses of such material in 20 preparation for and in the conduct of trial, to address their handling at the end of 21 the litigation, and serve the ends of justice, a protective order for such information 22 is justified in this matter. It is the intent of the parties that information will not be 23 designated as confidential for tactical reasons and that nothing be so designated 24 without a good faith belief that it has been maintained in a confidential, non-public 25 manner, and there is good cause why it should not be part of the public record of 26 this case. 27 28 2 1 3. ACKNOWLEDGMENT OF UNDER SEAL FILING 2 PROCEDURE 3 The parties further acknowledge, as set forth in Section 14.3, below, that this 4 Stipulated Protective Order does not entitle them to file confidential information 5 under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed 6 and the standards that will be applied when a party seeks permission from the court 7 to file material under seal. There is a strong presumption that the public has a right 8 of access to judicial proceedings and records in civil cases. In connection with non- 9 dispositive motions, good cause must be shown to support a filing under seal. See 10 Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), 11 Phillips v. Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar- 12 Welbon v. Sony Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even 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 28 3 1 under seal must be provided by declaration. 2 Any document that is not confidential, privileged, or otherwise protectable 3 in its entirety will not be filed under seal if the confidential portions can be 4 redacted. If documents can be redacted, then a redacted version for public viewing, 5 omitting only the confidential, privileged, or otherwise protectable portions of the 6 document, shall be filed. Any application that seeks to file documents under seal in 7 their entirety should include an explanation of why redaction is not feasible. 8 4. DEFINITIONS 9 4.1 Action: the pending action, DCR Marketing Inc. v. U.S. Alliance 10 Group, Inc. 11 4.2 Challenging Party: a Party or Non-Party that challenges the 12 designation of information or items under this Order. 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 28 4 1 as an expert witness or as a consultant in this Action. 2 4.8 House Counsel: attorneys who are employees of a party to this 3 Action. House Counsel does not include Outside Counsel of Record or any other 4 outside counsel. 5 4.9 Non-Party: any natural person, partnership, corporation, association or 6 other legal entity not named as a Party to this action. 7 4.10 Outside Counsel of Record: attorneys who are not employees of a 8 party to this Action but are retained to represent a party to this Action and have 9 appeared in this Action on behalf of that party or are affiliated with a law firm that 10 has appeared on behalf of that party, and includes support staff. 11 4.11 Party: any party to this Action, including all of its officers, directors, 12 employees, consultants, retained experts, and Outside Counsel of Record (and their 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 28 5 1 compilations of Protected Material; and (3) any testimony, conversations, or 2 presentations by Parties or their Counsel that might reveal Protected Material. 3 Any use of Protected Material at trial shall be governed by the orders of the 4 trial judge and other applicable authorities. This Order does not govern the use of 5 Protected Material at trial. 6 6. DURATION 7 Once a case proceeds to trial, information that was designated as 8 CONFIDENTIAL or maintained pursuant to this protective order used or 9 introduced as an exhibit at trial becomes public and will be presumptively 10 available to all members of the public, including the press, unless compelling 11 reasons supported by specific factual findings to proceed otherwise are made to the 12 trial judge in advance of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause” showing for sealing documents produced in 13 discovery from “compelling reasons” standard when merits-related documents are 14 part of court record). Accordingly, the terms of this protective order do not extend 15 beyond the commencement of the trial. 16 7. DESIGNATING PROTECTED MATERIAL 17 7.1 Exercise of Restraint and Care in Designating Material for 18 Protection. Each Party or Non-Party that designates information or 19 items for protection under this Order must take care to limit any such designation 20 to specific material that qualifies under the appropriate standards. The Designating 21 Party must designate for protection only those parts of material, documents, items 22 or oral or written communications that qualify so that other portions of the 23 material, documents, items or communications for which protection is not 24 warranted are not swept unjustifiably within the ambit of this Order. 25 Mass, indiscriminate or routinized designations are prohibited. Designations 26 that are shown to be clearly unjustified or that have been made for an improper 27 28 6 1 purpose (e.g., to unnecessarily encumber the case development process or to 2 impose unnecessary expenses and burdens on other parties) may expose the 3 Designating Party to sanctions. 4 If it comes to a Designating Party’s attention that information or items that it 5 designated for protection do not qualify for protection, that Designating Party must 6 promptly notify all other Parties that it is withdrawing the inapplicable designation. 7 7.2 Manner and Timing of Designations. Except as otherwise provided in 8 this Order, or as otherwise stipulated or ordered, Disclosure of Discovery Material 9 that qualifies for protection under this Order must be clearly so designated before 10 the material is disclosed or produced. 11 Designation in conformity with this Order requires: 12 (a) for information in documentary form (e.g., paper or electronic documents, but excluding transcripts of depositions or other pretrial or trial 13 proceedings), that the Producing Party affix at a minimum, the legend 14 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that 15 contains protected material. If only a portion of the material on a page qualifies for 16 protection, the Producing Party also must clearly identify the protected portion(s) 17 (e.g., by making appropriate markings in the margins). 18 A Party or Non-Party that makes original documents available for inspection 19 need not designate them for protection until after the inspecting Party has indicated 20 which documents it would like copied and produced. During the inspection and 21 before the designation, all of the material made available for inspection shall be 22 deemed “CONFIDENTIAL.” After the inspecting Party has identified the 23 documents it wants copied and produced, the Producing Party must determine 24 which documents, or portions thereof, qualify for protection under this Order. 25 Then, before producing the specified documents, the Producing Party must affix 26 the “CONFIDENTIAL legend” to each page that contains Protected Material. If 27 28 7 1 only a portion of the material on a page qualifies for protection, the Producing 2 Party also must clearly identify the protected portion(s) (e.g., by making 3 appropriate markings in the margins). 4 (b) for testimony given in depositions that the Designating Party 5 identifies the Disclosure or Discovery Material on the record, before the close of 6 the deposition all protected testimony. 7 (c) for information produced in some form other than documentary 8 and for any other tangible items, that the Producing Party affix in a prominent 9 place on the exterior of the container or containers in which the information is 10 stored the legend “CONFIDENTIAL.” If only a portion or portions of the 11 information warrants protection, the Producing Party, to the extent practicable, 12 shall identify the protected portion(s). 7.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 13 failure to designate qualified information or items does not, standing alone, waive 14 the Designating Party’s right to secure protection under this Order for such 15 material. Upon timely correction of a designation, the Receiving Party must make 16 reasonable efforts to assure that the material is treated in accordance with the 17 provisions of this Order. 18 8. CHALLENGING CONFIDENTIALITY DESIGNATIONS 19 8.1. Timing of Challenges. Any Party or Non-Party may challenge a 20 designation of confidentiality at any time that is consistent with the Court’s 21 Scheduling Order. 22 8.2 Meet and Confer. The Challenging Party shall initiate the dispute 23 resolution process under Local Rule 37-1 et seq. 24 8.3 Joint Stipulation. Any challenge submitted to the Court shall be via a 25 joint stipulation pursuant to Local Rule 37-2. 26 8.4 The burden of persuasion in any such challenge proceeding shall be on 27 28 8 1 the Designating Party. Frivolous challenges, and those made for an improper 2 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 3 parties) may expose the Challenging Party to sanctions. Unless the Designating 4 Party has waived or withdrawn the confidentiality designation, all parties shall 5 continue to afford the material in question the level of protection to which it is 6 entitled under the Producing Party’s designation until the Court rules on the 7 challenge. 8 9. ACCESS TO AND USE OF PROTECTED MATERIAL 9 9.1 Basic Principles. A Receiving Party may use Protected Material that is 10 disclosed or produced by another Party or by a Non-Party in connection with this 11 Action only for prosecuting, defending or attempting to settle this Action. Such 12 Protected Material may be disclosed only to the categories of persons and under the conditions described in this Order. When the Action has been terminated, a 13 Receiving Party must comply with the provisions of section 15 below (FINAL 14 DISPOSITION). 15 Protected Material must be stored and maintained by a Receiving Party at a 16 location and in a secure manner that ensures that access is limited to the persons 17 authorized under this Order. 18 9.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 19 otherwise ordered by the court or permitted in writing by the Designating Party, a 20 Receiving Party may disclose any information or item designated 21 “CONFIDENTIAL” only to: 22 (a) the Receiving Party’s Outside Counsel of Record in this Action, as 23 well as employees of said Outside Counsel of Record to whom it is reasonably 24 necessary to disclose the information for this Action; 25 (b) the officers, directors, and employees (including House Counsel) 26 of the Receiving Party to whom disclosure is reasonably necessary for this Action; 27 28 9 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 10 a custodian or other person who otherwise possessed or knew the information; 11 (h) during their depositions, witnesses, and attorneys for witnesses, in 12 the Action to whom disclosure is reasonably necessary. Pages of transcribed 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 18 PRODUCED 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 23 shall include a copy of the subpoena or court order; 24 (b) promptly notify in writing the party who caused the subpoena or 25 order to issue in the other litigation that some or all of the material covered by the 26 subpoena or order is subject to this Protective Order. Such notification shall 27 28 10 1 include a copy of this Stipulated Protective Order; and 2 (c) cooperate with respect to all reasonable procedures sought to be 3 pursued by the Designating Party whose Protected Material may be affected. If the 4 Designating Party timely seeks a protective order, the Party served with the 5 subpoena or court order shall not produce any information designated in this action 6 as “CONFIDENTIAL” before a determination by the court from which the 7 subpoena or order issued, unless the Party has obtained the Designating Party’s 8 permission. The Designating Party shall bear the burden and expense of seeking 9 protection in that court of its confidential material and nothing in these provisions 10 should be construed as authorizing or encouraging a Receiving Party in this Action 11 to disobey a lawful directive from another court. 12 11. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION 13 (a) The terms of this Order are applicable to information produced by 14 a Non-Party in this Action and designated as “CONFIDENTIAL.” Such 15 information produced by Non-Parties in connection with this litigation is protected 16 by the remedies and relief provided by this Order. Nothing in these provisions 17 should be construed as prohibiting a Non-Party from seeking additional 18 protections. 19 (b) In the event that a Party is required, by a valid discovery request, 20 to produce a Non-Party’s confidential information in its possession, and the Party 21 is subject to an agreement with the Non-Party not to produce the Non-Party’s 22 confidential information, then the Party shall: 23 (1) promptly notify in writing the Requesting Party and the Non-Party 24 that some or all of the information requested is subject to a confidentiality 25 agreement with a Non-Party; 26 (2) promptly provide the Non-Party with a copy of the Stipulated 27 28 11 1 Protective Order in this Action, the relevant discovery request(s), and a reasonably 2 specific description of the information requested; and 3 (3) make the information requested available for inspection by the 4 Non-Party, if requested. 5 (c) If the Non-Party fails to seek a protective order from this court 6 within 14 days of receiving the notice and accompanying information, the 7 Receiving Party may produce the Non-Party’s confidential information responsive 8 to the discovery request. If the Non-Party timely seeks a protective order, the 9 Receiving Party shall not produce any information in its possession or control that 10 is subject to the confidentiality agreement with the Non-Party before a 11 determination by the court. Absent a court order to the contrary, the Non-Party 12 shall bear the burden and expense of seeking protection in this court of its Protected Material. 13 12. UNAUTHORIZED DISCLOSURE OF PROTECTED 14 MATERIAL 15 If a Receiving Party learns that, by inadvertence or otherwise, it has 16 disclosed Protected Material to any person or in any circumstance not authorized 17 under this Stipulated Protective Order, the Receiving Party must immediately (a) 18 notify in writing the Designating Party of the unauthorized disclosures, (b) use its 19 best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform 20 the person or persons to whom unauthorized disclosures were made of all the terms 21 of this Order, and (d) request such person or persons to execute the 22 “Acknowledgment an Agreement to Be Bound” attached hereto as Exhibit A. 23 13. INADVERTENT PRODUCTION OF PRIVILEGED OR 24 OTHERWISE PROTECTED MATERIAL 25 When a Producing Party gives notice to Receiving Parties that certain 26 inadvertently produced material is subject to a claim of privilege or other 27 28 12 1 protection, the obligations of the Receiving Parties are those set forth in Federal 2 Rule of Civil Procedure 26(b)(5)(B). 3 14. MISCELLANEOUS 4 14.1 Right to Further Relief. Nothing in this Order abridges the right of any 5 person to seek its modification by the Court in the future. 6 14.2 Right to Assert Other Objections. By stipulating to the entry of this 7 Protective Order, no Party waives any right it otherwise would have to object to 8 disclosing or producing any information or item on any ground not addressed in 9 this Stipulated Protective Order. Similarly, no Party waives any right to object on 10 any ground to use in evidence of any of the material covered by this Protective 11 Order. 12 14.3 Filing Protected Material. A Party that seeks to file under seal any Protected Material must comply with Local Civil Rule 79-5. Protected Material 13 may only be filed under seal pursuant to a court order authorizing the sealing of the 14 specific Protected Material. If a Party’s request to file Protected Material under 15 seal is denied by the court, then the Receiving Party may file the information in the 16 public record unless otherwise instructed by the court. 17 15. FINAL DISPOSITION 18 After the final disposition of this Action, as defined in paragraph 6, within 19 60 days of a written request by the Designating Party, each Receiving Party must 20 return all Protected Material to the Producing Party or destroy such material. As 21 used in this subdivision, “all Protected Material” includes all copies, abstracts, 22 compilations, summaries, and any other format reproducing or capturing any of the 23 Protected Material. Whether the Protected Material is returned or destroyed, the 24 Receiving Party must submit a written certification to the Producing Party (and, if 25 not the same person or entity, to the Designating Party) by the 60-day deadline that 26 (1) identifies (by category, where appropriate) all the Protected Material that was 27 28 13 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 are 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 9 Protective Order as set forth in Section 6 (DURATION). 10 / / / 11 / / / 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 1 16. VIOLATION 2 Any violation of this Order may be punished by appropriate measures 3 including, without limitation, contempt proceedings and/or monetary sanctions. 4 5 IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 6 7 || DATED: May 1, 2020 /s/Fred L. Wilks 9 Fred L. Wilks HODEL WILKS LLP 9 Attorneys for Plaintiff 10 DCR Marketing Inc. 11 DATED: May 1, 2020 /s/James C. Huber 12 James C. Huber 13 GLOBAL LEGAL LAW FIRM Attorneys for Defendant 14 U.S. Alliance Group, Inc. 15 16 17 || FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 18 19 DATED: May 29, 2020 20 22 DOUGLAS F. McCORMICK 23 United States Magistrate Judge 24 25 26 27 28 15 STIPULATION AND PROTECTIVE ORDER 1 Exhibit A - Agreement to Maintain Confidentiality 2 I hereby acknowledge that I will be receiving Confidential Material pursuant 3 to the terms of a Confidentiality Stipulation and Protective Order entered by the 4 Court in the action entitled DCR Marketing Inc. v. U.S. Alliance Group, Inc., et al., 5 Case No. 8:19-cv-01897-JVS-DFM. I have been given a copy of, and have read 6 and understand, the Stipulated Protective Order and I agree to be bound by the 7 terms and conditions of that Order. I understand that (1) I am to make no copies of 8 any such Confidential Material except as necessary for use in the above-captioned 9 actions, and (2) such Confidential Material and any copies thereof must remain in 10 my custody until I have completed my assigned duties, whereupon they are to be 11 returned to counsel who provided me with such Confidential Material. I agree not 12 to disseminate any information derived from such Confidential Material to anyone, 13 or make any disclosure of any such information, except for the purposes of the 14 above-caption action or as permitted by the Stipulated Protective Order or by 15 further order of the Court. 16 17 Signature: ________________________ 18 19 Print Name: ________________________ 20 Date: ________________________ 21 22 23 4813-4402-8602, v. 1 24 25 26 27 28 16