Marquez v. Moynihan ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 PABLO MARQUEZ, p/k/a PABLO 11 STANLEY, Case No. 2:22-cv-00123-JAM-KJN 12 Plaintiff, STIPULATED PROTECTIVE ORDER 13 v. [LOCAL RULES 141.1, 143] 14 WILLIAM MOYNIHAN, 15 Defendant. WILLIAM MOYNIHAN, 16 Counter-Claimant, 17 v. 18 PABLO MARQUEZ, p/k/a PABLO 19 STANLEY, 20 Counter-Defendant. 21 22 1. PURPOSES AND LIMITATIONS 23 Disclosure and discovery activity in this action are likely to involve production of 24 confidential, proprietary, or private information for which special protection from public disclosure 25 and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly, 26 the parties hereby stipulate to and petition the court to enter the following Stipulated Protective 27 Order. The parties acknowledge that this Order does not confer blanket protections on all disclosures 1 only to the limited information or items that are entitled to confidential treatment under the 2 applicable legal principles. The parties further acknowledge, as set forth in Section 12.3, below, that 3 this Stipulated Protective Order does not entitle them to file confidential information under seal; 4 Civil Local Rules 140-141 set forth the procedures that must be followed and the standards that will 5 be applied when a party seeks permission from the court to file material under seal. 6 Statement under L.R. 141.1(c)(1): The parties may protect the following confidential 7 information from unrestricted or unprotected disclosure pursuant to this protective order: personal 8 income, credit, tax, or other confidential or sensitive personally identifiable information (e.g., social 9 security numbers, phone numbers, and home addresses) of a party or a person who is not party to the 10 case; non-public revenues, income, distributions and expenses associated with the Robotos NFT 11 project; business and marketing plans, non-public vendor agreements, and other third-party non- 12 public business dealings associated with the Robotos NFT project or other projects of a party or a 13 person who is not a party to the case. 14 Statement under L.R. 141.1(c)(2): Information and documents shall only be designated under 15 this Stipulated Protective Order because the Producing Party believes the information or documents 16 are proprietary or confidential, and not publicly released. Unrestricted or unprotected disclosure of 17 such information or documents would result in prejudice or harm to the Producing Party by 18 revealing its personal or business revenue, income, expenses, credit, tax, or other confidential 19 information, as well as non-public business dealings and strategies. Additionally, privacy interests of 20 third parties, such as financial information and sensitive personally identifiable information (e.g., 21 social security numbers, phone numbers, and home addresses), must be safeguarded. Accordingly, 22 the parties respectfully submit that there is good cause for entry of this order. 23 Statement under L.R. 141.1(c)(3): Protecting the confidential nature of information this way 24 will be the most efficient for the parties and the Court. The issues in this case turn to a significant 25 degree on the compensation arrangements and payments to the parties. Information the parties 26 believe to be confidential will need to be exchanged in discovery and motion practice. A private 27 agreement to safeguard this information would be insufficient because it would need to be replicated 1 2. DEFINITIONS 2 2.1 Challenging Party: a Party or Non-Party that challenges the designation of 3 information or items under this Order. 4 2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is 5 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of 6 Civil Procedure 26(c) as set forth in Section 1 above. 7 2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well 8 as their support staff). 9 2.4 Designating Party: a Party or Non-Party that designates information or items that it 10 produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 11 2.5 Disclosure or Discovery Material: all items or information, regardless of the medium 12 or manner in which it is generated, stored, or maintained (including, among other things, testimony, 13 transcripts, and tangible things), that are produced or generated in disclosures or responses to 14 discovery in this matter. 15 2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to the 16 litigation who has been retained by a Party or its counsel to serve as an expert witness or as a 17 consultant in this action. 18 2.7 House Counsel: attorneys who are employees of a party to this action. House Counsel 19 does not include Outside Counsel of Record or any other outside counsel. 20 2.8 Non-Party: any natural person, partnership, corporation, association, or other legal 21 entity not named as a Party to this action. 22 2.9 Outside Counsel of Record: attorneys who are not employees of a party to this action 23 but are retained to represent or advise a party to this action and have appeared in this action on 24 behalf of that party or are affiliated with a law firm which has appeared on behalf of that party. 25 2.10 Party: any party to this action, including all of its officers, directors, employees, 26 consultants, retained experts, and Outside Counsel of Record (and their support staffs). 27 2.11 Producing Party: a Party or Non-Party that produces Disclosure or Discovery 1 2.12 Professional Vendors: persons or entities that provide litigation support services (e.g., 2 photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, 3 storing, or retrieving data in any form or medium) and their employees and subcontractors. 4 2.13 Protected Material: any Disclosure or Discovery Material that is designated as 5 “CONFIDENTIAL.” 6 2.14 Receiving Party: a Party that receives Disclosure or Discovery Material from a 7 Producing Party. 8 3. SCOPE 9 The protections conferred by this Stipulation and Order cover not only Protected Material (as 10 defined above), but also (1) any information copied or extracted from Protected Material; (2) all 11 copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 12 conversations, or presentations by Parties or their Counsel that might reveal Protected Material. 13 However, the protections conferred by this Stipulation and Order do not cover the following 14 information: (a) any information that is in the public domain at the time of disclosure to a Receiving 15 Party or becomes part of the public domain after its disclosure to a Receiving Party as a result of 16 publication not involving a violation of this Order, including becoming part of the public record 17 through trial or otherwise; and (b) any information known to the Receiving Party prior to the 18 disclosure or obtained by the Receiving Party after the disclosure from a source who obtained the 19 information lawfully and under no obligation of confidentiality to the Designating Party. Any use of 20 Protected Material at trial shall be governed by a separate agreement or order. 21 4. DURATION 22 Even after final disposition of this litigation, the confidentiality obligations imposed by this 23 Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order 24 otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and 25 defenses in this action, with or without prejudice; and (2) final judgment herein after the completion 26 and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, including the 27 time limits for filing any motions or applications for extension of time pursuant to applicable law. 1 5. DESIGNATING PROTECTED MATERIAL 2 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party or 3 Non-Party that designates information or items for protection under this Order must take care to 4 limit any such designation to specific material that qualifies under the appropriate standards. The 5 Designating Party must designate for protection only those parts of material, documents, items, or 6 oral or written communications that qualify – so that other portions of the material, documents, 7 items, or communications for which protection is not warranted are not swept unjustifiably within 8 the ambit of this Order. 9 Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown 10 to be clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily 11 encumber or retard the case development process or to impose unnecessary expenses and burdens on 12 other parties) expose the Designating Party to sanctions. 13 If it comes to a Designating Party’s attention that information or items that it designated for 14 protection do not qualify for protection, that Designating Party must promptly notify all other Parties 15 that it is withdrawing the mistaken designation. 16 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order (see, 17 e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, Disclosure or 18 Discovery Material that qualifies for protection under this Order must be clearly so designated 19 before the material is disclosed or produced. 20 Designation in conformity with this Order requires: 21 (a) For information in documentary form (e.g., paper or electronic documents, but 22 excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party 23 affix the legend “CONFIDENTIAL” to each page that contains protected material. If only a portion 24 or portions of the material on a page qualifies for protection, the Producing Party also must clearly 25 identify the protected portion(s) (e.g., by making appropriate markings in the margins). 26 A Party or Non-Party that makes original documents or materials available for inspection need not 27 designate them for protection until after the inspecting Party has indicated which material it would 1 available for inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has 2 identified the documents it wants copied and produced, the Producing Party must determine which 3 documents, or portions thereof, qualify for protection under this Order. Then, before producing the 4 specified documents, the Producing Party must affix the “CONFIDENTIAL” legend to each page 5 that contains Protected Material. If only a portion or portions of the material on a page qualifies for 6 protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by making 7 appropriate markings in the margins). 8 (b) for testimony given in deposition or in other pretrial or trial proceedings, that the 9 Designating Party identify on the record, before the close of the deposition, hearing, or other 10 proceeding, all protected testimony. 11 (c) for information produced in some form other than documentary and for any other 12 tangible items, that the Producing Party affix in a prominent place on the exterior of the container or 13 containers in which the information or item is stored the legend “CONFIDENTIAL.” If only a 14 portion or portions of the information or item warrant protection, the Producing Party, to the extent 15 practicable, shall identify the protected portion(s). 16 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 17 designate qualified information or items does not, standing alone, waive the Designating Party’s 18 right to secure protection under this Order for such material. Upon timely correction of a 19 designation, the Receiving Party must make reasonable efforts to assure that the material is treated in 20 accordance with the provisions of this Order. 21 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 22 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 23 confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality 24 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens, 25 or a significant disruption or delay of the litigation, a Party does not waive its right to challenge a 26 confidentiality designation by electing not to mount a challenge promptly after the original 27 designation is disclosed. 1 by providing written notice of each designation it is challenging and describing the basis for each 2 challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must 3 recite that the challenge to confidentiality is being made in accordance with this specific paragraph 4 of the Protective Order. The parties shall attempt to resolve each challenge in good faith and must 5 begin the process by conferring directly (in voice to voice dialogue; other forms of communication 6 are not sufficient) within 14 days of the date of service of notice. In conferring, the Challenging 7 Party must explain the basis for its belief that the confidentiality designation was not proper and 8 must give the Designating Party an opportunity to review the designated material, to reconsider the 9 circumstances, and, if no change in designation is offered, to explain the basis for the chosen 10 designation. A Challenging Party may proceed to the next stage of the challenge process only if it 11 has engaged in this meet and confer process first or establishes that the Designating Party is 12 unwilling to participate in the meet and confer process in a timely manner. 13 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court 14 intervention, the Designating Party shall file and serve a motion to retain confidentiality within 21 15 days of the initial notice of challenge or within 14 days of the parties agreeing that the meet and 16 confer process will not resolve their dispute, whichever is earlier. Each such motion must be 17 accompanied by a competent declaration affirming that the movant has complied with the meet and 18 confer requirements imposed in the preceding paragraph. Failure by the Designating Party to make 19 such a motion including the required declaration within 21 days (or 14 days, if applicable) shall 20 automatically waive the confidentiality designation for each challenged designation. In addition, the 21 Challenging Party may file a motion challenging a confidentiality designation at any time if there is 22 good cause for doing so, including a challenge to the designation of a deposition transcript or any 23 portions thereof. Any motion brought pursuant to this provision must be accompanied by a 24 competent declaration affirming that the movant has complied with the meet and confer 25 requirements imposed by the preceding paragraph. 26 The burden of persuasion in any such challenge proceeding shall be on the Designating 27 Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose 1 Unless the Designating Party has waived the confidentiality designation by failing to file a motion to 2 retain confidentiality as described above, all parties shall continue to afford the material in question 3 the level of protection to which it is entitled under the Producing Party’s designation until the court 4 rules on the challenge. 5 7. ACCESS TO AND USE OF PROTECTED MATERIAL 6 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or 7 produced by another Party or by a Non-Party in connection with this case only for prosecuting, 8 defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to 9 the categories of persons and under the conditions described in this Order. When the litigation has 10 been terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL 11 DISPOSITION). 12 Protected Material must be stored and maintained by a Receiving Party at a location and in a 13 secure manner that ensures that access is limited to the persons authorized under this Order. 14 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by 15 the court or permitted in writing by the Designating Party, a Receiving Party may disclose any 16 information or item designated “CONFIDENTIAL” only to: 17 (a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees 18 of said Outside Counsel of Record to whom it is reasonably necessary to disclose the information for 19 this litigation and who have signed the “Acknowledgment and Agreement to Be Bound” that is 20 attached hereto as Exhibit A; 21 (b) the officers, directors, and employees (including House Counsel) of the Receiving 22 Party to whom disclosure is reasonably necessary for this litigation and who have signed the 23 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 24 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is 25 reasonably necessary for this litigation and who have signed the “Acknowledgment and Agreement 26 to Be Bound” (Exhibit A); 27 (d) the court and its personnel; 1 Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have 2 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 3 (f) during their depositions, witnesses in the action to whom disclosure is reasonably 4 necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), 5 unless otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed 6 deposition testimony or exhibits to depositions that reveal Protected Material must be separately 7 bound by the court reporter and may not be disclosed to anyone except as permitted under this 8 Stipulated Protective Order. 9 (g) the author or recipient of a document containing the information or a custodian or 10 other person who otherwise possessed or knew the information. 11 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 12 LITIGATION 13 If a Party is served with a subpoena or a court order issued in other litigation that compels 14 disclosure of any information or items designated in this action as “CONFIDENTIAL,” that Party 15 must: 16 (a) promptly notify in writing the Designating Party. Such notification shall include a 17 copy of the subpoena or court order; 18 (b) promptly notify in writing the party who caused the subpoena or order to issue in the 19 other litigation that some or all of the material covered by the subpoena or order is subject to this 20 Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and 21 (c) cooperate with respect to all reasonable procedures sought to be pursued by the 22 Designating Party whose Protected Material may be affected. 23 If the Designating Party timely seeks a protective order, the Party served with the subpoena 24 or court order shall not produce any information designated in this action as “CONFIDENTIAL” 25 before a determination by the court from which the subpoena or order issued, unless the Party has 26 obtained the Designating Party’s permission. The Designating Party shall bear the burden and 27 expense of seeking protection in that court of its confidential material – and nothing in these 1 disobey a lawful directive from another court. 2 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS 3 LITIGATION 4 (a) The terms of this Order are applicable to information produced by a Non-Party in this 5 action and designated as “CONFIDENTIAL.” Such information produced by Non-Parties in 6 connection with this litigation is protected by the remedies and relief provided by this Order. 7 Nothing in these provisions should be construed as prohibiting a Non-Party from seeking additional 8 protections. 9 (b) In the event that a Party is required, by a valid discovery request, to produce a Non- 10 Party’s confidential information in its possession, and the Party is subject to an agreement with the 11 Non-Party not to produce the Non-Party’s confidential information, then the Party shall: 12 (1) promptly notify in writing the Requesting Party and the Non-Party that some or all 13 of the information requested is subject to a confidentiality agreement with a Non-Party; 14 (2) promptly provide the Non-Party with a copy of the Stipulated Protective Order in 15 this litigation, the relevant discovery request(s), and a reasonably specific description of the 16 information requested; and 17 (3) make the information requested available for inspection by the Non-Party. 18 (c) If the Non-Party fails to object or seek a protective order from this court within 14 19 days of receiving the notice and accompanying information, the Receiving Party may produce the 20 Non-Party’s confidential information responsive to the discovery request. If the Non-Party timely 21 seeks a protective order, the Receiving Party shall not produce any information in its possession or 22 control that is subject to the confidentiality agreement with the Non-Party before a determination by 23 the court. Absent a court order to the contrary, the Non-Party shall bear the burden and expense of 24 seeking protection in this court of its Protected Material. 25 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 26 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 27 Material to any person or in any circumstance not authorized under this Stipulated Protective Order, 1 disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected Material, (c) 2 inform the person or persons to whom unauthorized disclosures were made of all the terms of this 3 Order, and (d) request such person or persons to execute the “Acknowledgment and Agreement to 4 Be Bound” that is attached hereto as Exhibit A. 5 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED 6 MATERIAL 7 When a Producing Party gives notice to Receiving Parties that certain inadvertently produced 8 material is subject to a claim of privilege or other protection, the obligations of the Receiving Parties 9 are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to 10 modify whatever procedure may be established in an e-discovery order that provides for production 11 without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the 12 parties reach an agreement on the effect of disclosure of a communication or information covered by 13 the attorney-client privilege or work product protection, the parties may incorporate their agreement 14 in the stipulated protective order submitted to the court. 15 12. MISCELLANEOUS 16 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek 17 its modification by the court in the future. 18 12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective Order 19 no Party waives any right it otherwise would have to object to disclosing or producing any 20 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no 21 Party waives any right to object on any ground to use in evidence of any of the material covered by 22 this Protective Order. 23 12.3 Filing Protected Material. Without written permission from the Designating Party or a 24 court order secured after appropriate notice to all interested persons, a Party may not file in the 25 public record in this action any Protected Material. A Party that seeks to file under seal any Protected 26 Material must comply with Civil Local Rule 141. Protected Material may only be filed under seal 27 pursuant to a court order authorizing the sealing of the specific Protected Material at issue. If a 1 Receiving Party may file the information in the public record unless otherwise instructed by the 2 court. 3 13. FINAL DISPOSITION 4 Within 60 days after the final disposition of this action, as defined in paragraph 4, each 5 Receiving Party must return all Protected Material to the Producing Party or destroy such material. 6 As used in this subdivision, “all Protected Material” includes all copies, abstracts, compilations, 7 summaries, and any other format reproducing or capturing any of the Protected Material. Whether 8 the Protected Material is returned or destroyed, the Receiving Party must submit a written 9 certification to the Producing Party (and, if not the same person or entity, to the Designating Party) 10 by the 60 day deadline that (1) identifies (by category, where appropriate) all the Protected Material 11 that was returned or destroyed and (2) affirms that the Receiving Party has not retained any copies, 12 abstracts, compilations, summaries or any other format reproducing or capturing any of the Protected 13 Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy of all 14 pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda, 15 correspondence, deposition and trial exhibits, expert reports, attorney work product, and consultant 16 and expert work product, even if such materials contain Protected Material. Any such archival copies 17 that contain or constitute Protected Material remain subject to this Protective Order as set forth in 18 Section 4 (DURATION). 19 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 20 21 DATED: March 23, 2022 /s/ James Slater Attorney for Plaintiff/Counter-Defendant 22 23 24 DATED: March 23, 2022 /s/ Britt L. Anderson Attorney for Defendant/Counter-Claimant 25 26 ORDER 27 The court has reviewed the parties’ stipulated protective order. (See ECF No. 19). The een I NOI IEEE III IED ROS IIE IED EID IEE eee 1 relevant authorities and the court’s applicable local rule. See L.R. 141.1(c);! see also Phillips ex 2 || rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1210 (9th Cir. 2002) (requiring a 3 showing of good cause for protective orders). The court APPROVES the protective order, subject 4 || to the following clarification. The Local Rules state that once an action is closed, “unless 5 otherwise ordered, the court will not retain jurisdiction over enforcement of the terms of any 6 || protective order filed in that action.” L.R. 141.1(f). Courts in the district generally do not agree to 7 || retain jurisdiction for disputes concerning protective orders after closure of the case. See, e.g., 8 MD Helicopters, Inc. v. Aerometals, Inc., 2017 WL 495778 (E.D. Cal., Feb. 03, 2017). Thus, the 9 || court will not retain jurisdiction over this protective order once the case is closed. 10 Dated: March 25, 2022 FS Aaron 7 12 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 13 14 Marg.123 15 16 17 18 19 20 21 22 23 24 25 ' The Court’s Local Rules instruct the parties, when requesting a protective order, to include in their submission: (1) A description of the types of information eligible for protection under the order, with the 96 description provided in general terms sufficient to reveal the nature of the information (e.g., customer list, formula for soda, diary of a troubled child); 27 (2) A showing of particularized need for protection as to each category of information proposed to be covered by the order; and 28 (3) A showing as to why the need for protection should be addressed by a court order, as opposed to a private agreement between or among the parties. 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _____________________________ [print or type full name], of _________________ [print or 4 type full address], declare under penalty of perjury that I have read in its entirety and understand the 5 Stipulated Protective Order that was issued by the United States District Court for the Eastern 6 District of California on [date] in the case of ___________ Marquez v. Moynihan, Case No. 2:22-cv- 7 00123-JAM-KJN. I agree to comply with and to be bound by all the terms of this Stipulated 8 Protective Order and I understand and acknowledge that failure to so comply could expose me to 9 sanctions and punishment in the nature of contempt. I solemnly promise that I will not disclose in 10 any manner any information or item that is subject to this Stipulated Protective Order to any person 11 or entity except in strict compliance with the provisions of this Order. 12 I further agree to submit to the jurisdiction of the United States District Court for the Eastern District 13 of California for the purpose of enforcing the terms of this Stipulated Protective Order, even if such 14 enforcement proceedings occur after termination of this action. 15 I hereby appoint __________________________ [print or type full name] of 16 _______________________________________ [print or type full address and telephone number] as 17 my California agent for service of process in connection with this action or any proceedings related 18 to enforcement of this Stipulated Protective Order. 19 20 Date: ______________________________________ 21 City and State where sworn and signed: _________________________________ 22 23 Printed name: _______________________________ 24 25 Signature: __________________________________ 26 27