J.R. Simplot Company v. Niboli

1 Charles Trudrung Taylor, #127105 Kimberly L. Mayhew, #199105 2 Alma V. Montenegro, #323158 3 Lang, Richert & Patch 5200 N. Palm Ave., Suite 401 4 Fresno, CA 93704 5 Tel: 559.228.6700 Fax: 559.228.6727 6 Email: ctt@lrplaw.net 7 Email: klm@lrplaw.net Email: avm@lrplaw.net 8 9 Attorneys for Defendant PETER NIBOLI 10 11 UNITED STATES DISTRICT COURT 12 EASTERN DISTRICT OF CALIFORNIA 13 14 J.R. SIMPLOT COMPANY, Case No. 1:19-cv-00667-DAD-BAM 15 Plaintiff, STIPULATED PROTECTIVE ORDER 16 v. HONORABLE DALE A. DROZD 17 PETER NIBOLI, an individual; ALLEN HAYNES, an individual; and BARBARA A. McAULIFFE 18 SCOTT FOTH, an individual, U.S. MAGISTRATE JUDGE 19 Defendants. Complaint Filed: 05/15/19 20 21 Pursuant to Local Rule 141.1 of the civil Local Rules of Practice for the 22 United States District Court, Eastern District of California, the parties hereby 23 stipulate to the following: 24 1. PURPOSES AND LIMITATIONS 25 Disclosure and discovery activity in this action are likely to involve 26 production of confidential, trade secret, proprietary, or private information of 27 Plaintiff J.R. SIMPLOT COMPANY (“Plaintiff”) and Defendants PETER 1 (“FOTH”), as well as potential third parties, for which special protection from 2 public disclosure and from use for any purpose other than prosecuting this 3 litigation may be warranted. Accordingly, the parties hereby stipulate to and 4 petition the court to enter the following Stipulated Protective Order. The parties 5 acknowledge that this Order does not confer blanket protections on all 6 disclosures or responses to discovery and that the protection it affords from 7 public disclosure and use extends only to the limited information or items that are 8 entitled to confidential treatment under the applicable legal principles. The 9 parties further acknowledge, as set forth in Section 12.3, below, that this 10 Stipulated Protective Order does not entitle them to file confidential information 11 under seal; Local Rule 141 sets forth the procedures that must be followed and 12 the standards that will be applied when a party seeks permission from the court to 13 file material under seal. 14 2. DEFINITIONS 15 2.1 Challenging Party: a Party or Non-Party that challenges the 16 designation of information or items under this Order. 17 2.2 “CONFIDENTIAL” Information or Items: information (regardless 18 of how it is generated, stored or maintained) or tangible things that qualify for 19 protection under Federal Rule of Civil Procedure 26(c). 20 2.3 Counsel (without qualifier): outside Counsel of Record and House 21 Counsel (as well as their support staff). 22 2.4 Designating Party: a Party or Non-Party that designates information 23 or items that it produces in disclosures or in responses to discovery as 24 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 25 ONLY.” 26 2.5 Disclosure or Discovery Material: all items or information, 27 regardless of the medium or manner in which it is generated, stored, or 1 things), that are produced or generated in disclosures or responses to discovery in 2 this matter. 3 2.6 Expert: a person with specialized knowledge or experience in a 4 matter pertinent to the litigation who (1) has been retained by a Party or its 5 counsel to serve as an expert witness or as a consultant in this action, (2) is not a 6 past or current employee of a Party or of a Party’s competitor, and (3) at the time 7 of retention, is not anticipated to become an employee of a Party or of a Party’s 8 competitor. 9 2.7 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” 10 Information or Items: extremely sensitive “Confidential Information or Items,” 11 disclosure of which to another Party or Non-Party would create a substantial risk 12 of serious harm that could not be avoided by less restrictive means; provided, 13 further, that there are folders that exist on certain USB devices that were 14 produced to SIMPLOT by NIBOLI without any changes to the forensic integrity 15 of the devices at the outset of the litigation that include proprietary business 16 information belonging to NIBOLI’s current employer, BUTTONWILLOW 17 WAREHOUSE COMPANY (“BUTTONWILLOW”). The Folders are identified 18 by the designation “BWC” in the name of the folders. For purposes of conducting 19 its preliminary forensic analysis, SIMPLOT agreed that the BUTTONWILLOW 20 folders would not be reviewed by anyone associated with SIMPLOT (and have 21 not been to date). In the event that the contents of the folders become relevant to 22 the litigation, the Parties agree to meet and confer in good-faith as to a review 23 and access protocol, such as designation of the materials as “HIGHLY 24 CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” 25 2.8 House Counsel: attorneys who are employees of a Party to this 26 action. House Counsel does not include Outside Counsel of Record or any other 27 outside counsel. 1 association, or other legal entity not named as a Party to this action. 2 2.10 Outside Counsel of Record: attorneys who are not employees of a 3 party to this action but are retained to represent or advise a party to this action. 4 2.11 Party: any party to this action, including all of its parents, 5 subsidiaries, affiliates, officers, directors, employees, consultants, retained 6 experts, and Outside Counsel of Record (and their support staffs). 7 2.12 Producing Party: a Party or Non-Party that produces Disclosure or 8 Discovery Material in this action. 9 2.13 Professional Vendors: persons or entities that provide litigation 10 support services (e.g., photocopying, videotaping, translating, preparing exhibits 11 or demonstrations, and organizing, storing, or retrieving data in any form or 12 medium) and their employees and subcontractors. 13 2.14 Protected Material: any Disclosure or Discovery Material that is 14 designated as “CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL – 15 ATTORNEYS’ EYES ONLY.” 16 2.15 Receiving Party: a Party that receives Disclosure or Discovery 17 Material from a Producing Party. 18 3. SCOPE 19 The protections conferred by this Stipulation and Order cover not only 20 Protected Material (as defined above), but also (1) any information copied or 21 extracted from Protected Material; (2) all copies, excerpts, summaries, or 22 compilations of Protected Material; and (3) any testimony, conversations, or 23 presentations by Parties or their Counsel that might reveal Protected Material. 24 However, the protections conferred by this Stipulation and Order do not cover the 25 following information: (a) any information that is in the public domain at the 26 time of disclosure to a Receiving Party or becomes part of the public domain 27 after its disclosure to a Receiving Party as a result of publication not involving a 1 or otherwise; and (b) any information known to the Receiving Party prior to the 2 disclosure or obtained by the Receiving Party after the disclosure from a source 3 who obtained the information lawfully and under no obligation of confidentiality 4 to the Designating Party. Any use of Protected Material at trial shall be governed 5 by a separate agreement or order. 6 4. DURATION 7 Even after final disposition of this litigation, the confidentiality obligations 8 imposed by this Order shall remain in effect until a Designating Party agrees 9 otherwise in writing or a court order otherwise directs. Final disposition shall be 10 deemed to be the later of (1) dismissal of all claims and defenses in this action, 11 with or without prejudice; and (2) final judgment herein after the completion and 12 exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, 13 including the time limits for filing any motions or applications for extension of 14 time pursuant to applicable law. 15 5. DESIGNATING PROTECTED MATERIAL 16 5.1 Exercise of Restraint and Care in Designating Material for 17 Protection. Each Party or Non-Party that designates information or items for 18 protection under this Order must take care to limit any such designation to 19 specific material that qualifies under the appropriate standards. To the extent it is 20 practical to do so, the Designating Party must designate for protection only those 21 parts of material, documents, items, or oral or written communications that 22 qualify – so that other portions of the material, documents, items, or 23 communications for which protection is not warranted are not swept unjustifiably 24 within the ambit of this Order. 25 Mass, indiscriminate, or routinized designations are prohibited. 26 Designations that are shown to be clearly unjustified or that have been made for 27 an improper purpose (e.g., to unnecessarily encumber or retard the case 1 parties) expose the Designating Party to sanctions. 2 5.2 Manner and Timing of Designations. Except as otherwise provided 3 in this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 4 stipulated or ordered, Disclosure or Discovery Material that qualifies for 5 protection under this Order must be clearly so designated before the material is 6 disclosed or produced. 7 Designation in conformity with this Order requires: 8 (a) for information in documentary form (e.g., paper or electronic 9 documents, but excluding transcripts of depositions or other pretrial or trial 10 proceedings), that the Producing Party affix the legend “CONFIDENTIAL” or 11 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” to each page that 12 contains Protected Material. If only a portion or portions of the material on a 13 page qualifies for protection, the Producing Party also must clearly identify the 14 protected portion(s) (e.g., by making appropriate markings in the margins) and 15 must specify, for each portion, the level of protection being asserted. 16 A Party or Non-Party that makes original documents or materials available 17 for inspection need not designate them for protection until after the inspecting 18 Party has indicated which material it would like copied and produced. During the 19 inspection and before the designation, all of the material made available for 20 inspection shall be deemed “HIGHLY CONFIDENTIAL – FOR ATTORNEYS’ 21 ONLY.” After the inspecting Party has identified the documents it wants copied 22 and produced, the Producing Party must determine which documents, or portions 23 thereof, qualify for protection under this Order. Then, before producing the 24 specified documents, the Producing Party must affix the appropriate legend 25 (“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 26 ONLY”) to each page that contains Protected Material. If only a portion or 27 portions of the material on a page qualifies for protection, the Producing Party 1 markings in the margins) and must specify, for each portion, the level of 2 protection being asserted. 3 (b) for testimony given in deposition or in other pretrial or trial 4 proceedings, that the Designating Party identify on the record, before the close of 5 the deposition, hearing, or other proceeding, all protected testimony and specify 6 the level of protection being asserted. When it is impractical to identify 7 separately each portion of testimony that is entitled to protection and it appears 8 that substantial portions of the testimony may qualify for protection, the 9 Designating Party may invoke on the record (before the deposition, hearing, or 10 other proceeding is concluded) a right to have up to 21 days to identify the 11 specific portions of the testimony as to which protection is sought and to specify 12 the level of protection being asserted. In the event that any documents or 13 information previously designated as “CONFIDENTIAL” or “HIGHLY 14 CONFIDENTIAL – ATTORNEY’S EYES ONLY” are discussed on the record, 15 such right shall automatically be deemed to have been invoked. Only those 16 portions of the testimony that are appropriately designated for protection within 17 the 21 days shall be covered by the provisions of this Protective Order. 18 Alternatively, a Designating Party may specify, at the deposition or up to 21 days 19 afterwards if that period is properly invoked, that the entire transcript shall be 20 treated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ 21 EYES ONLY.” 22 Parties shall give the other parties notice if they reasonably expect a 23 deposition, hearing or other proceeding to include Protected Material so that the 24 other parties can ensure that only authorized individuals who have signed the 25 “Acknowledgment and Agreement to Be Bound” (Exhibit A to stipulation) are 26 present at those proceedings. The use of a document as an exhibit at a deposition 27 shall not in any way affect its designation as “CONFIDENTIAL” or “HIGHLY 1 Transcripts containing Protected Material shall have an obvious legend on 2 the title page that the transcript contains Protected Material, and the title page 3 shall be followed by a list of all pages (including line numbers as appropriate) 4 that have been designated as Protected Material and the level of protection being 5 asserted by the Designating Party. The Designating Party shall inform the court 6 reporter of these requirements. Any transcript that is prepared before the 7 expiration of a 21-day period for designation shall be treated during that period as 8 if it had been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 9 ONLY” in its entirety unless otherwise agreed. After the expiration of that 10 period, the transcript shall be treated only as actually designated. 11 (c) for information produced in some form other than documentary and for 12 any other tangible items, that the Producing Party affix in a prominent place on 13 the exterior of the container or containers in which the information or item is 14 stored the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – 15 ATTORNEYS’ EYES ONLY.” If only a portion or portions of the information or 16 item warrant protection, the Producing Party, to the extent practicable, shall 17 identify the protected portion(s) and specify the level of protection being 18 asserted. 19 5.3 Inadvertent Failures to Designate. If timely corrected, an 20 inadvertent failure to designate qualified information or items does not, standing 21 alone, waive the Designating Party’s right to secure protection under this Order 22 for such material. Upon timely correction of a designation, the Receiving Party 23 must make reasonable efforts to assure that the material is treated in accordance 24 with the provisions of this Order. 25 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 26 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 27 designation of confidentiality at any time. Unless a prompt challenge to a 1 substantial unfairness, unnecessary economic burdens, or a significant disruption 2 or delay of the litigation, a Party does not waive its right to challenge a 3 confidentiality designation by electing not to mount a challenge promptly after 4 the original designation is disclosed. 5 6.2 Meet and Confer. The Challenging Party shall initiate the dispute 6 resolution process by providing written notice of each designation it is 7 challenging and describing the basis for each challenge. To avoid ambiguity as to 8 whether a challenge has been made, the written notice must recite that the 9 challenge to confidentiality is being made in accordance with this specific 10 paragraph of the Protective Order. The parties shall attempt to resolve each 11 challenge in good faith and must begin the process by conferring directly (in 12 voice to voice dialogue; other forms of communication are not sufficient) within 13 14 days of the date of service of notice. In conferring, the Challenging Party must 14 explain the basis for its belief that the confidentiality designation was not proper 15 and must give the Designating Party an opportunity to review the designated 16 material, to reconsider the circumstances, and, if no change in designation is 17 offered, to explain the basis for the chosen designation. A Challenging Party may 18 proceed to the next stage of the challenge process only if it has engaged in this 19 meet and confer process first or establishes that the Designating Party is 20 unwilling to participate in the meet and confer process in a timely manner. 21 6.3 Judicial Intervention. If the Parties cannot resolve a challenge 22 without court intervention, the Designating Party shall file and serve a motion to 23 retain confidentiality under Civil Local Rule 230 and in compliance with Civil 24 Local Rule141.1. Each such motion must be accompanied by a competent 25 declaration affirming that the movant has complied with the meet and confer 26 requirements imposed in the preceding paragraph and that sets forth with 27 specificity the justification for the confidentiality designation that was given by 1 The burden of persuasion in any such challenge proceeding shall be on the 2 Designating Party. Frivolous challenges, and those made for an improper purpose 3 (e.g., to harass or impose unnecessary expenses and burdens on other parties) 4 may expose the Challenging Party to sanctions. Unless the Designating Party has 5 waived the confidentiality designation by failing to file a motion to retain 6 confidentiality as described above, all parties shall continue to afford the material 7 in question the level of protection to which it is entitled under the Producing 8 Party’s designation until the court rules on the challenge. 9 7. ACCESS TO AND USE OF PROTECTED MATERIAL 10 7.1 Basic Principles. A Receiving Party may use Protected Material that 11 is disclosed or produced by another Party or by a Non-Party in connection with 12 this case only for prosecuting, defending, or attempting to settle this litigation. 13 Such Protected Material may be disclosed only to the categories of persons and 14 under the conditions described in this Order. When the litigation has been 15 terminated, a Receiving Party must comply with the provisions of section 13 16 below (FINAL DISPOSITION). 17 Protected Material must be stored and maintained by a Receiving Party at a 18 location and in a secure manner that ensures that access is limited to the persons 19 authorized under this Order. 20 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 21 otherwise ordered by the court or permitted in writing by the Designating Party, a 22 Receiving Party may disclose any information or item designated 23 “CONFIDENTIAL” only to: 24 (a) the Receiving Party’s Outside Counsel of Record in this action, as well 25 as employees of said Outside Counsel of Record to whom it is reasonably 26 necessary to disclose the information for this litigation and who have signed the 27 “Acknowledgment and Agreement to Be Bound” that is attached to the 1 (b) the officers, directors, and employees (including House Counsel) of 2 the Receiving Party to whom disclosure is reasonably necessary for this litigation 3 and who have signed the “Acknowledgment and Agreement to Be Bound” 4 (Exhibit A); 5 (c) Experts (as defined in this Order) of the Receiving Party to whom 6 disclosure is reasonably necessary for this litigation and who have signed the 7 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 8 (d) the court and its personnel; 9 (e) court reporters and their staff, professional jury or trial consultants, and 10 Professional Vendors to whom disclosure is reasonably necessary for this 11 litigation and who have signed the “Acknowledgment and Agreement to Be 12 Bound” (Exhibit A); 13 (f) during their depositions, witnesses in the action to whom disclosure is 14 reasonably necessary and who have signed the “Acknowledgment and 15 Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the 16 Designating Party or ordered by the court. Pages of transcribed deposition 17 testimony or exhibits to depositions that reveal Protected Material must be 18 separately bound by the court reporter and may not be disclosed to anyone except 19 as permitted under this Stipulated Protective Order. 20 (g) the author or recipient of a document containing the information or the 21 original source of the information. 22 7.3 Disclosure of ‘HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 23 ONLY” Information or Items. Unless otherwise ordered by the court or 24 permitted in writing by the Designating Party a Receiving Party may disclose any 25 information or item designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ 26 EYES ONLY” only to: 27 (a) the Receiving Party’s Outside Counsel of Record in this action, as well 1 necessary to disclose the information for this litigation; 2 (b) Experts of the Receiving Party (1) to whom disclosure is reasonably 3 necessary for this litigation and (2) who have signed the “Acknowledgment and 4 Agreement to Be Bound”; 5 (c) the court and its personnel; 6 (d) court reporters and their staff, professional jury or trial consultants, and 7 Professional Vendors to whom disclosure is reasonably necessary for this 8 litigation and who have signed the “Acknowledgment and Agreement to Be 9 Bound” (Exhibit A); 10 (e) the author of the document containing the information or the original 11 source of the information (provided that such disclosure may be made only for 12 purposes necessary to the litigation, and that such person may not retain a copy of 13 the document or any notes, extracts, or other summary of the document or 14 information contained in the document); and 15 (f) during their depositions, witnesses to the action to whom disclosure is 16 reasonably necessary, who are employed in management level positions by the 17 Designating Party, and who have signed the “Acknowledgment and Agreement 18 to Be Bound” (Exhibit A), unless otherwise agreed by the Designating Party or 19 ordered by the court. Pages of transcribed deposition testimony or exhibits to 20 depositions that reveal Protected Material must be separately bound by the court 21 reporter and may not be disclosed to anyone except as permitted under this 22 Protective Order. 23 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED 24 PRODUCED IN OTHER LITIGATION 25 If a Party is served with a subpoena or a court order issued in other 26 litigation that compels disclosure of any information or items designated in this 27 action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ 1 (a) promptly notify in writing the Designating Party. Such notification 2 shall include a copy of the subpoena or court order; 3 (b) promptly notify in writing the party who caused the subpoena or order 4 to issue in the other litigation that some or all of the material covered by the 5 subpoena or order is subject to this Protective Order. Such notification shall 6 include a copy of this Stipulated Protective Order; and 7 (c) cooperate with respect to all reasonable procedures sought to be 8 pursued by the Designating Party whose Protected Material may be affected. 9 If the Designating Party timely seeks a protective order, the Party served 10 with the subpoena or court order shall not produce any information designated in 11 this action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – 12 ATTORNEYS’ EYES ONLY” before a determination by the court from which 13 the subpoena or order issued, unless the Party has obtained the Designating 14 Party’s permission. The Designating Party shall bear the burden and expense of 15 seeking protection in that court of its confidential material – and nothing in these 16 provisions should be construed as authorizing or encouraging a Receiving Party 17 in this action to disobey a lawful directive from another court. 18 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO 19 BE PRODUCED IN THIS LITIGATION 20 (a) The terms of this Order are applicable to information produced by a 21 Non-Party in this action and designated as “CONFIDENTIAL” or “HIGHLY 22 CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Such information produced 23 by Non-Parties in connection with this litigation is protected by the remedies and 24 relief provided by this Order. Nothing in these provisions should be construed as 25 prohibiting a Non-Party from seeking additional protections. 26 (b) In the event that a Party is required, by a valid discovery request, to 27 produce a Non-Party’s confidential information in its possession, and the Party is 1 confidential information, then the Party shall: 2 1. promptly notify in writing the Requesting Party and the Non-Party that 3 some or all of the information requested is subject to a confidentiality agreement 4 with a Non-Party; 5 2, promptly provide the Non-Party with a copy of the Stipulated Protective 6 Order in this litigation, the relevant discovery request(s), and a reasonably 7 specific description of the information requested; and 8 3. make the information requested available for inspection by the Non- 9 Party. 10 (c) If the Non-Party fails to object or seek a protective order from this 11 court within 14 days of receiving the notice and accompanying information, the 12 Receiving Party may produce the Non-Party’s confidential information 13 responsive to the discovery request. If the Non-Party timely seeks a protective 14 order, the Receiving Party shall not produce any information in its possession or 15 control that is subject to the confidentiality agreement with the Non-Party before 16 a determination by the court. Absent a court order to the contrary, the Non-Party 17 shall bear the burden and expense of seeking protection in this court of its 18 Protected Material. 19 10. UNAUTHORIZED DISCLOSURE OF PROTECTED 20 MATERIAL 21 If a Receiving Party learns that, by inadvertence or otherwise, it has 22 disclosed Protected Material to any person or in any circumstance not authorized 23 under this Stipulated Protective Order, the Receiving Party must immediately (a) 24 notify in writing the Designating Party of the unauthorized disclosures, (b) use its 25 best efforts to retrieve all unauthorized copies of the Protected Material, (c) 26 inform the person or persons to whom unauthorized disclosures were made of all 27 the terms of this Order, and (d) request such person or persons to execute the 1 stipulation as Exhibit A. 2 11. INADVERTENT PRODUCTION OF PRIVILEGED OR 3 OTHERWISE PROTECTED MATERIAL 4 When a Producing Party gives notice to Receiving Parties that certain 5 inadvertently produced material is subject to a claim of privilege or other 6 protection, the obligations of the Receiving Parties are those set forth in Federal 7 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify 8 whatever procedure may be established in an e-discovery order that provides for 9 production without prior privilege review. Pursuant to Federal Rule of Evidence 10 502(d) and (e), insofar as the parties reach an agreement on the effect of 11 disclosure of a communication or information covered by the attorney-client 12 privilege or work product protection, the parties may incorporate their agreement 13 in the stipulated protective order submitted to the court. 14 12. MISCELLANEOUS 15 12.1 Right to Further Relief. Nothing in this Order abridges the right of 16 the court to modify this Order at any time or the right of any person to seek its 17 modification by the court in the future. 18 12.2 Right to Assert Other Objections. By stipulating to the entry of this 19 Protective Order no Party waives any right it otherwise would have to object to 20 disclosing or producing any information or item on any ground not addressed in 21 this Stipulated Protective Order. Similarly, no Party waives any right to object on 22 any ground to use in evidence of any of the material covered by this Protective 23 Order. 24 12.3 Filing Protected Material. Without written permission from the 25 Designating Party or a court order secured after appropriate notice to all 26 interested persons, a Party may not file in the public record in this action any 27 Protected Material. A Party that seeks to file under seal any Protected Material 1 under seal pursuant to a court order authorizing the sealing of the specific 2 Protected Material at issue. Pursuant to Civil Local Rule141, a sealing order will 3 issue only upon a request establishing that the Protected Material at issue is 4 privileged, protectable as a trade secret, or otherwise entitled to protection under 5 the law. 6 13. FINAL DISPOSITION 7 Within 60 days after the final disposition of this action, as defined in 8 paragraph 4, each Receiving Party must return all Protected Material to the 9 Producing Party or destroy such material, at the Designating Party’s option. As 10 used in this subdivision, “all Protected Material” includes all copies, abstracts, 11 compilations, summaries, and any other format reproducing or capturing any of 12 the Protected Material. Whether the Protected Material is returned or destroyed, 13 the Receiving Party must submit a written certification to the Producing Party 14 (and, if not the same person or entity, to the Designating Party) by the 60 day 15 deadline that (1) identifies (by category, where appropriate) all the Protected 16 Material that was returned or destroyed and (2) affirms that the Receiving Party 17 has not retained any copies, abstracts, compilations, summaries or any other 18 format reproducing or capturing any of the Protected Material. Notwithstanding 19 this provision, Counsel are entitled to retain an archival copy of all pleadings, 20 motion papers, trial, deposition, and hearing transcripts, legal memoranda, 21 correspondence, deposition and trial exhibits, expert reports, attorney work 22 product, and consultant and expert work product, even if such materials contain 23 Protected Material. Any such archival copies that contain or constitute Protected 24 Material remain subject to this Protective Order as set forth in Section 4 25 (DURATION). 26 27 1 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 2 3 Dated: December 5, 2019 LANG, RICHERT & PATCH 4 By: s/ Charles Trudrung Taylor (as 5 authorized 12/05/19) CHARLES TRUDRUNG TAYLOR 6 KIMBERLY L. MAYHEW 7 ALMA V. MONTENEGRO Attorneys for Defendant 8 PETER NIBOLI 9 Dated: December 5, 2019 DLA PIPER LLP (US) 10 11 By: s/ Noah A. Katsell NOAH A. KATSELL 12 KEVIN D. HARLOW 13 KIMBERLY HYDE 14 MCCORMICK BARSTOW LLP 15 By: s/ Michael G. Woods 16 MICHAEL G. WOODS 17 Attorneys for Plaintiff 18 J.R. SIMPLOT COMPANY 19 20 21 22 23 24 25 26 27 1 Dated: Dated: December 5, MANOCK LAW 2 2019 By: s/ Charles K. Manock (as authorized 3 12/05/19) CHARLES K. MANOCK 4 Attorney for Defendant 5 ALLEN HAYNES 6 7 Dated: December 5, 2019 OFFICES OF RUSSELL D. COOK 8 By: s/ Russell D. Cook (as authorized 9 12/05/19) RUSSELL D. COOK 10 Attorney for Defendant 11 SCOTT FOTH 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _____________________________ [print or type full name], of 4 _________________ [print or type full address], declare under penalty of perjury 5 that I have read in its entirety and understand the Stipulated Protective Order that 6 was issued by the United States District Court for the Eastern District of 7 California on [date] in the case of J.R. Simplot Company v. Peter Niboli, et al., 8 Case No. 1:19-cv-00667-DAD-BAM. I agree to comply with and to be bound by 9 all the terms of this Stipulated Protective Order and I understand and 10 acknowledge that failure to so comply could expose me to sanctions and 11 punishment in the nature of contempt. I solemnly promise that I will not disclose 12 in any manner any information or item that is subject to this Stipulated Protective 13 Order to any person or entity except in strict compliance with the provisions of 14 this Order. 15 I further agree to submit to the jurisdiction of the United States District 16 Court for the Eastern District of California for the purpose of enforcing the terms 17 of this Stipulated Protective Order, even if such enforcement proceedings occur 18 after termination of this action. 19 I hereby appoint __________________________ [print or type full name] 20 of _______________________________________ [print or type full address and 21 telephone number] as my California agent for service of process in connection 22 with this action or any proceedings related to enforcement of this Stipulated 23 Protective Order. 24 Date: ______________________________________ 25 City and State where sworn and signed: _________________________________ 26 Printed name: _______________________________ 27 Signature: __________________________________ 1 ORDER 2 The Court adopts the stipulated protective order submitted by the parties. The parties 3 are advised that pursuant to the Local Rules of the United States District Court, Eastern District 4 of California, any documents subject to this protective order to be filed under seal must be 5 accompanied by a written request which complies with Local Rule 141 prior to sealing. The 6 party making a request to file documents under seal shall be required to show good cause for 7 documents attached to a non-dispositive motion or compelling reasons for documents attached 8 to a dispositive motion. Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-78 (9th Cir. 9 2009). Within five (5) days of any approved document filed under seal, the party shall file a 10 redacted copy of the sealed document. The redactions shall be narrowly tailored to protect only 11 the information that is confidential or was deemed confidential. Additionally, the parties shall 12 consider resolving any dispute arising under this protective order according to the Court’s 13 informal discovery dispute procedures. 14 15 IT IS SO ORDERED. 16 Dated: December 9, 2019 /s/ Barbara A. McAuliffe _ 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27