-RZ Maximum Availability Limited v. Vision Solutions, Inc. et al, No. 2:2010cv01488 - Document 111 (C.D. Cal. 2010)
Court Description: ORDER DENYING PROTECTIVE ORDER by Magistrate Judge Ralph Zarefsky. (See document for details). (ib)
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-RZ Maximum Availability Limited v. Vision Solutions, Inc. et al Doc. 111 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 13 14 MAXIMUM AVAILABILITY LIMITED, Case No. CV 10-1488 GW (RZx) a New Zealand limited liability company, [PROPOSED] PROTECTIVE ORDER Plaintiff, v. 15 16 17 VISION SOLUTIONS, INC., a Delaware corporation, et al. Defendants. 18 19 20 21 DENIED BY ORDER OF THE COURT Pursuant to the Parties’ Stipulation re Entry of Protective Order, and good 22 cause appearing therefore, it is hereby ORDERED that all parties to this action and 23 their counsel comply with the following protective order: 24 25 26 27 28 Dockets.Justia.com 1 1. PURPOSES AND LIMITATIONS 2 By virtue of the fact that Plaintiff Maximum Availability Limited and 3 Defendant Vision Solutions, Inc. are competitors in the same industry and because 4 Sirius Computer Solutions, Inc. sells computer software, including certain Vision 5 Solutions, Inc.’s products, is alleged to be a business partner and agent of Vision 6 Solutions, Inc., and has a proprietary client base, disclosure and discovery activity 7 in this action are likely to involve production of confidential, proprietary, or 8 private information for which special protection from public disclosure and from 9 use for any purpose other than prosecuting and defending this litigation may be 10 warranted. Accordingly, the parties hereby stipulate to and petition the court to 11 enter the following Stipulated Protective Order. The parties acknowledge that this 12 Order does not confer blanket protections on all disclosures or responses to 13 discovery and that the protection it affords from public disclosure and use extends 14 only to the limited information or items that are entitled to confidential treatment 15 under the applicable legal principles. The parties further acknowledge, as set forth 16 in Section 11.4, below, that this Stipulated Protective Order does not entitle them 17 to file confidential information under seal; Civil Local Rule 79-5 sets forth the 18 procedures that must be followed and the standards that will be applied when a 19 party seeks permission from the Court to file material under seal. The parties’ stipulation regarding this Stipulated Protective Order cannot be 20 21 construed as a waiver of any of their substantive or procedural rights in this case. 22 2. 23 24 25 DEFINITIONS 2.1 Challenging Party: a Party or Non-Party that challenges the designation of information or items under this Order. 2.2 “Confidential” Information or Items: information (regardless of how 26 generated, stored or maintained) or tangible things that are not generally publicly 27 available and provide some value to the designating party by virtue of the fact the 28 2 1 information is not generally known, or that qualify for protection under Federal 2 Rule of Civil Procedure 26(c) and related case law. 3 4 5 2.3 Counsel (without qualifier): Outside Counsel of Record (as well as their support staffs). 2.4 Designating Party: a Party or Non-Party that designates information 6 or items that it produces in disclosures or in responses to discovery as 7 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 8 ONLY.” 9 2.5 Disclosure or Discovery Material: all items or information, regardless 10 of the medium or manner in which it is generated, stored, or maintained (including, 11 among other things, testimony, transcripts, and tangible things), that are produced 12 or generated in disclosures or responses to discovery in this matter. 13 2.6 Expert: a person with specialized knowledge or experience in a 14 matter pertinent to the litigation who (1) has been retained by a Party or its counsel 15 to serve as an expert witness or as a consultant in this action, (2) is not a past or 16 current employee of a Party or of a Party’s competitor, and (3) at the time of 17 retention, is not anticipated to become an employee of a Party or of a Party’s 18 competitor. This definition includes a professional jury or trial consultant retained 19 in connection with this litigation. 20 2.7 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” 21 Information or Items: extremely sensitive “Confidential Information or Items,” 22 disclosure of which to another Party or Non-Party would create a substantial risk of 23 serious harm that could not be avoided by less restrictive means. 24 25 26 27 2.8 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a party to this action. 2.9 Outside Counsel of Record: attorneys who are not employees of a party to this action but are retained to represent or advise a party to this action and 28 3 1 have appeared in this action on behalf of that party or are affiliated with a law firm 2 which has appeared on behalf of that party. 2.10 Party: any party to this action, including all of its officers, directors, 3 4 employees, consultants, retained experts, and Outside Counsel of Record (and their 5 support staffs). 2.11 Producing Party: a Party or Non-Party that produces Disclosure or 6 7 Discovery Material in this action. 2.12 Professional Vendors: persons or entities that provide litigation 8 9 support services (e.g., photocopying, data processing, videotaping, translating, 10 preparing exhibits or demonstrations, organizing, storing, reviewing or retrieving 11 data in any form or medium, etc.) and their employees and subcontractors. 2.13 Protected Material: any Disclosure or Discovery Material that is 12 13 designated as “CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL – 14 ATTORNEYS’ EYES ONLY.” 2.14 Receiving Party: a Party that receives Disclosure or Discovery 15 16 Material from a Producing Party. 17 3. SCOPE 18 The protections conferred by this Stipulation and Order cover not only 19 Protected Material (as defined above), but also (1) any information copied or 20 extracted from Protected Material; (2) all copies, excerpts, summaries, or 21 compilations of Protected Material; (3) any testimony, conversations, or 22 presentations by Parties or their Counsel that might reveal Protected Material. 23 However, the protections conferred by this Stipulation and Order do not cover the 24 following information: (a) any information that is in the public domain at the time 25 of disclosure to a Receiving Party or becomes part of the public domain after its 26 disclosure to a Receiving Party as a result of publication not involving a violation 27 of this Order, including becoming part of the public record through trial or 28 otherwise; and (b) any information known to the Receiving Party prior to the 4 1 disclosure or obtained by the Receiving Party after the disclosure from a source 2 who obtained the information lawfully and under no obligation of confidentiality to 3 the Designating Party. Any use of Protected Material at trial shall be governed by 4 a separate agreement or order. 5 4. DURATION Even after final disposition of this litigation, the confidentiality obligations 6 7 imposed by this Order shall remain in effect until a Designating Party agrees 8 otherwise in writing or a court order otherwise directs. Final disposition shall be 9 deemed to be the later of (1) dismissal of all claims and defense in this action, with 10 or without prejudice; and (2) final judgment herein after the completion and 11 exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, 12 including the time limits for filing any motions or applications for extension of 13 time pursuant to applicable law. 14 5. 15 DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. 16 Each Party or Non-Party that designates information or items for protection under 17 this Order must take care to limit any such designation to specific material that 18 qualifies under the appropriate standards. To the extent it is practical to do so, the 19 Designating Party must designate for protection only those parts of material, 20 documents, items, or oral or written communications that qualify – so that other 21 portions of the material, documents, items, or communications for which 22 protection is not warranted are not swept unjustifiably within the ambit of this 23 Order. 24 Mass, indiscriminate, or routinized designations are prohibited. 25 Designations that are shown to be clearly unjustified or that have been made for an 26 improper purpose (e.g., to unnecessarily encumber or retard the case development 27 process or to impose unnecessary expenses and burdens on other parties), expose 28 the Designating Party to sanctions. 5 1 If it comes to a Designating Party’s attention that information or items that it 2 designated for protection do not qualify for protection at all or do not qualify for 3 the level of protection initially asserted, that Designating Party must promptly 4 notify all other parties that it is withdrawing the mistaken designation. 5 5.2 Manner and Timing of Designations. Except as otherwise provided in 6 this Order (see, e.g., second paragraph of Section 5.2(a), below), or as otherwise 7 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 8 under this Order must be clearly so designated before the material is disclosed or 9 produced. 10 Designation in conformity with this Order requires: 11 (a) for information in documentary form (e.g., paper or electronic 12 documents, but excluding transcripts of depositions or other pretrial or trial 13 proceedings), that the Producing Party affix the legend “CONFIDENTIAL” or 14 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” to each page that 15 contains protected material. If only a portion or portions of the material on a page 16 qualifies for protection, the Producing Party also must clearly identify the 17 protected portion(s) (e.g., by making appropriate markings in the margins) and 18 must specify, for each portion, the level of protection being asserted (either 19 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 20 ONLY”). 21 A Party or non-party that makes original documents or materials 22 available for inspection need not designate them for protection until after the 23 inspecting Party has indicated which material it would like copied and produced. 24 During the inspection and before the designation, all of the material made available 25 for inspection shall be deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’ 26 EYES ONLY.” After the inspecting Party has identified the documents it wants 27 copied and produced, the Producing Party must determine which documents, or 28 portions thereof, qualify for protection under this Order. Then, before producing 6 1 the specified documents, the Producing Party must affix the appropriate legend 2 (“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 3 ONLY”) to each page that contains Protected Material. If only a portion or 4 portions of the material on a page qualifies for protection, the Producing Party also 5 must clearly identify the protected portion(s) (e.g., by making appropriate 6 markings in the margins) and must specify, for each portion, the level of protection 7 being asserted (either “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – 8 ATTORNEYS’ EYES ONLY”). 9 (b) for information in a form rendering it impractical to affix a 10 label to each page (including but not limited to electronically stored information 11 produced on electronic or magnetic media), the Producing Party may designate the 12 information as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – 13 ATTORNEYS’ EYES ONLY” by cover letter referring generally to such matter or 14 by affixing to such media a label containing the appropriate legend. Whenever a 15 Receiving Party reduces electronically stored information designated as 16 “Confidential” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” 17 to hard-copy form, the Receiving Party shall mark such hard-copy form with the 18 appropriate legend. Whenever any Confidential Electronic Information or 19 Computerized Material is copied or converted into another form, the Receiving 20 Party shall also mark those forms with the same designation as the original from 21 which it was copied. 22 (c) for testimony given in deposition or in other pretrial or trial 23 proceedings, that the Designating Party identify on the record, before the close of 24 the deposition, hearing, or other proceeding, all protected testimony and specify 25 the level of protection being asserted (either “CONFIDENTIAL” or “HIGHLY 26 CONFIDENTIAL – ATTORNEYS’ EYES ONLY”). When it is impractical to 27 identify separately each portion of testimony that is entitled to protection and it 28 appears that substantial portions of the testimony may qualify for protection, the 7 1 Designating Party may invoke on the record (before the deposition or proceeding is 2 concluded) a right to have up to 21 days following the preparation and delivery of 3 the transcript to identify the specific portions of the testimony as to which 4 protection is sought and to specify the level of protection being asserted (either 5 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 6 ONLY”). Only those portions of the testimony that are appropriately designated 7 for protection within the 21 days shall be covered by the provisions of this 8 Stipulated Protective Order. Alternatively, a Designating Party may specify, at the 9 deposition or up to 21 days following the preparation and delivery of the transcript 10 if that period is properly invoked, that the entire transcript shall be treated as 11 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 12 ONLY.” 13 Parties shall give the other parties notice if they reasonably expect a 14 deposition, hearing or other proceeding to include Protected Material so that the 15 other parties can ensure that only authorized individuals who have signed the 16 “Acknowledgement and Agreement to Be Bound” (Exhibit A) are present at those 17 proceedings. The use of a document as an exhibit at a deposition shall not in any 18 way affect its designation as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL 19 – ATTORNEYS’ EYES ONLY.” 20 Transcripts containing Protected Material shall have an obvious 21 legend on the title page that the transcript contains Protected Material, and the title 22 page shall be followed by a list of all pages (including line numbers as appropriate) 23 that have been designated as Protected Material and the level of protection being 24 asserted by the Designating Party. The Designating Party shall inform the court 25 reporter of these requirements. Any transcript that is prepared before the 26 expiration of a 21-day period for designation shall be treated during that period as 27 if it had been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 28 8 1 ONLY” in its entirety unless otherwise agreed. After the expiration of that period, 2 the transcript shall be treated only as actually designated. (d) 3 for information produced in some form other than documentary 4 and for any other tangible items, that the Producing Party affix in a prominent 5 place on the exterior of the container or containers in which the information or 6 item is stored the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – 7 ATTORNEYS’ EYES ONLY.” If only portions of the information or item warrant 8 protection, the Producing Party, to the extent practicable, shall identify the 9 protected portion(s) and specify the level of protection being asserted (either 10 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 11 ONLY”). 12 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 13 failure to designate qualified information or items as “CONFIDENTIAL” or 14 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” does not, standing 15 alone, waive the Designating Party’s right to secure protection under this Order for 16 such material. Upon timely correction of a designation, the Receiving Party must 17 make reasonable efforts to assure that the material is treated in accordance with the 18 provisions of this Order. 19 5.4 Inadvertent Disclosure of Privileged Material. If information subject 20 to a claim of attorney-client privilege, attorney work product or any other legal 21 privilege protecting information from discovery is inadvertently produced to a 22 party or parties, such production shall in no way prejudice or otherwise constitute a 23 waiver of, or estoppel as to, any claim of privilege, work product or other ground 24 for withholding production of the document and information to which the 25 Producing Party or other person otherwise would be entitled. 26 The party making the claim of inadvertent disclosure of privileged 27 material must notify the Receiving Party of the claim and the basis for it. After 28 being notified of the inadvertent disclosure, the Receiving Party must immediately 9 1 take the following steps: (1) [sequester and] return the material and all copies or 2 reproductions thereof as to which the claim of inadvertent production has been 3 made, (2) do not copy, use or disclose the information until the claim is resolved; 4 (3) take reasonable steps to retrieve the information if the receiving party copied, 5 used, or disclosed it before being notified of the inadvertent disclosure, (4) destroy 6 all notes or other work product reflecting the contents of such material, and (5) 7 delete such material from any litigation-support or other database. The provisions of this Section 5.4 shall not be deemed to prevent any 8 9 party from seeking an order compelling production of any document or 10 information, including documents or information contained in documents that are 11 returned as a result of a claim of inadvertent production. If the Receiving Party 12 challenges the privileged designation, it may promptly, and in no event later than 13 thirty (30) days following service of the claim of inadvertent disclosure, present the 14 information to the court under seal for a determination of the claim. The producing 15 party must preserve the information until the claim is resolved. 16 6. 17 CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 18 designation of confidentiality at any time. Unless a prompt challenge to a 19 Designating Party’s confidentiality designation is necessary to avoid foreseeable 20 substantial unfairness, unnecessary economic burdens, or a significant disruption 21 or delay of the litigation, a Party does not waive its right to challenge a 22 confidentiality designation by electing not to mount a challenge promptly after the 23 original designation is disclosed. 24 6.2 Meet and Confer. The Challenging Party shall initiate the dispute 25 resolution process by providing written notice of each designation it is challenging 26 and describing the basis for each challenge. To avoid ambiguity as to whether a 27 challenge has been made, the written notice must recite that the challenge to 28 confidentiality is being made in accordance with this specific paragraph of the 10 1 Protective Order. The parties shall attempt to resolve each challenge in good faith 2 and must begin the process by conferring directly (in voice to voice dialogue; other 3 forms of communication are not sufficient) within 14 days of the date of service of 4 notice. In conferring, the Challenging Party must explain the basis for its belief 5 that the confidentiality designation was not proper and must give the Designating 6 Party an opportunity to review the designated material, to reconsider the 7 circumstances, and, if no change in designation is offered, to explain the basis for 8 the chosen designation. A Challenging Party may proceed to the next stage of the 9 challenge process only if it has engaged in this meet and confer process first or 10 establishes that the Designating Party is unwilling to participate in the meet and 11 confer process in a timely manner. 12 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without 13 court intervention, the Designating Party shall file and serve a motion to retain 14 confidentiality under Civil Local Rule 7 (and in compliance with Civil Local Rule 15 79-5, if applicable) within 21 days of the initial notice of challenge or within 14 16 days of the parties agreeing that the meet and confer process will not resolve their 17 dispute, whichever is earlier. Each such motion must be accompanied by a 18 competent declaration affirming that the movant has complied with the meet and 19 confer requirements imposed in the preceding paragraph. Failure by the 20 Designating Party to make such a motion including the required declaration within 21 21 days (or 14 days, if applicable) shall automatically waive the confidentiality 22 designation for each challenged designation. In addition, the Challenging Party 23 may file a motion challenging a confidentiality designation at any time if there is 24 good cause for doing so, including a challenge to the designation of a deposition 25 transcript or any portions thereof. Any motion brought pursuant to this provision 26 must be accompanied by a competent declaration affirming that the movant has 27 complied with the meet and confer requirements imposed by the preceding 28 paragraph. 11 The burden of persuasion in any such challenge proceeding shall be on 1 2 the Designating Party. Frivolous challenges and those made for an improper 3 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 4 parties) may expose the Challenging Party to sanctions. Unless the Designating 5 Party has 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. 10 ACCESS TO AND USE OF PROTECTED MATERIAL 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 this 12 case only for prosecuting, defending, or attempting to settle this litigation. Such 13 Protected Material may be disclosed only to the categories of persons and under 14 the conditions described in this Order. When the litigation has been terminated, a 15 Receiving Party must comply with the provisions of Section 12, below (FINAL 16 DISPOSITION). Protected Material must be stored and maintained by a Receiving 17 18 Party at a location and in a secure manner that ensures that access is limited to the 19 persons authorized under this Order. To the extent that any Receiving Party, 20 vendor or counsel for the Receiving Party creates, develops, or otherwise 21 establishes on any electronic system information designated “CONFIDENTIAL” 22 or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” that party and/or 23 its counsel must take all necessary steps to insure that access to such media is 24 properly restricted to those persons who, by the terms of this Order, may have 25 access to the information and will affix to any media containing such information a 26 label with the appropriate legends. 27 28 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by the court or permitted in writing by the Designating Party, a 12 1 Receiving Party may disclose any information or item designated 2 “CONFIDENTIAL” only to: 3 (a) the Receiving Party’s Outside Counsel of Record in this action, 4 as well as employees of said Outside Counsel of Record to whom it is reasonably 5 necessary to disclose the information for this litigation; (b) 6 the officers, directors, and employees of the Receiving Party to 7 whom disclosure is reasonably necessary for this litigation and who have signed 8 the “Agreement to Be Bound” (Exhibit A); (c) 9 Experts (as defined in this Order) of the Receiving Party to 10 whom disclosure is reasonably necessary for this litigation and who have signed 11 the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 12 (d) the Court and its personnel; 13 (e) court reporters and their staff, professional jury or trial 14 consultants, and Professional Vendors to whom disclosure is reasonably necessary 15 for this litigation and who have signed the “Acknowledgement and Agreement to 16 Be Bound” (Exhibit A); (f) 17 during their depositions, witnesses in the action to whom 18 disclosure is reasonably necessary and who have signed the “Acknowledgement 19 and Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the 20 Designating Party or ordered by the Court. Pages of transcribed deposition 21 testimony or exhibits to depositions that reveal Protected Material must be 22 separately bound by the court reporter and may not be disclosed to anyone except 23 as permitted under this Stipulated Protective Order; and (g) 24 the author or recipient of a document containing the 25 information or a custodian or other person who otherwise possessed or knew the 26 information. 27 28 7.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items. Unless otherwise ordered by the court or permitted 13 1 in writing by the Designating Party, a Receiving Party may disclose any 2 information or item designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ 3 EYES ONLY” only to: (a) 4 the Receiving Party’s Outside Counsel of Record in this action, 5 as well as employees of said Counsel to whom it is reasonably necessary to 6 disclose the information for this litigation; (b) 7 Experts of the Receiving Party (1) to whom disclosure is 8 reasonably necessary for this litigation, (2) who have signed the 9 “Acknowledgement and Agreement to Be Bound” (Exhibit A), and (3) as to whom 10 the procedures set forth in Paragraph 7.4(a), below, have been followed; 11 (c) the Court and its personnel; 12 (d) court reporters and their staff, professional jury or trial 13 consultants, and Professional Vendors to whom disclosure is reasonably necessary 14 for this litigation and who have signed the “Acknowledgement and Agreement to 15 Be Bound” (Exhibit A); and 16 (e) the author or recipient of a document containing the 17 information or a custodian or other person who otherwise possessed or knew the 18 information. 19 20 21 7.4 Procedures for Approving Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items to Experts. (a) Unless otherwise ordered by the court or agreed in writing by 22 the Designating Party, a Party that seeks to disclose to an Expert (as defined in this 23 Order) any information or item that has been designated “HIGHLY 24 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” pursuant to Paragraph 7.3(c) 25 first must make a written request to the Designating Party that (1) identifies the 26 general categories of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 27 ONLY” information that the Receiving Party seeks permission to disclose to the 28 Expert, (2) sets forth the full name of the Expert and the city and state of his or her 14 1 primary residence, (3) attaches a copy of the Expert’s current resume, (4) identifies 2 the Expert’s current employer(s), (5) identifies each person or entity from whom 3 the Expert has received compensation or funding for work in his or her areas of 4 expertise or to whom the expert has provided professional services, including in 5 connection with a litigation, at any time during the preceding five years, and (6) 6 identifies (by name and number of the case, filing date, and location of court) any 7 litigation in connection with which the Expert has offered expert testimony, 8 including through a declaration, report, or testimony at a deposition or trial, during 9 the preceding five years. 10 (b) A Party that makes a request and provides the information 11 specified in the preceding respective paragraphs may disclose the subject Protected 12 Material to the identified Expert unless, within 14 days of delivering the request, 13 the Party receives a written objection from the Designating Party. Any such 14 objection must set forth in detail the grounds on which it is based. 15 (c) A Party that receives a timely written objection must meet and 16 confer with the Designating Party (through direct voice to voice dialogue) to try to 17 resolve the matter by agreement within seven days of the written objection. If no 18 agreement is reached, the Party seeking to make the disclosure to the Expert may 19 file a motion as provided in Civil Local Rule 7 (and in compliance with Civil Local 20 Rule 79-5, if applicable) seeking permission from the court to do so. Any such 21 motion must describe the circumstances with specificity, set forth in detail the 22 reasons why the disclosure to the Expert is reasonably necessary, assess the risk of 23 harm that the disclosure would entail, and suggest any additional means that could 24 be used to reduce that risk. In addition, any such motion must be accompanied by 25 a competent declaration describing the parties’ efforts to resolve the matter by 26 agreement (i.e., the extent and the content of the meet and confer discussions) and 27 setting forth the reasons advanced by the Designating Party for its refusal to 28 approve the disclosure. 15 In any such proceeding, the Party opposing disclosure to the Expert 1 2 shall bear the burden of proving that the risk of harm that the disclosure would 3 entail (under the safeguards proposed) outweighs the Receiving Party’s need to 4 disclose the Protected Material to its Expert. 5 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 6 IN OTHER LITIGATION 7 If a Party is served with a subpoena or a court order issued in other litigation 8 that compels disclosure of any information or items designated in this action as 9 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 10 11 12 13 ONLY” that Party must: (a) promptly notify in writing the Designating Party. Such notification shall include a copy of the subpoena or court order. (b) promptly notify in writing the party who caused the subpoena 14 or order to issue in the other litigation that some or all the material covered by the 15 subpoena or order is the subject of this Protective Order. Such notification shall 16 include a copy of this Stipulated Protective Order; and 17 18 (c) cooperate with respect to all reasonable procedures sought to be pursued by the Designating Party whose Protected Material may be affected. 19 The purpose of imposing these duties is to alert the interested parties to the 20 existence of this Protective Order and to afford the Designating Party in this case 21 an opportunity to try to protect its confidentiality interests in the court from which 22 the subpoena or order issued. 23 If the Designating Party timely seeks a protective order, the Party served 24 with the subpoena or court order shall not produce any information designated in 25 this action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – 26 ATTORNEYS’ EYES ONLY” before a determination by the court from which the 27 subpoena or order issued, unless the Party has obtained the Designating Party’s 28 permission. The Designating Party shall bear the burden and the expense of 16 1 seeking protection in that court of its confidential material – and nothing in these 2 provisions should be construed as authorizing or encouraging a Receiving Party in 3 this action to disobey a lawful directive from another court. 4 9. 5 6 A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION (a) The terms of this Order are applicable to information produced 7 by a Non-Party in this action and designated as “CONFIDENTIAL” or “HIGHLY 8 CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Such information produced 9 by Non-Parties in connection with this litigation is protected by the remedies and 10 relief provided by this Order. Nothing in these provisions should be construed as 11 prohibiting a Non-Party from seeking additional protections. 12 (b) In the event that a Party is required, by a valid discovery 13 request, to produce a Non-Party’s confidential information in its possession, and 14 the Party is subject to an agreement with the Non-Party not to produce the Non- 15 Party’s confidential information, then the Party shall: 1. 16 promptly notify in writing the Requesting Party and the 17 Non-Party that some or all of the information requested is subject to a 18 confidentiality agreement with a Non-Party; 2. 19 promptly provide the Non-Party with a copy of the 20 Stipulated Protective Order in this litigation, the relevant discovery request(s), and 21 a reasonably specific description of the information requested; and 3. 22 23 24 make the information requested available for inspection by the Non-Party. (c) If the Non-Party fails to object or seek a protective order from 25 this court within 14 days of receiving the notice and accompanying information, 26 the Receiving Party may produce the Non-Party’s confidential information 27 responsive to the discovery request. If the Non-Party timely seeks a protective 28 order, the Receiving Party shall not produce any information in its possession or 17 1 control that is subject to the confidentiality agreement with the Non-Party before a 2 determination by the court. The purpose of this provision is to alert the interested 3 parties to the existence of confidentiality rights of a Non-Party and to afford the 4 Non-Party an opportunity to protect its confidentiality interests in this court. 5 Absent a court order to the contrary, the Non-Party shall bear the burden and 6 expense of seeking protection in this court of its Protected Material. 7 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 8 If a Receiving Party learns that, by inadvertence or otherwise, it has 9 disclosed Protected Material to any person or in any circumstance not authorized 10 under this Stipulated Protective Order, the Receiving Party must immediately (a) 11 notify in writing the Designating Party of the unauthorized disclosures, (b) use its 12 best efforts to retrieve all copies of the Protected Material, (c) inform the person or 13 persons to whom unauthorized disclosures were made of all the terms of this 14 Order, and (d) request such person or persons to execute the “Acknowledgment 15 and Agreement to Be Bound” that is attached hereto as Exhibit A. 16 11. 17 18 19 MISCELLANEOUS 11.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek its modification by the Court in the future. 11.2 Right to Assert Other Objections. By stipulating to the entry of this 20 Protective Order no Party waives any right it otherwise would have to object to 21 disclosing or producing any information or item on any ground not addressed in 22 this Stipulated Protective Order. Similarly, no Party waives any right to object on 23 any ground to use in evidence of any of the material covered by this Protective 24 Order. 25 11.3 Export Control. Disclosure of Protected Material shall be subject to 26 all applicable laws and regulations relating to the export of technical data 27 contained in such Protected Material, including the release of such technical data to 28 18 1 foreign persons or nationals in the United States or elsewhere. The Producing 2 Party shall be responsible for identifying any such controlled technical data, and 3 the Receiving Party shall take measures necessary to ensure compliance. 4 11.4 Filing Protected Material. Without written permission from the 5 Designating Party or a court order secured after appropriate notice to all interested 6 persons, a Party may not file in the public record in this action any Protected 7 Material. A Party that seeks to file under seal any Protected Material must comply 8 with Civil Local Rule 79-5. Protected Material may only be filed under seal 9 pursuant to a court order authorizing the sealing of the specific Protected Material 10 at issue. 11 12. FINAL DISPOSITION 12 Within 60 days after the final disposition of this action, as defined in 13 Paragraph 4, each Receiving Party must return all Protected Material to the 14 Producing Party or destroy such material. As used in this subdivision, “all 15 Protected Material” includes all copies, abstracts, compilations, summaries or any 16 other format reproducing or capturing any of the Protected Material. Whether the 17 Protected Material is returned or destroyed, the Receiving Party must submit a 18 written certification to the Producing Party (and, if not the same person or entity, to 19 the Designating Party) by the 60-day deadline that (1) identifies (by category, 20 where appropriate) all the Protected Material that was returned or destroyed and 21 (2) affirms that the Receiving Party has not retained any copies, abstracts, 22 compilations, summaries or any other format reproducing or capturing any of the 23 Protected Material. Notwithstanding this provision, Counsel are entitled to retain 24 an archival copy of all pleadings, motion papers, trial, deposition, and hearing 25 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert 26 reports, attorney work product, and consultant and expert work product, even if 27 such materials contain Protected Material. Any such archival copies that contain 28 19 1 or constitute Protected Material remain subject to this Protective Order as set forth 2 in Section 4 (DURATION). 3 4 5 6 7 8 9 10 11 12 13 14 IT IS SO ORDERED. FED. R. CIV. P. 26(c) requires a showing of good cause for the entry of a protective order, and the Court must find good cause even if the parties have stipulated to the existence of a protective order. Jepson Inc. v. Makita Electric Works, Ltd., 30 F.3d 854, 858 (7th Cir. 1994). “To establish ‘good cause’ for a protective order under [Federal Rule of Civil Procedure] 26(c), ‘[t]he courts have insisted on a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements...’” In re Halkin, 598 F.2d 176, 193 (D.C. Cir. 1979) (quoting 8 C. Wright & A. Miller, Federal Practice and Procedure § 2035, p. 265 (1970), cited with approval in Gulf Oil Co. v. Bernard, 452 U.S. 89, 101 n. 15 (1981). No such showing has been made here. The parties may, of course, enter into a stipulation among themselves, without a court order, so long as court deadlines are not affected. FED. R. CIV. P. 29. The proposed order is denied. 15 16 17 Dated: October 25, 2010 The Honorable Ralph Zarefsky United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28 20 1 EXHIBIT A 2 ACKNOWLEDGEMENT AND AGREEMENT TO BE BOUND I, _____________________________ [print or type full name], of 3 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 6 (“Order”) that was issued by the United States District Court for the Central 7 District of California on _________ [date] in the case of Maximum Availability 8 Limited v. Vision Solutions, Inc., et al., Case No. CV 10-1488 GW (RZx). I agree 9 to comply with and be bound by all the terms of this 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 Order to any person or 13 entity except in strict compliance with the provisions of this Order. I further agree to submit to the jurisdiction of the United States District 14 15 Court for the Central District of California for the purpose of enforcing the terms 16 of this Stipulated Protective Order, even if such enforcement proceedings occur 17 after termination of this action. I hereby appoint __________________________ [print or type full name] of 18 19 _______________________________________ [print or type full address and 20 telephone number] as my California agent for service of process in connection with 21 this action or any proceedings related to enforcement of this Order. 22 Date: 23 24 City and State where sworn and signed: Printed name: 25 26 [printed name] Signature: [signature] 27 28 21 12792587v.1
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