-JCG Ronda Dermott v. Jillian Michaels et al, No. 2:2010cv05886 - Document 30 (C.D. Cal. 2010)
Court Description: ORDER GRANTING STIPULATED PROTECTIVE ORDER REGARDING CONFIDENTIAL MATERIAL AND HIGHLY CONFIDENTIAL MATERIAL by Magistrate Judge Jay C. Gandhi re: Stipulation for Protective Order, 29 . **See Order for details*** (Note: Changes Made by the Court.) (bem)
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-JCG Ronda Dermott v. Jillian Michaels et al Doc. 30 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 RONDA DEMOTT, individually, and on behalf of all others similarly situated, 12 Plaintiffs 13 v. 14 JILLIAN MICHAELS, an individual; 15 THINCARE INTERNATIONAL, a Utah Limited Liability Company; and DOES 116 20, Inclusive, 17 18 19 Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV10-5886 ODW (JCGx) Honorable Otis D. Wright II DISCOVERY MATTER ORDER GRANTING STIPULATED PROTECTIVE ORDER REGARDING CONFIDENTIAL MATERIAL AND HIGHLY CONFIDENTIAL MATERIAL NOTE CHANGES MADE BY THE COURT. 20 21 22 23 24 25 26 27 28 HOWREY LLP 1 [PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION Dockets.Justia.com 1 The Court, having considered the Parties’ Stipulated Protective Order Regarding 2 Confidential Material and Highly Confidential Material, which stated as follows: 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HOWREY LLP The Parties to this action, through their undersigned counsel of record, hereby stipulate, subject to the approval of the Court, to the entry of the following Protective Order Regarding Confidential Material and Highly Confidential Material (the “Protective Order”). The parties have agreed to stipulate to the entry of a Protective Order in order to facilitate orderly and efficient discovery and to protect the parties and third parties from unwarranted annoyance, embarrassment, oppression, or undue burden or expense, and to prevent the unnecessary disclosure or use of certain documents and information produced in the course of the above-captioned litigation (the “Litigation”), whether by the Parties or third parties. Information subject to this Protective Order may include information relating to trade secrets, proprietary formulas and products, strategic plans, sales, financial information, marketing, manufacturing, employment, or other sensitive competitive and/or confidential information. This Protective Order shall not apply to any information that is publicly available other than through a breach of this Protective Order or other duty of confidentiality. 1. Scope of Order. This Protective Order governs the use and handling of documents, electronically stored information, testimony, written discovery, and other information, including all copies, excerpts or summaries thereof (“Material”) that is given a confidentiality designation pursuant to this Protective Order, regardless of how generated, stored, or maintained, produced or given by any party to this litigation or by any other person or entity (“Producing Party”) in pre-trial proceedings in the Litigation. Material produced or otherwise provided in the Litigation that is designated as “Confidential” or “Highly Confidential” under the provisions of this Protective Order shall be used by the receiving party only for the purpose of the Litigation and not for any other business, competitive, personal, public or other purpose whatsoever; provided, 2 [PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION 1 however, that if litigation seeking attorney fees, sanctions, frivolous or malicious 2 prosecution or other litigation between the parties that arises from and relates to this 3 litigation were to be filed, the Parties may use the Material for the purposes of that 4 related litigation pursuant to the terms and provisions of this Protective Order. 5 2. Designation of Confidential Material. The Producing Party may designate 6 as “Confidential” any Material that he, she or it produces or provides in the Litigation 7 which the Producing Party reasonably and in good faith believes constitutes, contains, 8 reflects or discloses private, confidential, proprietary, trade secret or commercially 9 sensitive information for which a good faith claim of a need of protection from 10 disclosure can be made under the Federal Rules of Civil Procedure and/or other 11 applicable law (“Confidential Material”). 12 3. Designation of Highly Confidential Material. The Producing Party may 13 designate as “Highly Confidential” any non-public Material that he, she or it reasonably 14 and in good faith believes constitutes, contains, reflects or discloses extremely sensitive 15 private, confidential, proprietary, trade secret and/or commercially sensitive information 16 the disclosure of which, even if limited to the permitted disclosures for Confidential 17 Material pursuant to this Protective Order, would jeopardize or threaten to jeopardize 18 the Producing Party’s business or personal privacy interests (“Highly Confidential 19 Material”). 20 4. Manner of Marking and Production of Confidential and Highly 21 Confidential Material. The designation of Confidential Material and Highly 22 Confidential Material pursuant to this Protective Order shall be made by marking each 23 page or other material containing any Confidential Material or Highly Confidential 24 Material with the appropriate term, “Confidential” or “Highly Confidential,” and also by 25 marking the cover and/or first page to which the Material is bound with the same 26 designations as apply to any Material bound therein. In the case of electronically stored 27 information (“ESI”), the designation may be made by designating the ESI as 28 HOWREY LLP 3 [PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION 1 “Confidential” or “Highly Confidential” in a cover letter accompanying production of 2 the ESI. Where feasible, counsel for the Producing Party shall also mark the disk, or 3 other electronic media, including any copies, as “Confidential” or “Highly 4 Confidential.” In the case of depositions or pre-trial testimony, all transcripts shall be 5 treated as Highly Confidential for fourteen (14) business days after receipt of the 6 transcript of the deposition unless the parties agree to an extension of this time period 7 for the designation. On the record during the deposition or within this 14-day period, 8 either party may designate as Confidential or as Highly Confidential, as appropriate, 9 portions of the deposition transcript or exhibits to the transcript. 10 5. Inadvertent Failure to Designate Material Confidential or Highly 11 Confidential. The inadvertent failure to designate Material as Confidential or Highly 12 Confidential shall not be deemed a waiver of a claim of confidentiality. Within ten (10) 13 days of the discovery of an inadvertent failure to designate Material as Confidential or 14 Highly Confidential, the Producing Party shall provide written notification to all other 15 parties to the Litigation of the designation. The Producing Party shall provide 16 replacement copies of the Material with the Confidential or Highly Confidential 17 designation, consistent with Paragraph 3 governing the manner of marking Material. 18 Regardless of whether or when replacement copies are provided, however, all parties 19 shall treat, and shall notify any persons to whom they have provided copies of the 20 Material to treat, the Material as Confidential or Highly Confidential upon receipt of the 21 written notification provided pursuant to this paragraph. 22 6. Persons Who May Access Confidential Material. Except as provided in 23 Paragraph 7, absent written consent from the Producing Party or an Order from the 24 Court, Confidential Material may be disclosed only to the following persons: 25 (a) outside counsel for the Parties and in-house counsel for the Parties, 26 including associate attorneys, paralegal, clerical, secretarial, and other staff employed by 27 such counsel; 28 HOWREY LLP 4 [PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION 1 (b) the Defendants, including officers, directors, or employees of the 2 Defendants who are participating in the preparation, prosecution, defense, or settlement 3 of this Litigation, and the Named Plaintiff, provided that she is participating actively in 4 the preparation of this litigation; 5 (c) experts or consultants retained by the Parties or their counsel to assist in the 6 preparation, prosecution, defense or settlement of this Litigation, provided that they 7 review and agree to be bound by the Protective Order and execute the form attached as 8 Exhibit A; 9 (d) the author of the document or the original source of the information, and 10 any person the document or information on its face indicates had previously received or 11 reviewed it independently of discovery in this action; 12 (e) court reporter(s), videographers, stenographers, and court personnel; 13 (f) photocopying, graphic production, computer service personnel, or litigation 14 support services employed by the Parties or their counsel to assist in the litigation; 15 (g) the Court in this action or any court hearing an appeal in this action; 16 (h) actual or potential fact witnesses who are currently employed by the 17 Producing Party, or who created the Material, or who were employed by the Producing 18 Party at the time the Material was created, or received the Material outside the context 19 of this litigation. 20 7. Persons Who May Access Highly Confidential Material. Except as 21 provided in Paragraph 6, absent written consent from the Producing Party or an Order 22 from the Court, Highly Confidential Material may be disclosed only to the following 23 persons: 24 (a) outside counsel for the Parties, including associate attorneys, paralegal, 25 clerical, secretarial, other staff employed by such counsel, and in-house counsel for the 26 Parties, including paralegal, clerical, secretarial, other staff employed by such counsel, 27 so long as in-house counsel (including in-house counsel’s paralegal, clerical, secretarial, 28 HOWREY LLP 5 [PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION 1 and other staff): (i) has responsibility for the preparation, prosecution, defense, or 2 settlement of this action; (ii) shall agree in writing to be bound by the terms of this 3 Agreement as set forth in Exhibit “A” hereto; and (iii) does not have business duties or 4 responsibilities related to the subject matter contained in any documents to which they 5 are provided access that are covered by this paragraph; 6 (b) the author of the document or the original source of the information, and 7 any person the document or information on its face indicates had previously received or 8 reviewed it independently of discovery in this action; 9 (c) experts or consultants retained on behalf of the Parties or their counsel to 10 assist in the preparation of the case, provided that they review the Protective Order and 11 execute the form attached as Exhibit A; 12 (d) photocopying, graphic production, computer service personnel, or litigation 13 support services employed by the Parties or their counsel to assist in the litigation 14 (e) court reporter(s), videographers, stenographers, and court personnel; 15 (f) the Court in this action or any court hearing an appeal in this action; 16 (g) actual or potential fact witnesses who are currently employed by the 17 Producing Party, or who created the Material, or who were employed by the Producing 18 Party at the time the Material was created, or received the Material outside the context 19 of this litigation; 20 (h) Each Party will maintain a list of persons to whom access is given with 21 respect to Highly Confidential Material. The list will be made available to the 22 Producing Party only upon Court order, and only with good cause for that Party to need 23 such information being shown. 24 8. Application of this Protective Order to Persons with Access to Confidential 25 or Highly Confidential Material. 26 (a) Each person given access to Confidential Material or Highly Confidential 27 Material shall be advised that the Confidential Material or Highly Confidential Material 28 HOWREY LLP 6 [PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION 1 is being disclosed subject to the terms of the Protective Order and may not be disclosed 2 or used other than subject to the terms of the Protective Order; 3 (b) All persons allowed access to Confidential Material or Highly Confidential 4 Material under this Protective Order shall take all necessary steps to insure that access 5 to such Material is restricted to those persons who, by the terms of this Protective Order, 6 are allowed access to the Material; 7 (c) Before any person listed above in paragraphs 6(c) or 7(c) is given access to 8 Confidential Material or Highly Confidential Material, that person must read and agree 9 in writing, by signing the acknowledgement form in Exhibit A attached hereto, to be 10 bound by the provisions of the Protective Order; 11 (d) Before any other person described in paragraphs 6 or 7 is shown any 12 Confidential Material or Highly Confidential Material, that person must be shown a 13 copy of the Protective Order and instructed that he or she is bound by its provisions. 14 This requirement does not apply to those individuals identified in paragraph 6(a) or 7(a), 15 or to the Court in this action or any court hearing an appeal from a judgment or order 16 issued by the Court in this action. 17 9. Filing Documents Containing Confidential Material or Highly Confidential 18 Material. In the event any Party wishes to use any Confidential Material or Highly 19 Confidential Material, or any papers making reference to Confidential Material or 20 Highly Confidential Material, in any pleading or document filed with the Court, such 21 pleading or document shall be filed pursuant to Local Rule 79-5 et seq. and any other 22 applicable rules governing the filing of Confidential Material. 23 10. Use of Confidential Material or Highly Confidential Material at 24 Depositions. Counsel for any party wishing to use Confidential Material or Highly 25 Confidential Material to examine a deposition fact witness who is not currently 26 employed by the Producing Party, who was not employed by the Producing Party at the 27 time the Material was created, or who did not create or receive the Material shall, prior 28 HOWREY LLP 7 [PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION 1 to showing any such Material to the witness during deposition, provide a copy of the 2 Protective Order to the witness and obtain a signed acknowledgement form attached as 3 Exhibit A to this Order that the witness has reviewed the Order and agrees to be bound 4 by its provisions. 5 11. Use of Confidential or Highly Confidential Material at Hearings or Trial. 6 The restrictions, if any, that will govern the use of Confidential Material or Highly 7 Confidential Material at hearings or trial will be determined at a later date by the Court, 8 in consultation with the Parties. 9 12. No Waiver of Privilege. This Order will not prejudice the right of any 10 Party to oppose production of any information on the ground of attorney-client 11 privilege, work product doctrine, or any other objection, privilege, protection, or ground 12 provided under the law. 13 13. Challenge to Confidential Designation. Any party may challenge or 14 dispute the designation of material as “Confidential” or “Highly Confidential” by 15 providing written notice to counsel for the Producing Party (or the Producing Party 16 directly if not represented by counsel) that it objects to the designation. The notice shall 17 specifically identify the Material in dispute and the reasons for the challenge to the 18 designation. Within ten (10) business days, the parties shall meet and confer in good 19 faith in an attempt to resolve the dispute. If the parties are unable to resolve the dispute, 20 the objecting party may make a motion to the Court to challenge the designation, with 21 notice to the Producing Party, and such application shall strictly comply with the local 22 Rules, including the joint stipulation requirement. Until the Court rules on the motion, 23 the material shall be treated as Confidential or Highly Confidential pursuant to this 24 Protective Order. 25 14. Third Party Requests for Information. If any person receiving Confidential 26 Material or Highly Confidential Material covered by this Protective Order is 27 subpoenaed, or issued a document demand, or otherwise requested to provide 28 HOWREY LLP 8 [PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION 1 Confidential Material or Highly Confidential in another proceeding, the person or 2 counsel for the person who received the request shall promptly notify counsel for the 3 Producing Party and, if possible, at least 5 court days prior to the date designated for 4 production, and shall, to the extent permitted by law, withhold production of the 5 Confidential Material or Highly Confidential Material until any dispute relating to the 6 production of the Confidential Material or Highly Confidential Material can be 7 resolved. 8 15. No Waiver or Admission. Nothing in this Agreement, nor any failure by 9 any Party to challenge the designation by another Party of any information as 10 Confidential Material or Highly Confidential Material shall be construed as a waiver, 11 admission or agreement that any specific information is or is not confidential, 12 proprietary or a trade secret, or is or is not subject to discovery, or is or is not admissible 13 in evidence. 14 16. Unauthorized Disclosure of Confidential Material or Highly Confidential 15 Material. If any person subject to this Protective Order becomes aware that he/she or 16 any other person has, whether intentionally or inadvertently, disclosed Confidential 17 Material or Highly Confidential Material to someone not authorized to have access to 18 Confidential Material or Highly Confidential Material under this Protective Order, 19 counsel of record for the party involved should immediately notify counsel of record for 20 the Producing Party about the unauthorized disclosure and should use his/her best 21 efforts to obtain the return of the Confidential Material or Highly Confidential Material 22 (and any copies or documents generated that contain the Confidential Material or 23 Highly Confidential Material) and to prevent any further improper dissemination of the 24 Material. 25 17. Court Retains Jurisdiction. This Protective Order shall survive the 26 termination of this litigation. This Court expressly retains jurisdiction for enforcement 27 of the provisions of this Protective Order following the final resolution of this litigation. 28 HOWREY LLP 9 [PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION 1 18. Return or Destruction of Confidential Material and Highly Confidential 2 Material. Within sixty (60) days of the termination of this action, including all appeals, 3 all Confidential Material and Highly Confidential Material provided by any party, 4 including all copies thereof, or any documents containing any such material, shall be 5 returned to the Producing Party or shall be destroyed, unless otherwise agreed to in 6 writing by the parties and the Producing Party, if not a party hereto. A written 7 certification of return and/or destruction shall be provided to the Producing Party upon 8 request. If copies of any Material are stored on any back-up tapes of a party, then such 9 copies do not need to be destroyed or returned, but shall remain subject to the terms of 10 this Protective Order indefinitely. This paragraph 18 is not applicable to the Court. 11 21. Parties May Use Their Own Confidential Material or Highly Confidential 12 Material. Nothing in this Protective Order shall affect a party’s right to use or disclose 13 its own Confidential Material or Highly Confidential Material in any way for any 14 purpose whatsoever. 15 16 IT IS SO ORDERED. 17 18 19 DATED: December 2, 2010 20 21 22 23 Hon. Jay C. Gandhi United States District Court Magistrate Judge 24 25 26 27 28 HOWREY LLP 10 [PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION EXHIBIT A 1 2 3 4 5 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 6 DeMott, individually, and on 7 Ronda of all others similarly situated, behalf 8 Plaintiffs 9 10 11 12 13 14 ) ) ) ) ) v. ) ) JILLIAN MICHAELS, an individual; ) THINCARE INTERNATIONAL, a Utah ) Limited Liability Company; and DOES 1- ) 20, Inclusive, ) ) Defendants. ) ) ) ) Case No. CV10-5886 ODW (JCGx) Honorable Otis D. Wright II EXHIBIT A TO STIPULATED PROTECTIVE ORDER REGARDING CONFIDENTIAL MATERIAL AND HIGHLY CONFIDENTIAL MATERIAL 15 16 I, ______________________ (print or type name), in connection with the above- 17 entitled action, hereby acknowledge that I have received a copy of the Stipulated 18 Protective Order Regarding Confidential Material and Highly Confidential Material, 19 entered into between and among the parties, which is attached hereto as Exhibit 1, have 20 read and understood the same, and agree to be bound by all of the provisions thereof. 21 I hereto agree to submit to the jurisdiction of the United States District Court for 22 the Central District of California for enforcement of the undertaking made herein. 23 24 Dated: ___________________________ 25 Signature:_________________________ 26 Print Name: _______________________ 27 28 HOWREY LLP 11 [PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION
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