Pavel Djukich v. AutoNation Inc et al, No. 2:2013cv04455 - Document 47 (C.D. Cal. 2013)
Court Description: ORDER GRANTING STIPULATED PROTECTIVE ORDER by Magistrate Judge Alicia G. Rosenberg re Joint MOTION for Protective Order for Confidential Documents Stipulated Protective Order 44 . *NOTE CHANGES MADE BY THE COURT* (rp)
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Pavel Djukich v. AutoNation Inc et al Doc. 47 1 2 UNITED STATES DISTRICT COUAJle 3 CENTRAL DISTRICT OF CALIFORNIA 4 WESTERN DIVISION ’ 5 6 PAVEL DJUKICH, individually and on behalf of others similarly situated, 7 8 Plaintiff, V. Case No.: CV-13-4455 BRO (AGPx) [PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER 9 10 AUTONATION, INC.; and DOES 1 through 100, inclusive, 11 Defendants. 12 13 14 Date: Time: Place: January 7, 2014 10:00a.m. Courtroom B - 8th Floor, 312 North Spring Street, Los Angeles, California 90012 Honorable Alicia G. Rosenberg 15 Upon stipulation of Plaintiff Pave! Djukich and Defendant AutoNation, Inc. 16 (collectively "Parties") for an order pursuant to Fed. R. Civ. P. 26(c), this Court 17 hereby Orders that trade secret or other confidential information be disclosed only in 18 designated ways: 19 20 1. As used in this Protective Order, these terms have the following meanings: 21 ecq a. "Action" means the above-captioned matter. 22 b. "Confidential" documents are documents designated pursuant to paragraph 2. Confidential information includes, but is not limited to, nonpublic information such as financial data, trade secrets, and other operational, proprietary, or technological information relating to Defendant’s business that is not publicly available or known. 24 25 26 27 C. "Confidential - Attorneys’ Eyes Only" documents are documents designated pursuant to paragraph 5. 28 STIPULATED PROTECTIVE ORDER - CV-13-4455 BRO (AGPx) 1 Dockets.Justia.com d. "Documents" means all originals and copies of records, books, papers, documents, and tangible things, including but not limited to agreements, appointment books, bank checks, bank records, books, books of account, business records, calendars, charge slips, charts, computer print-outs, contracts, correspondence, credit card statements, diaries, drafts, electronic or computerized data, emails, facsimiles, files, invoices, journals, legal pleadings, letters, licenses, memoranda, meta-data, notes, papers, promissory notes, receipts, statements, studies, surveys, telegrams, testimony (or summaries thereof), trading records, transcripts, voice mails, vouchers, and all communicative materials of any kind, and copies of all drafts, notes, or any preparatory material concerned with any of the foregoing in the possession, custody, or control of either Party or any of their respective agents, servants, or employees. The term "documents," as used herein, shall also be understood to encompass the contents of such Confidential materials, summaries, or abstracts thereof, notes taken thereon, or like recapitulations thereof. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2. A Party may designate as Confidential or Confidential - Attorneys’ Eyes Only any document that it in good faith contends contains or discloses Confidential information (hereinafter "Protected Material"). 3. All documents designated as Confidential, along with the information contained in the documents, shall be used solely for the purpose of this Action, and no person receiving such documents shall, directly or indirectly, communicate, disclose, or transfer in any way the documents or their contents to any person other than those specified in paragraph 4. 4. Access to any Confidential document by any individual other than the Producing Party shall be limited to: a. the Parties; b. the Court, including judicial employees, judges, magistrates, special masters, and all other personnel necessary to assist the Court in its function; 27 28 STIPULATED PROTECTIVE ORDER - CV-13-4455 BRO (AGPx) c. counsel of record for the Parties, including their partners and employees to whom it is necessary that Confidential information be shown for purposes of this Action; 1 2 3 d. Court reporters, stenographic reporters, videographers, and all of their personnel necessary to assist them in their functions; 4 5 e. Defendant’s agents, directors, employees, insurers, officers, and representatives; 6 7 f. Defendant’s former agents, directors, employees, insurers, officers, and representatives who have executed the Agreement annexed hereto as Exhibit A; 8 9 g. outside independent persons who are retained by a Party or its attorneys to furnish technical or expert services,, or to provide assistance as mock jurors or focus group members or the like, and/or to give testimony in this Action and who have executed the Agreement annexed hereto as Exhibit A; 10 11 12 13 h. during their depositions, persons to whom disclosure is reasonably necessary, in the reasonable judgment of the examining Party, and who have signed the Agreement annexed hereto as Exhibit A; and 14 15 16 i. copy or computer services or litigation support for the purpose of copying or indexing documents or providing litigation support, provided that all documents are retrieved by the Receiving Party upon completion of service. 17 18 19 5. The Parties contend that some of the documents and information sought 20 in this litigation are confidential documents and information relating to the business 21 of the Parties, which are or contain trade secrets or highly confidential business 22 information protected by applicable law, the disclosure of which (to the Parties or 23 otherwise) could substantially jeopardize the business of the Producing Party and its 24 competitive position in the marketplace. Accordingly, except as provided in 25 paragraph 6, all documents and information produced by either Party in this litigation 26 which are labeled in good faith by the Producing Party’s counsel as "Confidential - 27 Attorneys’ Eyes Only," within the meaning of Fed. R. Civ. P. 26(c), shall be 28 STIPULATED PROTECTIVE ORDER - CV-13-4455 BRO (AGPx) I conspicuously marked and maintained confidentially and used solely for the purposes 2 of this Action and not for any business, competitive, or other purpose, and shall not 3 be disclosed by the Parties’ respective counsel to anyone, and shall not be used or 4 referenced for any purpose other than counsel’s review and information consistent 5 with the specific purposes of this Action, subject to the provisions of this Order. The 6 Parties’ counsel may advise the Parties that they have received and reviewed the 7 documents and information designated as "Confidential - Attorneys’ Eyes Only," but 8 shall not disclose to the Parties the information contained therein. 9 6. Access to and disclosure of information and/or documents designated as 10 "Confidential - Attorneys’ Eyes Only" pursuant to paragraph 5 shall be limited to: 11 12 a. trial counsel and/or inhouse counsel for the Receiving Party and their respective staffs; 13 14 15 16 17 18 19 20 21 22 b. outside experts or outside consultants of the Receiving Party whose advice and consultation are being or will be used in connection with preparation for the litigation or the litigation of this case, subject to the limitations in paragraph 7; c. a witness, deponent, or potential witness or deponent, and his/her counsel, during the course of or in preparation for this litigation; provided that such individual is the author or authorized or intended recipient of the "Confidential - Attorneys’ Eyes Only" materials, subject to the limitations in paragraph 7; d. the Court, including judicial employees, judges, magistrates, special masters, and all other personnel necessary to assist the Court in its function; 23 24 e. Court reporters, stenographic reporters, videographers, and all of their personnel necessary to assist them in their functions; and 25 26 27 28 f. copy or computer services or litigation support for the purpose of copying or indexing documents or providing litigation support, provided that all documents are retrieved by the Receiving Party upon completion of service. STIPULATED PROTECTIVE ORDER - CV-13-4455 BRO (AGPx) 1 7. Individuals other than those set forth in Paragraph 6(a), (d), (e), and (f) 2 to whom such "Confidential - Attorneys’ Eyes Only" documents or information are 3 shown, furnished, or otherwise disclosed, shall be first shown a copy of this Order 4 and shall sign the document in the form of Exhibit A hereto. 5 8. Third parties producing documents in the course of this Action may also 6 designate documents as Confidential or "Confidential - Attorneys’ Eyes Only" 7 subject to the same protections and constraints as the Parties to the Action. A copy of 8 the Protective Order shall be served along with any subpoena served in connection 9 with this Action. All documents produced by such third parties shall be treated as 10 "Confidential - Attorneys’ Eyes Only" for a period of 15 days from the date of their 11 production, and during that period any Party may designate such documents as 12 Confidential or "Confidential - Attorneys’ Eyes Only" pursuant to the terms of the 13 Protective Order. 14 9. As to each person required to execute an Agreement in the form attached 15 as Exhibit A, and who is known or suspected to be an employee or agent of, or 16 consultant to, any competitor in the industry of a Party, opposing counsel shall be 17 notified at least 10 days prior to disclosure of Confidential or "Confidential - 18 Attorneys’ Eyes Only" documents or information to any such person. Such notice 19 shall provide a reasonable description of the outside independent person to whom 20 disclosure is sought sufficient to permit objection to be made. If a Party objects in 21 writing to such disclosure within 15 days after receipt of notice, no disclosure shall be 22 made until the Party seeking disclosure obtains the approval of the Court or the 23 objecting Party. Such disclosure shall not waive the right of any Party to object to 24 discovery from the identified individual pursuant to Rule 26(b)(4)(B). 25 10. Except as otherwise provided in this Order, or as otherwise stipulated or 26 ordered, disclosure or discovery material that qualifies for protection under this Order 27 must be clearly so designated, subject to paragraph 12. Designation in conformity 28 with this Order requires: STIPULATED PROTECTIVE ORDER - CV-13-4455 BRO (AGPx) I a. For information in documentary form (e.g., paper or electronic 2 documents, but excluding transcripts of depositions or other 3 pretrial or trial proceedings), that the Producing Party affix the 4 legend "Confidential" or "Confidential 5 to each page that contains Protected Material. If only a portion or 6 portions of the material on a page qualifies for protection, the 7 Producing Party also must clearly identify the protected portion(s) 8 (e.g., by making appropriate markings in the margins). 9 - Attorneys’ Eyes Only" b. For testimony given in deposition 10 oeeediigsy the Designating Party identifying on the record, 11 before the close of the deposition, hearing, or other proceeding, all 12 protected testimony or by written notice to the other Party within 13 30 days of receipt of the transcript identifying all protected 14 testimony. Unless otherwise agreed, depositions shall be treated 15 as "Confidential 16 period following receipt of the transcript. The deposition of any 17 witness (or any portion of such deposition) that encompasses 18 Confidential or "Confidential 19 information shall be taken only in the presence of persons who are 20 qualified to have access to such information. 21 - Attorneys’ Eyes Only" during the 30-day - Attorneys’ Eyes Only" c. For information produced in some form other than documentary 22 and for any other tangible items, that the Producing Party affix in 23 a prominent place on the exterior of the container or containers in 24 which the information or item is stored the legend "Confidential" 25 or "Confidential 26 portions of the information or item warrant protection, the 27 Producing Party, to the extent practicable, shall identify the 28 protected portion(s). - Attorneys’ Eyes Only." If only a portion or STIPULATED PROTECTIVE ORDER - CV-13-4455 BRO (AGPx) 1 11. Confidential or "Confidential - Attorneys’ Eyes Only" documents and 2 information used at depositions, hearings or other public or quasipublic proceedings, 3 other than the trial of this cause, shall not be attached to transcripts or other 4 documents memorializing such proceedings, except by agreement of the Parties. 5 Confidential and "Confidential - Attorneys’ Eyes Only" documents and information 6 shall not be appended to memoranda, briefs, or other documents or pleadings which 7 will be reviewed by persons other than the persons designated herein or otherwise 8 permitted access thereto under the terms of this Order. Alternatively, Confidential 9 and "Confidential - Attorneys’ Eyes Only" documents and information may be 10 attached to such transcripts, memoranda, pleadings, briefs and the like provided that 11 they shall be collectively maintained in an envelope or other protective covering 12 which bears on its front and back the following label: 13 14 15 16 CONTAINS CONFIDENTIAL [- ATTORNEYS’ EYES ONLY] INFORMATION SUBJECT TO A PROTECTIVE ORDER. TO BE OPENED ONLY BY OR AS DIRECTED BY THE COURT OR BY WRITTEN AGREEMENT OF THE PARTIES. 17 12. Under no circumstances shall a Party’s inadvertent failure to designate 18 Protected Material as such (whether written discovery responses, documents, or 19 testimony) be deemed a waiver of said protection. Any Party who inadvertently fails 20 to identify documents as Confidential or "Confidential - Attorneys’ Eyes Only" shall 21 promptly, upon discovery of its oversight, provide written notice of the error and 22 substitute appropriately designated documents. 23 inadvertently unmarked or improperly designated documents shall retrieve such 24 documents from persons not entitled to receive those documents and, upon receipt of 25 the substitute documents, shall return or destroy the improperly designated 26 documents within 10 days of receiving such a written request. 27 28 Any Party receiving such 13. Any Party who, through inadvertence, produces documents or information that are privileged or otherwise immune from discovery shall, promptly STIPULATED PROTECTIVE ORDER - CV-13-4455 BRO (AGPx) 1 upon discovery of such inadvertent disclosure, so advise the Receiving Party in 2 writing and request that the documents be returned. The Receiving Party shall return 3 such inadvertently produced documents, including all copies, within 10 days of 4 receiving such a written request. The Party returning such inadvertently produced 5 documents may thereafter seek re-production of any such documents pursuant to 6 applicable law. However, inadvertent production of any documents or other 7 discovery materials that would be protected from disclosure under the attorney-client 8 privilege, the work product doctrine, or any other relevant privilege or doctrine shall 9 not constitute a waiver of the applicable privilege or doctrine. Nothing in this 10 11 paragraph alters or supersedes the requirements of Federal Rule of Evidence 502. 14. Without written permission from the Designating Party or a court order 12 secured after appropriate notice to all interested persons, a Party may not file in the 13 public record in this Action any Protected Material. Protected Material may only be 14 filed under seal pursuant to a court order authorizing the sealing of the specific 15 Protected Material at issue, unless the court denies the motion to seal, in which case 16 such material may be filed in the public record. If a Receiving Party seeks to file 17 under seal any Protected Material, the Receiving Party shall state in its motion to file 18 under seal that the Designating Party, pursuant to the Parties’ agreement, shall have 19 seven (7) days to file a response, to give the Designating Party an opportunity further 20 to explain the basis for the Confidentiality designation. 21 15. All parties or non-parties requesting permission to file documents under 79-5 and the 22 seal, including Protected Material, must comply with Local Rule 23 Instructions of the Central District of California Pilot Program for Filing Under Seal 24 Documents 25 http://court.cacd.uscourts .gov/Cacd/JudgeReq.nsf/2cdO8al a6600da0e88256db0006f7 26 efc/e7f981 1d8153 16c1 88257b5200513ab51$FILE/EJNDER%2OSEAL%20INSTRUC 27 TIONS.pdf, or Magistrate Judge Alicia G. Rosenberg, available at 28 http://court.cacd.uscourts .gov/CACD/JudgeReu .nsf/2fb080 863 c8 8ab478825 67c9007f for Judge Beverly Reid O’Connell, available STIPULATED PROTECTIVE ORDER - CV-13-4455 BRO (AGPx) at 1 a070/7b940ca760a87cd5 8 82579f5006b0827/$FILE/UTNDER%20 SEAL%2OPILOT% 2 20PROGRAM.pdf, as appropriate. 3 16. In the event disclosure of information or documents covered by this 4 Order is sought by a non-party through subpoena power in other litigation, the 5 counsel and/or the Party receiving the subpoena shall first notify the Producing Party 6 and provide the Producing Party an opportunity to take appropriate measures to 7 protect disclosure in that litigation. No disclosure of information or documents 8 covered by this Order shall be made to a non-party through subpoena power in other 9 litigation absent agreement of the Producing Party or court order. 10 17. Acceptance by a Receiving Party of information, documents, or things 11 identified or marked as Confidential or "Confidential - Attorneys’ Eyes Only" 12 hereunder by the Producing Party shall not constitute a concession that such 13 information, documents or things in fact are or include Protected Material of such 14 disclosing Party. Nothing in this Order shall be deemed a waiver of any Party’s right 15 to object to production of any documents or other tangible things or answers to 16 interrogatories for lack of timeliness, relevance or materiality, or as a privileged 17 communication, or as trial preparation materials, or as not reasonably calculated to 18 lead to the discovery of admissible evidence. The existence of this Order must not be 19 used by either Party as a basis for discovery that is otherwise improper under the 20 Federal Rules of Civil Procedure. 21 18. Any Party or non-party may challenge a designation of confidentiality at 22 any time prior to the commencement of trial. Unless a prompt challenge to a 23 Designating Party’s confidentiality designation is necessary to avoid foreseeable, 24 substantial unfairness, unnecessary economic burdens, or a significant disruption or 25 delay of the litigation, a Party does not waive its right to challenge a confidentiality 26 designation by electing not to mount a challenge promptly after the original 27 designation is disclosed. 28 STIPULATED PROTECTIVE ORDER - CV-13-4455 BRO (AGPx) a. The Challenging Party shall initiate the dispute resolution process I. 2 by providing written notice of each designation it is challenging 3 and describing The basis for each challenge. To avoid ambiguity 4 as to whether a challenge has been made, the written notice must 5 recite that the challenge to confidentiality is being made in 6 accordance with this specific paragraph of the Protective Order. 7 The Parties shall attempt to resolve each challenge in good faith 8 and must begin the process by conferring directly within 14 days 9 of the date of service of notice. In conferring, the Challenging 10 Party must explain the basis for its belief that the confidentiality 11 designation was not proper and must give the Designating Party 12 an opportunity to review the designated material, to reconsider the 13 circumstances, and, if no change in designation is offered, to 14 explain the basis for the chosen designation. A Challenging Party 15 may proceed to the next stage of the challenge process only if it 16 has engaged in this meet and confer process first or establishes 17 that the Designating Party is unwilling to participate in the meet 18 and confer process in a timely manner. 19 b. If the Parties cannot resolve a challenge without court 20 intervention, the Challenging Party shall file and serve a motion 21 challenging the confidentiality designation at any time prior to the 22 commencement of trial. Each such motion must be accompanied 23 by a competent declaration affirming that the movant has 24 complied with the meet and confer requirements imposed in the 25 preceding paragraph. c. The burden of persuasion in any such challenge proceeding shall 26 be on the Designating Party. 27 28 I STIPULATED PROTECTIVE ORDER - CV-13-4455 BRO (AGPx) 10 19. 1 Following termination of this Action, including any appeals, and within 2 60 days of a written request by the designating party, any and all documents and 3 information designated by the opposing Party as Confidential or "Confidential - 4 Attorneys’ Eyes Only," and any copies or reproductions thereof, and all extracts 5 and/or data taken from such documents, shall be returned to counsel who produced 6 them or certified by the receiving counsel as destroyed. 20. 7 Any Party may apply to the Court for a modification of the Protective 8 Order, and nothing in the Protective Order shall be construed to prevent a Party from 9 seeking such further provisions enhancing or limiting confidentiality as may be 10 appropriate. 21. 11 No action taken in accordance with the Protective Order shall be 12 construed as a waiver of any claim or defense in the Action or of any position as to 13 discoverability or admissibility of evidence. 22. 14 This Order shall survive the termination of this litigation. 15 16 IT IS SO ORDERED. 17 Dated: 18 nd-( 2013 HONORABLE ICL LE 19 20 21 22 23 24 25 26 27 28 STIPULATED PROTECTIVE ORDER - CV-13-4455 BRO (AGPx) tG 1 EXHIBIT A 2 3 UNITED STATES DISTRICT COURT 4 CENTRAL DISTRICT OF CALIFORNIA 5 WESTERN DIVISION 6 7 8 PAVEL DJUKICH, individually and on behalf of others similarly situated, V. 10 11 12 AGREEMENT TO BE BOUND BY STIPULATED PROTECTIVE ORDER Plaintiff, 9 Case No.: CV-13-4455 BRO (AGPx) AUTONATION, INC.; and DOES 1 through 100, inclusive, 13 Defendants. 14 15 declare and say that: I I, 16 1. in the city of I reside at 17 18 county of 2. 19 20 , state of I am currently employed by located at and my current job title is 21 22 3. 23 24 I have read and understand the terms of the Protective Order entered in the above captioned case, and have received a copy of the Protective Order. 25 4. 26 27 28 I agree to comply with and be bound by the provisions of the Protective 5. I promise that I will use any and all Confidential and "Confidential - Order. STIPULATED PROTECTIVE ORDER - CV-13-4455 BRO (AGPx) 12 1 2 Attorneys’ Eyes Only" information, as defined in the Protective Order, only in a manner authorized by the Protective Order, and only to assist counsel in the litigation 3 4 5 6 of this matter. 6. I promise that I will not disclose or discuss such Confidential and "Confidential - Attorneys’ Eyes Only" documents or information with anyone other 7 8 9 10 than those specifically authorized by the Protective Order 7. As soon as practical, but no later than 30 days after final termination of this Action, I shall return to the attorney from whom I have received them, any 11 12 documents in my possession designated Confidential or "Confidential - Attorneys’ 13 Eyes Only" and all documents reflecting any Confidential information. 14 8. I acknowledge that, by signing this agreement, I am subjecting myself to 15 16 the jurisdiction of the United States District Court for the Central District of 17 California with respect to enforcement of or otherwise providing relief relating to the 18 Protective Order, even if such enforcement proceedings occur after termination of 19 20 21 this Action. I declare under penalty of perjury that the foregoing is true and correct. 22 23 24 Executed on____ Date Signature 25 26 27 28 STIPULATED PROTECTIVE ORDER - CV-13-4455 BRO (AGPx) 13
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