Lawrence Nadler et al v. Natures Way Products LLC et al, No. 5:2013cv00100 - Document 13 (C.D. Cal. 2013)
Court Description: PROTECTIVE ORDER GRANTING STIPULATED PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION by Magistrate Judge Oswald Parada re Stipulation for Protective Order 12 (am)
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Lawrence Nadler et al v. Natures Way Products LLC et al Doc. 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA LAWRENCE NADLER, MIKIE Case No.: 5:13-cv-100-TJH-OPx BELL, on behalf of themselves, all others similarly situated and the general CLASS ACTION public, DISCOVERY MATTER Plaintiffs, v. [PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE NATURE’S WAY PRODUCTS, LLC, ORDER REGARDING a Wisconsin limited liability company; CONFIDENTIAL INFORMATION SCHWABE, NORTH AMERICA, INC., a Wisconsin corporation, NATURE’S WAY HOLDING COMPANY, LLC, a Utah limited liability company; and, NATURE’S WAY PRODUCTS, INC., a Utah corporation, Defendants. 21 22 23 24 25 26 27 28 1 Nadler v. Nature’s Way Products, LLC, Case No. 5:13-cv-100-TJH-OPx [PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER Dockets.Justia.com 1 IT IS HEREBY ORDERED that a Stipulated Protective Order will govern 2 the production and exchange of confidential information in the case of Nadler v. 3 Nature’s Way Products, LLC, Case No. 5:13-cv-100-TJH-OPx (the “Litigation”) 4 on the following terms: 5 1. TERMS OF THE PROTECTIVE ORDER 6 1. Purpose. The terms of this Stipulated Protective Order (the “Order”) 7 shall govern the handling of any information, document or item, or portion of any 8 document or item, that is confidential, private, proprietary, trade secret, or 9 otherwise protected and exchanged by any party or third party in the Litigation 10 11 12 13 14 15 16 17 after the issuance of this Order. This Order shall apply to plaintiffs Lawrence Nadler and Mikie Bell (collectively “Plaintiffs”), defendant Nature’s Way Products, LLC and Schwabe North America, Inc. (collectively “Defendants”), and any future parties to the Litigation that agree to be so bound (collectively “Party” or “Parties”). 2. Right to Designate. Any Party and any third party responding to any request to exchange information, or any discovery, in the Litigation who objects to 18 the disclosure of information it deems to be confidential, protected by the right of 19 privacy, proprietary, trade secret, or otherwise protected or prohibited by law from 20 disclosure (hereinafter referred to as "Confidential Information" or "Confidential 21 Restricted Information" and collectively referred to herein as "Protected 22 Information") may disclose such Protected Information pursuant to the terms of 23 this Order. 24 3. Designation. Any person or entity that chooses to designate 25 documents and information as Protected Information ("Designated Party") shall 26 make such designations only as to those documents and information the person or 27 entity believes in good faith contain: 28 2 Nadler v. Nature’s Way Products, LLC, Case No. 5:13-cv-100-TJH-OPx [PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER 1 a. Trade Secrets; 2 b. Information reflecting non-public business or financial 3 information, and/or confidential competitive information that, if 4 disclosed, could result in competitive harm to the disclosing party; 5 c. Non-public communications with regulators or other governmental 6 bodies that are protected from disclosure by statute or regulation; 7 d. Information subject to federal or state privacy rights; or 8 e. Information otherwise entitled to protection under Rule 26(c)(1)(G) of 9 10 11 12 13 the Federal Rules of Civil Procedure. 4. Permitted Use, Access and Security. The disclosure of Protected Information shall only be made as provided herein. Unless this Order states otherwise, Protected Information produced pursuant to this Order is to be 14 produced only to the Parties and their counsel ("Receiving Parties") and is to be 15 used only by the persons authorized under this Order, and solely for the purpose 16 of preparing for and conducting the Litigation, or any related form of alternative 17 dispute resolution, and is not to be shown to, discussed with, or otherwise 18 disclosed to any other persons or entities, except as otherwise provided herein. 19 Protected Information must be stored and maintained by a Receiving Party at a 20 location and in a secure manner that reasonably ensures access is limited to the 21 persons authorized under this Order. 22 Information, including the Parties and their respective counsel, shall exercise the 23 same care with regard to the storage, custody, or use of such Protected Information 24 as they would apply to their own material of the same or comparable sensitivity. 25 26 27 5. Any person in possession of Protected Designation by a Party of Information from a Non-Party. In order to provide the Parties w i t h an adequate opportunity to designate information as "Confidential" or "Confidential-Restricted," all information produced in this 28 3 Nadler v. Nature’s Way Products, LLC, Case No. 5:13-cv-100-TJH-OPx [PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER 1 Litigation by third parties shall be deemed "Confidential-Restricted," whether or 2 not stamped with that legend, for a period of fifteen (15) days following 3 production. 4 information produced by third parties as "Confidential" or "Confidential- 5 Restricted" within that fifteen (15) day period shall not waive a Party's right to 6 7 8 9 10 11 12 13 Furthermore, the inadvertent failure by any Party to designate later so designate such information with prospective effect, so long as the designation correction is made in a timely fashion, consistently with Paragraph 14 of this Order. The Receiving Party may challenge the designation of the information as provided in Paragraph 17 of this Order. 6. Designation. Any documents produced pursuant to this Order shall be stamped on the first page of the document and on every page of the document that is subject to this Protective Order as "CONFIDENTIAL INFORMATION 14 FOR USE ONLY IN NADLER v. NATURE’S WAY PRODUCTS, LLC" 15 ("Confidential 16 INFORMATION FOR USE ONLY IN NADLER v. NATURE’S WAY 17 PRODUCTS, LLC" ("Confidential-Restricted Information"), or substantially 18 similar language. For electronically-stored information that cannot be labeled on 19 each page, or other information produced in a form other than documentary, the 20 Designating Party shall provide written notice of the designation of the Protected 21 Information to the Receiving party and affix the legend " CONFIDENTIAL 22 INFORMATION FOR USE ONLY IN NADLER v. NATURE’S WAY 23 PRODUCTS, LLC", "CONFIDENTIAL-RESTRICTED INFORMATION FOR 24 THE USE ONLY IN NADLER v. NATURE’S WAY PRODUCTS, LLC", or 25 26 27 Information"), "CONFIDENTIAL-RESTRICTED substantially similar language in a prominent place on the medium used to produce the information or item or on the exterior of the container or containers in which the information or item is stored. If the Protected Information is produced 28 4 Nadler v. Nature’s Way Products, LLC, Case No. 5:13-cv-100-TJH-OPx [PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER 1 in an electronic form with a load file, the Designating Party shall note the degree 2 of confidentiality of the Protected Information in the load file. A Receiving 3 party shall not transmit information produced in accordance with this 4 paragraph without informing any recipient of the information of its protected 5 nature. 6 7 8 7. Response to Discovery Requests. Subject to, and without waiver of any objections, the Designating Party may respond to any written discovery and disclose and produce Protected Information as follows: 9 a. Interrogatories and Requests for Admissions: Clearly designating 10 Protected Information contained within the interrogatory response or 11 the request for admission response in the language and manner 12 provided in Paragraph 6 above. 13 14 b. Requests for Production of Documents: Producing Documents that 15 contain Protected Information in the manner provided in Paragraph 6 16 above. 17 8. Access to Confidential Information. Unless otherwise agreed 18 upon in writing by the Parties or pursuant to court order, protected 19 Information designated as "CONFIDENTIAL INFORMATION FOR USE 20 ONLY IN NADLER v. NATURE’S WAY PRODUCTS, LLC," or substantially 21 similar language that at a minimum incorporated the word "confidential," shall 22 not be disclosed to any person or entity other than the following: 23 a. a Party to the Litigation; 24 b. counsel for the respective Parties whose firm is counsel of record in 25 the Litigation or are otherwise assisting in the prosecution or 26 defense thereof; 27 28 5 Nadler v. Nature’s Way Products, LLC, Case No. 5:13-cv-100-TJH-OPx [PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER 1 c. consulting experts and testifying experts and their employees who 2 have been engaged by counsel for a Party for the purpose of 3 assisting in the Litigation, but only if: (1) it is reasonable to 4 the document or information to them for purposes of the Litigation; 5 (2) they are not Parties; (3) they are not officers, directors, or 6 disclose employees of Parties, affiliates of Parties, or competitors of Parties; 7 and (4) they have signed a declaration in the form of Exhibit A; 8 d. secretaries, paralegals, and other clerical or support personnel 9 employed by or retained by counsel for a Party but only if: (1) it is 10 reasonable to disclose the document or information to them for 11 purposes of the Litigation; (2) they are not Parties; and (3) they are 12 not officers, directors, or employees of Parties, of affiliates of parties, 13 or of competitors of Parties; 14 15 e. the Court, including judicial employees and all other necessary 16 personnel, including court reporters employed by or retained by the 17 Court; 18 f. a court reporter retained by one or more of the Parties for purposes 19 of the Litigation who has executed a declaration in the form of 20 Exhibit A; and, 21 g. the author, addressee or any other person or entity identified as a 22 recipient of specified Confidential Information who would 23 otherwise be entitled to receive it. 24 25 26 27 9. Access to Restricted Information. Unless otherwise agreed upon in writing by the Parties or pursuant to court order, Protected Information designated as "CONFIDENTIAL-RESTRICTED INFORMATION FOR USE ONLY IN NADLER v. NATURE’S WAY PRODUCTS, LLC," or substantially 28 6 Nadler v. Nature’s Way Products, LLC, Case No. 5:13-cv-100-TJH-OPx [PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER 1 similar language that a minimum incorporates the words "confidential" and 2 "restricted," shall not be disclosed to any person or entity other than the following: 3 a. Counsel for the respective Parties whose firm is of record in the 4 Litigation or are otherwise assisting in the prosecution or defense 5 thereof; 6 7 8 9 10 11 12 13 b. Consulting experts and testifying experts and their employees who have been engaged by counsel for a Party for the purpose or assisting in the Litigation, but only if: (1) it is reasonable to disclose the document or information to them for purposes of the Litigation; (2) they are not Parties; (3) they are not officers, directors, or employees of Parties, of affiliates of Parties, or of competitors of Parties; and (4) they have signed a declaration in the form of Exhibit A; 14 c. Secretaries, paralegals, and other clerical or support personnel 15 employed or retained by counsel for a Party but only if: (1) it is 16 reasonable to disclose the document or information to them for 17 purposes of the Litigation; (2) they are not parties, or affiliates of 18 Parties; and (3) they are not officers, directors, or employees of 19 Parties, or affiliates of parties, or competitors of Parties; 20 d. The Court, including judicial employees and all other necessary 21 personnel, including court reporters employed or retained by Court; 22 e. A court reporter retained by one or more of the Parties for purposes of 23 this Litigation who has executed a declaration in the form of Exhibit 24 A; 25 26 27 f. The author, addressee, or any other person or entity identified as a recipient of specified Confidential Restricted information who would otherwise be entitled to receive it; and, 28 7 Nadler v. Nature’s Way Products, LLC, Case No. 5:13-cv-100-TJH-OPx [PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER 1 2 g. The Designation Party. 10. Disclosure to Experts. A Receiving Party shall not disclose or 3 disseminate any Protected Information to its experts or consultants until the experts 4 or consultants have executed a declaration in the form attached as Exhibit A. If 5 any such declaration is signed by an expert or witness designated pursuant to Rule 6 7 8 9 10 11 12 13 26(a) of the Federal Rules of Civil Procedure, a copy of that declaration shall be placed in the expert's or witness's file, and provided upon request by the Designating Party whose Protected Information was reviewed by the expert or witness. Original declarations signed by experts or witnesses not designated pursuant to Rule 26(a) of the Federal Rules of Civil Procedure shall be maintained by the Receiving Party that retained such expert or witness and shall be submitted to the Court for in camera review on request by the Court, or by 14 court order after the motion of any Party for such a review, based on a showing of 15 good cause, for an alleged breach of the Order. 16 If a Receiving Party is going to disclose Protected Information of another 17 Party to an expert pursuant to Paragraphs 8 or 9, the Receiving (i.e., disclosing) 18 Party may, but is in no way obligated to, disclose to the Designating Party the 19 name of the expert for the purpose of investigating a potential conflict of interest, 20 along with a copy of the signed declaration, a curriculum vitae of the proposed 21 expert, and the basis for any potential conflict, at least five (5) business days 22 before the Protected Information is shown to such an expert. If the Receiving 23 Party does voluntarily choose to disclose the name of the expert, the 24 Designating Party may object to the disclosure of the Protected Information 25 26 27 to the expert if, and only if, the Designating Party reasonably believes the expert has a conflict of interest in receiving the Protected Information (e.g., the expert is currently working for a competitor of the 28 8 Nadler v. Nature’s Way Products, LLC, Case No. 5:13-cv-100-TJH-OPx [PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER 1 Designating Party). If no objection is made in writing to such person receiving 2 Protected Information within such five (5) business day period, the Protected 3 Information may be disclosed to such person. 4 Designating (i.e., objecting) Party may bring before the Court the question of 5 whether the Protective Information may be disclosed to such person within five (5) 6 7 8 9 10 11 12 13 If an objection is made, the business days of the written objection being made. No disclosure of any Protected Information to such person shall be made until the Court has fully resolved the dispute regarding disclosure of the Protected Information to the person in question in the resolution of such matter, the Designating Party shall have the burden of establishing before the Court the reasons for denying disclosure to such person. All signed undertakings shall be maintained by the Party receiving the undertakings through the conclusion of this Litigation. Except upon order of the 14 court based on a showing of good cause, a Party receiving and maintaining a 15 signed undertaking during this Litigation is under no obligation to provide copies 16 of such signed undertakings to any Designating Party or any other individual or 17 entity. 18 A Designating Party's failure to object within the five (5) business days 19 preceding the disclosure to an expert does not operate to waive any right of the 20 Designating Party to object to the expert with respect to an undisclosed conflict of 21 interest or to the admission or use of the expert's opinion at trial (or in pre-trial 22 proceedings) for any procedural or evidentiary reason including, but not limited 23 to, objections based on the qualifications, credibility, or suitability of the expert. 24 25 26 27 11. Use in Depositions. If a Receiving Party wishes to divulge Protected Information during a deposition at which one or more persons are present to whom disclosure is not permitted under Paragraphs 8 or 9, then the following procedures shall be followed: 28 9 Nadler v. Nature’s Way Products, LLC, Case No. 5:13-cv-100-TJH-OPx [PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER 1 a. All persons to whom disclosure is not permitted under Paragraphs 8 or 2 9 shall be asked to leave the room during the time in which the 3 Protected Information is divulged. 4 b. If documents containing Confidential Information or Confidential- 5 Restricted Information are used in deposition, the documents shall be 6 7 8 9 10 11 12 13 14 marked pursuant to Paragraph 6, shall be attached only to the confidential transcript, and shall not be distributed at the deposition. c. The confidential portion of the deposition shall be separately transcribed and shall be sealed and marked "CONFIDENTIAL" or "CONFIDENTIAL-RESTRICTED INFORMATION" by the court reporter, and shall not be made part of the transcript. The sealed portions of the transcript may only be provided to the persons authorized under this Order. 15 d. Within thirty (30) days of receipt of the certified deposition transcript, 16 any Party may mark as "CONFIDENTIAL" or "CONFIDENTIAL- 17 RESTRICTED INFORMATION" the certified transcript after it has 18 been prepared, and shall: promptly notify all persons who were 19 present at the deposition of its intent to do so; instruct the court 20 reporter to conform the deposition transcript to Paragraph 11.b.; and 21 bear all reasonable costs related thereto. 22 e. A Designating Party may de-designate any portion of the deposition 23 transcript the Party previously designated as Protected Information by 24 promptly notifying in writing all other Parties and all persons who 25 were present at the deposition of its intent to de-designate. The notice 26 27 shall identify with specificity the portion of portions of the transcript that no longer are designated as Protected Information. The 28 10 Nadler v. Nature’s Way Products, LLC, Case No. 5:13-cv-100-TJH-OPx [PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER 1 Designating Party shall instruct the court reporter to produce a new 2 certified copy of the deposition transcript that removes any 3 confidentiality designation as appropriate, and shall bear all 4 reasonable costs related thereto. 5 6 7 8 9 10 11 12 13 12. Sanction. Intentional disclosure of Protected Information or other violation of this Order by a Party or other person authorized to receive Protected Information pursuant to this Order may subject the violating person to sanctions for contempt of court, as well as any other statutory or common law remedies that may be available to the Designating Party. 13. Disclosure of Own Information. Nothing in this Order shall prevent a Designating Party from disclosing its own Protected Information to any person or otherwise using that information for purposes of this Litigation. Whether such 14 disclosure waives the protection of this Order or results in that disclosed material 15 becoming discoverable by other Parties shall be determined by the Court according 16 to the facts and relevant law. 17 14. Inadvertent Production of Confidential Material without a 18 Designation. If a Designating Party inadvertently produces Protected Information 19 without designating it as such in accordance with this Order, the Designating Party 20 shall notify all Receiving Parties of the proper designation of the Protected 21 Information as soon as practical after discovery of the error by the Designating 22 Party. 23 replacement of the Protected Information marked in accordance with this 24 Protective Order. 25 26 27 The Designating Party shall provide the Receiving Parties with a Upon receipt of the properly designated document or Information: (a) the document or information shall be treated by the Receiving Parties as if it had been timely designated as Protected Information under this Protective Order; and (b) the Receiving Parties shall use reasonable efforts to 28 11 Nadler v. Nature’s Way Products, LLC, Case No. 5:13-cv-100-TJH-OPx [PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER 1 identify any other persons or entities to whom the information in question was 2 given. It shall then be the burden of the Receiving Parties to collect in good faith 3 all such Protected Information from persons and entities who would not have been 4 entitled access thereto if the document or information had been so designated 5 at the outset. The Receiving Parties shall use reasonable efforts to protect from 6 7 8 9 10 11 12 13 disclosure any unmarked copies of the Protected Information in their possession, by destroying or returning to the Designating Party any unmarked copies of the Protected Information in their possession. The inadvertent disclosure or mismarking by a Designating Party of documents or information the Designating Party believes to be confidential shall not automatically be deemed a waiver in whole or in part of the Designating Party's claim of confidentiality, either as to the specific document or information disclosed or as to any other document or 14 information relating thereto or concerning the same or related subject matter. 15 However, any Party may claim the intentional disclosure of Protected Information 16 by the Designating Party to anyone other than the Designating Party and its 17 counsel without the confidential designation, be deemed a waiver of any claimed 18 protection. 19 15. Inadvertent Production of Privileged Material. If a Party 20 inadvertently or mistakenly produces Privileged Material, such production 21 shall in no way prejudice or otherwise constitute a waiver of, or estoppels as to, 22 any claim of privilege or work-product immunity for the inadvertently produced 23 document or any other document covering the same or a similar subject matter 24 under applicable law, including Federal Rule of Evidence 502. Pursuant to Fed. R. 25 26 Evid. 502(d), the inadvertent production of Privileged Material in this proceeding shall not constitute a waiver of any applicable privilege, protection, or 27 28 12 Nadler v. Nature’s Way Products, LLC, Case No. 5:13-cv-100-TJH-OPx [PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER 1 prohibition from disclosure of that Privileged Material in any other federal or 2 state proceeding. 3 If a Party has inadvertently or mistakenly produced Privileged Material, 4 and if the Party makes a written request for the return of such Privileged 5 Material, the Privileged Material for which a claim of inadvertent production is 6 7 8 9 10 11 12 13 made (including any analyses, memoranda, or notes that were internally generated based upon such inadvertently-produced Privileged Material), as well as all copies, shall be either sequestered or returned within ten (10) business days regardless of whether the Receiving Party disputes the claim of privilege. The Party shall provide sufficient information to the Receiving Party regarding the asserted privilege(s), in the form of a privilege log. If the Receiving Party disputes the assertion of privilege, the Receiving Party may move the Court for 14 an order compelling production of the material, but such motion shall not assert the 15 fact or circumstance of the inadvertent production as a ground for entering such an 16 order. Subject to the Court's direction, resolution of the issue may include the 17 Court's review of the potentially Privileged Material in camera. Notwithstanding 18 this Protective Order, no Party will be prevented from moving the Court for an 19 order compelling the production of documents for which the privilege has been 20 waived pursuant to, inter alia, the crime-fraud exception. 21 16. De-Designation. Nothing in this Order shall be deemed to preclude a 22 Designating Party from de-designating any Protected Information at any time. 23 The Designating Party shall notify all Receiving Parties in writing of its intent to 24 de-designate, at which time the document or information shall no longer be treated 25 as Protected Information under this Order. The Designating Party shall also 26 27 produce new copies of the documents or information without any confidentiality designations, and shall bear all reasonable costs related thereto. 28 13 Nadler v. Nature’s Way Products, LLC, Case No. 5:13-cv-100-TJH-OPx [PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER 1 17. Challenging Confidentiality Designations. Nothing in this Order 2 shall be deemed to preclude a Receiving Party from seeking permission of the 3 Court to release information designated as Confidential Information or 4 Confidential-Restricted Information under this Order. 5 regarding the designation of documents or information as Protected 6 7 8 9 10 11 12 13 If a dispute arises Information, the following procedures shall be followed: a. In the event a Receiving Party believes, in good faith, that a document or information produced or disclosed, which had been designated as Protected Information under this Order is not confidential or should not be designated as Confidential Information or Confidential-Restricted Information, the Receiving Party shall send the Designating Party a written request 14 specifically identifying the information or document (by bates- 15 number), sought to be disclosed and the reasons why said 16 Information or document should not be so designated and/or 17 subject to this Order. Within ten (10) business days of receipt of 18 such a written request, the Parties shall meet and confer. 19 b. If the Parties are unable to agree, within a ten (10) day period 20 under Paragraph 17.a., upon a satisfactory resolution, the 21 Receiving Party may seek an order concerning such information or 22 documents that have previously been produced or disclosed under 23 the Order. The Designating Party shall in any proceeding or other 24 matter concerning such designation have the burden of proof in 25 26 justifying the confidential designation pursuant to this Order and applicable law. 27 28 14 Nadler v. Nature’s Way Products, LLC, Case No. 5:13-cv-100-TJH-OPx [PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER 1 c. If the Receiving Party seeks and order pursuant to Paragraph 17.b, 2 above, no Party may disclose Protected Information in a manner 3 contrary to its designation unless 4 subsequently consents to disclosure or prior to ten (10) days after 5 the Court has issued an order allowing disclosure or as otherwise 6 ordered by the Court. 7 To the extent the Court rules that any information designated as Protected Information is not entitled to 8 the confidentiality protection asserted by the Designating Party, 9 the Designating Party shall produce new copies of the documents 10 or information without any confidentiality designations, and shall 11 bear all reasonable costs related thereto. 12 13 the Designating Party 18. Discussion with Clients. In the event a Receiving Party's counsel 14 believes in good faith that it is reasonable to consult with its client (or in the 15 case of a corporate client, an officer, or employee thereof), who would not be 16 permitted access under the provisions of Paragraph 9 above, about a document 17 or information designated "CONFIDENTIAL-RESTRICTED" that directly 18 identifies such client, officer, or employee, counsel may consult with such 19 client, officer, or employee about the portion of such document or information 20 that directly identifies such client, officer, or employee, so long as: (a) the 21 consultation does not disclose specifically Confidential-Restricted Information, 22 but only the general subject, matter of the document or information; and (b) the 23 document or information itself or any other portion thereof is not given or 24 disclosed to such client, officer, or employee; and (c) such client, officer, or 25 employee has signed a declaration in the form of Exhibit A. 26 27 19. Filing Under Seal. All requests to seal documents filed with the Court shall comply with Local Civil Rule 79-5.1. If time permits, a Receiving 28 15 Nadler v. Nature’s Way Products, LLC, Case No. 5:13-cv-100-TJH-OPx [PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER 1 Party that intends to divulge Protected Information in a filing shall so advise 2 the Designating Party and identify the Protected Information at least 5 court 3 days before the filing to afford the Designating Party the opportunity to make 4 the showing required by Local Rule 79-5.1. Failure of the Designating Party to 5 respond to such notice shall not preclude the Receiving Party from filing the 6 7 8 9 10 11 12 13 Protected Information with a motion to seal that solely references this Protective Order, the burden being on the Designating Party to prove that the Protected Information should be filed under seal. The Parties expressly agree the designation of any information, document, or thing as Confidential, Confidential-Restricted, or other designation(s) used by the Parties, does not, in and of itself, create any entitlement to file such information, document, or thing, in whole or in part, under seal. Accordingly, reference to this Order or 14 to the Parties’ designations of any information, document, or thing as 15 Confidential, Confidential-Restricted, or other designation(s) used by the 16 parties, is wholly insufficient to warrant a filing under seal. The Parties’ mere 17 designation of any information, document, or thing as Confidential, 18 Confidential-Restricted, or other designation(s) used by the parties, does not – 19 without the submission of competent evidence, in the form of a declaration(s) 20 establishing that the material sough to be filed under seal qualifies as 21 confidential, privileged, or otherwise protective – constitute good cause. 22 Further, if sealing is requested in connection with a dispositive motion or 23 trial, then compelling reasons, as opposed to good cause, for the dealing must 24 be shown, and the relief sought shall be narrowly tailored to serve the specific 25 interest to be protected. See Pintos v. Pacific Creditors Ass’n, 605 F.3d 655, 26 27 677-79 (9th Cir. 2010). For each item or type of information, document, or thing sought to be filed or introduced under seal in connection with a 28 16 Nadler v. Nature’s Way Products, LLC, Case No. 5:13-cv-100-TJH-OPx [PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER 1 dispositive motion or trial, the Party seeking protection must articulate 2 compelling reasons, supported by specific facts and legal justification, for the 3 requested sealing order. 4 Any document that is not confidential, privileged, or otherwise 5 protectable in its entirely will not be filed under seal if the confidential portions 6 7 8 9 10 11 12 13 can be redacted. If the documents can be redacted, then a redacted version for public viewing, omitting only the confidential, privileged, or otherwise protectable portions of the document, shall be filed. Any application that seeks to file documents under seal in their entirety should include an explanation of why redaction is not feasible. Notwithstanding any other provision of this Order, in the event this case proceeds to trial, all information, documents, and things discussed or 14 introduced into evidence at trial will become public and available to all 15 members of the public, including the press, unless sufficient cause is shown in 16 advance of trial to proceed otherwise. 17 20. This Order in no way alters the law regarding the type of 18 information that may be deemed Protected Information, nor the burdens for 19 demonstrating confidentiality or the right to discovery of Protected 20 Information. 21 21. Protected Material Subpoenaed or Ordered Produced in Other 22 Matters. Any Receiving Party who receives a subpoena or other process from 23 a Non-Party, or order, to produce, or disclose Protected Information shall 24 provide the Designating Party with written notice thereof (the notice shall 25 26 27 include a copy of the subpoena or other process or order or other information necessary to reasonably inform) within seventy-two (72) hours of receipt of said written notice to enable the Designating Party to take whatever action it 28 17 Nadler v. Nature’s Way Products, LLC, Case No. 5:13-cv-100-TJH-OPx [PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER 1 deems appropriate. The Designating Party may then seek an order from the 2 court issuing the subpoena, process, or order that prohibits and/or limits the 3 scope of any disclosure, and shall provide notice of such application to the 4 Party receiving the subpoena, process or order. The Receiving Party may 5 comply with the subpoena, process, or order on the last day specified for 6 7 8 9 10 11 12 13 14 compliance therewith, unless the Designating Party has sought an order prohibiting and/or modifying the disclosure sought, and shall comply with any subsequent order of court prohibiting and/or limiting the scope of any disclosure. Any disputes arising under this Paragraph shall be governed by the procedures specified in Paragraph 17 of this Order. Nothing in these provisions should be construed as authorizing or encouraging a Receiving Party to disobey a lawful directive from another court. 22. Final Disposition. Within ninety (90) days of any request, made 15 after the termination of this Litigation, including appeals, the Party to whom 16 the Protected Information was produced shall either: (1) return all such 17 Protected Information and all copies, portions, excerpts, and extracts 18 (excluding excerpts or extracts incorporated into any privileged memoranda) to 19 the Designating Party; or (2) provide the Designated Party with a written 20 certification, that all Protected Information provided to them, as well as all 21 Protected Information they provided to others, has, to the best of their 22 knowledge, been destroyed. To the extent it is not reasonably possible to 23 destroy or return certain Protected Information in the possession of a Receiving 24 Party- e.g., some Protected Information was attached to an email - such 25 Receiving Party agrees to maintain the confidentiality of such Protected 26 Information and shall provide a written certification to that effect. 27 28 18 Nadler v. Nature’s Way Products, LLC, Case No. 5:13-cv-100-TJH-OPx [PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER 1 Notwithstanding this provision, Parties and Counsel shall not be required 2 to delete information that may reside in their respective firms' or other 3 electronic disaster recovery systems that are overwritten in the normal course 4 of business, or information that may reside in electronic files that are not 5 reasonable accessible. However, Parties and their Counsel shall not retrieve 6 7 8 9 10 11 12 13 14 any confidential or Confidential-Restricted material from said electronic disaster recovery system or other not-reasonably accessible data sources after the conclusion of the Litigation. Additionally, Counsel are entitled to retain an archival copy of all pleadings, motion papers, transcripts, legal memoranda, correspondence, or attorney work product, even if such materials contain Protected Information. Any such archival copies that contain or constitute Protected Information remain subject to this Order as set forth in Paragraph 25. 23. No Waiver of Right to Appropriately Withhold or Redact. 15 Notwithstanding the provisions of this Order, Designating Parties may redact 16 from any produced information, whether designated as Protected Information 17 or not, any information containing Privileged Material or any irrelevant trade 18 secrets or other irrelevant highly confidential research, development, or 19 commercial information, or any other data protected from disclosure by State 20 or Federal regulations. If, after reviewing information containing a redaction, a 21 Receiving Party has a good faith basis for challenging the redaction, the Parties 22 shall initially attempt to resolve the issue through discussions. 23 discussions prove unsuccessful, the challenging Party may move for a ruling 24 by the Court on whether the information is entitled to redaction, which may, 25 where legally permitted, necessitate an in camera inspection of the document 26 27 If those in non-redacted from by the Court. If the Court orders the redacted portion of the information should remain redacted, then the redacted portion of said 28 19 Nadler v. Nature’s Way Products, LLC, Case No. 5:13-cv-100-TJH-OPx [PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER 1 Discovery Material may not be used as evidence by any Party at trial or at a 2 hearing and may not be relied upon by any Party's Experts. If the Court orders 3 the redacted portion of the information is not entitled to redaction, and if the 4 Court orders the designating Party to produce the information without reaction, 5 the Designating Party shall produce the information in non-related form. 6 7 8 9 10 11 12 13 Unless expressly ordered otherwise by the Court, a finding that information is not entitled to redaction shall have no effect on the status of the information as Protected Information. 24. Right to Assert Other Objections. Nothing in this Oder shall limit a person or entity's right to seek or object to discovery of and/or the disclosure of information or documents on any basis, including but not limited to, being Protected Information, alter the burdens for objecting to, or obtaining 14 discovery 15 inadmissibility of any Protected Information; nor shall this Order preclude any 16 person or entity from seeking further relief or protective orders from the Court 17 as may be appropriate under the Federal Rules of Civil Procedure of Local 18 Rules of the Unites States District Court of the Southern District of California. 19 20 21 25. of, Protected Information, or affect the admissibility or The Court shall retain jurisdiction following termination of the Litigation for the purpose of enforcing any provisions of this Order. 26. Responsibility of Attorneys. Outside counsel are responsible for 22 employing reasonable measures to control and track, consistent with this 23 Order, access to and distribution of information, including abstracts and 24 summaries thereof. 25 26 27 27. Right to Further Relief. Nothing in this Order abridges the right of any person to seek its modification by the Court in the future. This Order may be amended or superseded by written agreement of the Parties and order 28 20 Nadler v. Nature’s Way Products, LLC, Case No. 5:13-cv-100-TJH-OPx [PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER 1 of the Court, or by order of the Court. In the event that such modification is 2 sought, the Parties reserve the right to raise any and all arguments and invoke 3 any and all laws in opposition to such modification. Any modification sought 4 shall not apply unless and until ordered by the Court. 5 IT IS SO ORDERED. 6 7 8 4/1/13 Dated: _____________________ ____________________________ The Honorable Oswald Parada United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 Nadler v. Nature’s Way Products, LLC, Case No. 5:13-cv-100-TJH-OPx [PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, ________________________________________ [print or type full name], 4 have read the Protective Order (the "Order") that was issued by the Unites States District 5 Court for the Central District of California on ____________ [date] in the case of 6 Nadler v. Nature’s Way Products, LLC, Case No. 5:13-cv-100-TJH-OPx. I agree on 7 behalf of myself and those in my organization, _________________________________, 8 that if any information or item that is subject to this Order is provided to me pursuant to 9 the term of the Order, I and those in my organization will be bound by and comply with 10 the term of the Order and will maintain that information as confidential in the manner 11 designated under the Order. I will not disclose in any manner any information or item 12 that is subject to the Order, unless permitted under the Order. I declare under penalty of perjury of the laws of the State of California that the 13 14 foregoing is true and correct. 15 16 Date: 17 City and State where sworn and signed: 18 Printed Name: 19 Signature: 20 21 22 23 24 25 26 27 28 22 Nadler v. Nature’s Way Products, LLC, Case No. 5:13-cv-100-TJH-OPx [PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER
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