SHY Enterprises LLC v. RAMS Shopping Center LLC et al, No. 3:2022cv08020 - Document 24 (D. Ariz. 2022)
Court Description: ORDER granting the parties' 22 Motion for Protective Order as modified by the Court. Signed by Judge Diane J Humetewa on 12/7/2022. (See Order for details.) (LFIG)
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 SHY Enterprises LLC, 10 Plaintiff, 11 v. 12 RAMS Shopping Center LLC, et al., 13 No. CV-22-08020-PCT-DJH ORDER Defendants. 14 15 Pending before the Court is the Stipulated Motion for Protective Order filed jointly 16 by Plaintiff SHY Enterprises, LLC (“Plaintiff”), and Defendants Rams Shopping Center, 17 LLC, and TKG Management, Inc. (collectively (“Defendants”) (Doc. 22). Plaintiff and 18 Defendants agree that entry of this Protective Order is necessary so that Defendants’ 19 confidential and proprietary information is not put at risk by its necessary disclosure within 20 this litigation. Upon review, the Court finds that Section IV.C of the parties’ proposed order 21 (Doc. 22-1 at 5) should be stricken and replaced with Section II.E contained herein in 22 compliance with Rule 5.6 of the Local Rules of Civil Procedure. With this modification, 23 the Court now issues the Protective Order. 24 Accordingly, and with good cause appearing, 25 IT IS ORDERED that the parties’ Stipulated Motion for Protective Order (Doc. 22) 26 is GRANTED, as modified by the Court. IT IS FURTHER ORDERED as follows: 27 28 // 1 I. FINDINGS AND DEFINITIONS 2 A. 3 materials containing confidential and proprietary business, research, development and/or 4 other commercially or personally sensitive information and that the party producing such 5 materials has a protected proprietary and property interest in those materials. 6 B. 7 designated business, research, development, and other confidential and/or proprietary 8 9 10 11 12 The parties recognize that discovery in this matter may call for the production of When used in this Protective Order, the word "CONFIDENTIAL" means information. C. When used in this Protective Order, the term "CONFIDENTIAL MATERIAL" means all designated CONFIDENTIAL written materials, computer documents, operations documentation, financial records, commercial leases, answers to interrogatories, responses to requests for production, responses to requests for admissions, 13 14 15 16 17 18 deposition transcripts, documents produced to any governmental agency or body at any time and deemed by that agency or body to be confidential, and all other designated tangible items which disclose CONFIDENTIAL INFORMATION. The term “CONFIDENTIAL INFORMATION” shall mean any information contained in CONFIDENTIAL MATERIAL. 19 D. 20 CONFIDENTIAL, the party producing such material shall mark the designated pages of the 21 material with the following legend: 22 23 24 25 In order to designate a portion of any document or other printed material as CONFIDENTIAL- DISCLOSURE OF THIS INFORMATION IS SUBJECT TO A PROTECTIVE ORDER AND MAY ONLY BE USED IN THE CASE OF SHY ENTERPRISES, LLC V. RAMS SHOPPING CENTER, LLC., et al., CASE NO. CV CV-22-08020-DJH, AND NOT FOR ANY OTHER PURPOSE WHATSOEVER. 26 The Confidentiality legend shall be placed in a manner that does not cover, obscure, or impair 27 the legibility of any information contained within the material. In order to designate a 28 computer database, disc, compact disc, drive, or other electronically recorded material as -2- 1 CONFIDENTIAL, the producing party shall mark the case or envelope containing the 2 material with the word CONFIDENTIAL or apply the confidentiality legend set forth 3 above. Documents printed from such electronic media shall be marked the same as 4 documents originally produced on paper. In the case of a deposition or oral examination, 5 counsel for any party may, during the deposition, designate on the record that testimony 6 involving 7 INFORMATION be held as CONFIDENTIAL, and the entire deposition transcript will be 8 9 10 11 12 that party’s CONFIDENTIAL MATERIAL or CONFIDENTIAL treated as CONFIDENTIAL until such counsel receives a transcript of the deposition and for 30 days thereafter. After receipt of the deposition transcript, the party on whose behalf the transcript was designated CONFIDENTIAL shall identify by page and line the portion of the material that the party intends to designate as CONFIDENTIAL in a written letter served to all counsel of record and court reporter within 30 days after receiving the written 13 14 15 16 17 18 deposition transcript from the court reporter. Only the portions of the deposition transcript designated by the party during this time period shall remain CONFIDENTIAL. The parties stipulate that the court reporter or videographer for any such depositions will be given a copy of this Protective Order, will execute an acknowledgement thereof; and shall not disclose to anyone (other than the COVERED PERSONS as defined in Section I.E below) 19 any deposition testimony or exhibits in this lawsuit. 20 E. 21 the following: (1) the Court and all Court personnel; (2) the named parties; (3) the named 22 counsel of record for all parties in this litigation and their employees, to the extent 23 reasonably necessary for such persons to render assistance in this litigation; (4) claims 24 personnel or other representatives of the parties and/or their insurers; and (5) experts 25 retained or consulted by counsel of record for any party to assist in the preparation, 26 prosecution, or evaluation of this litigation 27 // 28 // When used in this Protective Order, the term COVERED PERSONS includes only -3- 1 II. 2 ORDER IT IS FURTHER ORDERED that the following provisions shall apply in this 3 litigation: 4 A. 5 CONFIDENTIAL INFORMATION, as described in Sections I.C and I.D, shall not be used 6 for any purpose other than the prosecution or defense of this captioned action, and shall 7 not be shown, disseminated or disclosed in any manner to anyone other than COVERED 8 PERSONS without the prior written agreement of the party who designated such 9 CONFIDENTIAL Absent a further order of the Court, CONFIDENTIAL MATERIAL and MATERIAL or CONFIDENTIAL INFORMATION as 10 CONFIDENTIAL, or order of the Court after due notice to such party. 11 B. 12 CONFIDENTIAL INFORMATION to any COVERED PERSON other than the Court and 13 Court personnel, the parties or their counsel shall first obtain from each such person a 14 signed WRITTEN ASSURANCE in the form attached hereto as Exhibit "A." The parties 15 or their respective counsel shall maintain a list of all such recipients of CONFIDENTIAL 16 MATERIAL to whom this paragraph applies and the original of every WRITTEN 17 ASSURANCE required pursuant to this paragraph. At the conclusion of the litigation, each 18 of the parties shall forward to counsel for all other parties each and every signed WRITTEN 19 ASSURANCE and a list of all recipients of CONFIDENTIAL MATERIALS; however, 20 with regard to consultant(s) not identified as expert(s) in this matter, counsel need only 21 provide a copy of the WRITTEN ASSURANCE redacted to remove any reference to the 22 identity of the consultant(s); provided, however, that if any party has a good faith reason 23 to believe that CONFIDENTIAL MATERIAL or CONFIDENTIAL INFORMATION 24 produced in this case has been improperly disclosed in violation of this Order, then that 25 party may either request that Counsel for any other party provide the WRITTEN 26 ASSURANCES for non-disclosed consulting experts or may petition the Court to review 27 the WRITTEN ASSURANCES. 28 C. Before showing or divulging any CONFIDENTIAL MATERIAL or If any CONFIDENTIAL MATERIAL is filed with this Court, including any -4- 1 pleading incorporating CONFIDENTIAL MATERIAL, the portion of such filing 2 containing CONFIDENTIAL MATERIAL shall be filed in a sealed envelope on which the 3 following legend shall prominently appear: 4 (SHY Enterprises, LLC v. Rams Shopping Center, LLC, et al., Case No. CV22-08020-DJH) 5 CONFIDENTIAL – This envelope contains confidential documents and information produced pursuant to Protective Order. It shall not be opened nor the contents thereof displayed or revealed except by the Order of this Court. 6 7 8 9 D. CONFIDENTIAL MATERIAL may be introduced into evidence, if otherwise 10 admissible, provided that it may only be done so during a hearing or trial when counsel for 11 the party designating such material as CONFIDENTIAL MATERIAL is present, and the 12 parties agree that confidentiality of the CONFIDENTIAL MATERIALS and 13 CONFIDENTIAL INFORMATION shall continue to the maximum extent permitted by 14 the Court, pursuant to such procedures as the Court may require. 15 E. 16 first consult and follow the prescribed procedures set forth in Rule 5.6 of the Local Rules 17 of Civil Procedure. Nothing in this Protective Order shall be construed as automatically 18 permitting a party to file documents under seal. 19 F. 20 terms of this Protective Order receives a subpoena or other legal process commanding the 21 production of any such CONFIDENTIAL MATERIAL (the "Subpoena"), such party or 22 person shall promptly notify counsel for the party designating such material as 23 CONFIDENTIAL MATERIAL of the service of the Subpoena. The party or person 24 receiving the Subpoena shall not produce any CONFIDENTIAL MATERIAL in response 25 to the Subpoena without either the prior written consent of counsel for the party designating 26 such material as CONFIDENTIAL MATERIAL, or an order of a court of competent 27 jurisdiction. However, the party designating such material as CONFIDENTIAL 28 MATERIAL shall have the burden of seeking a court order relieving the subpoenaed party If a party intends to file any designated document with the Court, such party shall If any party or person who has obtained CONFIDENTIAL MATERIAL under the -5- 1 or person of the obligations of the Subpoena prior to the return date of the Subpoena, or 2 the subpoenaed person or party shall be relieved of its obligations under this paragraph. 3 G. 4 or information (whether designated as Confidential or not) shall not be deemed to waive 5 the Confidential status of any CONFIDENTIAL MATERIAL or CONFIDENTIAL 6 INFORMATION and whatever attorney-client privilege, work product protection or other 7 privilege or immunity that would otherwise attach to the document or information 8 produced or to other documents or information shall remain intact as long as the party 9 producing them, upon discovery of the inadvertent production, notifies the other party or The inadvertent production in the course of discovery in this action of any document 10 parties of the claim of confidentiality, privilege or other protection or immunity. 11 H. 12 appeal, counsel for each of the parties shall either (a) deliver to counsel for each other party 13 that has designated material as CONFIDENTIAL MATERIAL all such CONFIDENTIAL 14 MATERIAL including any copies (except those determined by the Court or agreed by the 15 parties not to be CONFIDENTIAL) which have been disseminated to any COVERED 16 PERSONS or (b) securely destroy the CONFIDENTIAL MATERIALS, including any 17 copies (except those determined by the Court or agreed by the parties not to be 18 Confidential) which have been disseminated to any COVERED PERSONS and certify 19 such destruction to the producing party. 20 I. 21 document as CONFIDENTIAL he or she shall notify counsel for the party designating such 22 material as CONFIDENTIAL MATERIAL in writing. The designating party may then 23 seasonably apply to the Court for a determination that the document is or is not protected 24 pursuant to this Protective Order. Until a final determination by the Court, any disputed 25 document will be treated as CONFIDENTIAL MATERIAL pursuant to this Protective 26 Order. Nothing in the Protective Order shall be construed to alter or shift the burdens of 27 proof and persuasion as they apply to the assertion of privileges or exemptions from public 28 disclosure. Within 90 days after the final disposition of this lawsuit, by settlement, trial or In the event counsel for any party, in good faith, disputes the designation of any -6- 1 J. 2 raising any objections otherwise available to them under the Federal Rules of Civil 3 Procedure, the Federal Rules of Evidence, or any other statute or substantive law applicable 4 to this case. 5 6 7 This Protective Order shall not preclude the parties from exercising any rights or IT IS FURTHER ORDERED that at the conclusion of this lawsuit, the Court shall retain jurisdiction of this lawsuit for the enforcement of this Protective Order. Dated this 7th day of December, 2022. 8 9 10 11 Honorable Diane J. Humetewa United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7- 1 2 3 4 5 6 7 EXHIBIT A 8 WRITTEN ASSURANCE 9 I hereby acknowledge and affirm that I have read the terms and conditions of the 10 Protective Order agreed to by the parties in the above-captioned matter. I understand the 11 terms of said Protective Order and under oath consent to be bound by the terms of said 12 Protective Order, as a condition to being provided access to the Confidential Material and 13 Confidential Information furnished by the parties. Further, by executing this Agreement, 14 I hereby consent to the jurisdiction of the above-captioned Court for the special and limited 15 purpose of enforcing the terms of the Protective Order. 16 I recognize that all civil remedies for breach of this Agreement are specifically 17 reserved by the parties and are not waived by the disclosure provided for herein. Further, 18 in the event of the breach of this Agreement, I recognize that the parties may pursue all 19 civil remedies available to it as a third-party beneficiary of this Agreement. 20 21 22 23 24 25 26 27 28 DATED: _____________________________ ______________________________________ Name ______________________________________ Firm ______________________________________ Address ______________________________________ Telephone Number -8- 1 2 3 4 5 SUBSCRIBED AND SWORN TO ME THIS ____ day of ______________, 20____. _____________________________________ Notary Public _____________________________________ My Commission Expires 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9-
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