Robert Gaudio v. Critical Mass Industries LLC et al, No. 2:2019cv08214 - Document 37 (C.D. Cal. 2020)
Court Description: ORDER GRANTING STIPULATED PROTECTIVE ORDER 35 by Magistrate Judge Alicia G. Rosenberg. (See Order for Further Details) (kl)
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Robert Gaudio v. Critical Mass Industries LLC et al Doc. 37 1 ANDREW RUSSELL (SBN 280669) ARussell@FoxRothschild.com 2 FOX ROTHSCHILD LLP 10250 Constellation Blvd., Suite 900 3 Los Angeles, CA 90067 Telephone: (310) 598-4150 4 Facsimile: (310) 556-9828 5 Attorneys for Defendant CRITICAL MASS INDUSTRIES, LLC 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ROBERT GAUDIO, an individual, Plaintiff, 12 13 Case No. 2:19-cv-08214-MWF-AGR v. ORDER GRANTING STIPULATED PROTECTIVE ORDER 14 CRITICAL MASS INDUSTRIES, a Colorado Limited Liability Company 15 D/B/A Good Meds, and DOES 1-100, 16 17 Defendants. Action Filed: August 7, 2019 Action Removed: September 23, 2019 FAC Filed: December 23, 2019 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER Dockets.Justia.com 1 1. A. PURPOSES AND LIMITATIONS 2 Discovery in this action is likely to involve production of confidential, proprietary, 3 or private information for which special protection from public disclosure and from use 4 for any purpose other than prosecuting this litigation may be warranted. Accordingly, the 5 parties hereby stipulate to and petition the Court to enter the following Stipulated 6 Protective Order. The parties acknowledge that this Order does not confer blanket 7 protections on all disclosures or responses to discovery and that the protection it affords 8 from public disclosure and use extends only to the limited information or items that are 9 entitled to confidential treatment under the applicable legal principles. The parties further 10 acknowledge, as set forth in Section 12.3, below, that this Stipulated Protective Order 11 does not entitle them to file confidential information under seal; Civil Local Rule 79-5 12 sets forth the procedures that must be followed and the standards that will be applied 13 when a party seeks permission from the court to file material under seal. 14 B. GOOD CAUSE STATEMENT 15 This action is likely to involve trade secrets, customer and pricing lists and other 16 valuable research, development, commercial, financial, technical and/or proprietary 17 information for which special protection from public disclosure and from use for any 18 purpose other than prosecution of this action is warranted. Such confidential and 19 proprietary materials and information consist of, among other things, confidential 20 business or financial information, information regarding confidential business practices, 21 or other confidential research, development, or commercial information (including 22 information implicating privacy rights of third parties), information otherwise generally 23 unavailable to the public, or which may be privileged or otherwise protected from 24 disclosure under state or federal statutes, court rules, case decisions, or common law. 25 Accordingly, to expedite the flow of information, to facilitate the prompt resolution of 26 disputes over confidentiality of discovery materials, to adequately protect information the 27 parties are entitled to keep confidential, to ensure that the parties are permitted reasonable 28 necessary uses of such material in preparation for and in the conduct of trial, to address 1 [PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER 1 their handling at the end of the litigation, and serve the ends of justice, a protective order 2 for such information is justified in this matter. It is the intent of the parties that 3 information will not be designated as confidential for tactical reasons and that nothing be 4 so designated without a good faith belief that it has been maintained in a confidential, 5 non-public manner, and there is good cause why it should not be part of the public record 6 of this case. 7 2. DEFINITIONS 8 2.1 Action: Gaudio v. Critical Mass Industries, USDC Central District of 9 California Case No. 2:19-cv-08214-MWF-AGR. 10 2.2 Challenging Party: a Party or Non-Party that challenges the designation of 11 information or items under this Order. 12 2.3 “CONFIDENTIAL” Information or Items: information (regardless of how it 13 is generated, stored or maintained) or tangible things that qualify for protection under 14 Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause 15 Statement. 16 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their 17 support staff). 18 2.5 Designating Party: a Party or Non-Party that designates information or items 19 that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 20 2.6 Disclosure or Discovery Material: all items or information, regardless of the 21 medium or manner in which it is generated, stored, or maintained (including, among 22 other things, testimony, transcripts, and tangible things), that are produced or generated in 23 disclosures or responses to discovery in this matter. 24 2.7 Expert: a person with specialized knowledge or experience in a matter 25 pertinent to the litigation who has been retained by a Party or its counsel to serve as an 26 expert witness or as a consultant in this Action. 27 2.8 House Counsel: attorneys who are employees of a party to this Action. 28 House Counsel does not include Outside Counsel of Record or any other outside counsel. 2 [PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER 1 2.9 Non-Party: any natural person, partnership, corporation, association, or other 2 legal entity not named as a Party to this action. 3 2.10 Outside Counsel of Record: attorneys who are not employees of a party to 4 this Action but are retained to represent or advise a party to this Action and have 5 appeared in this Action on behalf of that party or are affiliated with a law firm which has 6 appeared on behalf of that party, and includes support staff. 7 2.11 Party: any party to this Action, including all of its officers, directors, 8 employees, consultants, retained experts, and Outside Counsel of Record (and their 9 support staffs). 10 2.12 Producing Party: a Party or Non-Party that produces Disclosure or 11 Discovery Material in this Action. 12 2.13 Professional Vendors: persons or entities that provide litigation support 13 services (e.g., photocopying, videotaping, translating, preparing exhibits or 14 demonstrations, and organizing, storing, or retrieving data in any form or medium) and 15 their employees and subcontractors. 16 2.14 Protected Material: any Disclosure or Discovery Material that is designated 17 as “CONFIDENTIAL.” 18 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material from 19 a Producing Party. 20 3. SCOPE 21 The protections conferred by this Stipulation and Order cover not only Protected 22 Material (as defined above), but also (1) any information copied or extracted from 23 Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected 24 Material; and (3) any testimony, conversations, or presentations by Parties or their 25 Counsel that might reveal Protected Material. 26 Any use of Protected Material at trial shall be governed by the orders of the trial 27 judge. This Order does not govern the use of Protected Material at trial. 28 3 [PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER 1 4. DURATION 2 Even after final disposition of this litigation, the confidentiality obligations 3 imposed by this Order shall remain in effect until a Designating Party agrees otherwise in 4 writing or a court order otherwise directs. Final disposition shall be deemed to be the later 5 of (1) dismissal of all claims and defenses in this Action, with or without prejudice; and 6 (2) final judgment herein after the completion and exhaustion of all appeals, rehearings, 7 remands, trials, or reviews of this Action, including the time limits for filing any motions 8 or applications for extension of time pursuant to applicable law. 9 5. 10 DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each 11 Party or Non-Party that designates information or items for protection under this Order 12 must take care to limit any such designation to specific material that qualifies under the 13 appropriate standards. The Designating Party must designate for protection only those 14 parts of material, documents, items, or oral or written communications that qualify so that 15 other portions of the material, documents, items, or communications for which protection 16 is not warranted are not swept unjustifiably within the ambit of this Order. 17 Mass, indiscriminate, or routinized designations are prohibited. Designations that 18 are shown to be clearly unjustified or that have been made for an improper purpose (e.g., 19 to unnecessarily encumber the case development process or to impose unnecessary 20 expenses and burdens on other parties) may expose the Designating Party to sanctions. 21 If it comes to a Designating Party’s attention that information or items that it 22 designated for protection do not qualify for protection, that Designating Party must 23 promptly notify all other Parties that it is withdrawing the inapplicable designation. 24 5.2 Manner and Timing of Designations. Except as otherwise provided in this 25 Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or 26 ordered, Disclosure or Discovery Material that qualifies for protection under this Order 27 must be clearly so designated before the material is disclosed or produced. 28 4 [PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER 1 Designation in conformity with this Order requires: 2 (a) for information in documentary form (e.g., paper or electronic documents, 3 but excluding transcripts of depositions or other pretrial or trial proceedings), that the 4 Producing Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter 5 “CONFIDENTIAL legend”), to each page that contains protected material. If only a 6 portion or portions of the material on a page qualifies for protection, the Producing Party 7 also must clearly identify the protected portion(s) (e.g., by making appropriate markings 8 in the margins). 9 A Party or Non-Party that makes original documents available for inspection need 10 not designate them for protection until after the inspecting Party has indicated which 11 documents it would like copied and produced. During the inspection and before the 12 designation, all of the material made available for inspection shall be deemed 13 “CONFIDENTIAL.” After the inspecting Party has identified the documents it wants 14 copied and produced, the Producing Party must determine which documents, or portions 15 thereof, qualify for protection under this Order. Then, before producing the specified 16 documents, the Producing Party must affix the “CONFIDENTIAL legend” to each page 17 that contains Protected Material. If only a portion or portions of the material on a page 18 qualifies for protection, the Producing Party also must clearly identify the protected 19 portion(s) (e.g., by making appropriate markings in the margins). 20 (b) for testimony given in depositions that the Designating Party identify the 21 Disclosure or Discovery Material on the record, before the close of the deposition all 22 protected testimony. 23 (c) for information produced in some form other than documentary and for any 24 other tangible items, that the Producing Party affix in a prominent place on the exterior of 25 the container or containers in which the information is stored the legend 26 “CONFIDENTIAL.” If only a portion or portions of the information warrants protection, 27 the Producing Party, to the extent practicable, shall identify the protected portion(s). 28 5 [PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER 1 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure 2 to designate qualified information or items does not, standing alone, waive the 3 Designating Party’s right to secure protection under this Order for such material. Upon 4 timely correction of a designation, the Receiving Party must make reasonable efforts to 5 assure that the material is treated in accordance with the provisions of this Order. 6 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 7 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation 8 of confidentiality at any time that is consistent with the Court’s Scheduling Order. 9 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution 10 process under Local Rule 37.1 et seq. 11 6.3 The burden of persuasion in any such challenge proceeding shall be on the 12 Designating Party. Frivolous challenges, and those made for an improper purpose (e.g., to 13 harass or impose unnecessary expenses and burdens on other parties) may expose the 14 Challenging Party to sanctions. Unless the Designating Party has waived or withdrawn 15 the confidentiality designation, all parties shall continue to afford the material in question 16 the level of protection to which it is entitled under the Producing Party’s designation until 17 the Court rules on the challenge. 18 7. ACCESS TO AND USE OF PROTECTED MATERIAL 19 7.1 Basic Principles. A Receiving Party may use Protected Material that is 20 disclosed or produced by another Party or by a Non-Party in connection with this Action 21 only for prosecuting, defending, or attempting to settle this Action. Such Protected 22 Material may be disclosed only to the categories of persons and under the conditions 23 described in this Order. When the Action has been terminated, a Receiving Party must 24 comply with the provisions of section 13 below (FINAL DISPOSITION). 25 Protected Material must be stored and maintained by a Receiving Party at a 26 location and in a secure manner that ensures that access is limited to the persons 27 authorized under this Order. 28 6 [PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER 1 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise 2 ordered by the court or permitted in writing by the Designating Party, a Receiving Party 3 may disclose any information or item designated “CONFIDENTIAL” only to: 4 (a) the Receiving Party’s Outside Counsel of Record in this Action, as 5 well as employees of said Outside Counsel of Record to whom it is reasonably necessary 6 to disclose the information for this Action; 7 (b) the officers, directors, and employees (including House Counsel) of 8 the Receiving Party to whom disclosure is reasonably necessary for this Action; 9 (c) Experts (as defined in this Order) of the Receiving Party to whom 10 disclosure is reasonably necessary for this Action and who have signed the 11 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 12 (d) the court and its personnel; 13 (e) court reporters and their staff; 14 (f) professional jury or trial consultants, mock jurors, and Professional 15 Vendors to whom disclosure is reasonably necessary for this Action and who have signed 16 the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 17 (g) the author or recipient of a document containing the information or a 18 custodian or other person who otherwise possessed or knew the information; 19 (h) during their depositions, witnesses, and attorneys for witnesses, in the 20 Action to whom disclosure is reasonably necessary provided: (1) the deposing party 21 requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will not 22 be permitted to keep any confidential information unless they sign the “Acknowledgment 23 and Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the Designating 24 Party or ordered by the court. Pages of transcribed deposition testimony or exhibits to 25 depositions that reveal Protected Material may be separately bound by the court reporter 26 and may not be disclosed to anyone except as permitted under this Stipulated Protective 27 Order; and 28 7 [PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER 1 (i) any mediator or settlement officer, and their supporting personnel, 2 mutually agreed upon by any of the parties engaged in settlement discussions. 3 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN 4 OTHER LITIGATION 5 If a Party is served with a subpoena or a court order issued in other litigation that 6 compels disclosure of any information or items designated in this Action as 7 “CONFIDENTIAL,” that Party must: 8 (a) promptly notify in writing the Designating Party. Such notification 9 shall include a copy of the subpoena or court order; 10 (b) promptly notify in writing the party who caused the subpoena or order 11 to issue in the other litigation that some or all of the material covered by the subpoena or 12 order is subject to this Protective Order. Such notification shall include a copy of this 13 Stipulated Protective Order; and 14 (c) cooperate with respect to all reasonable procedures sought to be 15 pursued by the Designating Party whose Protected Material may be affected. 16 If the Designating Party timely seeks a protective order, the Party served 17 with the subpoena or court order shall not produce any information designated in this 18 action as “CONFIDENTIAL” before a determination by the court from which the 19 subpoena or order issued, unless the Party has obtained the Designating Party’s 20 permission. The Designating Party shall bear the burden and expense of seeking 21 protection in that court of its confidential material and nothing in these provisions should 22 be construed as authorizing or encouraging a Receiving Party in this Action to disobey a 23 lawful directive from another court. 24 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED 25 IN THIS LITIGATION 26 (a) The terms of this Order are applicable to information produced by a 27 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information 28 produced by Non-Parties in connection with this litigation is protected by the remedies 8 [PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER 1 and relief provided by this Order. Nothing in these provisions should be construed as 2 prohibiting a Non-Party from seeking additional protections. 3 (b) In the event that a Party is required, by a valid discovery request, to 4 produce a Non-Party’s confidential information in its possession, and the Party is subject 5 to an agreement with the Non-Party not to produce the Non-Party’s confidential 6 information, then the Party shall: (1) 7 promptly notify in writing the Requesting Party and the Non- 8 Party that some or all of the information requested is subject to a confidentiality 9 agreement with a Non-Party; (2) 10 promptly provide the Non-Party with a copy of the Stipulated 11 Protective Order in this Action, the relevant discovery request(s), and a reasonably 12 specific description of the information requested; and (3) 13 make the information requested available for inspection by the 14 Non-Party, if requested. 15 (c) If the Non-Party fails to seek a protective order from this court within 16 14 days of receiving the notice and accompanying information, the Receiving Party may 17 produce the Non-Party’s confidential information responsive to the discovery request. If 18 the Non-Party timely seeks a protective order, the Receiving Party shall not produce any 19 information in its possession or control that is subject to the confidentiality agreement 20 with the Non-Party before a determination by the court. Absent a court order to the 21 contrary, the Non-Party shall bear the burden and expense of seeking protection in this 22 court of its Protected Material. 23 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 24 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 25 Protected Material to any person or in any circumstance not authorized under this 26 Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing 27 the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve 28 all unauthorized copies of the Protected Material, (c) inform the person or persons to 9 [PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER 1 whom unauthorized disclosures were made of all the terms of this Order, and (d) request 2 such person or persons to execute the “Acknowledgment and Agreement to Be Bound” 3 that is attached hereto as Exhibit A. 4 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 5 PROTECTED MATERIAL 6 When a Producing Party gives notice to Receiving Parties that certain inadvertently 7 produced material is subject to a claim of privilege or other protection, the obligations of 8 the Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). 9 This provision is not intended to modify whatever procedure may be established in an e10 discovery order that provides for production without prior privilege review. Pursuant to 11 Federal Rule of Evidence 502(d) and (e), insofar as the parties reach an agreement on the 12 effect of disclosure of a communication or information covered by the attorney-client 13 privilege or work product protection, the parties may incorporate their agreement in the 14 stipulated protective order submitted to the court. 15 12. MISCELLANEOUS 16 12.1 Right to Further Relief. Nothing in this Order abridges the right of any 17 person to seek its modification by the Court in the future. 18 12.2 Right to Assert Other Objections. By stipulating to the entry of this 19 Protective Order no Party waives any right it otherwise would have to object to disclosing 20 or producing any information or item on any ground not addressed in this Stipulated 21 Protective Order. Similarly, no Party waives any right to object on any ground to use in 22 evidence of any of the material covered by this Protective Order. 23 12.3 Filing Protected Material. A Party that seeks to file under seal any Protected 24 Material must comply with Civil Local Rule 79-5. Protected Material may only be filed 25 under seal pursuant to a court order authorizing the sealing of the specific Protected 26 Material at issue. If a Party's request to file Protected Material under seal is denied by the 27 court, then the Receiving Party may file the information in the public record unless 28 otherwise instructed by the court. 10 [PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER 1 13. FINAL DISPOSITION 2 After the final disposition of this Action, as defined in paragraph 4, within 60 days 3 of a written request by the Designating Party, each Receiving Party must return all 4 Protected Material to the Producing Party or destroy such material. As used in this 5 subdivision, “all Protected Material” includes all copies, abstracts, compilations, 6 summaries, and any other format reproducing or capturing any of the Protected Material. 7 Whether the Protected Material is returned or destroyed, the Receiving Party must submit 8 a written certification to the Producing Party (and, if not the same person or entity, to the 9 Designating Party) by the 60 day deadline that (1) identifies (by category, where 10 appropriate) all the Protected Material that was returned or destroyed and (2)affirms that 11 the Receiving Party has not retained any copies, abstracts, compilations, summaries or 12 any other format reproducing or capturing any of the Protected Material. Notwithstanding 13 this provision, Counsel are entitled to retain an archival copy of all pleadings, motion 14 papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence, 15 deposition and trial exhibits, expert reports, attorney work product, and consultant and 16 expert work product, even if such materials contain Protected Material. Any such archival 17 copies that contain or constitute Protected Material remain subject to this Protective 18 Order as set forth in Section 4 (DURATION) 19 / / / 20 / / / 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 11 [PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER 1 EXHIBIT A 2 ACKNOWLEDGEMENT AND AGREEMENT TO BE BOUND 3 I, _____________________________ [print or type full name], of 4 ______________________________ [print or type full address], declare under penalty of 5 perjury that I have read in its entirety and understand the Stipulated Protective Order that 6 was issued by the United States District Court for the Central District of California on 7 [date] in the case of Gaudio v. Critical Mass Industries, Case Number 2:19-cv-082148 MWF-AGR. I agree to comply with and to be bound by all the terms of this Stipulated 9 Protective Order and I understand and acknowledge that failure to so comply could 10 expose me to sanctions and punishment in the nature of contempt. I solemnly promise 11 that I will not disclose in any manner any information or item that is subject to this 12 Stipulated Protective Order to any person or entity except in strict compliance with the 13 provisions of this Order. 14 I further agree to submit to the jurisdiction of the United States District Court for 15 the Central District of California for the purpose of enforcing the terms of this Stipulated 16 Protective Order, even if such enforcement proceedings occur after termination of this 17 action. I hereby appoint __________________________ [print or type full name] of 18 _______________________________________ [print or type full address and telephone 19 number] as my California agent for service of process in connection with this action or 20 any proceedings related to enforcement of this Stipulated Protective Order. 21 22 Date: ______________________________________ 23 City and State where sworn and signed: _________________________________ 24 Printed name: _______________________________ 25 Signature: __________________________________ 26 27 28 13 [PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER
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