P and P Imports LLC v. OJCommerce, LLC, et al, No. 8:2019cv00898 - Document 41 (C.D. Cal. 2019)
Court Description: ORDER GRANTING STIPULATED PROTECTIVE ORDER by Magistrate Judge Karen E. Scott: re Stipulation for Protective Order 36 . (sbou)
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P and P Imports LLC v. OJCommerce, LLC, et al 1 2 3 4 5 6 7 8 9 10 11 12 Shlomo Y Hecht (FL Bar # 127144) sam@hechtlawpa.com SHLOMO Y HECHT, PA 11651 Interchange Cir S. Miramar, FL 33025 Telephone:(954) 861-0025 Attorney for Defendants OJCOMMERCE, LLC and OJCOMMERCE.COM, INC. CASEY H. KEMPNER (SBN 272149) CKempner@PandPImports.com P&P IMPORTS LLC 3233 W. Castor St. Santa Ana, CA 92704 Telephone: (650) 488-8270 Attorney for Plaintiff P&P IMPORTS LLC 13 UNITED STATES DISTRICT COURT 14 CENTRAL DISTRICT OF CALIFORNIA 15 16 17 P&P IMPORTS LLC, a California limited liability company, Plaintiff, 18 v. 19 20 21 22 Doc. 41 OJCOMMERCE, LLC and OJCOMMERCE.COM, INC., and DOES 1-10, inclusive, Defendants. 23 ) Case No. 8:19-cv-00898-AG-KES ) ) ) Hon. Karen E. Scott ) ) ORDER GRANTING STIPULATED ) PROTECTIVE ORDER ) ) ) ) ) ) ) ) ) 24 GOOD CAUSE EXISTS FOR THIS ORDER: 25 1. 26 27 28 PURPOSE AND LIMITS OF THIS ORDER Discovery in this action is likely to involve confidential, proprietary, or private information requiring special protection from public disclosure and from 1 STIPULATED PROTECTIVE ORDER Dockets.Justia.com 1 use for any purpose other than this litigation. Thus, the Court enters this Protective 2 Order. This Order does not confer blanket protections on all disclosures or 3 responses to discovery, and the protection it gives from public disclosure and use 4 extends only to the specific material entitled to confidential treatment under the 5 applicable legal principles. This Order does not automatically authorize the filing 6 under seal of material designated under this Order. Instead, the parties must 7 comply with L.R. 79-5.1 if they seek to file anything under seal. This Order does 8 not govern the use at trial of material designated under this Order 9 10 11 2. DESIGNATING PROTECTED MATERIAL 2.1 Over-Designation Prohibited. Any party or non-party who 12 designates information or items for protection under this Order as 13 “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEY EYES 14 ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE” (a “designator”) 15 must only designate specific material that qualifies under the appropriate standards. 16 To the extent practicable, only those parts of documents, items, or oral or written 17 communications that require protection shall be designated. Designations with a 18 higher confidentiality level when a lower level would suffice are prohibited. Mass, 19 indiscriminate, or routinized designations are prohibited. Unjustified designations 20 expose the designator to sanctions, including the Court’s striking all confidentiality 21 designations made by that designator. Designation under this Order is allowed only 22 if the designation is necessary to protect material that, if disclosed to persons not 23 authorized to view it, would cause competitive or other recognized harm. Material 24 may not be designated if it has been made public, or if designation is otherwise 25 unnecessary to protect a secrecy interest. If a designator learns that information or 26 items that it designated for protection do not qualify for protection at all or do not 27 28 2 STIPULATED PROTECTIVE ORDER 1 qualify for the level of protection initially asserted, that designator must promptly 2 notify all parties that it is withdrawing the mistaken designation. 3 2.2 Manner and Timing of Designations. Designation under this Order 4 requires the designator to affix the applicable legend (“CONFIDENTIAL,” 5 “HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY,” or “HIGHLY 6 CONFIDENTIAL – SOURCE CODE”) to each page that contains protected 7 material. For testimony given in deposition or other proceeding, the designator 8 shall specify all protected testimony and the level of protection being asserted. It 9 may make that designation during the deposition or proceeding, or may invoke, on 10 the record or by written notice to all parties on or before the next business day, a 11 right to have up to 21 days from the deposition or proceeding to make its 12 designation. 13 2.2.1 A party or non-party that makes original documents or materials 14 available for inspection need not designate them for protection until after the 15 inspecting party has identified which material it would like copied and produced. 16 During the inspection and before the designation, all material shall be treated as 17 HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY. After the inspecting 18 party has identified the documents it wants copied and produced, the producing 19 party must designate the documents, or portions thereof, that qualify for protection 20 under this Order. 21 2.2.2 Parties shall give advance notice if they expect a deposition or other 22 proceeding to include designated material so that the other parties can ensure that 23 only authorized individuals are present at those proceedings when such material is 24 disclosed or used. The use of a document as an exhibit at a deposition shall not in 25 any way affect its designation. Transcripts containing designated material shall 26 have a legend on the title page noting the presence of designated material, and the 27 title page shall be followed by a list of all pages (including line numbers as 28 3 STIPULATED PROTECTIVE ORDER 1 appropriate) that have been designated, and the level of protection being asserted. 2 The designator shall inform the court reporter of these requirements. Any transcript 3 that is prepared before the expiration of the 21-day period for designation shall be 4 treated during that period as if it had been designated HIGHLY CONFIDENTIAL 5 – ATTORNEY EYES ONLY unless otherwise agreed. After the expiration of the 6 21-day period, the transcript shall be treated only as actually designated. 2.3 7 Inadvertent Failures to Designate. An inadvertent failure to 8 designate does not, standing alone, waive protection under this Order. Upon timely 9 assertion or correction of a designation, all recipients must make reasonable efforts 10 to ensure that the material is treated according to this Order. 11 12 13 14 3. CHALLENGING CONFIDENTIALITY DESIGNATIONS All challenges to confidentiality designations shall proceed under L.R. 37-1 through L.R. 37-4. 15 16 17 4. ACCESS TO DESIGNATED MATERIAL 4.1 Basic Principles. A receiving party may use designated material only 18 for this litigation. Designated material may be disclosed only to the categories of 19 persons and under the conditions described in this Order. 20 4.2 Disclosure of CONFIDENTIAL Material Without Further 21 Approval. Unless otherwise ordered by the Court or permitted in writing by the 22 designator, a receiving party may disclose any material designated 23 CONFIDENTIAL only to: 24 4.2.1 The receiving party’s counsel of record in this action and employees 25 of counsel of record to whom disclosure is reasonably necessary. Counsel of record 26 includes in-house counsel that have appeared in this action; 27 28 4 STIPULATED PROTECTIVE ORDER 1 2 4.2.2 The officers, directors, and employees of the receiving party to whom disclosure is reasonably necessary (Exhibit A); 3 4.2.3 Experts retained by the receiving party’s outside counsel of record to 4 whom disclosure is reasonably necessary, and who have signed the Agreement to 5 Be Bound (Exhibit A); 6 4.2.4 The Court and its personnel; 7 4.2.5 Outside court reporters and their staff, professional jury or trial 8 consultants, and professional vendors to whom disclosure is reasonably necessary, 9 and who have signed the Agreement to Be Bound (Exhibit A); 10 4.2.6 During their depositions, witnesses in the action to whom disclosure is 11 reasonably necessary and who have signed the Agreement to Be Bound (Exhibit 12 A); and 13 14 15 4.2.7 The author or recipient of a document containing the material, or a custodian or other person who otherwise possessed or knew the information. 4.3 Disclosure of HIGHLY CONFIDENTIAL – ATTORNEY EYES 16 ONLY and HIGHLY CONFIDENTIAL – SOURCE CODE Material Without 17 Further Approval. Unless permitted in writing by the designator, a receiving 18 party may disclose material designated HIGHLY CONFIDENTIAL – 19 ATTORNEY EYES ONLY or HIGHLY CONFIDENTIAL – SOURCE CODE 20 without further approval only to: 21 4.3.1 The receiving party’s counsel of record in this action and employees 22 of counsel of record to whom it is reasonably necessary to disclose the 23 information. Counsel of record includes in-house counsel that have appeared in 24 this action; 25 4.3.2 The Court and its personnel; 26 4.3.3 Outside court reporters and their staff, professional jury or trial 27 consultants, and professional vendors to whom disclosure is reasonably necessary, 28 5 STIPULATED PROTECTIVE ORDER 1 2 3 4 and who have signed the Agreement to Be Bound (Exhibit A); and 4.3.4 The author or recipient of a document containing the material, or a custodian or other person who otherwise possessed or knew the information. 4.4 Procedures for Approving or Objecting to Disclosure of HIGHLY 5 CONFIDENTIAL – ATTORNEY EYES ONLY or HIGHLY 6 CONFIDENTIAL – SOURCE CODE Material to In-House Counsel or 7 Experts. Unless agreed to in writing by the designator: 8 9 4.4.1 A party seeking to disclose to an expert retained by outside counsel of 10 record any information or item that has been designated HIGHLY 11 CONFIDENTIAL – ATTORNEY EYES ONLY or HIGHLY CONFIDENTIAL – 12 SOURCE CODE must first make a written request to the designator that (1) 13 identifies the general categories of HIGHLY CONFIDENTIAL – ATTORNEY 14 EYES ONLY or HIGHLY CONFIDENTIAL – SOURCE CODE information that 15 the receiving party seeks permission to disclose to the expert, (2) sets forth the full 16 name of the expert and the city and state of his or her primary residence, (3) 17 attaches a copy of the expert’s current resume, (4) identifies the expert’s current 18 employer(s), (5) identifies each person or entity from whom the expert has 19 received compensation or funding for work in his or her areas of expertise 20 (including in connection with litigation) in the past five years, and (6) identifies 21 (by name and number of the case, filing date, and location of court) any litigation 22 where the expert has offered expert testimony, including by declaration, report, or 23 testimony at deposition or trial, in the past five years. If the expert believes any of 24 this information at (4) - (6) is subject to a confidentiality obligation to a third party, 25 then the expert should provide whatever information the expert believes can be 26 disclosed without violating any confidentiality agreements, and the party seeking 27 28 6 STIPULATED PROTECTIVE ORDER 1 to disclose the information to the expert shall be available to meet and confer with 2 the designator regarding any such confidentiality obligations. 4.4.2 A party that makes a request and provides the information specified in 3 4 paragraphs 4.4.1 or 4.4.2 may disclose the designated material to the identified in- 5 house counsel or expert unless, within seven days of delivering the request, the 6 party receives a written objection from the designator providing detailed grounds 7 for the objection. 4.4.3 All challenges to objections from the designator shall proceed under 8 9 L.R. 37-1 through L.R. 37-4. 10 11 12 5. SOURCE CODE 5.1 Designation of Source Code. If production of source code is 13 necessary, a party may designate it as HIGHLY CONFIDENTIAL – SOURCE 14 CODE if it is, or includes, confidential, proprietary, or trade secret source code. 15 16 5.2 Location and Supervision of Inspection. Any HIGHLY 17 CONFIDENTIAL – SOURCE CODE produced in discovery shall be made 18 available for inspection, in a format allowing it to be reasonably reviewed and 19 searched, during normal business hours or at other mutually agreeable times, at an 20 office of the designating party’s counsel or another mutually agreeable location. 21 The source code shall be made available for inspection on a secured computer in a 22 secured room, and the inspecting party shall not copy, remove, or otherwise 23 transfer any portion of the source code onto any recordable media or recordable 24 device. The designator may visually monitor the activities of the inspecting party’s 25 representatives during any source code review, but only to ensure that there is no 26 unauthorized recording, copying, or transmission of the source code. 27 28 7 STIPULATED PROTECTIVE ORDER 5.3 1 Paper Copies of Source Code Excerpts. The inspecting party may 2 request paper copies of limited portions of source code that are reasonably 3 necessary for the preparation of court filings, pleadings, expert reports, other 4 papers, or for deposition or trial. The designator shall provide all such source code 5 in paper form, including Bates numbers and the label “HIGHLY CONFIDENTIAL 6 – SOURCE CODE.” 5.4 7 Access Record. The inspecting party shall maintain a record of any 8 individual who has inspected any portion of the source code in electronic or paper 9 form, and shall maintain all paper copies of any printed portions of the source code 10 in a secured, locked area. The inspecting party shall not convert any of the 11 information contained in the paper copies into any electronic format other than for 12 the preparation of a pleading, exhibit, expert report, discovery document, 13 deposition transcript, or other Court document. Any paper copies used during a 14 deposition shall be retrieved at the end of each day and must not be left with a 15 court reporter or any other unauthorized individual 16 17 6. PROTECTED MATERIAL SUBPOENAED OR ORDERED 18 PRODUCED IN OTHER LITIGATION 19 6.1 Subpoenas and Court Orders. This Order in no way excuses non- 20 compliance with a lawful subpoena or court order. The purpose of the duties 21 described in this section is to alert the interested parties to the existence of this 22 Order and to give the designator an opportunity to protect its confidentiality 23 interests in the court where the subpoena or order issued. 24 6.2 Notification Requirement. If a party is served with a subpoena or a 25 court order issued in other litigation that compels disclosure of any information or 26 items designated in this action as CONFIDENTIAL, HIGHLY CONFIDENTIAL 27 – ATTORNEY EYES ONLY, or HIGHLY CONFIDENTIAL – SOURCE CODE, 28 8 STIPULATED PROTECTIVE ORDER 1 that party must: 6.2.1 Promptly notify the designator in writing. Such notification shall 2 3 include a copy of the subpoena or court order; 6.2.2 Promptly notify in writing the party who caused the subpoena or order 4 5 to issue in the other litigation that some or all of the material covered by the 6 subpoena or order is subject to this Order. Such notification shall include a copy of 7 this Order; and 8 6.2.3 Cooperate with all reasonable procedures sought by the designator 9 whose material may be affected. 10 11 6.3 12 Wait For Resolution of Protective Order. If the designator timely 13 seeks a protective order, the party served with the subpoena or court order shall not 14 produce any information designated in this action as CONFIDENTIAL, HIGHLY 15 CONFIDENTIAL – ATTORNEY EYES ONLY or HIGHLY CONFIDENTIAL – 16 SOURCE CODE before a determination by the court where the subpoena or order 17 issued, unless the party has obtained the designator’s permission. The designator 18 shall bear the burden and expense of seeking protection of its confidential material 19 in that court. 20 21 22 7. UNAUTHORIZED DISCLOSURE OF DESIGNATED MATERIAL If a receiving party learns that, by inadvertence or otherwise, it has 23 disclosed designated material to any person or in any circumstance not authorized 24 under this Order, it must immediately (1) notify in writing the designator of the 25 unauthorized disclosures, (2) use its best efforts to retrieve all unauthorized copies 26 of the designated material, (3) inform the person or persons to whom unauthorized 27 disclosures were made of all the terms of this Order, and (4) use reasonable efforts 28 9 STIPULATED PROTECTIVE ORDER 1 to have such person or persons execute the Agreement to Be Bound (Exhibit A). 2 3 8. INADVERTENT PRODUCTION OF PRIVILEGED OR 4 OTHERWISE PROTECTED MATERIAL 5 When a producing party gives notice that certain inadvertently produced 6 material is subject to a claim of privilege or other protection, the obligations of the 7 receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). 8 This provision is not intended to modify whatever procedure may be established in 9 an e-discovery order that provides for production without prior privilege review 10 pursuant to Federal Rule of Evidence 502(d) and (e). 11 12 9. FILING UNDER SEAL 13 Without written permission from the designator or a Court order, a party 14 may not file in the public record in this action any designated material. A party 15 seeking to file under seal any designated material must comply with L.R. 79-5.1. 16 Filings may be made under seal only pursuant to a court order authorizing the 17 sealing of the specific material at issue. The fact that a document has been 18 designated under this Order is insufficient to justify filing under seal. Instead, 19 parties must explain the basis for confidentiality of each document sought to be 20 filed under seal. Because a party other than the designator will often be seeking to 21 file designated material, cooperation between the parties in preparing, and in 22 reducing the number and extent of, requests for under seal filing is essential. If a 23 receiving party’s request to file designated material under seal pursuant to L.R. 79- 24 5.1 is denied by the Court, then the receiving party may file the material in the 25 public record unless (1) the designator seeks reconsideration within four days of 26 the denial, or (2) as otherwise instructed by the Court. 27 28 10 STIPULATED PROTECTIVE ORDER 1 10. FINAL DISPOSITION Within 60 days after the final disposition of this action, each party shall 2 3 return all designated material to the designator or destroy such material, including 4 all copies, abstracts, compilations, summaries, and any other format reproducing or 5 capturing any designated material. The receiving party must submit a written 6 certification to the designator by the 60-day deadline that (1) identifies (by 7 category, where appropriate) all the designated material that was returned or 8 destroyed, and (2) affirms that the receiving party has not retained any copies, 9 abstracts, compilations, summaries, or any other format reproducing or capturing 10 any of the designated material. This provision shall not prevent counsel from 11 retaining an archival copy of all pleadings, motion papers, trial, deposition, and 12 hearing transcripts, legal memoranda, correspondence, deposition and trial 13 exhibits, expert reports, attorney work product, and consultant and expert work 14 product, even if such materials contain designated material. Any such archival 15 copies remain subject to this Order. 16 17 18 19 11. VIOLATION Any violation of this Order may be punished by appropriate measures including, without limitation, contempt proceedings and/or monetary sanctions. 20 21 22 23 24 IT IS SO ORDERED. DATED: October 16, 2019 _____________________________ Honorable KAREN E. SCOTT United States Magistrate Judge 25 26 27 28 11 STIPULATED PROTECTIVE ORDER 1 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 27 EXHIBIT A ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND I, ___________________________, of [print or type full name], of________________________[print or type full address] declare under penalty of perjury that I have read in its entirety and understand the Stipulated Protective Order that was issued by the United States District Court for the Central District of California on [date] in the case of P&P IMPORTS LLC v. OJCOMMERCE, LLC OJCOMMERCE.COM, INC., Case No. 8:19-cv-00898-AG-KES. I agree to comply with and to be bound by all the terms of this Protective Order, and I understand and acknowledge that failure to so comply could expose me to sanctions and punishment for contempt. I solemnly promise that I will not disclose in any manner any information or item that is subject to this Protective Order to any person or entity except in strict compliance with this Order. I further agree to submit to the jurisdiction of the United States District Court for the Central District of California for the purpose of enforcing this Order, even if such enforcement proceedings occur after termination of this action. I hereby appoint __________________________ [print or type full name] of _______________________________________ [print or type full address and telephone number] as my California agent for service of process in connection with this action or any proceedings related to enforcement of this Order. Date: ___________________________ City and State where sworn and signed: _________________________________ Printed name: ____________________ Signature: ____________________________ 28 12 STIPULATED PROTECTIVE ORDER
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