American Fire and Casualty Company et al v. Smuckers Foodservice, Inc. et al, No. 3:2020cv01619 - Document 12 (S.D. Cal. 2021)
Court Description: ORDER Granting 11 Joint Motion for Entry of Protective Order. Signed by Magistrate Judge Andrew G. Schopler on 4/13/2021. (mme)
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American Fire and Casualty Company et al v. Smuckers Foodservice, Inc. et al Doc. 12 1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 4 5 AMERICAN FIRE AND CASUALTY COMPANY; AND WEST AMERICAN INSURANCE COMPANY, 6 7 8 9 Plaintiffs, CASE NO. 3:20-CV-01619-BEN-AGS ORDER GRANTING JOINT MOTION FOR ENTRY OF PROTECTIVE ORDER v. SMUCKERS FOODSERVICE, INC. AND DOES 1 THROUGH 100, Defendants. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Before the Court is a Joint Motion for Entry of Protective Order. For good cause shown, the Joint Motion is GRANTED. Accordingly, the Court issues the following Protective Order: The Court recognizes that at least some of the documents and information ("materials") being sought through discovery in the above-captioned action are, for competitive reasons, normally kept confidential by the parties. The parties have agreed to be bound by the terms of this Protective Order (“Order”) in this action. The materials to be exchanged throughout the course of the litigation between the parties may contain trade secret or other confidential research, technical, cost, price, marketing or other commercial information, as is contemplated by Federal Rule of Civil Procedure 26(c)(1)(G). The purpose of this Order is to protect the confidentiality of such materials as much as practical during the litigation. DEFINITIONS 25 26 27 28 1. The term "confidential information" will mean and include information contained or disclosed in any materials, including documents, portions of documents, answers to interrogatories, responses to requests for admissions, trial testimony, CASE NO. 3:20-CV-01619-BEN-AGS Dockets.Justia.com 1 deposition testimony, and transcripts of trial testimony and depositions, including 2 data, summaries, and compilations derived therefrom that is deemed to be 3 confidential information by any party to which it belongs. 4 2. The term "materials" will include, but is not be limited to: documents; 5 correspondence; memoranda; bulletins; blueprints; specifications; customer lists or 6 other material that identify customers or potential customers; price lists or schedules 7 or other matter identifying pricing; minutes; telegrams; letters; statements; cancelled 8 checks; contracts; invoices; drafts; books of account; worksheets; notes of 9 conversations; desk diaries; appointment books; expense accounts; recordings; 10 photographs; motion pictures; compilations from which information can be obtained 11 and translated into reasonably usable form through detection devices; sketches; 12 drawings; notes (including laboratory notebooks and records); reports; instructions; 13 disclosures; other writings; models and prototypes and other physical objects. 14 3. The term "counsel" will mean outside counsel of record, and other 15 attorneys, paralegals, secretaries, and other support staff employed in the law firms 16 identified below: 17 18 19 20 21 22 23 24 25 26 27 For Plaintiffs AMERICAN FIRE AND CASUALTY COMPANY and WEST AMERICAN INSURANCE COMPANY: Brandon D. Saxon, Esq. Tom T. Nagashima, Esq. GORDON REES SCULLY MANSUKHANI, LLP 101 West Broadway, Suite 2000 San Diego, California 92101 For Defendant SMUCKER FOODSERVICE, INC., erroneously sued as SMUCKERS FOODSERVICE, INC: Peter S. Doody, Esq. Nicholas D. Brauns, Esq. HIGGS FLETCHER & MACK LLP 401 West “A” Street, Suite 2600 San Diego, California 92101-7913 28 2 CASE NO. 3:20-CV-01619-BEN-AGS 1 “Counsel” also includes in-house attorneys for Plaintiffs and Defendants. 2 3 GENERAL RULES 4. Each party to this litigation that produces or discloses any materials, 4 answers to interrogatories, responses to requests for admission, trial testimony, 5 deposition testimony, and transcripts of trial testimony and depositions, or 6 information that the producing party believes should be subject to this Protective 7 Order may designate the same as "CONFIDENTIAL" or "CONFIDENTIAL - FOR 8 COUNSEL ONLY." a. 9 Designation as "CONFIDENTIAL": Any party may designate 10 information as "CONFIDENTIAL" only if, in the good faith 11 belief of such party and its counsel, the unrestricted disclosure of 12 such information could be potentially prejudicial to the business 13 or operations of such party. b. 14 Designation as "CONFIDENTIAL - FOR COUNSEL ONLY": 15 Any party may designate information as "CONFIDENTIAL - 16 FOR COUNSEL ONLY" only if, in the good faith belief of such 17 party and its counsel, the information is among that considered to 18 be most sensitive by the party, including but not limited to trade 19 secret or other confidential research, development, financial or 20 other commercial information. 21 5. In the event the producing party elects to produce materials for 22 inspection, no marking need be made by the producing party in advance of the initial 23 inspection. For purposes of the initial inspection, all materials produced will be 24 considered as "CONFIDENTIAL - FOR COUNSEL ONLY," and must be treated as 25 such pursuant to the terms of this Order. Thereafter, upon selection of specified 26 materials for copying by the inspecting party, the producing party must, within a 27 reasonable time prior to producing those materials to the inspecting party, mark the 28 copies of those materials that contain confidential information with the appropriate 3 CASE NO. 3:20-CV-01619-BEN-AGS 1 2 3 confidentiality marking. 6. Whenever a deposition taken on behalf of any party involves a disclosure of confidential information of any party: a. 4 the deposition or portions of the deposition must be designated as 5 containing confidential information subject to the provisions of 6 this Order; such designation must be made on the record 7 whenever possible, but a party may designate portions of 8 depositions 9 transcription of the proceedings; [A] party will have until fourteen 10 (14) days after receipt of the deposition transcript to inform the 11 other party or parties to the action of the portions of the transcript 12 to be designated "CONFIDENTIAL" or "CONFIDENTIAL - 13 FOR COUNSEL ONLY.” b. 14 as containing confidential information after the disclosing party will have the right to exclude from attendance 15 at the deposition, during such time as the confidential information 16 is to be disclosed, any person other than the deponent, counsel 17 (including their staff and associates), the court reporter, and the 18 person(s) agreed upon pursuant to paragraph 8 below; and c. 19 the originals of the deposition transcripts and all copies of the 20 deposition must bear the legend "CONFIDENTIAL" or 21 "CONFIDENTIAL - FOR COUNSEL ONLY," as appropriate, 22 and the original or any copy ultimately presented to a court for 23 filing must not be filed unless it can be accomplished under seal, 24 identified as being subject to this Order, and protected from being 25 opened except by order of this Court. 26 7. All confidential information designated as "CONFIDENTIAL" or 27 "CONFIDENTIAL FOR COUNSEL ONLY" must not be disclosed by the receiving 28 party to anyone other than those persons designated within this order and must be 4 CASE NO. 3:20-CV-01619-BEN-AGS 1 handled in the manner set forth below and, in any event, must not be used for any 2 purpose other than in connection with this litigation, unless and until such designation 3 is removed either by agreement of the parties, or by order of the Court. 4 8. Information designated "CONFIDENTIAL - FOR COUNSEL ONLY" 5 must be viewed only by counsel (as defined in paragraph 3) of the receiving party, 6 and by independent experts under the conditions set forth in this Paragraph. The right 7 of any independent expert to receive any confidential information will be subject to 8 the advance approval of such expert by the producing party or by permission of the 9 Court. The party seeking approval of an independent expert must provide the 10 producing party with the name and curriculum vitae of the proposed independent 11 expert, and an executed copy of the form attached hereto as Exhibit A, in advance of 12 providing any confidential information of the producing party to the expert. Any 13 objection by the producing party to an independent expert receiving confidential 14 information must be made in writing within fourteen (14) days following receipt of 15 the identification of the proposed expert. Confidential information may be disclosed 16 to an independent expert if the fourteen (14) day period has passed and no objection 17 has been made. The approval of independent experts must not be unreasonably 18 withheld. 19 9. Information designated "confidential" must be viewed only by counsel 20 (as defined in paragraph 3) of the receiving party, by independent experts (pursuant 21 to the terms of paragraph 8), by court personnel, and by the additional individuals 22 listed below, provided each such individual has read this Order in advance of 23 disclosure and has agreed in writing to be bound by its terms: 24 a) with reference to this action; 25 26 Executives who are required to participate in policy decisions b) Technical personnel of the parties with whom Counsel for the 27 parties find it necessary to consult, in the discretion of such 28 counsel, in preparation for trial of this action; and 5 CASE NO. 3:20-CV-01619-BEN-AGS c) 1 individuals identified above. 2 3 Stenographic and clerical employees associated with the 10. With respect to material designated "CONFIDENTIAL" or 4 "CONFIDENTIAL – FOR COUNSEL ONLY," any person indicated on the face of 5 the document to be its originator, author or a recipient of a copy of the document, 6 may be shown the same. 7 11. All information which has been designated as "CONFIDENTIAL" or 8 "CONFIDENTIAL -FOR COUNSEL ONLY" by the producing or disclosing party, 9 and any and all reproductions of that information, must be retained in the custody of 10 the counsel for the receiving party identified in paragraph 3, except that independent 11 experts authorized to view such information under the terms of this Order may retain 12 custody of copies such as are necessary for their participation in this litigation. 13 12. Before any materials produced in discovery, answers to interrogatories, 14 responses to requests for admissions, deposition transcripts, or other documents 15 which are designated as confidential information are filed with the Court for any 16 purpose, the party seeking to file such material must seek permission of the Court to 17 file the material under seal. 18 13. At any stage of these proceedings, any party may object to a designation 19 of the materials as confidential information. The party objecting to confidentiality 20 must notify, in writing, counsel for the designating party of the objected-to materials 21 and the grounds for the objection. If the dispute is not resolved consensually between 22 the parties within seven (7) days of receipt of such a notice of objections, the 23 objecting party may move the Court for a ruling on the objection. The materials at 24 issue must be treated as confidential information, as designated by the designating 25 party, until the Court has ruled on the objection or the matter has been otherwise 26 resolved. 27 14. 28 All confidential information must be held in confidence by those inspecting or receiving it, and must be used only for purposes of this action. Counsel 6 CASE NO. 3:20-CV-01619-BEN-AGS 1 for each party, and each person receiving confidential information must take 2 reasonable precautions to prevent the unauthorized or inadvertent disclosure of such 3 information. If confidential information is disclosed to any person other than a person 4 authorized by this Order, the party responsible for the unauthorized disclosure must 5 immediately bring all pertinent facts relating to the unauthorized disclosure to the 6 attention of the other parties and, without prejudice to any rights and remedies of the 7 other parties, make every effort to prevent further disclosure by the party and by the 8 person(s) receiving the unauthorized disclosure. 9 15. No party will be responsible to another party for disclosure of 10 confidential information under this Order if the information in question is not labeled 11 or otherwise identified as such in accordance with this Order. 12 16. If a party, through inadvertence, produces any confidential information 13 without labeling or marking or otherwise designating it as such in accordance with 14 this Order, the designating party may give written notice to the receiving party that 15 the document or thing produced is deemed confidential information, and that the 16 document or thing produced should be treated as such in accordance with that 17 designation under this Order. The receiving party must treat the materials as 18 confidential, once the designating party so notifies the receiving party. If the 19 receiving party has disclosed the materials before receiving the designation, the 20 receiving party must notify the designating party in writing of each such disclosure. 21 Counsel for the parties will agree on a mutually acceptable manner of labeling or 22 marking the inadvertently produced materials as "CONFIDENTIAL" or 23 "CONFIDENTIAL - FOR COUNSEL ONLY" - SUBJECT TO PROTECTIVE 24 ORDER. 25 17. Nothing within this order will prejudice the right of any party to object 26 to the production of any discovery material on the grounds that the material is 27 protected as privileged or as attorney work product. 28 18. Nothing in this Order will bar counsel from rendering advice to their 7 CASE NO. 3:20-CV-01619-BEN-AGS 1 clients with respect to this litigation and, in the course thereof, relying upon any 2 information designated as confidential information, provided that the contents of the 3 information must not be disclosed. 4 19. This Order will be without prejudice to the right of any party to oppose 5 production of any information for lack of relevance or any other ground other than 6 the mere presence of confidential information. The existence of this Order must not 7 be used by either party as a basis for discovery that is otherwise improper under the 8 Federal Rules of Civil Procedure. 9 10 11 20. Nothing within this order will be construed to prevent disclosure of confidential information if such disclosure is required by law or by order of the Court. 21. Upon final termination of this action, including any and all appeals, 12 counsel for each party must, upon request of the producing party, return all 13 confidential information to the party that produced the information, including any 14 copies, excerpts, and summaries of that information, or must destroy same at the 15 option of the receiving party, and must purge all such information from all machine- 16 readable media on which it resides. Notwithstanding the foregoing, counsel for each 17 party may retain all pleadings, briefs, memoranda, motions, and other documents 18 filed with the Court that refer to or incorporate confidential information, and will 19 continue to be bound by this Order with respect to all such retained information. 20 Further, attorney work product materials that contain confidential information need 21 not be destroyed, but, if they are not destroyed, the person in possession of the 22 attorney work product will continue to be bound by this Order with respect to all such 23 retained information. 24 22. The restrictions and obligations set forth within this order will not apply 25 to any information that: (a) the parties agree should not be designated confidential 26 information; (b) the parties agree, or the Court rules, is already public knowledge; (c) 27 the parties agree, or the Court rules, has become public knowledge other than as a 28 result of disclosure by the receiving party, its employees, or its agents in violation of 8 CASE NO. 3:20-CV-01619-BEN-AGS 1 this Order; or (d) has come or will come into the receiving party's legitimate 2 knowledge independently of the production by the designating party. Prior 3 knowledge must be established by pre-production documentation. 4 23. The restrictions and obligations within this order will not be deemed to 5 prohibit discussions of any confidential information with anyone if that person 6 already has or obtains legitimate possession of that information. 7 8 9 10 11 12 24. Transmission by email or some other currently utilized method of transmission is acceptable for all notification purposes within this Order. 25. This Order may be modified by agreement of the parties, subject to approval by the Court. 26. The Court may modify the terms and conditions of this Order for good cause, or in the interest of justice, or on its own order at any time in these proceedings. 13 14 Dated: April 13, 2021 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 CASE NO. 3:20-CV-01619-BEN-AGS 1 EXHIBIT A TO STIPULATED PROTECTIVE ORDER 2 I, _____________________, residing at _____________________________ 3 __________________________ have read the foregoing Stipulated Protective Order 4 (the “Order”) in the action entitled AMERICAN FIRE AND CASUALTY COMPANY, 5 et al. v. SMUCKER FOODSERVICE, INC., Case No. 3:20-CV-01619-BEN-AGS, 6 pending in the United States District Court for the Southern District of California. I 7 agree to be bound by its terms with respect to any documents designated as 8 “CONFIDENTIAL” that are furnished to me as set forth in the Order. I further agree 9 to return documents to the producing party or third party according to the terms of 10 11 that Order. 2. I hereby consent to the jurisdiction of the District Court for the Southern 12 District of California with respect to any proceedings to enforce the terms of the 13 Order against me. 14 3. I hereby agree that any documents designated as “CONFIDENTIAL” 15 that are furnished to me will be used by me only for the purposes of the Action, and 16 for no other purpose, and will not be used by me in any business affairs of my 17 employer or of my own, nor will the information contained therein be imparted by 18 me to any other person. 19 20 21 __________________________________ Signature ______________________ Date 22 10166953.1 23 24 25 26 27 28 10 CASE NO. 3:20-CV-01619-BEN-AGS
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