Murtomaki v. Target Corporation, No. 3:2020cv02178 - Document 11 (S.D. Cal. 2021)
Court Description: ORDER Granting 10 Joint Motion for Protective Order With Modifications. Signed by Magistrate Judge Linda Lopez on 1/11/2021. (mme)
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Murtomaki v. Target Corporation Doc. 11 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ANDREW MURTOMAKI, Case No.: 20cv2178-BEN-LL Plaintiff, 12 13 v. 14 TARGET CORPORATION, et al., ORDER GRANTING JOINT MOTION FOR PROTECTIVE ORDER WITH MODIFICATIONS Defendants. 15 [ECF No. 10] 16 17 18 19 20 21 22 23 24 25 26 27 28 On January 8, 2021, the Parties filed a “Joint Motion for Protective Order.” ECF No. 10. The Court has considered the stipulated protective order (attached as Exhibit A) and, for good cause shown, the joint motion is GRANTED with the following modifications: 1. Paragraph 8 should read as follows: “Information designated ‘CONFIDENTIAL-FOR COUNSEL ONLY’ must be viewed only by counsel (as defined in paragraph 3) of the receiving party, court personnel, and by independent experts under the conditions set forth in this Paragraph. The right of any independent expert to receive any confidential information will be subject to the advance approval of such expert by the producing party or by permission of the Court. The party seeking approval of an independent expert must provide the producing party with the name and curriculum vitae 1 20cv2178-BEN-LL Dockets.Justia.com 1 of the proposed independent expert, in advance of providing any confidential information 2 of the producing party to the expert. Any objection by the producing party to an 3 independent expert receiving confidential information must be made in writing within 4 fourteen (14) days following receipt of the identification of the proposed expert. 5 Confidential information may be disclosed to an independent expert if the fourteen (14) 6 day period has passed and no objection has been made. The approval of independent 7 experts must not be unreasonably withheld.” 8 2. Paragraph 12 should read as follows: “Before any materials produced in 9 discovery, answers to interrogatories, responses to requests for admissions, deposition 10 transcripts, or other documents which are designated as confidential information are filed 11 with the Court for any purpose, the party seeking to file such material must seek 12 permission of the Court to file the material under seal. No document shall be filed under 13 seal, and the Court shall not be required to take any action, without separate prior order 14 by the judge before whom the hearing or proceedings will take place, after application by 15 the affected party with appropriate notice to opposing counsel. The parties shall follow 16 and abide by applicable law, including Civil Local Rule 79.2, Section 2.j of the 17 Electronic Case Filing Administrative Policies and Procedures, and the Chambers Rules 18 of the applicable judge, with respect to filing documents under seal. A sealing order may 19 issue only upon a request that establishes that the document, or portions thereof, is 20 privileged or otherwise subject to protection under the law. The request must be narrowly 21 tailored to seek sealing only of sensitive personal or confidential information. An 22 unredacted version of the document, identifying the portions subject to the motion to seal, 23 must be lodged with the motion to seal. A redacted version of the document must be 24 publicly filed simultaneously with the motion or ex parte application to file under seal.” 25 3. Paragraph 13 should read as follows: “At any stage of these proceedings, 26 any party may object to a designation of the materials as confidential information. The 27 party objecting to confidentiality must notify, in writing, counsel for the designating party 28 of the objected-to materials and the grounds for the objection. If the dispute is not 2 20cv2178-BEN-LL 1 resolved consensually between the parties within seven (7) days of receipt of such a 2 notice of objections, the objecting party may move the Court for a ruling on the 3 objection. The motion must be in conformance with any requirements set forth in the 4 Local Rules and the Chambers Rules of the applicable Judge. The material at issue must 5 be treated as confidential information, as designated by the designating party, until the 6 Court has ruled on the objection or the matter has been otherwise resolved.” 7 IT IS SO ORDERED. 8 9 Dated: January 11, 2021 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 20cv2178-BEN-LL EXHIBIT A 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ANDREW MURTOMAKI, 12 Plaintiff, 13 v. 14 15 Case No.: 3:20-cv-02178-BEN-LL PROTECTIVE ORDER TARGET CORPORATION, Defendant. 16 17 The Court recognizes that at least some of the documents and information 18 (“materials”) being sought through discovery in the above-captioned action are, for 19 competitive reasons, normally kept confidential by the parties. The parties have 20 agreed to be bound by the terms of this Protective Order (“Order”) in this action. 21 The materials to be exchanged throughout the course of the litigation between 22 the parties may contain trade secret or other confidential research, technical, cost, 23 price, marketing or other commercial information, as is contemplated by Federal Rule 24 of Civil Procedure 26(c)(1)(G). The purpose of this Order is to protect the 25 confidentiality of such materials as much as practical during the litigation. 26 THEREFORE: DEFINITIONS 27 28 1. The term “confidential information” will mean and include information SED-076 | Court Protective Order (Model) 010821 Final -1PROTECTIVE ORDER 20-cv-02178 1 contained or disclosed in any materials, including documents, portions of documents, 2 answers to interrogatories, responses to requests for admissions, trial testimony, 3 deposition testimony, and transcripts of trial testimony and depositions, including 4 data, summaries, and compilations derived therefrom that is deemed to be confidential 5 information by any party to which it belongs. 6 2. The term “materials” will include, but is not be limited to: documents; 7 correspondence; memoranda; bulletins; blueprints; specifications; customer lists or 8 other material that identify customers or potential customers; price lists or schedules 9 or other matter identifying pricing; minutes; telegrams; letters; statements; cancelled 10 checks; contracts; invoices; drafts; books of account; worksheets; notes of 11 conversations; desk diaries; appointment books; expense accounts; recordings; 12 photographs; motion pictures; compilations from which information can be obtained 13 and translated into reasonably usable form through detection devices; sketches; 14 drawings; notes (including laboratory notebooks and records); reports; instructions; 15 disclosures; other writings; models and prototypes and other physical objects. 16 3. The term “counsel” will mean outside counsel of record, and other 17 attorneys, paralegals, secretaries, and other support staff employed in the law firms 18 identified below: 19 x SCHULZ BRICK & ROGASKI 20 x ANDY VAN LE & ASSOCIATES, P.C. 21 GENERAL RULES 22 23 4. Each party to this litigation that produces or discloses any materials, 24 answers to interrogatories, responses to requests for admission, trial testimony, 25 deposition testimony, and transcripts of trial testimony and depositions, or 26 information that the producing party believes should be subject to this Protective 27 Order may designate the same as “CONFIDENTIAL” or “CONFIDENTIAL - FOR 28 COUNSEL ONLY.” SED-076 | Court Protective Order (Model) 010821 Final -2PROTECTIVE ORDER 20-cv-02178 1 a. Designation as “CONFIDENTIAL”: Any party may designate 2 information as “CONFIDENTIAL” only if, in the good faith belief of such party and 3 its counsel, the unrestricted disclosure of such information could be potentially 4 prejudicial to the business or operations of such party. 5 b. Designation as “CONFIDENTIAL - FOR COUNSEL ONLY”: Any 6 party may designate information as “CONFIDENTIAL - FOR COUNSEL ONLY” 7 only if, in the good faith belief of such party and its counsel, the information is among 8 that considered to be most sensitive by the party, including but not limited to trade 9 secret or other confidential research, development, financial or other commercial 10 11 information. 5. In the event the producing party elects to produce materials for 12 inspection, no marking need be made by the producing party in advance of the initial 13 inspection. For purposes of the initial inspection, all materials produced will be 14 considered as “CONFIDENTIAL - FOR COUNSEL ONLY,” and must be treated as 15 such pursuant to the terms of this Order. Thereafter, upon selection of specified 16 materials for copying by the inspecting party, the producing party must, within a 17 reasonable time prior to producing those materials to the inspecting party, mark the 18 copies of those materials that contain confidential information with the appropriate 19 confidentiality marking. 20 21 22 6. Whenever a deposition taken on behalf of any party involves a disclosure of confidential information of any party: a. the deposition or portions of the deposition must be designated as 23 containing confidential information subject to the provisions of 24 this Order; such designation must be made on the record whenever 25 possible, but a party may designate portions of depositions as 26 containing confidential information after transcription of the 27 proceedings; [A] party will have until fourteen (14) days after 28 receipt of the deposition transcript to inform the other party or SED-076 | Court Protective Order (Model) 010821 Final -3PROTECTIVE ORDER 20-cv-02178 1 parties to the action of the portions of the transcript to be 2 designated “CONFIDENTIAL” or “CONFIDENTIAL - FOR 3 COUNSEL ONLY.” b. 4 the disclosing party will have the right to exclude from attendance 5 at the deposition, during such time as the confidential information 6 is to be disclosed, any person other than the deponent, counsel 7 (including their staff and associates), the court reporter, and the 8 person(s) agreed upon pursuant to paragraph 8 below; and c. 9 the originals of the deposition transcripts and all copies of the 10 deposition must bear the legend “CONFIDENTIAL” or 11 “CONFIDENTIAL - FOR COUNSEL ONLY,” as appropriate, 12 and the original or any copy ultimately presented to a court for 13 filing must not be filed unless it can be accomplished under seal, 14 identified as being subject to this Order, and protected from being 15 opened except by order of this Court. 16 7. All confidential information designated as “CONFIDENTIAL” or 17 “CONFIDENTIAL FOR COUNSEL ONLY” must not be disclosed by the receiving 18 party to anyone other than those persons designated within this order and must be 19 handled in the manner set forth below and, in any event, must not be used for any 20 purpose other than in connection with this litigation, unless and until such designation 21 is removed either by agreement of the parties, or by order of the Court. 22 8. Information designated “CONFIDENTIAL - FOR COUNSEL ONLY” 23 must be viewed only by counsel (as defined in paragraph 3) of the receiving party, 24 and by independent experts under the conditions set forth in this Paragraph. The right 25 of any independent expert to receive any confidential information will be subject to 26 the advance approval of such expert by the producing party or by permission of the 27 Court. The party seeking approval of an independent expert must provide the 28 producing party with the name and curriculum vitae of the proposed independent SED-076 | Court Protective Order (Model) 010821 Final -4PROTECTIVE ORDER 20-cv-02178 1 expert, in advance of providing any confidential information of the producing party 2 to the expert. Any objection by the producing party to an independent expert receiving 3 confidential information must be made in writing within fourteen (14) days following 4 receipt of the identification of the proposed expert. Confidential information may be 5 disclosed to an independent expert if the fourteen (14) day period has passed and no 6 objection has been made. The approval of independent experts must not be 7 unreasonably withheld. 8 9. Information designated “confidential” must be viewed only by counsel 9 (as defined in paragraph 3) of the receiving party, by independent experts (pursuant 10 to the terms of paragraph 8), by court personnel, and by the additional individuals 11 listed below, provided each such individual has read this Order in advance of 12 disclosure and has agreed in writing to be bound by its terms: a) 13 Executives who are required to participate in policy decisions with reference to this action; 14 b) 15 Technical personnel of the parties with whom Counsel for the 16 parties find it necessary to consult, in the discretion of such 17 counsel, in preparation for trial of this action; and c) 18 individuals identified above. 19 20 Stenographic and clerical employees associated with the 10. With respect to material designated “CONFIDENTIAL” or 21 “CONFIDENTIAL – FOR COUNSEL ONLY,” any person indicated on the face of 22 the document to be its originator, author or a recipient of a copy of the document, may 23 be shown the same. 24 11. All information which has been designated as “CONFIDENTIAL” or 25 “CONFIDENTIAL -FOR COUNSEL ONLY” by the producing or disclosing party, 26 and any and all reproductions of that information, must be retained in the custody of 27 the counsel for the receiving party identified in paragraph 3, except that independent 28 experts authorized to view such information under the terms of this Order may retain SED-076 | Court Protective Order (Model) 010821 Final -5PROTECTIVE ORDER 20-cv-02178 1 2 custody of copies such as are necessary for their participation in this litigation. 12. Before any materials produced in discovery, answers to interrogatories, 3 responses to requests for admissions, deposition transcripts, or other documents which 4 are designated as confidential information are filed with the Court for any purpose, 5 the party seeking to file such material must seek permission of the Court to file the 6 material under seal. 7 13. At any stage of these proceedings, any party may object to a designation 8 of the materials as confidential information. The party objecting to confidentiality 9 must notify, in writing, counsel for the designating party of the objected-to materials 10 and the grounds for the objection. If the dispute is not resolved consensually between 11 the parties within seven (7) days of receipt of such a notice of objections, the objecting 12 party may move the Court for a ruling on the objection. The materials at issue must 13 be treated as confidential information, as designated by the designating party, until 14 the Court has ruled on the objection or the matter has been otherwise resolved. 15 14. All confidential information must be held in confidence by those 16 inspecting or receiving it, and must be used only for purposes of this action. Counsel 17 for each party, and each person receiving confidential information must take 18 reasonable precautions to prevent the unauthorized or inadvertent disclosure of such 19 information. If confidential information is disclosed to any person other than a person 20 authorized by this Order, the party responsible for the unauthorized disclosure must 21 immediately bring all pertinent facts relating to the unauthorized disclosure to the 22 attention of the other parties and, without prejudice to any rights and remedies of the 23 other parties, make every effort to prevent further disclosure by the party and by the 24 person(s) receiving the unauthorized disclosure. 25 15. No party will be responsible to another party for disclosure of 26 confidential information under this Order if the information in question is not labeled 27 or otherwise identified as such in accordance with this Order. 28 16. If a party, through inadvertence, produces any confidential information SED-076 | Court Protective Order (Model) 010821 Final -6PROTECTIVE ORDER 20-cv-02178 1 without labeling or marking or otherwise designating it as such in accordance with 2 this Order, the designating party may give written notice to the receiving party that 3 the document or thing produced is deemed confidential information, and that the 4 document or thing produced should be treated as such in accordance with that 5 designation under this Order. The receiving party must treat the materials as 6 confidential, once the designating party so notifies the receiving party. If the receiving 7 party has disclosed the materials before receiving the designation, the receiving party 8 must notify the designating party in writing of each such disclosure. Counsel for the 9 parties will agree on a mutually acceptable manner of labeling or marking the 10 inadvertently produced materials as “CONFIDENTIAL” or “CONFIDENTIAL - 11 FOR COUNSEL ONLY” - SUBJECT TO PROTECTIVE ORDER. 12 17. Nothing within this order will prejudice the right of any party to object 13 to the production of any discovery material on the grounds that the material is 14 protected as privileged or as attorney work product. 15 18. Nothing in this Order will bar counsel from rendering advice to their 16 clients with respect to this litigation and, in the course thereof, relying upon any 17 information designated as confidential information, provided that the contents of the 18 information must not be disclosed. 19 19. This Order will be without prejudice to the right of any party to oppose 20 production of any information for lack of relevance or any other ground other than 21 the mere presence of confidential information. The existence of this Order must not 22 be used by either party as a basis for discovery that is otherwise improper under the 23 Federal Rules of Civil Procedure. 24 25 26 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, 27 counsel for each party must, upon request of the producing party, return all 28 confidential information to the party that produced the information, including any SED-076 | Court Protective Order (Model) 010821 Final -7PROTECTIVE ORDER 20-cv-02178 1 copies, excerpts, and summaries of that information, or must destroy same at the 2 option of the receiving party, and must purge all such information from all machine- 3 readable media on which it resides. Notwithstanding the foregoing, counsel for each 4 party may retain all pleadings, briefs, memoranda, motions, and other documents filed 5 with the Court that refer to or incorporate confidential information, and will continue 6 to be bound by this Order with respect to all such retained information. Further, 7 attorney work product materials that contain confidential information need not be 8 destroyed, but, if they are not destroyed, the person in possession of the attorney work 9 product will continue to be bound by this Order with respect to all such retained 10 11 information. 22. The restrictions and obligations set forth within this order will not apply 12 to any information that: (a) the parties agree should not be designated confidential 13 information; (b) the parties agree, or the Court rules, is already public knowledge; (c) 14 the parties agree, or the Court rules, has become public knowledge other than as a 15 result of disclosure by the receiving party, its employees, or its agents in violation of 16 this Order; or (d) has come or will come into the receiving party's legitimate 17 knowledge independently of the production by the designating party. Prior knowledge 18 must be established by pre-production documentation. 19 23. The restrictions and obligations within this order will not be deemed to 20 prohibit discussions of any confidential information with anyone if that person 21 already has or obtains legitimate possession of that information. 22 23 24 25 26 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 27 cause, or in the interest of justice, or on its own order at any time in these proceedings. 28 The parties prefer that the Court provide them with notice of the Court's intent to SED-076 | Court Protective Order (Model) 010821 Final -8PROTECTIVE ORDER 20-cv-02178 1 modify the Order and the content of those modifications, prior to entry of such an 2 order. 3 IT IS SO ORDERED this _______ day of __________, _____ 4 _______________________________________________ 5 Judge, United States District Court 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SED-076 | Court Protective Order (Model) 010821 Final -9PROTECTIVE ORDER 20-cv-02178
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