United States Aviation Underwriters Inc. v. Aerospike Iron, LLC et al, No. 3:2021cv00758 - Document 33 (S.D. Cal. 2022)
Court Description: ORDER Granting 31 Motion for Stipulated Protective Order. Signed by Magistrate Judge Barbara Lynn Major on 2/24/22. (dlg)
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United States Aviation Underwriters Inc. v. Aerospike Iron, LLC et al Doc. 33 Case 3:21-cv-00758-GPC-BLM Document 33 Filed 02/24/22 PageID.321 Page 1 of 13 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 13 UNITED STATES AVIATION UNDERWRITERS INC., individually and on behalf of United States Aircraft Insurance Group, 14 Plaintiff/Counterdefendant, 15 16 v. 17 AEROSPIKE IRON, LLC, and CHARLES BRANDES, 18 19 Defendants/Counterclaimants, 20 21 22 23 24 25 26 v. ACE AMERICAN INSURANCE COMPANY and NATIONAL LIABILITY & FIRE INSURANCE COMPANY, Counterdefendants. ) Case No. 3:21-cv-000758-GPC-BLM ) ) ) ) ) ) ) ) ) STIPULATED PROTECTIVE ) ORDER ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 27 28 1 STIPULATED PROTECTIVE ORDER Dockets.Justia.com Case 3:21-cv-00758-GPC-BLM Document 33 Filed 02/24/22 PageID.322 Page 2 of 13 1 The Court recognizes that at least some of the documents and information 2 (“materials”) being sought through discovery in the above-captioned action are 3 normally kept confidential by the parties. The parties have agreed to be bound by the 4 terms of this Stipulated Protective Order (“Order”) in this action. 5 The materials to be exchanged throughout the course of the litigation between 6 the parties may contain information protected from disclosure by law or that should be 7 protected from disclosure as confidential personal information, medical information, 8 trade secrets, personnel records, or such other sensitive information that is not publicly 9 available. The purpose of this Order is to protect the confidentiality of such materials 10 as much as practical during the litigation. THEREFORE: DEFINITIONS 11 12 1. The term “confidential information” will mean and include information 13 contained or disclosed in any materials, including documents, portions of documents, 14 answers to interrogatories, responses to requests for admissions, trial testimony, 15 deposition testimony, and transcripts of trial testimony and depositions, including data, 16 summaries, and compilations derived therefrom that is deemed to be confidential 17 information by any party to which it belongs. 18 2. The term “materials” will include, but is not limited to: documents; 19 correspondence; memoranda; bulletins; blueprints; specifications; customer lists or 20 other material that identify customers or potential customers; price lists or schedules 21 or other matter identifying pricing; minutes; telegrams; letters; statements; cancelled 22 checks; contracts; invoices; drafts; books of account; worksheets; notes of 23 conversations; desk diaries; appointment books; expense accounts; recordings; 24 photographs; motion pictures; compilations from which information can be obtained 25 and translated into reasonably usable form through detection devices; sketches; 26 drawings; notes (including laboratory notebooks and records); reports; instructions; 27 disclosures; other writings; models and prototypes and other physical objects. 28 2 STIPULATED PROTECTIVE ORDER Case 3:21-cv-00758-GPC-BLM Document 33 Filed 02/24/22 PageID.323 Page 3 of 13 1 3. The term “counsel” will mean outside counsel of record, and other 2 attorneys, paralegals, secretaries, and other support staff employed in the law firms 3 identified below: 4 CUNNINGHAM SWAIM, LLP Attorneys for Plaintiff/Counterdefendants PROCOPIO, CORY, HARGREAVES & SAVITCH LLP Attorneys for Defendants/Counterclaimants ECKERT SEAMANS CHERIN & MELLOTT, LLC Attorneys for Defendants/Counterclaimants 5 6 7 8 9 10 11 12 “Counsel” also includes in-house attorneys, paralegals, secretaries, and other support staff for Plaintiff/Counterdefendants United States Aviation Underwriters Inc., individually and on behalf of United States Aircraft Insurance Group; Defendant/Counterclaimant Aerospike Iron, LLC; and Counterdefendants ACE American Insurance Company and National Liability & Fire Insurance Company. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GENERAL RULES 4. Each party to this litigation that produces or discloses any materials, answers to interrogatories, responses to requests for admission, trial testimony, deposition testimony, and transcripts of trial testimony and depositions, or information that the producing party believes should be subject to this Protective Order may designate the same as “CONFIDENTIAL” or “CONFIDENTIAL - FOR COUNSEL ONLY.” a. Designation as “CONFIDENTIAL”: Any party may designate information as “CONFIDENTIAL” only if, in the good faith belief of such party and its counsel, the unrestricted disclosure of such information could be potentially prejudicial to the business or operations of such party and/or such information is protected from disclosure by law or should be protected from disclosure as confidential personal information, medical information, trade secrets, personnel records, or such other sensitive information that is not publicly available. 27 28 3 STIPULATED PROTECTIVE ORDER Case 3:21-cv-00758-GPC-BLM Document 33 Filed 02/24/22 PageID.324 Page 4 of 13 1 b. Designation as “CONFIDENTIAL - FOR COUNSEL ONLY”: Any 2 party may designate information as “CONFIDENTIAL - FOR COUNSEL ONLY” 3 only if, in the good faith belief of such party and its counsel, the information is among 4 that considered to be most sensitive by the party, including but not limited to trade 5 secret or other confidential research, development, financial, or other personal or 6 commercial information. 7 5. In the event the producing party elects to produce materials for inspection, 8 no marking need be made by the producing party in advance of the initial inspection. 9 For purposes of the initial inspection, all materials produced will be considered as 10 “CONFIDENTIAL - FOR COUNSEL ONLY,” and must be treated as such pursuant 11 to the terms of this Order. Thereafter, upon selection of specified materials for copying 12 by the inspecting party, the producing party must, within a reasonable time prior to 13 producing those materials to the inspecting party, mark the copies of those materials 14 that contain confidential information with the appropriate confidentiality marking. 15 6. Whenever a deposition taken on behalf of any party involves a disclosure 16 of confidential information of any party: 17 a. the deposition or portions of the deposition must be designated as 18 containing confidential information subject to the provisions of this 19 Order; such designation must be made on the record whenever 20 possible, but a party may designate portions of depositions as 21 containing confidential information after transcription of the 22 proceedings; a party will have until fourteen (14) days after receipt 23 of the deposition transcript to inform the other party or parties to 24 the action of the portions of the transcript to be designated 25 “CONFIDENTIAL” or “CONFIDENTIAL - FOR COUNSEL 26 ONLY.” 27 28 4 STIPULATED PROTECTIVE ORDER Case 3:21-cv-00758-GPC-BLM Document 33 Filed 02/24/22 PageID.325 Page 5 of 13 b. 1 the disclosing party will have the right to exclude from attendance 2 at the deposition, during such time as the confidential information 3 is to be disclosed, any person other than the deponent, counsel 4 (including their staff and associates), the court reporter, and the 5 person(s) agreed upon pursuant to paragraph 9 below; and c. 6 the originals of the deposition transcripts and all copies of the 7 deposition must bear the legend “CONFIDENTIAL” or 8 “CONFIDENTIAL - FOR COUNSEL ONLY,” as appropriate, and 9 the original or any copy ultimately presented to a court for filing 10 must not be filed unless it can be accomplished under seal, 11 identified as being subject to this Order, and protected from being 12 opened except by order of this Court. 13 7. All confidential information designated as “CONFIDENTIAL” or 14 “CONFIDENTIAL - FOR COUNSEL ONLY” must not be disclosed by the receiving 15 party to anyone other than those persons designated within this Order and must be 16 handled in the manner set forth below and, in any event, must not be used for any 17 purpose other than in connection with this litigation, unless and until such designation 18 is removed either by agreement of the parties, or by order of the Court. 19 8. Information designated “CONFIDENTIAL - FOR COUNSEL ONLY” 20 must be viewed only by counsel (as defined in paragraph 3) of the receiving party. 21 9. The right of any independent expert to receive any information designated 22 as “CONFIDENTIAL” or “CONFIDENTIAL - FOR COUNSEL ONLY” will be 23 subject to their execution of the form attached hereto as Exhibit A, in advance of 24 providing any information designated as “CONFIDENTIAL” or “CONFIDENTIAL 25 FOR COUNSEL ONLY” information to the expert. 26 /// 27 /// 28 5 STIPULATED PROTECTIVE ORDER Case 3:21-cv-00758-GPC-BLM Document 33 Filed 02/24/22 PageID.326 Page 6 of 13 1 10. Information designated “CONFIDENTIAL” must be viewed only by 2 counsel (as defined in paragraph 3) of the receiving party, by independent experts 3 (pursuant to the terms of paragraph 9), by court personnel, and by the additional 4 individuals listed below, provided each such individual has read this Order in advance 5 of disclosure and has agreed in writing in the form attached hereto as Exhibit A to be 6 bound by its terms: a) 7 Executives who are required to participate in policy decisions with reference to this action; 8 b) 9 Technical personnel of the parties with whom counsel for the 10 parties find it necessary to consult, in the discretion of such 11 counsel, in preparation for trial of this action; c) 12 individuals identified above; and 13 d) 14 15 Stenographic and clerical employees associated with the 11. Any mediator. With respect to material designated “CONFIDENTIAL” or 16 “CONFIDENTIAL - FOR COUNSEL ONLY,” any person indicated on the face of 17 the document to be its originator, author or a recipient of a copy of the document, may 18 be shown the same. 19 12. All information which has been designated as “CONFIDENTIAL” or 20 “CONFIDENTIAL - FOR COUNSEL ONLY” by the producing or disclosing party, 21 and any and all reproductions of that information, must be retained in the custody of 22 the counsel for the receiving party identified in paragraph 3, except that independent 23 experts authorized to view such information under the terms of this Order may retain 24 custody of copies such as are necessary for their participation in this litigation. 25 /// 26 /// 27 /// 28 6 STIPULATED PROTECTIVE ORDER Case 3:21-cv-00758-GPC-BLM Document 33 Filed 02/24/22 PageID.327 Page 7 of 13 1 13. Filing Under Seal. Before any materials produced in discovery, answers 2 to interrogatories, responses to requests for admissions, deposition transcripts, or other 3 documents which are designated as confidential information are filed with the Court 4 for any purpose, the party seeking to file such material must seek permission of the 5 Court to file the material under seal. No document may be filed under seal, i.e., closed 6 to inspection by the public except pursuant to a Court order that authorizes the sealing 7 of the particular document, or portions of it. A sealing order may issue only upon a 8 showing that the information is privileged or protectable under the law. The request 9 must be narrowly tailored to seek sealing only of the confidential or privileged 10 material. To file a document under seal, the parties must comply with the procedures 11 explained in Section 2.j of the Electronic Case Filing Administrative Policies and 12 Procedures Manual for the United States District Court for the Southern District of 13 California and Civil Local Rule 79.2. In addition, in accordance with Judge Major’s 14 preferences, a party must file a “public” version of any document that it seeks to file 15 under seal. In the public version, the party may redact only that information that is 16 deemed “Confidential.” The party should file the redacted document(s) 17 simultaneously with a joint motion or ex parte application requesting that the 18 confidential portions of the document(s) be filed under seal and setting forth good 19 cause for the request. 20 14. At any stage of these proceedings, any party may object to a designation 21 of the materials as confidential information. The party objecting to confidentiality 22 must notify, in writing, counsel for the designating party of the objected-to materials 23 and the grounds for the objection. If the dispute is not resolved consensually between 24 the parties within seven (7) days of receipt of such a notice of objections, the objecting 25 party may move the Court for a ruling on the objection. The materials at issue must 26 be treated as confidential information, as designated by the designating party, until the 27 Court has ruled on the objection or the matter has been otherwise resolved. 28 7 STIPULATED PROTECTIVE ORDER Case 3:21-cv-00758-GPC-BLM Document 33 Filed 02/24/22 PageID.328 Page 8 of 13 1 15. All confidential information must be held in confidence by those 2 inspecting or receiving it, and must be used only for purposes of this action. Counsel 3 for each party, and each person receiving confidential information must take 4 reasonable precautions to prevent the unauthorized or inadvertent disclosure of such 5 information. If confidential information is disclosed to any person other than a person 6 authorized by this Order, the party responsible for the unauthorized disclosure must 7 immediately bring all pertinent facts relating to the unauthorized disclosure to the 8 attention of the other parties and, without prejudice to any rights and remedies of the 9 other parties, make every effort to prevent further disclosure by the party and by the 10 person(s) receiving the unauthorized disclosure. 11 16. No party will be responsible to another party for disclosure of confidential 12 information under this Order if the information in question is not labeled or otherwise 13 identified as such in accordance with this Order. 14 17. If a party, through inadvertence, produces any confidential information 15 without labeling or marking or otherwise designating it as such in accordance with this 16 Order, the designating party may give written notice to the receiving party that the 17 document or thing produced is deemed confidential information, and that the document 18 or thing produced should be treated as such in accordance with that designation under 19 this Order. The receiving party must treat the materials as confidential, once the 20 designating party so notifies the receiving party. If the receiving party has disclosed 21 the materials before receiving the designation, the receiving party must notify the 22 designating party in writing of each such disclosure. Counsel for the parties will agree 23 on a mutually acceptable manner of labeling or marking the inadvertently produced 24 materials as “CONFIDENTIAL” or “CONFIDENTIAL - FOR COUNSEL ONLY” 25 SUBJECT TO PROTECTIVE ORDER. 26 /// 27 /// 28 8 STIPULATED PROTECTIVE ORDER Case 3:21-cv-00758-GPC-BLM Document 33 Filed 02/24/22 PageID.329 Page 9 of 13 1 18. Nothing within this Order will prejudice the right of any party to object 2 to the production of any discovery material on the grounds that the material is protected 3 as privileged or as attorney work product. 4 19. Nothing in this Order will bar counsel from rendering advice to their 5 clients with respect to this litigation and, in the course thereof, relying upon any 6 information designated as confidential information, provided that the contents of the 7 information must not be disclosed. 8 20. This Order will be without prejudice to the right of any party to oppose 9 production of any information for lack of relevance or any other ground other than the 10 mere presence of confidential information. The existence of this Order must not be 11 used by either party as a basis for discovery that is otherwise improper under the 12 Federal Rules of Civil Procedure. 13 21. Nothing within this Order will be construed to prevent disclosure of 14 confidential information if such disclosure is required by law or by order of the Court. 15 If a party is served with a request, subpoena, or court order that would require 16 disclosure of any confidential information that is subject to this Order, the receiving 17 party must so notify the producing party (and, if not the same person or entity, the 18 designating party), in writing promptly and in no event more than ten (10) days after 19 receiving the request, subpoena, or order, or such shorter time as may be reasonably 20 necessary under the circumstances. Such notification must include a copy of the 21 request, subpoena, or order. The purpose of imposing this duty is to afford the 22 producing or designating party an opportunity to try to protect its confidentiality 23 interests in the forum from which the request, subpoena, or order issued. The 24 producing or designating party shall bear the burdens and the expenses of seeking 25 protection in that forum of its confidential information. Nothing in these provisions 26 should be construed as authorizing or encouraging a receiving party to disobey a lawful 27 directive from another court or tribunal. 28 9 STIPULATED PROTECTIVE ORDER Case 3:21-cv-00758-GPC-BLM Document 33 Filed 02/24/22 PageID.330 Page 10 of 13 1 22. Upon final termination of this action, including any and all appeals, 2 counsel for each party must, upon request of the producing party, return all confidential 3 information or certify that all confidential information has been destroyed. 4 Notwithstanding the foregoing, counsel for each party may retain all pleadings, briefs, 5 memoranda, motions, and other documents filed with the Court that refer to or 6 incorporate confidential information, and will continue to be bound by this Order with 7 respect to all such retained information. Further, attorney work product materials that 8 contain confidential information need not be destroyed, but, if they are not destroyed, 9 the person in possession of the attorney work product will continue to be bound by this 10 Order with respect to all such retained information. 11 23. 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 24. The restrictions and obligations within this Order will not be deemed to 20 prohibit discussions of any confidential information with anyone if that person already 21 has or obtains legitimate possession of that information. 22 25. Transmission by email or some other currently utilized method of 23 transmission is acceptable for all notification purposes within this Order. 24 26. This Order may be modified by agreement of the parties, subject to 25 approval by the Court. 26 /// 27 /// 28 10 STIPULATED PROTECTIVE ORDER Case 3:21-cv-00758-GPC-BLM Document 33 Filed 02/24/22 PageID.331 Page 11 of 13 1 27. Modification of the Protective Order by the Court. The Court may 2 modify the terms and conditions of this Order for good cause, or in the interest of 3 justice, or on its own order at any time in these proceedings. The parties respectfully 4 request that the Court provide them with notice of the Court’s intent to modify the 5 Order and the content of those modifications prior to entry of such an order, but 6 acknowledge that nothing in this Order entitles them to such notice. 7 28. Continuing Jurisdiction. The Court shall retain jurisdiction for a period 8 of one (1) year after conclusion of this action to enforce the terms of this Order. 9 IT IS SO ORDERED. 10 Dated: 2/24/2022 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 STIPULATED PROTECTIVE ORDER Case 3:21-cv-00758-GPC-BLM Document 33 Filed 02/24/22 PageID.332 Page 12 of 13 1 [Exhibit A] 2 UNITED STATES DISTRICT COURT 3 SOUTHERN DISTRICT OF CALIFORNIA 4 UNITED STATES AVIATION 5 UNDERWRITERS INC., individually and on behalf of United States Aircraft 6 Insurance Group, 7 Plaintiff/Counterdefendant, 8 9 v. 10 AEROSPIKE IRON, LLC, and 11 CHARLES BRANDES, 12 Defendants/Counterclaimants, 13 14 v. 15 ACE AMERICAN INSURANCE COMPANY and NATIONAL LIABILITY & FIRE INSURANCE 17 COMPANY, 16 18 Counterdefendants. 19 20 ) Case No. 3:21-cv-000758-GPC-BLM ) ) ) ) ) ) ) ) ) CONSENT TO BE BOUND BY ) STIPULATED PROTECTIVE ) ORDER ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) The undersigned hereby agrees, in accordance with the provisions of the 21 Stipulated Protective Order entered in the above-captioned lawsuit (the “Stipulated 22 Protective Order”), to be bound thereby, and further states that he or she has read the 23 Stipulated Protective Order and understands and agrees to the terms and conditions 24 thereof. The undersigned also agrees to submit to the jurisdiction of the above25 captioned court if an issue arises with regard to his or her compliance with the terms 26 of the Stipulated Protective Order. 27 28 12 STIPULATED PROTECTIVE ORDER Case 3:21-cv-00758-GPC-BLM Document 33 Filed 02/24/22 PageID.333 Page 13 of 13 1 Dated this ___ day of ____________________, 20___. 2 3 By:________________________________ 4 5 Print Name: _________________________ 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 STIPULATED PROTECTIVE ORDER
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