Timothy Cook v. Pro-Vigil Inc.

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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11 TIMOTHY COOK, an individual, Case No. 2-19-CV-02204-CJC-KS

12 [PROPOSED] ORDER RE:

STIPULATION AND PROTECTIVE

13 Plaintiff, ORDER PRECLUDING DISCLOSURE

vs. OF CONFIDENTIAL AND/OR

14 PROPRIETARY INFORMATION

PRO-VIGIL, INC., a Corporation;

15 JEREMY WHITE, in his individual and

official capacities; and Does 1 to 25,

16 inclusive,

17 Defendants

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1 The Court, having considered the Parties’ Stipulation and [Proposed] Protective

2 Order of Confidential and/or Proprietary Information, and for good cause shown:

3 B. GOOD CAUSE STATEMENT

4 The parties submit that good cause exists for the issuance of this Protective Order

5 for the reasons below.

6 Discovery obtained in the above-captioned action may involve disclosure of

7 confidential, proprietary, private, or commercially-sensitive or trade secret information.

8 For example:

9 a. personnel information, including compensation history, sales

10 performance, performance records, performance reviews, disciplinary

11 action and personal identification information (including Social Security

12 numbers, phone numbers and addresses) of Defendant’s current and

13 former employees;

14 b. information concerning Defendant’s compensation ranges or structures

15 for current and former employees and criteria for performance

16 evaluation;

17 c. information concerning Defendant’s employee payment structures and

18 incentive compensation plans, including but not limited to the calculation

19 of commissions and other incentive payments to Defendant’s current and

20 former employees;

21 d. information pertaining to Defendant’s clients, including but not limited to

22 contact information of clients and amounts charged for goods and

23 services;

24 e. information and materials related to Defendant’s sales and marketing

25 efforts;

26 f. proprietary and confidential financial information relating to Defendant.

27 Disclosure of this information to persons who are not entitled to it carries the

28 danger of compromising the competitive business interests of Defendant and also risks

1 invasion of legitimate personal privacy interests of Defendant’s current and former

2 employees.

3 Defendant anticipates that it may need to produce material that contains proprietary

4 information concerning its business practices and procedures for the operation of its

5 business that may be of value to competitors or may cause harm to its legitimate business

6 interests in the marketplace.

7 Defendant further anticipates that it may need to produce information concerning

8 Plaintiff as well as current and former employees of Defendant that is personal in nature

9 or protected by the right of privacy.

10 The issuance of this Protective Order will allow for efficiency in the discovery

11 process and provide a mechanism by which discovery of relevant confidential,

12 proprietary, private, or commercially-sensitive, or trade secret information may be

13 obtained in a manner that protects against risk of disclosure of such information to

14 persons not entitled to such information.

15 The issuance of this Protective Order will protect the parties’ interests by providing

16 the parties recourse in this Court in the event that a party or non-party improperly handles

17 confidential, proprietary, private, commercially-sensitive, or trade secret information that

18 the parties have exchanged in the course of discovery propounded and depositions taken

19 in this action.

20 2. DEFINITIONS

21 2.1 Action: Timothy Cook v. Pro-Vigil, Inc., et al.

22 2.2 Challenging Party: a Party or Non-Party that challenges the

23 designation of information or items under this Order.

24 2.3 “CONFIDENTIAL” Information or Items: information (regardless of how it is

25 generated, stored or maintained) or tangible things that qualify for protection under

26 Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause

27 Statement.

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1 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as

2 their support staff).

3 2.5 Designating Party: a Party or Non-Party that designates information or

4 items that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.”

5 2.6 Disclosure or Discovery Material: all items or information, regardless

6 of the medium or manner in which it is generated, stored, or maintained (including,

7 among other things, testimony, transcripts, and tangible things), that are produced or

8 generated in disclosures or responses to discovery in this matter.

9 2.7 Expert: a person with specialized knowledge or experience in a matter

10 pertinent to the litigation who has been retained by a Party or its counsel to serve as an

11 expert witness or as a consultant in this Action.

12 2.8 House Counsel: attorneys who are employees of a party to this Action.

13 House Counsel does not include Outside Counsel of Record or any other outside counsel.

14 2.9 Non-Party: any natural person, partnership, corporation, association, or other

15 legal entity not named as a Party to this action.

16 2.10 Outside Counsel of Record: attorneys who are not employees of a party to this

17 Action but are retained to represent or advise a party to this Action and have appeared in

18 this Action on behalf of that party or are affiliated with a law firm which has appeared on

19 behalf of that party, and includes support staff.

20 2.11 Party: any party to this Action, including all of its officers, directors,

21 employees, consultants, retained experts, and Outside Counsel of Record (and their

22 support staffs).

23 2.12 Producing Party: a Party or Non-Party that produces Disclosure or Discovery

24 Material in this Action.

25 2.13 Professional Vendors: persons or entities that provide litigation support

26 services (e.g., photocopying, videotaping, translating, preparing exhibits or

27 demonstrations, and organizing, storing, or retrieving data in any form or medium) and

28 their employees and subcontractors.

1 2.14 Protected Material: any Disclosure or Discovery Material that is designated as

2 “CONFIDENTIAL.”

3 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material from

4 a Producing Party.

5 3. SCOPE

6 The protections conferred by this Stipulation and Order cover not only Protected

7 Material (as defined above), but also (1) any information copied or extracted from

8 Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected

9 Material; and (3) any testimony, conversations, or presentations by Parties or their

10 Counsel that might reveal Protected Material.

11 Any use of Protected Material at trial shall be governed by the orders of the trial

12 judge. This Order does not govern the use of Protected Material at trial.

13 4. DURATION

14 Once a case proceeds to trial, all of the information that was designated as

15 confidential or maintained pursuant to this protective order becomes public and will be

16 presumptively available to all members of the public, including the press, unless

17 compelling reasons supported by specific factual findings to proceed otherwise are made

18 to the trial judge in advance of the trial. See Kamakana v. City and County of Honolulu,

19 447 F.3d 1172, 1180-81 (9th Cir. 2006) (distinguishing “good cause” showing for sealing

20 documents produced in discovery from “compelling reasons” standard when merits-

21 related documents are part of court record). Accordingly, the terms of this protective

22 order do not extend beyond the commencement of the trial.

23 5. DESIGNATING PROTECTED MATERIAL

24 5.1 Exercise of Restraint and Care in Designating Material for Protection.

25 Each Party or Non-Party that designates information or items for protection under this

26 Order must take care to limit any such designation to specific material that qualifies

27 under the appropriate standards. The Designating Party must designate for protection

28 only those parts of material, documents, items, or oral or written communications that

1 qualify so that other portions of the material, documents, items, or communications for

2 which protection is not warranted are not swept unjustifiably within the ambit of this

3 Order.

4 Mass, indiscriminate, or routinized designations are prohibited. Designations that

5 are shown to be clearly unjustified or that have been made for an improper purpose (e.g.,

6 to unnecessarily encumber the case development process or to impose unnecessary

7 expenses and burdens on other parties) may expose the Designating Party to sanctions.

8 If it comes to a Designating Party’s attention that information or items that it

9 designated for protection do not qualify for protection, that Designating Party must

10 promptly notify all other Parties that it is withdrawing the inapplicable designation.

11 5.2 Manner and Timing of Designations. Except as otherwise provided in

12 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated

13 or ordered, Disclosure or Discovery Material that qualifies for protection under this Order

14 must be clearly so designated before the material is disclosed or produced.

15 Designation in conformity with this Order requires:

16 (a) for information in documentary form (e.g., paper or electronic documents,

17 but excluding transcripts of depositions or other pretrial or trial proceedings), that the

18 Producing Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter

19 “CONFIDENTIAL legend”), to each page that contains protected material. If only a

20 portion or portions of the material on a page qualifies for protection, the Producing Party

21 also must clearly identify the protected portion(s) (e.g., by making appropriate markings

22 in the margins).

23 A Party or Non-Party that makes original documents available for inspection need

24 not designate them for protection until after the inspecting Party has indicated which

25 documents it would like copied and produced. During the inspection and before the

26 designation, all of the material made available for inspection shall be deemed

27 “CONFIDENTIAL.” After the inspecting Party has identified the documents it wants

28 copied and produced, the Producing Party must determine which documents, or portions

1 thereof, qualify for protection under this Order. Then, before producing the specified

2 documents, the Producing Party must affix the “CONFIDENTIAL legend” to each page

3 that contains Protected Material. If only a portion or portions of the material on a page

4 qualifies for protection, the Producing Party also must clearly identify the protected

5 portion(s) (e.g., by making appropriate markings in the margins).

6 (b) for testimony given in depositions that the Designating Party identify the

7 Disclosure or Discovery Material on the record, before the close of the deposition all

8 protected testimony.

9 (c) for information produced in some form other than documentary and for any

10 other tangible items, that the Producing Party affix in a prominent place on the exterior of

11 the container or containers in which the information is stored the legend

12 “CONFIDENTIAL.” If only a portion or portions of the information warrants protection,

13 the Producing Party, to the extent practicable, shall identify the protected portion(s).

14 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure

15 to designate qualified information or items does not, standing alone, waive the

16 Designating Party’s right to secure protection under this Order for such material. Upon

17 timely correction of a designation, the Receiving Party must make reasonable efforts to

18 assure that the material is treated in accordance with the provisions of this Order.

19 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS

20 6.1 Timing of Challenges. Any Party or Non-Party may challenge a

21 designation of confidentiality at any time that is consistent with the Court’s

22 Scheduling Order.

23 6.2 Meet and Confer. The Challenging Party shall initiate the dispute

24 resolution process under Local Rule 37.1 et seq.

25 6.3 The burden of persuasion in any such challenge proceeding shall be on the

26 Designating Party. Frivolous challenges, and those made for an improper purpose (e.g.,

27 to harass or impose unnecessary expenses and burdens on other parties) may expose the

28 Challenging Party to sanctions. Unless the Designating Party has waived or withdrawn

1 the confidentiality designation, all parties shall continue to afford the material in

2 question the level of protection to which it is entitled under the Producing Party’s

3 designation until the Court rules on the challenge.

4 7. ACCESS TO AND USE OF PROTECTED MATERIAL

5 7.1 Basic Principles. A Receiving Party may use Protected Material that is

6 disclosed or produced by another Party or by a Non-Party in connection with this Action

7 only for prosecuting, defending, or attempting to settle this Action. Such Protected

8 Material may be disclosed only to the categories of persons and under the conditions

9 described in this Order. When the Action has been terminated, a Receiving Party must

10 comply with the provisions of section 13 below (FINAL DISPOSITION).

11 Protected Material must be stored and maintained by a Receiving Party at a

12 location and in a secure manner that ensures that access is limited to the persons

13 authorized under this Order.

14 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

15 ordered by the Court or permitted in writing by the Designating Party, a Receiving

16 Party may disclose any information or item designated “CONFIDENTIAL” only to:

17 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well as

18 employees of said Outside Counsel of Record to whom it is reasonably necessary to

19 disclose the information for this Action;

20 (b) officers, directors, and employees (including House Counsel) of the

21 Receiving Party to whom disclosure is reasonably necessary for this Action;

22 (c) Experts (as defined in this Order) of the Receiving Party to whom

23 disclosure is reasonably necessary for this Action and who have signed the

24 “Acknowledgment and Agreement to Be Bound” (Exhibit A);

25 (d) the Court and its personnel;

26 (e) Court reporters and their staff;

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1 (f) professional jury or trial consultants, mock jurors, and Professional

2 Vendors to whom disclosure is reasonably necessary for this Action and who have signed

3 the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

4 (g) the author or recipient of a document containing the information or a

5 custodian or other person who otherwise possessed or knew the information;

6 (h) during their depositions, witnesses ,and attorneys for witnesses, in the

7 Action to whom disclosure is reasonably necessary provided: (1) the deposing party

8 requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will not

9 be permitted to keep any confidential information unless they sign the “Acknowledgment

10 and Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the Designating

11 Party or ordered by the Court. Pages of transcribed deposition testimony or exhibits to

12 depositions that reveal Protected Material may be separately bound by the Court reporter

13 and may not be disclosed to anyone except as permitted under this Stipulated Protective

14 Order; and

15 (i) any mediator or settlement officer, and their supporting personnel,

16 mutually agreed upon by any of the parties engaged in settlement discussions.

17 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

18 OTHER LITIGATION

19 If a Party is served with a subpoena or a court order issued in other litigation that

20 compels disclosure of any information or items designated in this Action as

21 “CONFIDENTIAL,” that Party must:

22 (a) promptly notify in writing the Designating Party. Such notification shall

23 include a copy of the subpoena or court order;

24 (b) promptly notify in writing the party who caused the subpoena or order to

25 issue in the other litigation that some or all of the material covered by the subpoena or

26 order is subject to this Protective Order. Such notification shall include a copy of this

27 Stipulated Protective Order; and

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1 (c) cooperate with respect to all reasonable procedures sought to be pursued by

2 the Designating Party whose Protected Material may be affected.

3 If the Designating Party timely seeks a protective order, the Party served with the

4 subpoena or court order shall not produce any information designated in this action as

5 “CONFIDENTIAL” before a determination by the court from which the subpoena or

6 order issued, unless the Party has obtained the Designating Party’s permission. The

7 Designating Party shall bear the burden and expense of seeking protection in that court

8 of its confidential material and nothing in these provisions should be construed as

9 authorizing or encouraging a Receiving Party in this Action to disobey a lawful directive

10 from another court.

11 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN

12 THIS LITIGATION

13 (a) The terms of this Order are applicable to information produced by a Non-

14 Party in this Action and designated as “CONFIDENTIAL.” Such information produced

15 by Non-Parties in connection with this litigation is protected by the remedies and relief

16 provided by this Order. Nothing in these provisions should be construed as prohibiting a

17 Non-Party from seeking additional protections.

18 (b) In the event that a Party is required, by a valid discovery request, to

19 produce a Non-Party’s confidential information in its possession, and the Party is subject

20 to an agreement with the Non-Party not to produce the Non-Party’s confidential

21 information, then the Party shall:

22 (1) promptly notify in writing the Requesting Party and the Non-Party that

23 some or all of the information requested is subject to a confidentiality agreement with a

24 Non-Party;

25 (2) promptly provide the Non-Party with a copy of the Stipulated

26 Protective Order in this Action, the relevant discovery request(s), and a reasonably

27 specific description of the information requested; and

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1 (3) make the information requested available for inspection by the Non-

2 Party, if requested.

3 (c) If the Non-Party fails to seek a protective order from this Court within 14

4 days of receiving the notice and accompanying information, the Receiving Party may

5 produce the Non-Party’s confidential information responsive to the discovery request. If

6 the Non-Party timely seeks a protective order, the Receiving Party shall not produce any

7 information in its possession or control that is subject to the confidentiality agreement

8 with the Non-Party before a determination by the court. Absent a court order to the

9 contrary, the Non-Party shall bear the burden and expense of seeking protection in this

10 Court of its Protected Material.

11 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

12 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

13 Protected Material to any person or in any circumstance not authorized under this

14 Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing

15 the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve

16 all unauthorized copies of the Protected Material, (c) inform the person or persons to

17 whom unauthorized disclosures were made of all the terms of this Order, and (d) request

18 such person or persons to execute the “Acknowledgment and Agreement to Be Bound”

19 that is attached hereto as Exhibit A.

20 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

21 PROTECTED MATERIAL

22 When a Producing Party gives notice to Receiving Parties that certain inadvertently

23 produced material is subject to a claim of privilege or other protection, the obligations of

24 the Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B).

25 This provision is not intended to modify whatever procedure may be established in an e-

26 discovery order that provides for production without prior privilege review. Pursuant to

27 Federal Rule of Evidence 502(d) and (e), insofar as the parties reach an agreement on the

28 effect of disclosure of a communication or information covered by the attorney-client

1 privilege or work product protection, the parties may incorporate their agreement in the

2 stipulated protective order submitted to the Court.

3 12. MISCELLANEOUS

4 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person

5 to seek its modification by the Court in the future.

6 12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective

7 Order no Party waives any right it otherwise would have to object to disclosing or

8 producing any information or item on any ground not addressed in this Stipulated

9 Protective Order. Similarly, no Party waives any right to object on any ground to use in

10 evidence of any of the material covered by this Protective Order.

11 12.3 Filing Protected Material. A Party that seeks to file under seal any Protected

12 Material must comply with Civil Local Rule 79-5. Protected Material may only be filed

13 under seal pursuant to a court order authorizing the sealing of the specific Protected

14 Material at issue. If a Party's request to file Protected Material under seal is denied by the

15 Court, then the Receiving Party may file the information in the public record unless

16 otherwise instructed by the Court.

17 13. FINAL DISPOSITION

18 After the final disposition of this Action, as defined in paragraph 4, within 60 days

19 of a written request by the Designating Party, each Receiving Party must return all

20 Protected Material to the Producing Party or destroy such material. As used in this

21 subdivision, “all Protected Material” includes all copies, abstracts, compilations,

22 summaries, and any other format reproducing or capturing any of the Protected Material.

23 Whether the Protected Material is returned or destroyed, the Receiving Party must submit

24 a written certification to the Producing Party (and, if not the same person or entity, to the

25 Designating Party) by the 60 day deadline that (1) identifies (by category, where

26 appropriate) all the Protected Material that was returned or destroyed and (2)affirms that

27 the Receiving Party has not retained any copies, abstracts, compilations, summaries or

28 any other format reproducing or capturing any of the Protected Material. Notwithstanding

1 provision, Counsel are entitled to retain an archival copy of all pleadings, motion

2 |/papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence,

3 || deposition and trial exhibits, expert reports, attorney work product, and consultant and

4 || expert work product, even if such materials contain Protected Material. Any such archival

5 |/copies that contain or constitute Protected Material remain subject to this Protective

6 || Order as set forth in Section 4 (DURATION).

Any violation of this Order may be punished by any and all appropriate measures

8 including, without limitation, contempt proceedings and/or monetary sanctions.

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10 Having reviewed the foregoing Protective Order, and for good cause shown, the

11 |] Court hereby makes the Protective Order an Order of the Court.

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13 IT SO ORDERED.

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15 Dated: October 25, 2019 9 acen d: Ke AS □□□

16 UNITED STATES MAGISTRATE JUDGE

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Case No. 2-19-CV-02204-CJC-KS 13 ORDER RE: STIPULATION AND

PROTECTIVE ORDER PRECLUDING

1 EXHIBIT A

2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3 I, [print or type full name], of

4 ___________________ [print or type full address], declare under penalty of perjury

5 that I have read in its entirety and understand the Stipulated Protective Order that was

6 issued by the United States District Court for the Central District of California

7 on [date] in the case of Timothy Cook, v. Pro-Vigil, Inc., et al. (USDC Case No. 2-19-cv-

8 02204-CJC-KS. 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 the

15 Central District of California for the purpose of enforcing the terms of this Stipulated

16 Protective Order, even if such enforcement proceedings occur after

17 termination of this action. I hereby appoint ____________________________ [print

18 or type full name] of ________________________________________ [print or type

19 full address and telephone number] as my California agent for service of process in

20 connection with this action or any proceedings related to enforcement of this Stipulated

21 Protective Order.

22 Date: ______________________________________

23 City and State where sworn and signed: ________________________________

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25 Printed name:

26 Signature:

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