Kenny Nolan v. Sony ATV Music Publishing LLC

1 NEVILLE L. JOHNSON (Bar No. 66329)

njohnson@jjllplaw.com

2 DOUGLAS L. JOHNSON (Bar No. 209216)

djohnson@jjllplaw.com

3 DANIEL B. LIFSCHITZ (Bar No. 285068)

dlifschitz@jjllplaw.com

4 JOHNSON & JOHNSON LLP

439 N. Canon Drive, Suite 200

5 Beverly Hills, California 90210

Telephone: (310) 975-1080

6 Facsimile: (310) 975-1095

7 Attorneys for Plaintiff KENNY NOLAN

8 BARRY I. SLOTNICK (pro hac vice) DONALD A. MILLER (SBN 228753)

bslotnick@loeb.com dmiller@loeb.com

9 CHRISTIAN D. CARBONE (pro hac vice) LOEB & LOEB LLP

ccarbone@loeb.com 10100 Santa Monica Blvd., Suite 2200

10 LOEB & LOEB LLP Los Angeles, CA 90067

345 Park Avenue Telephone: 310.282.2000

11 New York, NY 10154-1895 Facsimile: 310.282.2200

Telephone: 212.407.4000

12 Facsimile: 212.407.4990

13 Attorneys for Defendants Sony/ATV Music

Publishing LLC, Stone Diamond Music Corp., EMI

14 April Music Inc., EMI Blackwood Music Inc.

15

UNITED STATES DISTRICT COURT

16 CENTRAL DISTRICT OF CALIFORNIA

17 KENNY NOLAN dba SOUND OF CASE NO. 19-cv-02819 JFW (RAOx)

NOLAN MUSIC and dba KENNY

18

NOLAN PUBLISHING,

19 STIPULATED PROTECTIVE

ORDER1

Plaintiff,

20

21 vs.

22

SONY/ATV MUSIC PUBLISHING

23 LLC, et al.;

24

Defendants

25

26

27 1 This Stipulated Protective Order is substantially based on the model protective

order provided under Magistrate Judge Rozella A. Oliver’s Procedures.

1 1. A. PURPOSES AND LIMITATIONS

2 Discovery in this action is likely to involve production of confidential,

3 proprietary or private information for which special protection from public

4 disclosure and from use for any purpose other than prosecuting this litigation may

5 be warranted. Accordingly, the parties hereby stipulate to and petition the Court to

6 enter the following Stipulated Protective Order. The parties acknowledge that this

7 Order does not confer blanket protections on all disclosures or responses to

8 discovery and that the protection it affords from public disclosure and use extends

9 only to the limited information or items that are entitled to confidential treatment

10 under the applicable legal principles.

11 B. GOOD CAUSE STATEMENT

12 This action is likely to involve trade secrets, customer and pricing lists and

13 other valuable research, development, commercial, financial, technical and/or

14 proprietary information for which special protection from public disclosure and

15 from use for any purpose other than prosecution of this action is warranted. Such

16 confidential and proprietary materials and information consist of, among other

17 things, confidential business or financial information, information regarding

18 confidential business practices, or other confidential research, development, or

19 commercial information (including information implicating privacy rights of third

20 parties), information otherwise generally unavailable to the public, or which may be

21 privileged or otherwise protected from disclosure under state or federal statutes,

22 court rules, case decisions, or common law. Accordingly, to expedite the flow of

23 information, to facilitate the prompt resolution of disputes over confidentiality of

24 discovery materials, to adequately protect information the parties are entitled to keep

25 confidential, to ensure that the parties are permitted reasonable necessary uses of

26 such material in preparation for and in the conduct of trial, to address their handling

27 at the end of the litigation, and serve the ends of justice, a protective order for such

1 will not be designated as confidential for tactical reasons and that nothing be so

2 designated without a good faith belief that it has been maintained in a confidential,

3 non-public manner, and there is good cause why it should not be part of the public

4 record of this case.

5 C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER

6 SEAL

7 The parties further acknowledge, as set forth in Section 12.3, below, that this

8 Stipulated Protective Order does not entitle them to file confidential information

9 under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed

10 and the standards that will be applied when a party seeks permission from the court

11 to file material under seal.

12 There is a strong presumption that the public has a right of access to judicial

13 proceedings and records in civil cases. In connection with non-dispositive motions,

14 good cause must be shown to support a filing under seal. See Kamakana v. City and

15 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors

16 Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics,

17 Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders

18 require good cause showing), and a specific showing of good cause or compelling

19 reasons with proper evidentiary support and legal justification, must be made with

20 respect to Protected Material that a party seeks to file under seal. The parties’ mere

21 designation of Disclosure or Discovery Material as CONFIDENTIAL does not—

22 without the submission of competent evidence by declaration, establishing that the

23 material sought to be filed under seal qualifies as confidential, privileged, or

24 otherwise protectable—constitute good cause.

25 Further, if a party requests sealing related to a dispositive motion or trial, then

26 compelling reasons, not only good cause, for the sealing must be shown, and the

27 relief sought shall be narrowly tailored to serve the specific interest to be protected.

1 each item or type of information, document, or thing sought to be filed or introduced

2 under seal in connection with a dispositive motion or trial, the party seeking

3 protection must articulate compelling reasons, supported by specific facts and legal

4 justification, for the requested sealing order. Again, competent evidence supporting

5 the application to file documents under seal must be provided by declaration.

6 Any document that is not confidential, privileged, or otherwise protectable in

7 its entirety will not be filed under seal if the confidential portions can be redacted. If

8 documents can be redacted, then a redacted version for public viewing, omitting

9 only the confidential, privileged, or otherwise protectable portions of the document,

10 shall be filed. Any application that seeks to file documents under seal in their

11 entirety should include an explanation of why redaction is not feasible.

12

13 2. DEFINITIONS

14 2.1 Action: Kenny Nolan v. Sony/ATV Music Publishing LLC, et al.,

15 Central District of California Case No. 19-cv-02819 JFW (RAOx).

16 2.2 Challenging Party: a Party or Non-Party that challenges the designation

17 of information or items under this Order.

18 2.3 “CONFIDENTIAL” Information or Items: information (regardless of

19 how it is generated, stored or maintained) or tangible things that qualify for

20 protection under Federal Rule of Civil Procedure 26(c), and as specified above in

21 the Good Cause Statement.

22 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as

23 their support staff).

24 2.5 Designating Party: a Party or Non-Party that designates information or

25 items that it produces in disclosures or in responses to discovery as

26 “CONFIDENTIAL.”

27 2.6 Disclosure or Discovery Material: all items or information, regardless

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

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

3 2.7 Expert: a person with specialized knowledge or experience in a matter

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

5 an expert witness or as a consultant in this Action.

6 2.8 House Counsel: attorneys who are employees of a Party to this Action

7 or a Party’s affiliate. House Counsel does not include Outside Counsel of Record or

8 any other outside counsel.

9 2.9 Non-Party: any natural person, partnership, corporation, association or

10 other legal entity not named as a Party to this action.

11 2.10 Outside Counsel of Record: attorneys who are not employees of a party

12 to this Action but are retained to represent or advise a party to this Action and have

13 appeared in this Action on behalf of that party or are affiliated with a law firm that

14 has appeared on behalf of that party, and includes support staff.

15 2.11 Party: any party to this Action, including all of its officers, directors,

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

17 support staffs).

18 2.12 Producing Party: a Party or Non-Party that produces Disclosure or

19 Discovery Material in this Action.

20 2.13 Professional Vendors: persons or entities that provide litigation support

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

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

23 and their employees and subcontractors.

24 2.14 Protected Material: any Disclosure or Discovery Material that is

25 designated as “CONFIDENTIAL.”

26 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material

27 from a Producing Party.

1 3. SCOPE

2 The protections conferred by this Stipulation and Order cover not only

3 Protected Material (as defined above), but also (1) any information copied or

4 extracted from Protected Material; (2) all copies, excerpts, summaries, or

5 compilations of Protected Material; and (3) any testimony, conversations, or

6 presentations by Parties or their Counsel that might reveal Protected Material.

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

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

9

10 4. DURATION

11 Once a case proceeds to trial, information that was designated as

12 CONFIDENTIAL or maintained pursuant to this protective order used or introduced

13 as an exhibit at trial becomes public and will be presumptively available to all

14 members of the public, including the press, unless compelling reasons supported by

15 specific factual findings to proceed otherwise are made to the trial judge in advance

16 of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause”

17 showing for sealing documents produced in discovery from “compelling reasons”

18 standard when merits-related documents are part of court record). Accordingly, the

19 terms of this protective order do not extend beyond the commencement of the trial.

20

21 5. DESIGNATING PROTECTED MATERIAL

22 5.1 Exercise of Restraint and Care in Designating Material for Protection.

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

24 this Order must take care to limit any such designation to specific material that

25 qualifies under the appropriate standards. The Designating Party must designate for

26 protection only those parts of material, documents, items or oral or written

27 communications that qualify so that other portions of the material, documents, items

1 or communications for which protection is not warranted are not swept unjustifiably

2 within the ambit of this Order.

3 Mass, indiscriminate or routinized designations are prohibited. Designations

4 that are shown to be clearly unjustified or that have been made for an improper

5 purpose (e.g., to unnecessarily encumber the case development process or to impose

6 unnecessary expenses and burdens on other parties) may expose the Designating

7 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

13 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection

14 under this Order must be clearly so designated before the material is disclosed or

15 produced.

16 Designation in conformity with this Order requires:

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

18 documents, but excluding transcripts of depositions or other pretrial or trial

19 proceedings), that the Producing Party affix at a minimum, the legend

20 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page

21 that contains protected material. If only a portion of the material on a page

22 qualifies for protection, the Producing Party also must clearly identify the

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

24 A Party or Non-Party that makes original documents available for

25 inspection need not designate them for protection until after the inspecting

26 Party has indicated which documents it would like copied and produced.

27 During the inspection and before the designation, all of the material made

1 inspecting Party has identified the documents it wants copied and produced,

2 the Producing Party must determine which documents, or portions thereof,

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

4 documents, the Producing Party must affix the “CONFIDENTIAL legend” to

5 each page that contains Protected Material. If only a portion of the material on

6 a page qualifies for protection, the Producing Party also must clearly identify

7 the protected portion(s) (e.g., by making appropriate markings in the

8 margins).

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

10 identifies the Disclosure or Discovery Material on the record, before the close

11 of the deposition all protected testimony.

12 (c) for information produced in some form other than documentary

13 and for any other tangible items, that the Producing Party affix in a prominent

14 place on the exterior of the container or containers in which the information is

15 stored the legend “CONFIDENTIAL.” If only a portion or portions of the

16 information warrants protection, the Producing Party, to the extent

17 practicable, shall identify the protected portion(s).

18 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent

19 failure to designate qualified information or items does not, standing alone, waive

20 the Designating Party’s right to secure protection under this Order for such material.

21 Upon timely correction of a designation, the Receiving Party must make reasonable

22 efforts to assure that the material is treated in accordance with the provisions of this

23 Order.

24

25 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS

26 6.1 Timing of Challenges. Any Party or Non-Party may challenge a

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

1 6.2 Meet and Confer. The Challenging Party shall initiate the dispute

2 resolution process under Local Rule 37.1 et seq.

3 6.3 The burden of persuasion in any such challenge proceeding shall be on

4 the Designating Party. Frivolous challenges, and those made for an improper

5 purpose (e.g., to harass or impose unnecessary expenses and burdens on other

6 parties) may expose the Challenging Party to sanctions. Unless the Designating

7 Party has waived or withdrawn the confidentiality designation, all parties shall

8 continue to afford the material in question the level of protection to which it is

9 entitled under the Producing Party’s designation until the Court rules on the

10 challenge.

11

12 7. ACCESS TO AND USE OF PROTECTED MATERIAL

13 7.1 Basic Principles. A Receiving Party may use Protected Material that is

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

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

16 Protected Material may be disclosed only to the categories of persons and under the

17 conditions described in this Order. When the Action has been terminated, a

18 Receiving Party must comply with the provisions of section 13 below (FINAL

19 DISPOSITION). Protected Material must be stored and maintained by a Receiving

20 Party at a location and in a secure manner that ensures that access is limited to the

21 persons authorized under this Order.

22 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless

23 otherwise ordered by the court or permitted in writing by the Designating Party, a

24 Receiving Party may disclose any information or item designated

25 “CONFIDENTIAL” only to:

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

27 as well as employees of said Outside Counsel of Record to whom it is

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

2 of the Receiving Party to whom disclosure is reasonably necessary for this

3 Action;

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

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

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

7 (d) the court and its personnel;

8 (e) court reporters and their staff;

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

10 Professional Vendors to whom disclosure is reasonably necessary for this

11 Action and who have signed the “Acknowledgment and Agreement to Be

12 Bound” (Exhibit A);

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

14 or a custodian or other person who otherwise possessed or knew the

15 information;

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

17 the Action to whom disclosure is reasonably necessary provided: (1) the

18 deposing party requests that the witness sign the form attached as Exhibit 1

19 hereto; and (2) they will not be permitted to keep any confidential information

20 unless they sign the “Acknowledgment and Agreement to Be Bound” (Exhibit

21 A), unless otherwise agreed by the Designating Party or ordered by the court.

22 Pages of transcribed deposition testimony or exhibits to depositions that

23 reveal Protected Material may be separately bound by the court reporter and

24 may not be disclosed to anyone except as permitted under this Stipulated

25 Protective Order; and

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

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

1 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

2 IN OTHER LITIGATION

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

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

5 “CONFIDENTIAL,” that Party must:

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

7 shall include a copy of the subpoena or court order;

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

9 to issue in the other litigation that some or all of the material covered by the

10 subpoena or order is subject to this Protective Order. Such notification shall include

11 a copy of this Stipulated Protective Order; and

12 (c) cooperate with respect to all reasonable procedures sought to be

13 pursued by the Designating Party whose Protected Material may be affected. If the

14 Designating Party timely seeks a protective order, the Party served with the

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

16 as “CONFIDENTIAL” before a determination by the court from which the

17 subpoena or order issued, unless the Party has obtained the Designating Party’s

18 permission. The Designating Party shall bear the burden and expense of seeking

19 protection in that court of its confidential material and nothing in these provisions

20 should be construed as authorizing or encouraging a Receiving Party in this Action

21 to disobey a lawful directive from another court.

22

23 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

24 PRODUCED IN THIS LITIGATION

25 (a) The terms of this Order are applicable to information produced by a

26 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information

27 produced by Non-Parties in connection with this litigation is protected by the

1 remedies and relief provided by this Order. Nothing in these provisions should be

2 construed as prohibiting a Non-Party from seeking additional protections.

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

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

5 subject to an agreement with the Non-Party not to produce the Non-Party’s

6 confidential information, then the Party shall:

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

8 Party that some or all of the information requested is subject to a

9 confidentiality agreement with a Non-Party;

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

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

12 reasonably specific description of the information requested; and

13 (3) make the information requested available for inspection by the

14 Non-Party, if requested.

15 (c) If the Non-Party fails to seek a protective order from this court within

16 14 days of receiving the notice and accompanying information, the Receiving Party

17 may produce the Non-Party’s confidential information responsive to the discovery

18 request. If the Non-Party timely seeks a protective order, the Receiving Party shall

19 not produce any information in its possession or control that is subject to the

20 confidentiality agreement with the Non-Party before a determination by the court.

21 Absent a court order to the contrary, the Non-Party shall bear the burden and

22 expense of seeking protection in this court of its Protected Material.

23

24 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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

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

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

1 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or

2 persons to whom unauthorized disclosures were made of all the terms of this Order,

3 and (d) request such person or persons to execute the “Acknowledgment and

4 Agreement to Be Bound” that is attached hereto as Exhibit A.

5

6 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

7 PROTECTED MATERIAL

8 When a Producing Party gives notice to Receiving Parties that certain

9 inadvertently produced material is subject to a claim of privilege or other protection,

10 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil

11 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure

12 may be established in an e-discovery order that provides for production without

13 prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar

14 as the parties reach an agreement on the effect of disclosure of a communication or

15 information covered by the attorney-client privilege or work product protection, the

16 parties may incorporate their agreement in the stipulated protective order submitted

17 to the court.

18

19 12. MISCELLANEOUS

20 12.1 Right to Further Relief. Nothing in this Order abridges the right of any

21 person to seek its modification by the Court in the future.

22 12.2 Right to Assert Other Objections. By stipulating to the entry of this

23 Protective Order, no Party waives any right it otherwise would have to object to

24 disclosing or producing any information or item on any ground not addressed in this

25 Stipulated Protective Order. Similarly, no Party waives any right to object on any

26 ground to use in evidence of any of the material covered by this Protective

27 Order.

1 12.3 Filing Protected Material. A Party that seeks to file under seal any

2 Protected Material must comply with Local Civil Rule 79-5. Protected Material may

3 only be filed under seal pursuant to a court order authorizing the sealing of the

4 specific Protected Material at issue. If a Party’s request to file Protected Material

5 under seal is denied by the court, then the Receiving Party may file the

6 information in the public record unless otherwise instructed by the court.

7

8 13. FINAL DISPOSITION

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

10 days of a written request by the Designating Party, each Receiving Party must return

11 all Protected Material to the Producing Party or destroy such material. As used in

12 this subdivision, “all Protected Material” includes all copies, abstracts, compilations,

13 summaries, and any other format reproducing or capturing any of the Protected

14 Material. Whether the Protected Material is returned or destroyed, the Receiving

15 Party must submit a written certification to the Producing Party (and, if not the same

16 person or entity, to the Designating Party) by the 60 day deadline that (1) identifies

17 (by category, where appropriate) all the Protected Material that was returned or

18 destroyed and (2) affirms that the Receiving Party has not retained any copies,

19 abstracts, compilations, summaries or any other format reproducing or capturing any

20 of the Protected Material. Notwithstanding this provision, Counsel are entitled to

21 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing

22 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert

23 reports, attorney work product, and consultant and expert work product, even if such

24 materials contain Protected Material. Any such archival copies that contain or

25 constitute Protected Material remain subject to this Protective Order as set forth in

26 Section 4 (DURATION).

27

1/14. VIOLATION

2 Any violation of this Order may be punished by appropriate measures

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

5||IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

7 || Dated: April 13, 2020

|| _/s/ Daniel B. Lifschitz

10 || Attorneys for Plaintiff

11

12 || Dated: April 13, 2020

i 14||_/s/ Donald A. Miller

15 || Attorneys for Defendants

17 || FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

18

19

20||DATED: April 15, 2020

Raprlin a. OC

22

23 HON. ROZELLA A. OLIVER

UNITED STATES MAGISTRATE JUDGE

25

26

27

28

TROTASEE |

1 EXHIBIT A

2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3

4 I, ___________________________ [print or type full name], of

5 ________________________________ [print or type full address], declare under

6 penalty of perjury that I have read in its entirety and understand the Stipulated

7 Protective Order that was issued by the United States District Court for the Central

8 District of California on ______________ [date] in the case of Kenny Nolan v.

9 Sony/ATV Music Publishing LLC, et al., Central District of California Case No. 19-

10 cv-02819 JFW (RAOx).]. I agree to comply with and to be bound by all the terms of

11 this Stipulated Protective Order and I understand and acknowledge that failure to so

12 comply could expose me to sanctions and punishment in the nature of contempt. I

13 solemnly promise that I will not disclose in any manner any information or item that

14 is subject to this Stipulated Protective Order to any person or entity except in strict

15 compliance with the provisions of this Order. I further agree to submit to the

16 jurisdiction of the United States District Court for the Central District of California

17 for enforcing the terms of this Stipulated Protective Order, even if such enforcement

18 proceedings occur after termination of this action. I hereby appoint _____________

19 _________________ [print or type full name] of ____________________________

20 ________________ [print or type full address and telephone number] as my

21 California agent for service of process in connection with this action or any

22 proceedings related to enforcement of this Stipulated Protective Order.

23

24 Date: __________________________________________

25 City and State where sworn and signed: ___________________________________

26 Printed name: __________________________________________

27 Signature: __________________________________________