The opinion
1 LEWIS BRISBOIS BISGAARD & SMITH LLP
ESTHER Y. SHIN, SB#324049
2 E-Mail: Esther.Shin@lewisbrisbois.com
633 West 5th Street, Suite 4000
3 Los Angeles, California 90071
Telephone: 213.250.1800
4 Facsimile: 213.250.7900
5 Attorneys for Defendant
Platinum Plus Auto Protection, Inc.
6
7 UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
8 SOUTHERN DIVISION – SANTA ANA
9
10 TOMMY TOMPKINS, JR., CASE NO. 8:20-cv-00140-DOC-KES
11 Plaintiff, [PROPOSED] STIPULATED
PROTECTIVE ORDER
12 vs. [Discovery Document: Referred to Magistrate
Judge Karen E. Scott].
13 PLATINUM PLUS AUTO PROTECTION,
INC., Judge: Hon. David O. Carter
14 Magistrate Judge: Hon. Karen E. Scott
Defendant.
15
Complaint Filed: January 22, 2020
16
17 Plaintiff Tommy Tompkins, Jr. (“Plaintiff”) and Platinum Plus Auto Protection, Inc.
18 (“Defendant’) (collectively (the “Parties” and individually a “Party”), by and through their
19 undersigned counsel of record, hereby stipulate as follows:
20 1. A. PURPOSES AND LIMITATIONS
21 Discovery in this action may involve production of confidential, proprietary, or private
22 information for which special protection from public disclosure and from use for any purpose
23 other than prosecuting this litigation may be warranted. Accordingly, the parties hereby stipulate
24 to and petition the Court to enter the following Stipulated Protective Order. The parties
25 acknowledge that this Order does not confer blanket protections on all disclosures or responses to
26 discovery and that the protection it affords from public disclosure and use extends only to the
27 limited information or items that are entitled to confidential treatment under the applicable legal
1 Stipulated Protective Order does not entitle them to file confidential information under seal; Civil
2 Local Rule 79-5 sets forth the procedures that must be followed and the standards that will be
3 applied when a party seeks permission from the court to file material under seal.
4 B. GOOD CAUSE STATEMENT
5 This action may involve sensitive business information and other valuable commercial,
6 financial, private, technical and/or proprietary information for which special protection from
7 public disclosure and from use for any purpose other than prosecution of this action is warranted. .
8 2. DEFINITIONS
9 2.1 Action: This pending federal law suit, Case No. 8:20-cv-00140-DOC-KES.
10 2.2 Challenging Party: a Party or Non-Party that challenges the designation of information
11 or items under this Order.
12 2.3 “CONFIDENTIAL” and “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
13 ONLY” Information or Items: information (regardless of how it is generated, stored or
14 maintained) or tangible things that qualify for protection under Federal Rule of Civil Procedure
15 26(c), and as specified above in the Good Cause Statement.
16 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their support
17 staff).
18 2.5 Designating Party: a Party or Non-Party that designates information or items that it
19 produces in disclosures or in responses to discovery as “CONFIDENTIAL” or “HIGHLY
20 CONFIDENTIAL—ATTORNEYS’ EYES ONLY”.
21 2.6 Disclosure or Discovery Material: all items or information, regardless of the medium or
22 manner in which it is generated, stored, or maintained (including, among other things, testimony,
23 transcripts, and tangible things), that are produced or generated in disclosures or responses to
24 discovery in this matter.
25 2.7 Expert: a person with specialized knowledge or experience in a matter pertinent to the
26 litigation who has been retained by a Party or its counsel to serve as an expert witness or as a
27 consultant in this Action.
1 does not include Outside Counsel of Record or any other outside counsel.
2 2.9 Non-Party: any natural person, partnership, corporation, association, or other legal
3 entity not named as a Party to this action.
4 2.10 Outside Counsel of Record: attorneys who are not employees of a party to this Action
5 but are retained to represent or advise a party to this Action and have appeared in this Action on
6 behalf of that party or are affiliated with a law firm which has appeared on behalf of that party,
7 and includes support staff.
8 2.11 Party: any party to this Action, including all of its officers, directors, employees,
9 consultants, retained experts, and Outside Counsel of Record (and their support staffs).
10 2.12 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material
11 in this Action.
12 2.13 Professional Vendors: persons or entities that provide litigation support services (e.g.,
13 photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing,
14 storing, or retrieving data in any form or medium) and their employees and subcontractors.
15 2.14 Protected Material: any Disclosure or Discovery Material that is designated as
16 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”.
17 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material from a
18 Producing Party.
19 3. SCOPE
20 The protections conferred by this Stipulation and Order cover not only Protected Material
21 (as defined above), but also (1) any information copied or extracted from Protected Material; (2)
22 all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony,
23 conversations, or presentations by Parties or their Counsel that might reveal Protected Material.
24 Any use of Protected Material at trial shall be governed by the orders of the trial judge.
25 This Order does not govern the use of Protected Material at trial.
26 4. DURATION
27 Once a case proceeds to trial, all of the information that was designated as confidential or
1 all members of the public, including the press, unless compelling reasons supported by specific
2 factual findings to proceed otherwise are made to the trial judge in advance of the trial. See
3 Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1180-81 (9th Cir. 2006)
4 (distinguishing “good cause” showing for sealing documents produced in discovery from
5 “compelling reasons” standard when merits-related documents are part of court record).
6 Accordingly, the terms of this protective order do not extend beyond the commencement of the
7 trial.
8 5. DESIGNATING PROTECTED MATERIAL
9 5.1 Exercise of Restraint and Care in Designating Material for Protection.
10 Each Party or Non-Party that designates information or items for protection as
11 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES ONLY” under this
12 Order must take care to limit any such designation to specific material that qualifies under the
13 appropriate standards. The Designating Party must designate for protection only those parts of
14 material, documents, items, or oral or written communications that qualify so that other portions of
15 the material, documents, items, or communications for which protection is not warranted are not
16 swept unjustifiably within the ambit of this Order.
17 Mass, indiscriminate, or routinized designations are prohibited. Designations that are
18 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to
19 unnecessarily encumber the case development process or to impose unnecessary expenses and
20 burdens on other parties) may expose the Designating Party to sanctions.
21 If it comes to a Designating Party’s attention that information or items that it designated
22 for protection do not qualify for protection, that Designating Party must promptly notify all other
23 Parties that it is withdrawing the inapplicable designation.
24 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order (see,
25 e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, Disclosure
26 or Discovery Material that qualifies for protection under this Order must be clearly so designated
27 before the material is disclosed or produced.
1 (a) for information in documentary form (e.g., paper or electronic documents, but
2 excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party
3 affix at a minimum, the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL—
4 ATTORNEYS’ EYES ONLY” (hereinafter “CONFIDENTIAL or HIGHLY CONFIDENTIAL—
5 ATTORNEYS’ EYES ONLY legend”), to each page that contains protected material. If only a
6 portion or portions of the material on a page qualifies for protection, the Producing Party also must
7 clearly identify the protected portion(s) (e.g., by making appropriate markings in the margins).
8 A Party or Non-Party that makes original documents available for inspection need not
9 designate them for protection until after the inspecting Party has indicated which documents it
10 would like copied and produced. During the inspection and before the designation, all of the
11 material made available for inspection shall be deemed “CONFIDENTIAL” or “HIGHLY
12 CONFIDENTIAL—ATTORNEYS’ EYES ONLY”. After the inspecting Party has identified the
13 documents it wants copied and produced, the Producing Party must determine which documents,
14 or portions thereof, qualify for protection under this Order. Then, before producing the specified
15 documents, the Producing Party must affix the “CONFIDENTIAL or HIGHLY
16 CONFIDENTIAL—ATTORNEYS’ EYES ONLY legend” to each page that contains Protected
17 Material. If only a portion or portions of the material on a page qualifies for protection, the
18 Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate
19 markings in the margins).
20 (b) for testimony given in depositions that the Designating Party identify the Disclosure or
21 Discovery Material on the record, before the close of the deposition all protected testimony.
22 (c) for information produced in some form other than documentary and for any other
23 tangible items, that the Producing Party affix in a prominent place on the exterior of the container
24 or containers in which the information is stored the legend “CONFIDENTIAL” or “HIGHLY
25 CONFIDENTIAL—ATTORNEYS’ EYES ONLY”. If only a portion or portions of the
26 information warrants protection, the Producing Party, to the extent practicable, shall identify the
27 protected portion(s).
1 designate qualified information or items does not, standing alone, waive the Designating Party’s
2 right to secure protection under this Order for such material. Upon timely correction of a
3 designation, the Receiving Party must make reasonable efforts to assure that the material is treated
4 in accordance with the provisions of this Order.
5 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
6 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of
7 confidentiality at any time that is consistent with the Court’s Scheduling Order.
8 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process
9 under Local Rule 37.1 et seq. or follow the procedures for informal, telephonic discovery hearings
10 on the Court's website.
11 6.3 The burden of persuasion in any such challenge proceeding shall be on the Designating
12 Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose
13 unnecessary expenses and burdens on other parties) may expose the Challenging Party to
14 sanctions. Unless the Designating Party has waived or withdrawn the confidentiality designation,
15 all parties shall continue to afford the material in question the level of protection to which it is
16 entitled under the Producing Party’s designation until the Court rules on the challenge.
17 7. ACCESS TO AND USE OF PROTECTED MATERIAL
18 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or
19 produced by another Party or by a Non-Party in connection with this Action only for prosecuting,
20 defending, or attempting to settle this Action. Such Protected Material may be disclosed only to
21 the categories of persons and under the conditions described in this Order. When the Action has
22 been terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL
23 DISPOSITION).
24 Protected Material must be stored and maintained by a Receiving Party at a location and in
25 a secure manner that ensures that access is limited to the persons authorized under this Order.
26 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by
27 the court or permitted in writing by the Designating Party, a Receiving Party may disclose any
1 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well as employees
2 of said Outside Counsel of Record to whom it is reasonably necessary to disclose the information
3 for this Action;
4 (b) the officers, directors, and employees (including House Counsel) of the Receiving
5 Party to whom disclosure is reasonably necessary for this Action;
6 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is
7 reasonably necessary for this Action and who have signed the “Acknowledgment and Agreement
8 to Be Bound” (Exhibit A);
9 (d) the court and its personnel;
10 (e) court reporters and their staff;
11 (f) professional jury or trial consultants, mock jurors, and Professional Vendors to whom
12 disclosure is reasonably necessary for this Action and who have signed the “Acknowledgment and
13 Agreement to Be Bound” (Exhibit A);
14 (g) the author or recipient of a document containing the information or a custodian or other
15 person who otherwise possessed or knew the information;
16 (h) during their depositions, witnesses, and attorneys for witnesses, in the Action to whom
17 disclosure is reasonably necessary provided: (1) the deposing party requests that the witness sign
18 the form attached as Exhibit 1 hereto; and (2) they will not be permitted to keep any confidential
19 information unless they sign the “Acknowledgment and Agreement to Be Bound” (Exhibit A),
20 unless otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed
21 deposition testimony or exhibits to depositions that reveal Protected Material may be separately
22 bound by the court reporter and may not be disclosed to anyone except as permitted under this
23 Stipulated Protective Order; and
24 (i) any mediator or settlement officer, and their supporting personnel, mutually agreed
25 upon by any of the parties engaged in settlement discussions.
26 7.3 Disclosure of “HIGHLY CONFIDENTIAL –ATTORNEYS’ EYES ONLY”
27 Information or Items: Unless otherwise ordered by the court or permitted in writing by the
1 CONFIDENTIAL—ATTORNEYS’ EYES ONLY” only to:
2 a. The Receiving Party’s Outside Litigation Counsel of Record in this Action, as well as
3 employees of said Outside Litigation Counsel of Record to whom it is reasonably necessary to
4 disclose the information for this litigation and who have signed the “Acknowledgement and
5 Agreement to be Bound” that is attached hereto as Exhibit A;
6 b. Outside consultants/experts for the Receiving Party, who are not employed by or
7 affiliated with any of the Parties to this Action, but who are specifically engaged by the Receiving
8 Party’s Outside Litigation Counsel of Record to assist in this litigation;
9 c.. Any court reporter and video recorder operator retained by any Party to record a
10 deposition in the Action;
11 d. The Court and its officers, court stenographers and outside copy services whose function
12 requires them to have access to material designated as “HIGHLY CONFIDENTIAL—
13 ATTORNEYS’ EYES ONLY” under this Protective Order.
14 e. Any other person the Designating Party agrees in writing in advance of any disclosure.
15 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
16 OTHER LITIGATION
17 If a Party is served with a subpoena or a court order issued in other litigation that compels
18 disclosure of any information or items designated in this Action as “CONFIDENTIAL” or
19 “HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES ONLY” that Party must:
20 (a) promptly notify in writing the Designating Party. Such notification shall include a copy
21 of the subpoena or court order;
22 (b) promptly notify in writing the party who caused the subpoena or order to issue in the
23 other litigation that some or all of the material covered by the subpoena or order is subject to this
24 Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and
25 (c) cooperate with respect to all reasonable procedures sought to be pursued by the
26 Designating Party whose Protected Material may be affected.
27 If the Designating Party timely seeks a protective order, the Party served with the subpoena
1 or “HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES ONLY” before a determination by the
2 court from which the subpoena or order issued, unless the Party has obtained the Designating
3 Party’s permission. The Designating Party shall bear the burden and expense of seeking protection
4 in that court of its confidential material and nothing in these provisions should be construed as
5 authorizing or encouraging a Receiving Party in this Action to disobey a lawful directive from
6 another court.
7 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN
8 THIS LITIGATION
9 (a) The terms of this Order are applicable to information produced by a Non-Party in this
10 Action and designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL—ATTORNEYS’
11 EYES ONLY” Such information produced by Non-Parties in connection with this litigation is
12 protected by the remedies and relief provided by this Order. Nothing in these provisions should be
13 construed as prohibiting a Non-Party from seeking additional protections.
14 (b) In the event that a Party is required, by a valid discovery request, to produce a Non-
15 Party’s confidential information in its possession, and the Party is subject to an agreement with the
16 Non-Party not to produce the Non-Party’s confidential information, then the Party shall:
17 (1) promptly notify in writing the Requesting Party and the Non-Party that some or all
18 of the information requested is subject to a confidentiality agreement with a Non-Party;
19 (2) promptly provide the Non-Party with a copy of the Stipulated Protective Order in
20 this Action, the relevant discovery request(s), and a reasonably specific description of the
21 information requested; and
22 (3) make the information requested available for inspection by the Non-Party, if
23 requested.
24 (c) If the Non-Party fails to seek a protective order from this court within 14 days of
25 receiving the notice and accompanying information, the Receiving Party may produce the Non-
26 Party’s confidential information responsive to the discovery request. If the Non-Party timely seeks
27 a protective order, the Receiving Party shall not produce any information in its possession or
1 by the court. Absent a court order to the contrary, the Non-Party shall bear the burden and expense
2 of seeking protection in this court of its Protected Material.
3 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
4 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected
5 Material to any person or in any circumstance not authorized under this Stipulated Protective
6 Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the
7 unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected
8 Material, (c) inform the person or persons to whom unauthorized disclosures were made of all the
9 terms of this Order, and (d) request such person or persons to execute the “Acknowledgment and
10 Agreement to Be Bound” that is attached hereto as Exhibit A.
11 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
12 PROTECTED MATERIAL
13 When a Producing Party gives notice to Receiving Parties that certain inadvertently
14 produced material is subject to a claim of privilege or other protection, the obligations of the
15 Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This
16 provision is not intended to modify whatever procedure may be established in an e-discovery order
17 that provides for production without prior privilege review. Pursuant to Federal Rule of Evidence
18 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a
19 communication or information covered by the attorney-client privilege or work product protection,
20 the parties may incorporate their agreement in the stipulated protective order submitted to the
21 court.
22 12. MISCELLANEOUS
23 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek
24 its modification by the Court in the future.
25 12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective Order
26 no Party waives any right it otherwise would have to object to disclosing or producing any
27 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no
1 by this Protective Order.
2 12.3 Filing Protected Material. A Party that seeks to file under seal any Protected Material
3 must comply with Civil Local Rule 79-5. Protected Material may only be filed under seal pursuant
4 to a court order authorizing the sealing of the specific Protected Material at issue. If a Party's
5 request to file Protected Material under seal is denied by the court, then the Receiving Party may
6 file the information in the public record unless otherwise instructed by the court.
7 13. FINAL DISPOSITION
8 After the final disposition of this Action, as defined in paragraph 4, within 60 days of a
9 written request by the Designating Party, each Receiving Party must return all Protected Material
10 to the Producing Party or destroy such material. As used in this subdivision, “all Protected
11 Material” includes all copies, abstracts, compilations, summaries, and any other format
12 reproducing or capturing any of the Protected Material. Whether the Protected Material is returned
13 or destroyed, the Receiving Party must submit a written certification to the Producing Party (and,
14 if not the same person or entity, to the Designating Party) by the 60 day deadline that (1) identifies
15 (by category, where appropriate) all the Protected Material that was returned or destroyed and (2)
16 affirms that the Receiving Party has not retained any copies, abstracts, compilations, summaries or
17 any other format reproducing or capturing any of the Protected Material. Notwithstanding this
18 provision, Counsel are entitled to retain an archival copy of all pleadings, motion papers, trial,
19 deposition, and hearing transcripts, legal memoranda, correspondence, deposition and trial
20 exhibits, expert reports, attorney work product, and consultant and expert work product, even if
21 such materials contain Protected Material. Any such archival copies that contain or constitute
22 Protected Material remain subject to this Protective Order as set forth in Section 4 (DURATION).
23 //
24 //
25 //
26 //
27 //
1|}14. = Any violation of this Order may be punished by any and all appropriate measures
2 || including, without limitation, contempt proceedings and/or monetary sanctions.
3 || IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
|| DATED
So
6 Attorneys for Plaintiff
DATED: _
9 Attorneys for Defendant
10
11
FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
12
B DATED: May 22, 2020
6. Seat)
Hon. Karen E. Scott
15 || United States District/Magistrate Judge
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1 EXHIBIT A
2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
3 I, _____________________________ [print or type full name], of _________________ [print or
4 type full address], declare under penalty of perjury that I have read in its entirety and understand
5 the Stipulated Protective Order that was issued by the United States District Court for the Central
6 District of California on [date] in the case of Tommy Tompkins, Jr. v. Platinum Plus Auto
7 Protection, Inc., Case No. 8:20-cv-00140-DOC-KES. I agree to comply with and to be bound by
8 all the terms of this Stipulated Protective Order and I understand and acknowledge that failure to
9 so comply could expose me to sanctions and punishment in the nature of contempt. I solemnly
10 promise that I will not disclose in any manner any information or item that is subject to this
11 Stipulated Protective Order to any person or entity except in strict compliance with the provisions
12 of this Order.
13 I further agree to submit to the jurisdiction of the United States District Court for the Central
14 District of California for the purpose of enforcing the terms of this Stipulated Protective Order,
15 even if such enforcement proceedings occur after termination of this action. I hereby appoint
16 __________________________ [print or type full name] of
17 _______________________________________ [print or type full address and telephone number]
18 as my California agent for service of process in connection with this action or any proceedings
19 related to enforcement of this Stipulated Protective Order.
20 Date: ______________________________________
21 City and State where sworn and signed: _________________________________
22 Printed name: _______________________________
23 Signature: __________________________________
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