The opinion
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
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WILLIAM KISSAS p/k/a/ “WILL K”, Case No. 2:20-cv-04534-RGK-JEM
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Plaintiff, [Hon. R. Gary Klausner]
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vs. STIPULATED PROTECTIVE
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MACKENZIE JOHNSON p/k/a
15 “MAKJ”, an individual, TINASHE [Discovery Document: Referred to
JORGENSEN KACHINGWE p/k/a Magistrate Judge John E. McDermott]
16 “TINASHE”, an individual, TINASHE
MUSIC, INC., a California corporation, Trial Date: August 24, 2021
17 CONNOR MCDONOUGH, an
individual, RILEY MCDONOUGH, an
18 individual, and MAX LEVIN, an
individual,
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Defendants.
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1 1. PURPOSES AND LIMITATIONS
2 Discovery in this action is likely to involve the production of confidential,
3 proprietary, private, or trade secret information for which special protection from
4 public disclosure and from use for any purpose other than prosecuting this litigation
5 is 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 and items that are entitled to confidential treatment
10 under applicable legal principles. The parties further acknowledge, as set forth
11 below, that this Stipulated Protective Order does not entitle them to file confidential
12 information under seal; Civil Local Rule 79-5 sets forth the procedures that must be
13 followed and the standards that will be applied when a party seeks permission from
14 the Court to file material under seal.
15 2. GOOD CAUSE STATEMENT
16 This action is likely to involve commercial, financial, technical and/or
17 proprietary information (including the amounts and whereabouts of music royalties
18 and other revenue paid to all of the defendants from January 1, 2019, to the present,
19 already subpoenaed by Plaintiff from fifteen (15) providers) for which special
20 protection from public disclosure and from use for any purpose other than
21 prosecution of this action is warranted. Such confidential and proprietary materials
22 and information consist of, among other things, confidential business or financial
23 information, and commercial information (including information implicating
24 privacy rights of the parties and third parties), information otherwise generally
25 unavailable to the public, or which may be privileged or otherwise protected from
26 disclosure under state or federal statutes, court rules, case decisions, or common
27 law.
1 Accordingly, to expedite the flow of information, to facilitate the prompt
2 resolution of disputes over confidentiality of discovery materials, to adequately
3 protect information the parties are entitled to keep confidential, to ensure that the
4 parties are permitted reasonable necessary uses of such material in preparation for
5 and in the conduct of trial, to address their handling at the end of the litigation, and
6 serve the ends of justice, a protective order for such information is justified in this
7 matter. It is the intent of the parties that information will not be designated as
8 confidential for tactical reasons and that nothing will be so designated without a
9 good faith belief that it has been maintained in a confidential, non-public manner,
10 and that there is good cause why it should not be part of the public record of this
11 case.
12 3. DEFINITIONS
13 3.1 Action: Kissas v. Johnson et al., United States District Court –
14 Central District Case No. 2:20-cv-04534-RGK-JEM.
15 3.2 Challenging Party: A Party or Non-Party that challenges the
16 designation of information or items under this Order.
17 3.3 “CONFIDENTIAL” Information or Items: Information
18 (regardless of how it is generated, stored or maintained) or tangible things that
19 qualify for protection under Federal Rule of Civil Procedure 26(c), and as specified
20 above in the Good Cause Statement.
21 3.4 Counsel: Outside Counsel of Record and House Counsel (as
22 well as their support staff).
23 3.5 Designating Party: A Party or Non-Party that designates
24 information or items that it produces in disclosures or in responses to discovery as
25 “CONFIDENTIAL.”
26 / / /
27 / / /
1 3.6 Disclosure or Discovery Material: All items or information,
2 regardless of the medium or manner in which it is generated, stored, or maintained
3 (including, among other things, testimony, transcripts, and tangible things), that are
4 produced, disclosed, or generated in connection with disclosures or responses to
5 discovery in this matter.
6 3.7 Document: Any object from which information may be derived,
7 including, but not limited to, writings, letters, notes, memoranda, correspondence,
8 investigation files, reports, e-mails, messages, records, logs, invoices, bills,
9 statements, contracts, agreements, leases, opinions, drawings, plans, graphs, charts,
10 photographs, images, audio files, and recordings. “Document” also includes
11 electronically maintained information, including, but not limited to, electronic or
12 computerized forms of any document, data and databases, electronic mail, and
13 spreadsheets.
14 3.8 Expert: A person with specialized knowledge or experience in a
15 matter pertinent to the litigation who has been retained by a Party or its counsel to
16 serve as an expert witness or as a consultant in this Action, including such person’s
17 secretarial and clerical employees who are actively assisting him or her.
18 3.9 House Counsel: Attorneys who are employees of a party to this
19 Action, or a parent, subsidiary, or affiliate of a party to this Action. House Counsel
20 does not include Outside Counsel of Record or any other outside counsel.
21 3.10 Non-Party: Any natural person, partnership, corporation,
22 association, or other legal entity not named as a Party to this action.
23 3.11 Outside Counsel of Record: Attorneys who are not employees of
24 a party to this Action but are retained to represent or advise a party to this Action
25 and have appeared in this Action on behalf of that party or are affiliated with a law
26 firm which has appeared on behalf of that party, and includes support staff.
27 / / /
1 3.12 Party: Any party to this Action, including all of its officers,
2 directors, employees, consultants (excluding Experts), and Outside Counsel of
3 Record (and their support staffs).
4 3.13 Producing Party: A Party or Non-Party that produces Disclosure
5 or Discovery Material in this Action.
6 3.14 Professional Vendors: Persons or entities that provide litigation
7 support services (e.g., photocopying, videotaping, translating, preparing exhibits or
8 demonstrations, and organizing, storing, or retrieving data in any form or medium)
9 and their employees and subcontractors.
10 3.15 Protected Material: Any Disclosure or Discovery Material that is
11 designated as “CONFIDENTIAL.”
12 3.16 Receiving Party: A Party that receives Disclosure or Discovery
13 Material from a Producing Party.
14 4. SCOPE
15 4.1 The protections conferred by this Stipulation and Order cover not
16 only Protected Material (as defined above), but also (1) any information copied or
17 extracted from Protected Material; (2) all copies, excerpts, summaries, or
18 compilations of Protected Material; and (3) any testimony, conversations, or
19 presentations by Parties or their Counsel that might reveal Protected Material.
20 However, the protections conferred by this Stipulation and Order do not cover the
21 following information: (a) any information that is in the public domain at the time of
22 disclosure to a Receiving Party or becomes part of the public domain after its
23 disclosure to a Receiving Party as a result of publication not involving a violation of
24 this Order, including becoming part of the public record through trial or otherwise;
25 and (b) any information known to the Receiving Party prior to the disclosure or
26 obtained by the Receiving Party after the disclosure from a source who obtained the
27 information lawfully and under no obligation of confidentiality to the Designating
1 4.2 Any use of Protected Material at trial shall be governed by either
2 a separate written agreement of the Parties or the orders of the trial judge. This
3 Order does not govern the use of Protected Material at trial.
4 5. DURATION
5 5.1 Once the Action proceeds to trial, all of the information that was
6 designated as confidential or maintained pursuant to this Protective Order becomes
7 public and will be presumptively available to all members of the public, including
8 the press, unless compelling reasons supported by specific factual findings to
9 proceed otherwise are made to the trial judge in advance of the trial. See Kamakana
10 v. City and County of Honolulu, 447 F.3d 1172, 1180-81 (9th Cir. 2006)
11 (distinguishing “good cause” showing for sealing documents produced in discovery
12 from “compelling reasons” standard when merits-related documents are part of court
13 record). Accordingly, the terms of this Protective Order do not extend beyond the
14 commencement of the trial
15 6. DESIGNATING PROTECTED MATERIAL
16 6.1 The Designating Party shall have the right to designate as
17 “CONFIDENTIAL” any documents, testimony or information that the Designating
18 Party in good faith believes to contain non-public information that is entitled to
19 confidential treatment under applicable law, including but not limited to, discovery
20 between the Parties and obtained from third parties.
21 6.2 Exercise of Restraint and Care in Designating Material for
22 Protection: Each Party or Non-Party that designates information or items for
23 protection under this Order must take care to limit any such designation to specific
24 material that qualifies under the appropriate standards. The Designating Party must
25 designate for protection only those parts of material, documents, items, or oral or
26 written communications that qualify so that other portions of the material,
27 documents, items, or communications for which protection is not warranted are not
1 Mass, indiscriminate, or routinized designations are prohibited. Designations
2 that are shown to be clearly unjustified or that have been made for an improper
3 purpose (e.g., to unnecessarily encumber the case development process or to impose
4 unnecessary expenses and burdens on other parties) may expose the Designating
5 Party to sanctions.
6 If it comes to a Designating Party’s attention that information or items that it
7 designated for protection do not qualify for protection, that Designating Party must
8 promptly notify all other Parties that it is withdrawing the inapplicable designation.
9 6.3 Manner and Timing of Designations: Except as otherwise
10 provided in this Order, or as otherwise stipulated or ordered, Disclosure or
11 Discovery Material that qualifies for protection under this Order must be clearly so
12 designated before the material is disclosed or produced, except in the case of
13 documents produced by third parties, which shall be so designated within thirty (30)
14 days of receipt by the Designating Party.
15 6.4 Designation in conformity with this Order requires the following:
16 (a) For information in documentary form (e.g., paper or
17 electronic documents, but excluding transcripts of depositions or other pretrial or
18 trial proceedings), that the Producing Party affix at a minimum, the legend
19 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that
20 contains protected material. If only a portion or portions of the material on a page
21 qualifies for protection, the Producing Party also must clearly identify the protected
22 portion(s) (e.g., by making appropriate markings in the margins).
23 (b) A Party or Non-Party that makes original documents
24 available for inspection need not designate them for protection until after the
25 inspecting Party has indicated which documents it would like copied and produced.
26 During the inspection and before the designation, all of the material made available
27 for inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has
1 determine which documents, or portions thereof, qualify for protection under this
2 Order. Then, before producing the specified documents, the Producing Party must
3 affix the “CONFIDENTIAL legend” to each page that contains Protected Material.
4 If only a portion or portions of the material on a page qualifies for protection, the
5 Producing Party also must clearly identify the protected portion(s) (e.g., by making
6 appropriate markings in the margins).
7 (c) For testimony given in depositions, hearings, or other
8 proceedings, that the Designating Party identify the Disclosure or Discovery
9 Material (1) on the record, before the close of the deposition, hearing, or other
10 proceeding; or (2) in a written notice to all other Parties, given within 21 days after
11 the Designating Party’s receipt of the transcript for the deposition protected
12 testimony.
13 (d) For information produced in any other form and for any
14 other tangible items, that the Producing Party affix the legend “CONFIDENTIAL”
15 in a prominent place on the exterior of the container or containers in which the
16 information is stored. If only a portion or portions of the information warrants
17 protection, the Producing Party, to the extent practicable, shall identify the protected
18 portion(s).
19 6.5 Inadvertent Failure to Designate: If timely corrected, an
20 inadvertent failure to designate qualified information or items does not, standing
21 alone, waive the Designating Party’s right to secure protection under this Order for
22 such material. The Receiving Party may dispute the corrected designation pursuant
23 to the provisions of this order for challenging designations. Upon timely correction
24 of a designation and until any dispute concerning the correction is resolved, the
25 Receiving Party must make reasonable efforts to assure that the material is treated in
26 accordance with the provisions of this Order.
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1 7. CHALLENGING CONFIDENTIALITY DESIGNATIONS
2 7.1 Timing of Challenges: Any party or Non-Party may challenge a
3 designation of confidentiality at any time that is consistent with the Court’s
4 Scheduling Order. Unless a prompt challenge to a Designating Party’s
5 confidentiality designation is necessary to avoid foreseeable, substantial unfairness,
6 unnecessary economic burdens, or a significant disruption or delay of litigation, a
7 Party does not waive its right to challenge a confidentiality designation by electing
8 not to mount a challenge promptly after the original designation is disclosed.
9 7.2 Meet and Confer: The Challenging Party shall initiate the
10 dispute resolution process under Local Rule 37.1 et seq.
11 7.3 Judicial Intervention: If the Parties cannot resolve a challenge
12 without court intervention, the Parties shall initiate the judicial dispute resolution
13 process under Local Rule 37. Any motion brought pursuant to this provision must be
14 accompanied by a competent declaration affirming that the movants have complied
15 with the meet and confer requirements imposed by the preceding Meet and Confer
16 paragraph (7.2).
17 7.4 In the event that counsel for a Party receiving Documents,
18 testimony or Information in discovery designated as “Confidential” objects to such
19 designation with respect to any or all of such items, said counsel shall advise
20 counsel for the Designating Party, in writing, of such objections, the specific
21 documents, testimony or information to which each objection pertains, and the
22 specific reasons and support for such objections (the “Designation Objections”).
23 Counsel for the Designating Party shall have thirty (30) days from receipt of the
24 written Designation Objections to either (a) agree in writing to de-designate
25 documents, testimony or information pursuant to any or all of the Designation
26 Objections and/or (b) file a motion with the Court seeking to uphold any or all
27 designations on documents, testimony or information addressed by the Designation
1 Motion by the Court, any and all existing designations on the documents, testimony
2 or information at issue in such Motion shall remain in place. The Designating Party
3 shall have the burden on any Designation Motion of establishing the applicability of
4 its “CONFIDENTIAL” designation. In the event that the Designation Objections are
5 neither timely agreed to nor timely addressed in the Designation Motion, then such
6 documents, testimony or information shall be de-designated in accordance with the
7 Designation Objection applicable to such material.
8 7.5 The burden of persuasion in any such challenge proceeding shall
9 be on the Designating Party. Frivolous challenges, and those made for an improper
10 purpose (e.g., to harass or impose unnecessary expenses and burdens on other
11 parties) may expose the Challenging Party to sanctions. Unless the Designating
12 Party has waived or withdrawn the confidentiality designation, all parties shall
13 continue to afford the material in question the level of protection to which it is
14 entitled under the Producing Party’s designation until the Court rules on the
15 challenge.
16 8. ACCESS TO AND USE OF PROTECTED MATERIAL
17 8.1 Basic Principles: A Receiving Party may use Protected Material
18 that is disclosed or produced by another Party or by a Non-Party in connection with
19 this Action only for prosecuting, defending, or attempting to settle this Action. Such
20 Protected Material may be disclosed only to the categories of persons and under the
21 conditions described in this Order. When the Action has been terminated, a
22 Receiving Party must comply with the provisions below. Protected Material must
23 be stored and maintained by a Receiving Party at a location and in a secure manner
24 that ensures that access is limited to the persons authorized under this Order.
25 Nothing in this Order shall limit a Party’s use or disclosure of its own
26 information.
27 This Order is without prejudice to the right of any Party hereto to: (i) object to
1 confidential information; or (iii) apply to the Court for an order permitting
2 disclosure of Protected Materials or Information other than as provided herein.
3 The provisions of this Order may also be modified on a Party’s or the Court’s
4 own motion.
5 8.2 Disclosure of “CONFIDENTIAL” Information or Items: Unless
6 otherwise ordered by the Court or permitted in writing by the Designating Party, a
7 Receiving Party may disclose any information or item designated
8 “CONFIDENTIAL” only to:
9 (a) The Receiving Party’s Outside Counsel of Record in this
10 Action, as well as employees of said Outside Counsel of Record to whom it is
11 reasonably necessary to disclose the information for this Action;
12 (b) The officers, directors, and employees (including House
13 Counsel) of the Receiving Party to whom disclosure is reasonably necessary for this
14 Action;
15 (c) Experts (as defined in this Order) of the Receiving Party to
16 whom disclosure is reasonably necessary for this Action and who have signed the
17 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
18 (d) The Court and its personnel;
19 (e) Court reporters and videographers (and their staff)
20 engaged by the Parties for depositions or any other court proceeding in this Action;
21 (f) Professional jury or trial consultants, mock jurors, and
22 Professional Vendors to whom disclosure is reasonably necessary for this Action
23 and who have signed the “Acknowledgment and Agreement to be Bound” attached
24 as Exhibit A hereto;
25 (g) The author or recipient of a document containing the
26 information or a custodian or other person who otherwise possessed or knew the
27 information;
1 (h) During their depositions or any evidentiary hearing (or
2 preparation for either), witnesses, and attorneys for witnesses, in the Action to
3 whom disclosure is reasonably necessary, provided: (i) the deposing party requests
4 that the witness sign the “Acknowledgment and Agreement to Be Bound;” and (ii)
5 they will not be permitted to keep any Protected Material unless they sign the
6 “Acknowledgment and Agreement to Be Bound,” unless otherwise agreed by the
7 Designating Party or ordered by the Court. Pages of transcribed deposition
8 testimony or exhibits to depositions that reveal Protected Material may be separately
9 bound by the court reporter and may not be disclosed to anyone except as permitted
10 under this Stipulated Protective Order; and
11 (i) Any mediator or settlement officer, and their supporting
12 personnel, mutually agreed upon by any of the parties engaged in settlement
13 discussions.
14 9. PROTECTED MATERIAL SUBPOENAED OR ORDERED
PRODUCED IN OTHER LITIGATION
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16 9.1 If a Party is served with a subpoena or a court order issued in
17 other litigation that compels disclosure of any information or items designated in
18 this Action as “CONFIDENTIAL,” that Party must:
19 (a) Promptly notify in writing the Designating Party. Such
20 notification shall include a copy of the subpoena or court order;
21 (b) Promptly notify in writing the party who caused the
22 subpoena or order to issue in the other litigation that some or all of the material
23 covered by the subpoena or order is subject to this Protective Order. Such
24 notification shall include a copy of this Stipulated Protective Order; and
25 (c) Cooperate with respect to all reasonable procedures sought
26 to be pursued by the Designating Party whose Protected Material may be affected.
27 9.2 If the Designating Party timely seeks a protective order, the Party
1 information designated in this action as “CONFIDENTIAL” before a determination
2 by the Court from which the subpoena or order issued, unless the Party has obtained
3 the Designating Party’s permission. The Designating Party shall bear the burden
4 and expense of seeking protection in that court of its confidential material and
5 nothing in these provisions should be construed as authorizing or encouraging a
6 Receiving Party in this Action to disobey a lawful directive from another court.
7 10. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
8 PRODUCED IN THIS LITIGATION
9 10.1 The terms of this Order are applicable to information produced
10 by a Non-Party in this Action and designated as “CONFIDENTIAL.” Such
11 information produced by Non-Parties in connection with this litigation is protected
12 by the remedies and relief provided by this Order. Nothing in these provisions
13 should be construed as prohibiting a Non-Party from seeking additional protections.
14 10.2 In the event that a Party is required, by a valid discovery request,
15 to produce a Non-Party’s confidential information in its possession, and the Party is
16 subject to an agreement with the Non-Party not to produce the Non-Party’s
17 confidential information, then the Party shall:
18 (a) Promptly notify in writing the Requesting Party and the
19 Non-Party that some or all of the information requested is subject to a
20 confidentiality agreement with a Non-Party;
21 (b) Promptly provide the Non-Party with a copy of the
22 Stipulated Protective Order in this Action, the relevant discovery request(s), and a
23 reasonably specific description of the information requested; and
24 (c) Make the information requested available for inspection
25 by the Non-Party, if requested.
26 10.3 If the Non-Party fails to seek a protective order from this court
27 within fourteen (14) days of receiving the notice and accompanying information, the
1 to the discovery request. If the Non-Party timely seeks a protective order, the
2 Receiving Party shall not produce any information in its possession or control that is
3 subject to the confidentiality agreement with the Non-Party before a determination
4 by the Court. Absent a court order to the contrary, the Non-Party shall bear the
5 burden and expense of seeking protection in this Court of its Protected Material.
6 11. UNAUTHORIZED DISCLOSURE OF PROTECTED
7 MATERIAL
8 11.1 If a Receiving Party learns that, by inadvertence or otherwise, it
9 has disclosed Protected Material to any person or in any circumstance not authorized
10 under this Stipulated Protective Order, the Receiving Party must immediately (1)
11 notify in writing the Designating Party of the unauthorized disclosures, (2) use its best
12 efforts to retrieve all unauthorized copies of the Protected Material, (3) inform the
13 person or persons to whom unauthorized disclosures were made of all the terms of this
14 Order, and (4) request such person or persons to execute the “Acknowledgment and
15 Agreement to be Bound” that is attached hereto as Exhibit A.
16 12. INADVERTENT PRODUCTION OF PRIVILEGED OR
17 OTHERWISE PROTECTED MATERIAL
18 12.1 When a Producing Party gives notice to Receiving Parties that
19 certain inadvertently produced material is subject to a claim of privilege or other
20 protection, the obligations of the Receiving Parties are those set forth in Federal
21 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify
22 whatever procedure may be established in an e-discovery order that provides for
23 production without prior privilege review. Pursuant to Federal Rule of Evidence
24 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure
25 of a communication or information covered by the attorney-client privilege or work
26 product protection, the parties may incorporate their agreement in the Stipulated
27 Protective Order submitted to the Court.
1 13. MISCELLANEOUS
2 13.1 Right to Further Relief: Nothing in this Order abridges the right
3 of any person to seek its modification by the Court in the future.
4 13.2 Right to Assert Other Objections: By stipulating to the entry of
5 this Protective Order, no Party waives any right it otherwise would have to object to
6 disclosing or producing any information or item on any ground not addressed in this
7 Stipulated Protective Order. Similarly, no Party waives any right to object on any
8 ground to use in evidence of any of the material covered by this Protective Order.
9 13.3 Filing Protected Material: A Party that seeks to file under seal
10 any Protected Material must comply with Civil Local Rule 79-5. Protected Material
11 may only be filed under seal pursuant to a court order authorizing the sealing of the
12 specific Protected Material at issue. If a Party's request to file Protected Material
13 under seal is denied by the Court, then the Receiving Party may file the information
14 in the public record unless otherwise instructed by the Court.
15 14. FINAL DISPOSITION
16 14.1 After the final disposition of this Action, as defined above,
17 within sixty (60) days of a written request by the Designating Party, each Receiving
18 Party must return all Protected Material to the Producing Party or destroy such
19 material. As used in this subdivision, “all Protected Material” includes all copies,
20 abstracts, compilations, summaries, and any other format reproducing or capturing
21 any of the Protected Material. Whether the Protected Material is returned or
22 destroyed, the Receiving Party must submit a written certification to the Producing
23 Party (and, if not the same person or entity, to the Designating Party) by the 60 day
24 deadline that (1) identifies (by category, where appropriate) all the Protected
25 Material that was returned or destroyed and (2) affirms that the Receiving Party has
26 not retained any copies, abstracts, compilations, summaries or any other format
27 reproducing or capturing any of the Protected Material. Notwithstanding this
1 || papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence,
2 || deposition and trial exhibits, expert reports, attorney work product, and consultant
3 || and expert work product, even if such materials contain Protected Material. Any
4 || such archival copies that contain or constitute Protected Material remain subject to
5 || this Protective Order as set forth above.
6 Any violation of this Order may be punished by any and all appropriate
7 || measures including, without limitation, contempt proceedings and/or monetary
8 || sanctions.
9 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
10
11|}DATED: April 21, 2021
12 = >
13 eh = Mio
14 IN. JOHN E. MCDERMOTT
United States Magistrate Judge
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