Hartford Underwriters Insurance Company v. Scotsman Group, LLC

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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SOUTHERN DIVISION

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HARTFORD UNDERWRITERS ) CASE NO. 8:21-CV-00029-DOC-JDE

13 INSURANCE COMPANY, a foreign )

corporation individually and as ) PROTECTIVE ORDER

14 subrogee of its insured, Air Treatment )

15 Corporation ) )

Plaintiffs, )

16 )

v. )

17 )

SCOTSMAN GROUP, LLC, a )

18 Delaware limited liability company; )

INGERSOLL RAND, INC., a )

19 Delaware corporation; REGAL )

BELOIT COPRORATION, a )

20 Wisconsin corporation; KATOM )

RESTAURANT SUPPLY, INC. a )

21 Tennessee corporation; and DOES 1 to )

10, inclusive, )

22 )

Defendants. )

23 )

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26 Based on the parties’ Stipulation (Dkt. 33), and for good cause shown, the Court

27 hereby finds and orders as follows.

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

3 proprietary or private information for which special protection from public disclosure

4 and from use for any purpose other than pursuing this litigation may be warranted.

5 Accordingly, the parties hereby stipulate to and petition the Court to enter the

6 following Stipulated Protective Order. The parties acknowledge that this Order does

7 not confer blanket protections on all disclosures or responses to discovery and that

8 the protection it affords from public disclosure and use extends only to the limited

9 information or items that are entitled to confidential treatment under the applicable

10 legal principles.

11 2. GOOD CAUSE STATEMENT

12 This action involves proprietary information regarding the Ice Machine described in

13 Plaintiffs’ complaint (and its component parts), including trade secrets, customer and

14 pricing lists, sourcing information, suppliers, product specifications, proprietary product

15 and component drawings, product bills of material, and other valuable research,

16 development, commercial, technical, and other proprietary information for which special

17 protection from public disclosure and from use for any purpose other than prosecution of

18 this action is warranted. Certain of the components of the Ice Machine are manufactured

19 and assembled by defendants as Original Equipment Manufacturers (OEM), such that those

20 items are made exclusively for a single customer and the underlying product specifications,

21 design information, and engineering drawings, all of which have significant economic

22 value, are not available to the public. Without protections against making that information

23 available in the pre-trial and discovery phase to the public, which would include

24 defendants’ respective industry competitors, defendants are likely to suffer economic harm.

25 Such confidential and proprietary materials and information also consists of, among other

26 things, confidential business information, information regarding confidential business

27 practices, or other confidential research, development, or commercial information, which

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2 facilitate the prompt resolution of disputes over confidentiality of discovery materials, to

3 adequately protect information the parties are entitled to keep confidential, to ensure that

4 the parties are permitted reasonably necessary uses of such material in preparation for trial,

5 to address their handling at the end of the litigation, and serve the ends of justice, a

6 protective order for such information is justified in this matter. It is the intent of the parties

7 that information will not be designated as confidential for tactical reasons and that nothing

8 so designated without a good faith belief that it has been maintained in a confidential, non-

9 public manner, and there is good cause why it should not be part of the public record of

10 this case in the pre-trial phase.

11 3. ACKNOWLEDGMENT OF UNDER SEAL FILING PROCEDURE

12 The parties further acknowledge, as set forth in Section 14.3, below, that this

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

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

15 the standards that will be applied when a party seeks permission from the court to file

16 material under seal. There is a strong presumption that the public has a right of

17 access to judicial proceedings and records in civil cases. In connection with non-

18 dispositive motions, good cause must be shown to support a filing under seal. See

19 Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006),

20 Phillips v. Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-

21 Welbon v. Sony Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even

22 stipulated protective orders require good cause showing), and a specific showing of

23 good cause or compelling reasons with proper evidentiary support and legal

24 justification, must be made with respect to Protected Material that a party seeks to

25 file under seal. The parties’ mere designation of Disclosure or Discovery Material as

26 CONFIDENTIAL does not— without the submission of competent evidence by

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2 confidential, privileged, or otherwise protectable—constitute good cause.

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

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

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

6 See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir. 2010). For each

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

8 under seal, the party seeking protection must articulate compelling reasons,

9 supported by specific facts and legal justification, for the requested sealing order.

10 Again, competent evidence supporting the application to file documents under seal

11 must be provided by declaration.

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

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

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

15 the confidential, privileged, or otherwise protectable portions of the document, shall

16 be filed. Any application that seeks to file documents under seal in their entirety

17 should include an explanation of why redaction is not feasible.

18 4. DEFINITIONS

19 4.1 Action: Hartford Underwriters Insurance Company v. Scotsman Group,

20 et al. United States District Court Case No. 8:21-cv-00029-DOC-JDE.

21 4.2 Challenging Party: a Party or Non-Party that challenges the designation

22 of information or items under this Order.

23 4.3 “CONFIDENTIAL” Information or Items: information (regardless of

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

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

26 Good Cause Statement.

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2 their support staff).

3 4.5 Designating Party: a Party or Non-Party that designates information or

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

5 “CONFIDENTIAL.”

6 4.6 Disclosure or Discovery Material: all items or information, regardless

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

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

9 generated in disclosures or responses to discovery.

10 4.7 Expert: a person with specialized knowledge or experience in a matter

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

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

13 4.8 House Counsel: attorneys who are employees of a party to this Action.

14 House Counsel does not include Outside Counsel of Record or any other outside

15 counsel.

16 4.9 Non-Party: any natural person, partnership, corporation, association or

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

18 4.10 Outside Counsel of Record: attorneys who are not employees of a party

19 to this Action but are retained to represent a party to this Action and have appeared

20 in this Action on behalf of that party or are affiliated with a law firm that has

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

22 4.11 Party: any party to this Action, including all of its officers, directors,

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

24 support staffs).

25 4.12 Producing Party: a Party or Non-Party that produces Disclosure or

26 Discovery Material in this Action.

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

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

4 and their employees and subcontractors.

5 4.14 Protected Material: any Disclosure or Discovery Material that is

6 designated as “CONFIDENTIAL.”

7 4.15 Receiving Party: a Party that receives Disclosure or Discovery Material

8 from a Producing Party.

9 5. SCOPE

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

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

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

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

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

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

16 trial judge and other applicable authorities. This Order does not govern the use of

17 Protected Material at trial.

18 6. DURATION

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

20 CONFIDENTIAL or maintained pursuant to this protective order used or

21 introduced as an exhibit at trial becomes public and will be presumptively available

22 to all members of the public, including the press, unless compelling reasons

23 supported by specific factual findings to proceed otherwise are made to the trial judge

24 in advance of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing “good

25 cause” showing for sealing documents produced in discovery from “compelling

26 reasons” standard when merits-related documents are part of court record).

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2 commencement of the trial.

3 7. DESIGNATING PROTECTED MATERIAL

4 7.1 Exercise of Restraint and Care in Designating Material for Protection.

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

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

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

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

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

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

11 within the ambit of this Order.

12 Mass, indiscriminate or routinized designations are prohibited. Designations

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

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

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

16 Party to sanctions.

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

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

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

20 7.2 Manner and Timing of Designations. Except as otherwise provided in

21 this Order, or as otherwise stipulated or ordered, Disclosure of Discovery Material

22 that qualifies for protection under this Order must be clearly so designated before the

23 material is disclosed or produced.

24 Designation in conformity with this Order requires:

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

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

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

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2 contains protected material. If only a portion of the material on a page qualifies for

3 protection, the Producing Party also must clearly identify the protected portion(s)

4 (e.g., by making appropriate markings in the margins).

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

6 need not designate them for protection until after the inspecting Party has indicated

7 which documents it would like copied and produced. During the inspection and

8 before the designation, all of the material made available for inspection shall be

9 deemed “CONFIDENTIAL.” After the inspecting Party has identified the

10 documents it wants copied and produced, the Producing Party must determine

11 which documents, or portions thereof, qualify for protection under this Order. Then,

12 before producing the specified documents, the Producing Party must affix the

13 “CONFIDENTIAL legend” to each page that contains Protected Material. If only a

14 portion of the material on a page qualifies for protection, the Producing Party also

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

16 in the margins).

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

18 identifies the Disclosure or Discovery Material on the record, before the close of the

19 deposition all protected testimony.

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

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

22 on the exterior of the container or containers in which the information is stored the

23 legend “CONFIDENTIAL.” If only a portion or portions of the information warrants

24 protection, the Producing Party, to the extent practicable, shall identify the protected

25 portion(s).

26 7.3 Inadvertent Failures to Designate. If timely corrected, an

27 inadvertent failure to designate qualified information or items does not, standing

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2 such material. Upon timely correction of a designation, the Receiving Party must

3 make reasonable efforts to assure that the material is treated in accordance with the

4 provisions of this Order.

5 8. CHALLENGING CONFIDENTIALITY DESIGNATIONS

6 8.1. Timing of Challenges. Any Party or Non-Party may challenge a

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

8 Scheduling Order.

9 8.2 Meet and Confer. The Challenging Party shall initiate the dispute

10 resolution process under Local Rule 37-1 et seq.

11 8.3 Joint Stipulation. Any challenge submitted to the Court shall be via a

12 joint stipulation pursuant to Local Rule 37-2.

13 8.4 The burden of persuasion in any such challenge proceeding shall be on

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

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

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

17 has waived or withdrawn the confidentiality designation, all parties shall continue to

18 afford the material in question the level of protection to which it is entitled under the

19 Producing Party’s designation until the Court rules on the challenge.

20 9. ACCESS TO AND USE OF PROTECTED MATERIAL

21 9.1 Basic Principles. A Receiving Party may use Protected Material that is

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

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

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

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

26 Receiving Party must comply with the provisions of Section 15 below (FINAL

27 DISPOSITION).

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

3 authorized under this Order.

4 9.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless

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

6 Receiving Party may disclose any information or item designated

7 “CONFIDENTIAL” only to:

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

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

10 necessary to disclose the information for this Action;

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

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

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

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

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

16 (d) the court and its personnel;

17 (e) court reporters and their staff;

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

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

20 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A)

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

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

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

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

25 requests that the witness sign the form attached as Exhibit A hereto; and (2) they will

26 not be permitted to keep any confidential information unless they sign the

27 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise

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2 deposition testimony or exhibits to depositions that reveal Protected Material may be

3 separately bound by the court reporter and may not be disclosed to anyone except as

4 permitted under this Stipulated Protective Order; and

5 (i) any mediators or settlement officers and their supporting personnel,

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

7 10. PROTECTED MATERIAL SUBPOENAED OR ORDERED

8 PRODUCED IN OTHER LITIGATION

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

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

11 “CONFIDENTIAL,” that Party must:

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

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

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

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

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

17 a copy of this Stipulated Protective Order; and

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

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

20 Designating Party timely seeks a protective order, the Party served with the subpoena

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

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

23 or order issued, unless the Party has obtained the Designating Party’s permission.

24 The Designating Party shall bear the burden and expense of seeking protection in

25 that court of its confidential material and nothing in these provisions should be

26 construed as authorizing or encouraging a Receiving Party in this Action to disobey

27 a lawful directive from another court.

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2 PRODUCED IN THIS LITIGATION

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

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

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

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

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

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

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

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

11 confidential information, then the Party shall:

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

13 that some or all of the information requested is subject to a confidentiality agreement

14 with a Non-Party;

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

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

17 specific description of the information requested; and

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

19 Non-Party, if requested.

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

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

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

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

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

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

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

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

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

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

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

5 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts

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

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

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

9 Agreement to Be Bound” attached hereto as Exhibit A.

10 13. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

11 PROTECTED MATERIAL

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

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

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

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

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

17 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the

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

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

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

21 to the court.

22 14. MISCELLANEOUS

23 14.1 Right to Further Relief. Nothing in this Order abridges the right of any

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

25 14.2 Right to Assert Other Objections. By stipulating to the entry of this

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

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

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2 ground to use in evidence of any of the material covered by this Protective Order.

3 14.3 Filing Protected Material. A Party that seeks to file under seal any

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

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

6 specific Protected Material. If a Party’s request to file Protected Material under seal

7 is denied by the court, then the Receiving Party may file the information in the

8 public record unless otherwise instructed by the court.

9 15. FINAL DISPOSITION

10 After the final disposition of this Action, as defined in paragraph 6, within 60

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

27 Section 6 (DURATION).

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VIOLATION

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

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

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5 ||FOR GOOD CAUSE SHOWN IT IS ORDERED.

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7||DATED: August 30, 2021 if de

8 Lie AG

9 J D. EARLY

nited States Magistrate Judge

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STIPULATED PROTECTIVEORDER-— si iss—<‘i—‘—sSOSCS™

Case No. 8:21-CV-00029-DOC-JDE

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 that I

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

6 the United States District Court for the Northern District of California on _________ [date]

7 in the case of Hartford Underwriters Insurance Company v. Scotsman Group, LLC, et al.,

8 No. 8:21-cv-00029-DOC-JDE (C.D. Cal.). I agree to comply with and to be bound by all

9 the terms of this Stipulated Protective Order and I understand and acknowledge that failure

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

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

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

13 compliance with the provisions of this Order.

14 I further agree to submit to the jurisdiction of the United States District Court for the

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

16 Protective Order, even if such enforcement proceedings occur after termination of this

17 action.

18 I hereby appoint __________________________ [print or type full name] of

19 _______________________________________ [print or type full address and telephone

20 number] as my California agent for service of process in connection with this action or any

21 proceedings related to enforcement of this Stipulated Protective Order.

22

23 Date: _________________________________

24 City and State where sworn and signed: _________________________________

25 Printed name: ______________________________

26

27 Signature: _________________________________

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