The opinion
1 BUCHALTER
A Professional Corporation
2 DYLAN W. WISEMAN (SBN: 173669)
PHILIP CHAN (SBN: 263907)
3 500 Capitol Mall, Suite 1900
Sacramento, CA 95814
4 Telephone: 916.945.5170
Email: dwiseman@buchalter.com
5 pchan@buchalter.com
6 Attorneys for Plaintiff
TRI TOOL, INC.
7
8
UNITED STATES DISTRICT COURT
9
EASTERN DISTRICT OF CALIFORNIA
10
SACRAMENTO DIVISION
11
12
TRI TOOL, INC., a Nevada corporation, Case No. 2:22-CV-01515-DAD-KJN
13
Plaintiff,
14
vs. STIPULATED PROTECTIVE ORDER
15
THAD HALES, an individual;
16 MIKE BRACIKOWSKI, an individual;
ENERPAC TOOL GROUP CORP., a Wisconsin
17 corporation; and
DOES 1- 30, inclusive,
18
Defendants.
19
20 This Stipulation and Order (“Stipulation and Order”) is made by and among Plaintiff TRI
21 TOOL, INC. (“Plaintiff”), on the one hand, and Defendants THAD HALES, MIKE
22 BRACIKOWSKI, and ENERPAC TOOL GROUP CORP. (collectively, “Defendants”), on the
23 other hand. This Stipulation refers to Plaintiff and Defendants individually as “Party,” and refers
24 to Plaintiff and Defendants collectively as “the Parties”. The Parties, through their counsel of
25 record, hereby stipulate as follows:
26
27
28
1 1. PURPOSES AND LIMITATIONS
2 Disclosure and discovery activity in this action are likely to involve production of
3 confidential, proprietary, or private information for which special protection from public disclosure
4 and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly,
5 the parties hereby stipulate to and petition the court to enter the following Stipulated Protective
6 Order. The parties acknowledge that this Order does not confer blanket protections on all
7 disclosures or responses to discovery and that the protection it affords from public disclosure and
8 use extends only to the limited information or items that are entitled to confidential treatment under
9 the applicable legal principles. The parties further acknowledge, as set forth in Section 12.3, below,
10 that this Stipulated Protective Order does not entitle them to file confidential information under
11 seal; Civil Local Rule 141 sets forth the procedures that must be followed and the standards that
12 will be applied when a party seeks permission from the court to file material under seal.
13 2. DEFINITIONS
14 2.1 Challenging Party: a Party or Non-Party that challenges the designation of
15 information or items under this Order.
16 2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is
17 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of
18 Civil Procedure 26(c).
19 2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well
20 as their support staff).
21 2.4 Designating Party: a Party or Non-Party that designates information or items that it
22 produces in disclosures or in responses to discovery as “CONFIDENTIAL” or “HIGHLY
23 CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”
24 2.5 Disclosure or Discovery Material: all items or information, regardless of the medium
25 or manner in which it is generated, stored, or maintained (including, among other things, testimony,
26 transcripts, and tangible things), that are produced or generated in disclosures or responses to
27 discovery in this matter.
28 2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to
1 the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a
2 consultant in this action.
3 2.7 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or
4 Items: extremely sensitive “Confidential Information or Items,” disclosure of which to another Party
5 or Non-Party would create a substantial risk of serious harm that could not be avoided by less
6 restrictive means.
7 2.8 House Counsel: attorneys who are employees of a party to this action. House
8 Counsel does not include Outside Counsel of Record or any other outside counsel.
9 2.9 Non-Party: any natural person, partnership, corporation, association, or other legal
10 entity not named as a Party to this action.
11 2.10 Outside Counsel of Record: attorneys who are not employees of a party to this action
12 but are retained to represent or advise a party to this action and have appeared in this action on
13 behalf of that party or are affiliated with a law firm which has appeared on behalf of that party.
14 2.11 Party: any party to this action, including all of its officers, directors, employees,
15 consultants, retained experts, and Outside Counsel of Record (and their support staffs).
16 2.12 Producing Party: a Party or Non-Party that produces Disclosure or Discovery
17 Material in this action.
18 2.13 Professional Vendors: persons or entities that provide litigation support services
19 (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing,
20 storing, or retrieving data in any form or medium) and their employees and subcontractors.
21 2.14 Protected Material: any Disclosure or Discovery Material that is designated as
22 “CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”
23 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material from a
24 Producing Party.
25 3. SCOPE
26 The protections conferred by this Stipulation and Order cover not only Protected Material
27 (as defined above), but also (1) any information copied or extracted from Protected Material; (2)
28 all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony,
1 conversations, or presentations by Parties or their Counsel that might reveal Protected Material.
2 However, the protections conferred by this Stipulation and Order do not cover the following
3 information: (a) any information that is in the public domain at the time of disclosure to a
4 Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as a
5 result of publication not involving a violation of this Order, including becoming part of the public
6 record through trial or otherwise; and (b) any information known to the Receiving Party prior to
7 the disclosure or obtained by the Receiving Party after the disclosure from a source who obtained
8 the information lawfully and under no obligation of confidentiality to the Designating Party. Any
9 use of Protected Material at trial shall be governed by a separate agreement or order.
10 4. DURATION
11 Even after final disposition of this litigation, the confidentiality obligations imposed by this
12 Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order
13 otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims
14 and defenses in this action, with or without prejudice; and (2) final judgment herein after the
15 completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,
16 including the time limits for filing any motions or applications for extension of time pursuant to
17 applicable law.
18 5. DESIGNATING PROTECTED MATERIAL
19 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party or
20 Non-Party that designates information or items for protection under this Order must take care to
21 limit any such designation to specific material that qualifies under the appropriate standards. The
22 Designating Party must designate for protection only those parts of material, documents, items, or
23 oral or written communications that qualify – so that other portions of the material, documents,
24 items, or communications for which protection is not warranted are not swept unjustifiably within
25 the ambit of this Order.
26 Mass, indiscriminate, or routinized designations are prohibited. Designations that are
27 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to
28
1 unnecessarily encumber or retard the case development process or to impose unnecessary expenses
2 and burdens on other parties) expose the Designating Party to sanctions.
3 If it comes to a Designating Party’s attention that information or items that it designated for
4 protection do not qualify for protection at all or do not qualify for the level of protection initially
5 asserted, that Designating Party must promptly notify all other Parties that it is withdrawing the
6 mistaken designation.
7 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order
8 (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered,
9 Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so
10 designated before the material is disclosed or produced.
11 Designation in conformity with this Order requires:
12 (a) For information in documentary form (e.g., paper or electronic documents,
13 but excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing
14 Party affix the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’
15 EYES ONLY” to each page that contains protected material. If only a portion or portions of the
16 material on a page qualifies for protection, the Producing Party also must clearly identify the
17 protected portion(s) (e.g., by making appropriate markings in the margins) and must specify, for
18 each portion, the level of protection being asserted..
19 A Party or Non-Party that makes original documents or materials available for inspection
20 need not designate them for protection until after the inspecting Party has indicated which material
21 it would like copied and produced. During the inspection and before the designation, all of the
22 material made available for inspection shall be deemed “HIGHLY CONFIDENTIAL –
23 ATTORNEYS’ EYES ONLY.” After the inspecting Party has identified the documents it wants
24 copied and produced, the Producing Party must determine which documents, or portions thereof,
25 qualify for protection under this Order. Then, before producing the specified documents, the
26 Producing Party must affix the appropriate legend (“CONFIDENTIAL” or “HIGHLY
27 CONFIDENTIAL – ATTORNEYS’ EYES ONLY”) to each page that contains Protected Material.
28 If only a portion or portions of the material on a page qualifies for protection, the Producing Party
1 also must clearly identify the protected portion(s) (e.g., by making appropriate markings in the
2 margins) and must specify, for each portion, the level of protection being asserted.
3 (b) for testimony given in deposition or in other pretrial or trial proceedings,
4 that the Designating Party identify on the record, before the close of the deposition, hearing, or
5 other proceeding, all protected testimony. When it is impractical to identify separately each
6 portion of the testimony that is entitled to protection and it appears that substantial portions of the
7 testimony may qualify for protection, the Designating Party may invoke on the record (before the
8 deposition, hearing, or other proceeding is concluded) a right to have up to 21 days to identify the
9 specific portions of the testimony as to which protection is sought and to specify the level of
10 protection being asserted. Only those portions of the testimony that are appropriately designated
11 for protection within the 21 days shall be covered by the provisions of this Stipulated Protective
12 Order. Alternatively, a Designating Party may specify, at the deposition or up to 21 days
13 afterwards if that period is properly invoked, that the entire transcript shall be treated as
14 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.
15 Parties shall give the other parties notice if they reasonably expect a deposition, hearing or
16 other proceeding to include Protected Material so that the other parties can ensure that only
17 authorized individuals who have signed the “Acknowledgment and Agreement to Be Bound”
18 (Exhibit A) are present at those proceedings. The use of a document as an exhibit at a deposition
19 shall not in any way affect its designation as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL
20 – ATTORNEYS’ EYES ONLY.” Transcripts containing Protected Material shall have an obvious
21 legend on the title page that the transcript contains Protected Material, and the title page shall be
22 followed by a list of all pages (including line numbers as appropriate) that have been designated as
23 Protected Material and the level of protection being asserted by the Designating Party. The
24 Designating Party shall inform the court reporter of these requirements. Any transcript that is
25 prepared before the expiration of a 21-day period for designation shall be treated during that period
26 as if it had been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its
27 entirety unless otherwise agreed. After the expiration of that period, the transcript shall be treated
28 only as actually designated.
1 (c) for information produced in some form other than documentary and for any
2 other tangible items, that the Producing Party affix in a prominent place on the exterior of the
3 container or containers in which the information or item is stored the legend “CONFIDENTIAL”
4 or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its entirety unless otherwise
5 agreed. If only a portion or portions of the information or item warrant protection, the Producing
6 Party, to the extent practicable, shall identify the protected portion(s) and specify the level of
7 protection being asserted.
8 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to
9 designate qualified information or items does not, standing alone, waive the Designating Party’s
10 right to secure protection under this Order for such material. Upon timely correction of a
11 designation, the Receiving Party must make reasonable efforts to assure that the material is treated
12 in accordance with the provisions of this Order.
13 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
14 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of
15 confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality
16 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic
17 burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to
18 challenge a confidentiality designation by electing not to mount a challenge promptly after the
19 original designation is disclosed.
20 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process
21 by providing written notice of each designation it is challenging and describing the basis for each
22 challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must
23 recite that the challenge to confidentiality is being made in accordance with this specific paragraph
24 of the Protective Order. The parties shall attempt to resolve each challenge in good faith and must
25 begin the process by conferring directly (in voice to voice dialogue; other forms of communication
26 are not sufficient) within 14 days of the date of service of notice. In conferring, the Challenging
27 Party must explain the basis for its belief that the confidentiality designation was not proper and
28 must give the Designating Party an opportunity to review the designated material, to reconsider the
1 circumstances, and, if no change in designation is offered, to explain the basis for the chosen
2 designation. A Challenging Party may proceed to the next stage of the challenge process only if it
3 has engaged in this meet and confer process first or establishes that the Designating Party is
4 unwilling to participate in the meet and confer process in a timely manner.
5 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court
6 intervention, the Designating Party shall file and serve a motion to retain confidentiality under
7 Civil Local Rule 230 (and in compliance with Civil Local Rule 141, if applicable) within 21 days
8 of the initial notice of challenge or within 14 days of the parties agreeing that the meet and confer
9 process will not resolve their dispute, whichever is earlier. Each such motion must be
10 accompanied by a competent declaration affirming that the movant has complied with the meet
11 and confer requirements imposed in the preceding paragraph. Failure by the Designating Party to
12 make such a motion including the required declaration within 21 days (or 14 days, if applicable)
13 shall automatically waive the confidentiality designation for each challenged designation. In
14 addition, the Challenging Party may file a motion challenging a confidentiality designation at any
15 time if there is good cause for doing so, including a challenge to the designation of a deposition
16 transcript or any portions thereof. Any motion brought pursuant to this provision must be
17 accompanied by a competent declaration affirming that the movant has complied with the meet
18 and confer requirements imposed by the preceding paragraph. A ruling on the propriety of the
19 designation shall not be determinative of whether information is entitled to lawful protection as
20 confidential information and/or a trade secret at trial.
21 The burden of persuasion in any such challenge proceeding shall be on the Designating
22 Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose
23 unnecessary expenses and burdens on other parties) may expose the Challenging Party to
24 sanctions. Unless the Designating Party has waived the confidentiality designation by failing to
25 file a motion to retain confidentiality as described above, all parties shall continue to afford the
26 material in question the level of protection to which it is entitled under the Producing Party’s
27 designation until the court rules on the challenge.
28
1 7. ACCESS TO AND USE OF PROTECTED MATERIAL
2 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed
3 or produced by another Party or by a Non-Party in connection with this case only for
4 prosecuting, defending, or attempting to settle this litigation. Such Protected Material may be
5 disclosed only to the categories of persons and under the conditions described in this Order.
6 When the litigation has been terminated, a Receiving Party must comply with the provisions of
7 section 13 below (FINAL DISPOSITION).
8 Protected Material must be stored and maintained by a Receiving Party at a location and
9 in a secure manner that ensures that access is limited to the persons authorized under this Order.
10 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise
11 ordered by the court or permitted in writing by the Designating Party, a Receiving Party may
12 disclose any information or item designated “CONFIDENTIAL” only to:
13 (a) the Receiving Party’s Outside Counsel of Record in this action, as well as
14 employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the
15 information for this litigation and who have signed the “Acknowledgment and Agreement to Be
16 Bound” that is attached hereto as Exhibit A;
17 (b) the officers, directors, and employees (including House Counsel) of the
18 Receiving Party to whom disclosure is reasonably necessary for this litigation and who have
19 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
20 (c) Experts (as defined in this Stipulation and Order) of the Receiving Party to
21 whom disclosure is reasonably necessary for this litigation and who have signed the
22 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
23 (d) the court and its personnel;
24 (e) court reporters and their staff, professional jury or trial consultants, mock
25 jurors, and Professional Vendors to whom disclosure is reasonably necessary for this litigation and
26 who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
27 (f) during their depositions, witnesses in the action to whom disclosure is
28 reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound”
1 (Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court. Pages of
2 transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be
3 separately bound by the court reporter and may not be disclosed to anyone except as permitted
4 under this Stipulation and Order.
5 (g) the author or recipient of a document containing the information or a
6 custodian or other person who otherwise possessed or knew the information.
7 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information
8 or Items. Unless otherwise ordered by the court or permitted in writing by the Designating Party,
9 a Receiving Party may disclose any information or item designated “HIGHLY CONFIDENTIAL
10 – ATTORNEYS’ EYES ONLY” only to:
11 (a) the Receiving Party’s Outside Counsel of Record in this action, as well as
12 employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the
13 information for this litigation and who have signed the “Acknowledgment and Agreement to Be
14 Bound” that is attached hereto as Exhibit A;
15 (b) Experts of the Receiving Party (1) to whom disclosure is reasonably
16 necessary for this litigation, (2) who have signed the “Acknowledgment and Agreement to Be
17 Bound” (Exhibit A), and (3) as to whom the procedures set forth in paragraph 7.4(a), below, have
18 been followed];
19 (c) the court and its personnel;
20 (d) court reporters and their staff, professional jury or trial consultants, and
21 Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have
22 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); and
23 (e) the author or recipient of a document containing the information or a
24 custodian or other person who otherwise possessed or knew the information.
25 7.4 Procedures for Approving or Objecting to Disclosure of “HIGHLY
26 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items to Experts.
27 (a) Unless otherwise ordered by the court or agreed to in writing by the
28 Designating Party, a Party that seeks to disclose to an Expert (as defined in this Order) any
1 information or item that has been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’
2 EYES ONLY” pursuant to paragraph 7.3(b) first must make a written request to the Designating
3 Party that (1) identifies the general categories of “HIGHLY CONFIDENTIAL – ATTORNEYS’
4 EYES ONLY” information that the Receiving Party seeks permission to disclose to the Expert, (2)
5 sets forth the full name of the Expert and the city and state of his or her primary residence, (3)
6 attaches a copy of the Expert’s current resume, (4) identifies the Expert’s current employer(s), (5)
7 identifies each person or entity from whom the Expert has received compensation or funding for
8 work in his or her areas of expertise or to whom the expert has provided professional services,
9 including in connection with a litigation, at any time during the preceding five years,9 and (6)
10 identifies (by name and number of the case, filing date, and location of court) any litigation in
11 connection with which the Expert has offered expert testimony, including through a declaration,
12 report, or testimony at a deposition or trial, during the preceding five years.10
13 (b) A Party that makes a request and provides the information specified in the
14 preceding respective paragraphs may disclose the subject Protected Material to the Expert unless,
15 within 14 days of delivering the request, the Party receives a written objection from the
16 Designating Party. Any such objection must set forth in detail the grounds on which it is based.
17 (c) A Party that receives a timely written objection must meet and confer with
18 the Designating Party (through direct voice to voice dialogue) to try to resolve the matter by
19 agreement within seven days of the written objection. If no agreement is reached, the Party seeking
20 to make the disclosure to the Expert may file a motion as provided in Civil Local Rule 230 (and in
21 compliance with Civil Local Rule 141, if applicable) seeking permission from the court to do so.
22 Any such motion must describe the circumstances with specificity, set forth in detail the reasons
23 why the disclosure to the Expert is reasonably necessary, assess the risk of harm that the disclosure
24 would entail, and suggest any additional means that could be used to reduce that risk. In addition,
25 any such motion must be accompanied by a competent declaration describing the parties’ efforts to
26 resolve the matter by agreement (i.e., the extent and the content of the meet and confer
27 discussions) and setting forth the reasons advanced by the Designating Party for its refusal to
28 approve the disclosure.
1 In any such proceeding, the Party opposing disclosure to the Expert shall bear the burden
2 of proving that the risk of harm that the disclosure would entail (under the safeguards proposed)
3 outweighs the Receiving Party’s need to disclose the Protected Material to its Expert.
4 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER
5 LITIGATION
6 If a Party is served with a subpoena or a court order issued in other litigation that compels
7 disclosure of any information or items designated in this action as “CONFIDENTIAL” or
8 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY that Party must:
9 (a) promptly notify in writing the Designating Party. Such notification shall
10 include a copy of the subpoena or court order;
11 (b) promptly notify in writing the party who caused the subpoena or order to
12 issue in the other litigation that some or all of the material covered by the subpoena or order is
13 subject to this Protective Order. Such notification shall include a copy of this Stipulation and
14 Order; and
15 (c) cooperate with respect to all reasonable procedures sought to be pursued by
16 the Designating Party whose Protected Material may be affected.
17 If the Designating Party timely seeks a protective order, the Party served with the
18 subpoena or court order shall not produce any information designated in this action as
19 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” before a
20 determination by the court from which the subpoena or order issued, unless the Party has
21 obtained the Designating Party’s permission. The Designating Party shall bear the burden and
22 expense of seeking protection in that court of its confidential material – and nothing in these
23 provisions should be construed as authorizing or encouraging a Receiving Party in this action to
24 disobey a lawful directive from another court.
25
26
27
28
1 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED
2 IN THIS LITIGATION
3 (a) The terms of this Order are applicable to information produced by a Non-
4 Party in this action and designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
5 ATTORNEYS’ EYES ONLY” Such information produced by Non-Parties in connection with this
6 litigation is protected by the remedies and relief provided by this Order. Nothing in these
7 provisions should be 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 produce
9 a Non-Party’s confidential information in its possession, and the Party is subject to an agreement
10 with the Non-Party not to produce the Non-Party’s confidential information, then the Party shall:
11 (1) promptly notify in writing the Requesting Party and the Non-Party
12 that some or all of the information requested is subject to a confidentiality agreement with a
13 Non-Party;
14 (2) promptly provide the Non-Party with a copy of the Stipulation and
15 Order in this litigation, the relevant discovery request(s), and a reasonably specific description of
16 the information requested; and
17 (3) make the information requested available for inspection by the
18 Non-Party.
19 (c) If the Non-Party fails to object or seek a protective order from this court
20 within 14 days of receiving the notice and accompanying information, the Receiving Party may
21 produce the Non-Party’s confidential information responsive to the discovery request. If the Non-
22 Party timely seeks a protective order, the Receiving Party shall not produce any information in its
23 possession or control that is subject to the confidentiality agreement with the Non-Party before a
24 determination by the court. Absent a court order to the contrary, the Non-Party shall bear the
25 burden and expense of seeking protection in this court of its Protected Material.
26 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
27 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected
28 Material to any person or in any circumstance not authorized under this Stipulation and Order,
1 the Receiving Party must immediately (a) notify in writing the Designating Party of the
2 unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the
3 Protected Material, (c) inform the person or persons to whom unauthorized disclosures were
4 made of all the terms of this Order, and (d) request such person or persons to execute the
5 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A.
6 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED
7 MATERIAL
8 When a Producing Party gives notice to Receiving Parties that certain inadvertently
9 produced material is subject to a claim of privilege or other protection, the obligations of the
10 Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This
11 provision is not intended to modify whatever procedure may be established in an e-discovery
12 order that provides for production without prior privilege review. Pursuant to Federal Rule of
13 Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a
14 communication or information covered by the attorney-client privilege or work product
15 protection, the parties may incorporate their agreement in the Stipulation and Order submitted to
16 the court.
17 12. MISCELLANEOUS
18 12.1 Right to Further Relief. Nothing in this Stipulation and Order abridges the right of
19 any person to seek its modification by the court in the future.
20 12.2 Right to Assert Other Objections. By stipulating to the entry of this Stipulation
21 and Order no Party waives any right it otherwise would have to object to disclosing or producing
22 any information or item on any ground not addressed in this Stipulation and Order. Similarly, no
23 Party waives any right to object on any ground to use in evidence of any of the material covered
24 by this Stipulation and Order.
25 12.3 Filing Protected Material. Without written permission from the Designating Party
26 or a court order secured after appropriate notice to all interested persons, a Party may not file in
27 the public record in this action any Protected Material. A Party that seeks to file under seal any
28 Protected Material must comply with Civil Local Rule 141. Protected Material may only be filed
1 under seal pursuant to a court order authorizing the sealing of the specific Protected Material at
2 issue. Pursuant to Civil Local Rule 141, a sealing order will issue only upon a request
3 establishing that the Protected Material at issue is privileged, protectable as a trade secret, or
4 otherwise entitled to protection under the law. If a Receiving Party's request to file Protected
5 Material under seal pursuant to Civil Local Rule 141 is denied by the court, then the Receiving
6 Party may file the information in the public record pursuant to Civil Local Rule 141 unless
7 otherwise instructed by the court.
8 13. FINAL DISPOSITION
9 Within 60 days after the final disposition of this action, as defined in paragraph 4, each
10 Receiving Party must return all Protected Material to the Producing Party or destroy such
11 material. As used in this subdivision, “all Protected Material” includes all copies, abstracts,
12 compilations, summaries, and any other format reproducing or capturing any of the Protected
13 Material. Whether the Protected Material is returned or destroyed, the Receiving Party must
14 submit a written certification to the Producing Party (and, if not the same person or entity, to the
15 Designating Party) by the 60 day deadline that (1) identifies (by category, where appropriate) all
16 the Protected Material that was returned or destroyed and (2) affirms that the Receiving Party has
17 not retained any copies, abstracts, compilations, summaries or any other format reproducing or
18 capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled to
19 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts,
20 legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work
21 product, and consultant and expert work product, even if such materials contain Protected
22 Material. Any such archival copies that contain or constitute Protected Material remain subject to
23 this Protective Order as set forth in Section 4 (DURATION).
24 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
25
Dated: November 17, 2022 BUCHALTER, A Professional Corporation
26
By:/s/DYLAN WISEMAN
27 Dylan W. Wiseman
Attorneys for Plaintiff
28 TRI TOOL, INC.
1 Dated: October __, 2022 JACKSON LEWIS P.C.
2
3 By: /s/
4 James P. Carter
Jonathan P. Schmidt
5
Attorneys for Defendant
6 ENERPAC TOOL GROUP CORP.
7
8 Dated: October __, 2022 THAD HALES
9
10 By:
11 Defendant THAD HALES
12
Dated: October __, 2022 MIKE BRACIKOWSKI
13
14
By:
15
Defendant MIKE BRACIKOWSKI
16
17
18
19
20
21
22
23
24
25
26
27
28
1 ORDER
2 The court has reviewed the parties’ stipulated protective order, of which all parties but
3|| defendant Hales signed. (See ECF No. 17). Defendant Hales was ordered to respond but failed
4|| to do so.! (See ECF No. 18.) Based on the representations by counsel in the motion for
5 protective order, as well as in the complaint and the stipulation, the court finds the applicable
6 local rule satisfied. See L.R. 141.1. The court APPROVES the above protective order and orders
4 it effective subject to the following clarification. The Local Rules state that once an action is
closed, “unless otherwise ordered, the court will not retain jurisdiction over enforcement of the
terms of any protective order filed in that action.” L.R. 141.1(f); see also, e.g., MD Helicopters,
7 Inc. v. Aerometals, Inc., 2017 WL 495778 (E.D. Cal., Feb. 03, 2017) (noting that courts in the
10 district generally do not agree to retain jurisdiction for disputes concerning protective orders after
closure of the case). Thus, the court will not retain jurisdiction over this protective order once the
12|| case is closed. Further, plaintiff’s request for attorneys’ fees is DENIED at this time, but
defendant Hales is cautioned that further failures to communicate or cooperate with opposing
14|| counsel may result in sanctions including attorneys’ fees.
15|| Dated: December 21, 2022
—Frebl Alarm
17 KENDALL J. NE
UNITED STATES MAGISTRATE JUDGE
18} wit.isis
19
20
21
22
23
24
25
26
' On December 14, 2022, Defendant Hales filed a document titled “Second Request for
Summons.” (ECF No. 21.) However, Defendant’s Second Request for Summons is unresponsive
28|| to the motion for protective order.
1 EXHIBIT A
2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
3 I, _____________________________ [print or type full name], of _________________
4 [print or type full address], declare under penalty of perjury that I have read in its entirety and
5 understand the Stipulated Protective Order that was issued by the United States District Court for
6 the Eastern District of California on [date] in the case of Tri Tool, Inc. v. Thad Hales, et al.,
7 with Case Number 2:22-CV-01515-DAD-KJN. I agree to comply with and to be bound by all
8 the terms of this Stipulated Protective Order and I understand and acknowledge that failure to so
9 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
12 provisions of this Order.
13 I further agree to submit to the jurisdiction of the United States District Court for the
14 Eastern District of California for the purpose of enforcing the terms of this Stipulated Protective
15 Order, even if such enforcement proceedings occur after termination of this action.
16 I hereby appoint __________________________ [print or type full name] of
17 _______________________________________ [print or type full address and telephone
18 number] as my California agent for service of process in connection with this action or any
19 proceedings related to enforcement of this Stipulated Protective Order.
20
21 Date: ______________________________________
22
23 City and State where sworn and signed: _________________________________
24
25 Printed name: _______________________________
26
27 Signature: __________________________________
28