The opinion
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
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Lawrence Michael Doherty Jr.,
11 Case No. 2:22-cv-03891-SPG-PVC
Plaintiff,
12 STIPULATED PROTECTIVE
v. ORDER
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MicroBilt Corporation et al,
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Defendant.
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18 1. INTRODUCTION
19 1.1 PURPOSES AND LIMITATIONS
20 Discovery in this action is likely to involve production of confidential,
21 proprietary, or private information for which special protection from public disclosure
22 and from use for any purpose other than prosecuting this litigation may be warranted.
23 Accordingly, the parties hereby stipulate to and petition the Court to enter the
24 following Stipulated Protective Order. The parties acknowledge that this Order does
25 not confer blanket protections on all disclosures or responses to discovery and that
26 the protection it affords from public disclosure and use extends only to the limited
27 information or items that are entitled to confidential treatment under the applicable
1 that this Stipulated Protective Order does not entitle them to file confidential
2 information under seal; Civil Local Rule 79-5 sets forth the procedures that must be
3 followed and the standards that will be applied when a party seeks permission from
4 the court to file material under seal.
5 1.2 GOOD CAUSE STATEMENT
6 This action is likely to involve trade secrets, pricing lists and other valuable
7 research, development, commercial, financial, technical and/or proprietary
8 information for which special protection from public disclosure and from use for any
9 purpose other than prosecution of this action is warranted. Such confidential and
10 proprietary materials and information consist of, among other things, consumer
11 information the disclosure of which is regulated by federal and/or state law,
12 confidential business or financial information, sensitive personal information,
13 information regarding confidential business practices, corporate policies and
14 procedures, or other confidential research, internal metrics, development,
15 commercial, or financial information (including information implicating privacy
16 rights of third parties), information otherwise generally unavailable to the public, or
17 which may be privileged or otherwise protected from disclosure under state or federal
18 statutes, court rules, case decisions, or common law.
19 Accordingly, to expedite the flow of information, to facilitate the prompt
20 resolution of disputes over confidentiality of discovery materials, to adequately
21 protect information the parties are entitled to keep confidential, to ensure that the
22 parties are permitted reasonable necessary uses of such material in preparation for and
23 in the conduct of trial, to address their handling at the end of the litigation, and to
24 serve the ends of justice, a protective order for such information is justified in this
25 matter. It is the intent of the parties that information will not be designated as
26 confidential for tactical reasons and that nothing be so designated without a good faith
27 belief that it has been maintained in a confidential, non-public manner, and there is
1 2. DEFINITIONS
2 2.1 Action: this pending federal law suit, Doherty v. MicroBilt Corporation
3 et al., No.: 2:22-cv-03891-SPG-PVC.
4 2.2 Challenging Party: a Party or Non-Party that challenges the designation
5 of information or items under this Order.
6 2.3 “CONFIDENTIAL” Information or Items: information (regardless of
7 how it is generated, stored or maintained) or tangible things that qualify for protection
8 under Federal Rule of Civil Procedure 26(c), and as specified above in the Good
9 Cause Statement.
10 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their
11 support staff).
12 2.5 Designating Party: a Party or Non-Party that designates information or
13 items that it produces in disclosures or in responses to discovery as
14 “CONFIDENTIAL”
15 2.6 Disclosure or Discovery Material: all items or information, regardless
16 of the medium or manner in which it is generated, stored, or maintained (including,
17 among other things, testimony, transcripts, and tangible things), that are produced or
18 generated in disclosures or responses to discovery in this matter.
19 2.7 Expert: a person with specialized knowledge or experience in a matter
20 pertinent to the litigation who has been retained by a Party or its counsel to serve as
21 an expert witness or as a consultant in this Action.
22 2.8 House Counsel: attorneys who are employees of a party to this Action.
23 House Counsel does not include Outside Counsel of Record or any other outside
24 counsel.
25 2.9 Non-Party: any natural person, partnership, corporation, association, or
26 other legal entity not named as a Party to this action.
27 2.10 Outside Counsel of Record: attorneys who are not employees of a party
1 appeared in this Action on behalf of that party or are affiliated with a law firm which
2 has appeared on behalf of that party, and includes support staff.
3 2.11 Party: any party to this Action, including all of its officers, directors,
4 employees, consultants, retained experts, and Outside Counsel of Record (and their
5 support staffs).
6 2.12 Producing Party: a Party or Non-Party that produces Disclosure or
7 Discovery Material in this Action.
8 2.13 Professional Vendors: persons or entities that provide litigation support
9 services (e.g., photocopying, videotaping, translating, preparing exhibits or
10 demonstrations, and organizing, storing, or retrieving data in any form or medium)
11 and their employees and subcontractors.
12 2.14 Protected Material: any Disclosure or Discovery Material that is
13 designated as “CONFIDENTIAL”
14 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material
15 from a Producing Party.
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17 3. SCOPE
18 The protections conferred by this Stipulation and Order cover not only
19 Protected Material (as defined above), but also (1) any information copied or extracted
20 from Protected Material; (2) all copies, excerpts, summaries, or compilations of
21 Protected Material; and (3) any testimony, conversations, or presentations by Parties
22 or their Counsel that might reveal Protected Material.
23 Any use of Protected Material at trial will be governed by the orders of the trial
24 judge. This Order does not govern the use of Protected Material at trial.
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26 4. DURATION
27 Once a case proceeds to trial, all of the information that was designated as
1 exhibit at trial becomes public and will be presumptively available to all members of
2 the public, including the press, unless compelling reasons supported by specific factual
3 findings to proceed otherwise are made to the trial judge in advance of the trial. See
4 Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1180-81 (9th Cir. 2006)
5 (distinguishing “good cause” showing for sealing documents produced in discovery
6 from “compelling reasons” standard when merits-related documents are part of court
7 record). Accordingly, the terms of this protective order do not extend beyond the
8 commencement of the trial.
9 Even after final disposition of this litigation, the confidentiality obligations
10 imposed by this Order will remain in effect until a Designating Party agrees otherwise
11 in writing or a court order otherwise directs. Final disposition will be deemed to be
12 the later of (1) dismissal of all claims and defenses in this Action, with or without
13 prejudice; and (2) final judgment herein after the completion and exhaustion of all
14 appeals, rehearings, remands, trials, or reviews of this Action, including the time
15 limits for filing any motions or applications for extension of time pursuant to
16 applicable law.
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18 5. DESIGNATING PROTECTED MATERIAL
19 5.1 Exercise of Restraint and Care in Designating Material for Protection.
20 Each Party or Non-Party that designates information or items for protection under this
21 Order must take care to limit any such designation to specific material that qualifies
22 under the appropriate standards. The Designating Party must designate for protection
23 only those parts of material, documents, items, or oral or written communications that
24 qualify so that other portions of the material, documents, items, or communications
25 for which protection is not warranted are not swept unjustifiably within the ambit of
26 this Order.
27 Mass, indiscriminate, or routinized designations are prohibited. Designations
1 purpose (e.g., to unnecessarily encumber the case development process or to impose
2 unnecessary expenses and burdens on other parties) may expose the Designating Party
3 to sanctions.
4 If it comes to a Designating Party’s attention that information or items that it
5 designated for protection do not qualify for protection, that Designating Party must
6 promptly notify all other Parties that it is withdrawing the inapplicable designation.
7 5.2 Manner and Timing of Designations. Except as otherwise provided in
8 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
9 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
10 under this Order must be clearly so designated before the material is disclosed or
11 produced.
12 Designation in conformity with this Order requires:
13 (a) for information in documentary form (e.g., paper or electronic documents,
14 but excluding transcripts of depositions or other pretrial or trial proceedings), that the
15 Producing Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter
16 “CONFIDENTIAL legend”) , to each page that contains protected material. If only a
17 portion or portions of the material on a page qualifies for protection, the Producing
18 Party also must clearly identify the protected portion(s) (e.g., by making appropriate
19 markings in the margins).
20 A Party or Non-Party that makes original documents available for inspection
21 need not designate them for protection until after the inspecting Party has indicated
22 which documents it would like copied and produced. During the inspection and before
23 the designation, all of the material made available for inspection will be deemed
24 “CONFIDENTIAL.” After the inspecting Party has identified the documents it wants
25 copied and produced, the Producing Party must determine which documents, or
26 portions thereof, qualify for protection under this Order. Then, before producing the
27 specified documents, the Producing Party must affix the “CONFIDENTIAL legend”
1 material on a page qualifies for protection, the Producing Party also must clearly
2 identify the protected portion(s) (e.g., by making appropriate markings in the
3 margins).
4 (b) for testimony given in depositions, that the Designating Party designates
5 Protected Material within thirty (30) days of receiving the transcript of the testimony.
6 (c) for information produced in some form other than documentary and for any
7 other tangible items, that the Producing Party affix in a prominent place on the exterior
8 of the container or containers in which the information is stored the legend
9 “CONFIDENTIAL” If only a portion or portions of the information warrants
10 protection, the Producing Party, to the extent practicable, will identify the protected
11 portion(s).
12 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
13 failure to designate qualified information or items does not, standing alone, waive the
14 Designating Party’s right to secure protection under this Order for such material.
15 Upon timely correction of a designation, the Receiving Party must make reasonable
16 efforts to assure that the material is treated in accordance with the provisions of this
17 Order.
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19 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
20 6.1 Timing of Challenges. Any Party or Non-Party may challenge a
21 designation of confidentiality at any time that is consistent with the Court’s
22 Scheduling Order.
23 6.2 Meet and Confer. The Challenging Party will initiate the dispute
24 resolution process (and, if necessary, file a discovery motion) under Local Rule 37.1
25 et seq.
26 6.3 The burden of persuasion in any such challenge proceeding will be on
27 the Designating Party. Frivolous challenges, and those made for an improper purpose
1 expose the Challenging Party to sanctions. Unless the Designating Party has waived
2 or withdrawn the confidentiality designation, all parties will continue to afford the
3 material in question the level of protection to which it is entitled under the Producing
4 Party’s designation until the Court rules on the challenge.
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6 7. ACCESS TO AND USE OF PROTECTED MATERIAL
7 7.1 Basic Principles. A Receiving Party may use Protected Material that is
8 disclosed or produced by another Party or by a Non-Party in connection with this
9 Action only for prosecuting, defending, or attempting to settle this Action. Such
10 Protected Material may be disclosed only to the categories of persons and under the
11 conditions described in this Order. When the Action has been terminated, a Receiving
12 Party must comply with the provisions of section 13 below (FINAL DISPOSITION).
13 Protected Material must be stored and maintained by a Receiving Party at a
14 location and in a secure manner that ensures that access is limited to the persons
15 authorized under this Order.
16 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless
17 otherwise ordered by the court or permitted in writing by the Designating Party, a
18 Receiving Party may disclose any information or item designated
19 “CONFIDENTIAL” only to:
20 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well
21 as employees of said Outside Counsel of Record to whom it is reasonably necessary
22 to disclose the information for this Action;
23 (b) the officers, directors, and employees (including House Counsel) of the
24 Receiving Party to whom disclosure is reasonably necessary for this Action;
25 (c) Experts (as defined in this Order) of the Receiving Party to whom
26 disclosure is reasonably necessary for this Action and who have signed the
27 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
1 (e) court reporters and their staff;
2 (f) professional jury or trial consultants, mock jurors, and Professional
3 Vendors to whom disclosure is reasonably necessary for this Action and who have
4 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
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 (h) during their depositions, witnesses, and attorneys for witnesses, in the
8 Action to whom disclosure is reasonably necessary provided: (1) the deposing party
9 requests that the witness sign the form attached as Exhibit A hereto; and (2) they will
10 not be permitted to keep any confidential information unless they sign the
11 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise
12 agreed by the Designating Party or ordered by the court. Pages of transcribed
13 deposition testimony or exhibits to depositions that reveal Protected Material may be
14 separately bound by the court reporter and may not be disclosed to anyone except as
15 permitted under this Stipulated Protective Order; and
16 (i) any mediator or settlement officer, and their supporting personnel,
17 mutually agreed upon by any of the parties engaged in settlement discussions.
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19 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
20 IN OTHER LITIGATION
21 If a Party is served with a subpoena or a court order issued in other litigation
22 that compels disclosure of any information or items designated in this Action as
23 “CONFIDENTIAL” that Party must:
24 (a) promptly notify in writing the Designating Party. Such notification will
25 include a copy of the subpoena or court order;
26 (b) promptly notify in writing the party who caused the subpoena or order
27 to issue in the other litigation that some or all of the material covered by the subpoena
1 or order is subject to this Protective Order. Such notification will include a copy of
2 this Stipulated Protective Order; and
3 (c) cooperate with respect to all reasonable procedures sought to be pursued
4 by the Designating Party whose Protected Material may be affected.
5 If the Designating Party timely seeks a protective order, the Party served with
6 the subpoena or court order will not produce any information designated in this action
7 as “CONFIDENTIAL” before a determination by the court from which the subpoena
8 or order issued, unless the Party has obtained the Designating Party’s permission. The
9 Designating Party will bear the burden and expense of seeking protection in that court
10 of its confidential material and nothing in these provisions should be construed as
11 authorizing or encouraging a Receiving Party in this Action to disobey a lawful
12 directive from another court.
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14 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
15 PRODUCED IN THIS LITIGATION
16 (a) The terms of this Order are applicable to information produced by a
17 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information
18 produced by Non-Parties in connection with this litigation is protected by the
19 remedies and relief provided by this Order. Nothing in these provisions should be
20 construed as prohibiting a Non-Party from seeking additional protections.
21 (b) In the event that a Party is required, by a valid discovery request, to
22 produce a Non-Party’s confidential information in its possession, and the Party is
23 subject to an agreement with the Non-Party not to produce the Non-Party’s
24 confidential information, then the Party will:
25 (1) promptly notify in writing the Requesting Party and the Non-Party
26 that some or all of the information requested is subject to a confidentiality agreement
27 with a Non-Party;
1 (2) promptly provide the Non-Party with a copy of the Stipulated
2 Protective Order in this Action, the relevant discovery request(s), and a reasonably
3 specific description of the information requested; and
4 (3) make the information requested available for inspection by the Non-
5 Party, if requested.
6 (c) If the Non-Party fails to seek a protective order from this court within
7 14 days of receiving the notice and accompanying information, the Receiving Party
8 may produce the Non-Party’s confidential information responsive to the discovery
9 request. If the Non-Party timely seeks a protective order, the Receiving Party will not
10 produce any information in its possession or control that is subject to the
11 confidentiality agreement with the Non-Party before a determination by the court.
12 Absent a court order to the contrary, the Non-Party will bear the burden and expense
13 of seeking protection in this court of its Protected Material.
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15 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
16 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
17 Protected Material to any person or in any circumstance not authorized under this
18 Stipulated Protective Order, the Receiving Party must immediately (a) notify in
19 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
20 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or
21 persons to whom unauthorized disclosures were made of all the terms of this Order,
22 and (d) request such person or persons to execute the “Acknowledgment and
23 Agreement to Be Bound” that is attached hereto as Exhibit A.
24 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
25 PROTECTED MATERIAL
26 When a Producing Party gives notice to Receiving Parties that certain
27 inadvertently produced material is subject to a claim of privilege or other protection,
1 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
2 may be established in an e-discovery order that provides for production without prior
3 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the
4 parties reach an agreement on the effect of disclosure of a communication or
5 information covered by the attorney-client privilege or work product protection, the
6 parties may incorporate their agreement in the stipulated protective order submitted
7 to the court.
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9 12. MISCELLANEOUS
10 12.1 Right to Further Relief. Nothing in this Order abridges the right of any
11 person to seek its modification by the Court in the future.
12 12.2 Right to Assert Other Objections. By stipulating to the entry of this
13 Protective Order no Party waives any right it otherwise would have to object to
14 disclosing or producing any information or item on any ground not addressed in this
15 Stipulated Protective Order. Similarly, no Party waives any right to object on any
16 ground to use in evidence of any of the material covered by this Protective Order.
17 12.3 Filing Protected Material. A Party that seeks to file under seal any
18 Protected Material must comply with Civil Local Rule 79-5. Protected Material may
19 only be filed under seal pursuant to a court order authorizing the sealing of the specific
20 Protected Material at issue. If a Party's request to file Protected Material under seal
21 is denied by the court, then the Receiving Party may file the information in the public
22 record unless otherwise instructed by the court.
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24 13. FINAL DISPOSITION
25 After the final disposition of this Action, as defined in paragraph 4, within 60
26 days of a written request by the Designating Party, each Receiving Party must return
27 all Protected Material to the Producing Party or destroy such material. As used in this
1 || summaries, and any other format reproducing or capturing any of the Protected
2 || Material. Whether the Protected Material is returned or destroyed, the Receiving
3 || Party must submit a written certification to the Producing Party (and, if not the same
4 || person or entity, to the Designating Party) by the 60 day deadline that (1) identifies
5 || (by category, where appropriate) all the Protected Material that was returned or
6 || destroyed and (2) affirms that the Receiving Party has not retained any copies,
7 || abstracts, compilations, summaries or any other format reproducing or capturing any
8 || of the Protected Material. Notwithstanding this provision, Counsel are entitled to
9 || retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing
10 || transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert
11 || reports, attorney work product, and consultant and expert work product, even if such
12 || materials contain Protected Material. Any such archival copies that contain or
13 || constitute Protected Material remain subject to this Protective Order as set forth in
14 || Section 4 (DURATION).
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16 || 14. Any willful violation of this Order may be punished by civil or criminal
17 || contempt proceedings, financial or evidentiary sanctions, reference to disciplinary
18 || authorities, or other appropriate action at the discretion of the Court.
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99 || FOR GOOD CAUSE SHOWN BY THE PARTIES’ STIPULATION, IT IS SO
ORDERED.
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22 Nh—
23 DATED: December 1, 2023 fuk
24 HON. PEDRO V. CASTILLO
0 United States Magistrate Judge
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1 EXHIBIT A
2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
3
4 I, _____________________________ [full name], of _________________
5 [full address], declare under penalty of perjury that I have read in its entirety and
6 understand the Stipulated Protective Order that was issued by the United States
7 District Court for the Central District of California on [date] in the case of Doherty
8 v. MicroBilt Corporation et al., No.: 2:22-cv-03891-SPG-PVC. I agree to comply
9 with and to be bound by all the terms of this Stipulated Protective Order and I
10 understand and acknowledge that failure to so comply could expose me to sanctions
11 and punishment in the nature of contempt. I solemnly promise that I will not
12 disclose in any manner any information or item that is subject to this Stipulated
13 Protective Order to any person or entity except in strict compliance with the
14 provisions of this Order.
15 I further agree to submit to the jurisdiction of the United States District Court
16 for the Central District of California for the purpose of enforcing the terms of this
17 Stipulated Protective Order, even if such enforcement proceedings occur after
18 termination of this action. I hereby appoint __________________________ [full
19 name] of _______________________________________ [full address and
20 telephone number] as my California agent for service of process in connection with
21 this action or any proceedings related to enforcement of this Stipulated Protective
22 Order.
23 Date: ______________________________________
24 City and State where signed: _________________________________
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26 Printed name: _______________________________
27