TEN-X, LLC v. Rational Real Estate XII, LLC

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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11 TEN-X, LLC Case No. 8:23-cv-00200-JWH-JDE

12 Plaintiff,

STIPULATED PROTECTIVE ORDER

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vs.

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RATIONAL REAL ESTATE XII, LLC;

15 and DOES 1 through 10,

16 Defendants.

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Per the stipulation of Plaintiff Ten-X, LLC and Defendant Rational Real Estate

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XII, LLC (“Parties”), and for good cause shown, the Court finds and orders as follows:

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A. PURPOSES AND LIMITATIONS

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

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

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

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

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Stipulated Protective Order. The parties acknowledge that this Order does not confer

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blanket protections on all disclosures or responses to discovery and that the protection it

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affords from public disclosure and use extends only to the limited information or items

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1 B. GOOD CAUSE STATEMENT

2 This action is likely to involve trade secrets and other valuable proprietary

3 information for which special protection from public disclosure and from use for any

4 purpose other than prosecution of this action is warranted. Such confidential and

5 proprietary materials and information consist of, among other things, sales data, internal

6 business strategies, and other confidential business or financial information, or

7 information regarding confidential business practices. The confidential information at

8 issue is generally unavailable to the public and may be privileged or otherwise protected

9 from disclosure under state or federal statutes, court rules, case decisions, or common

10 law.

11 Accordingly, to expedite the flow of information, to facilitate the prompt

12 resolution of disputes over confidentiality of discovery materials, to adequately protect

13 information the parties are entitled to keep confidential, to ensure that the parties are

14 permitted reasonable necessary uses of such material in preparation for and in the

15 conduct of trial, to address their handling at the end of the litigation, and serve the ends

16 of justice, a protective order for such information is justified in this matter. It is the

17 intent of the parties that information will not be designated as confidential for tactical

18 reasons and that nothing be so designated without a good faith belief that it has been

19 maintained in a confidential, non-public manner, and there is good cause why it should

20 not be part of the public record of this case.

21 C. ACKNOWLEDGEMENT OF PROCEDURE FOR FILING UNDER SEAL

22 The parties further acknowledge, as set forth in Section 12.3, below, that this

23 Stipulated Protective Order does not entitle them to file confidential information under

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

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

26 material under seal.

27 There is a strong presumption that the public has a right of access to judicial

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1 good cause must be shown to support a filing under seal. See Kamakana v. City and

2 County of Honolulu, 477 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors

3 Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics, Inc.,

4 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders require good

5 cause showing), and a specific showing of good cause or compelling reasons with

6 proper evidentiary support and legal justification, must be made with respect to

7 Protected Material that a party seeks to file under seal. The parties’ mere designation of

8 Disclosure or Discovery Material as CONFIDENTIAL does not—without the

9 submission of competent evidence by declaration, establishing that the material sought

10 to be filed under seal qualifies as confidential, privileged, or otherwise protectable—

11 constitute good cause.

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

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

14 sought shall be narrowly tailored to serve the specific interest to be protected. See

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

16 or type of information, document, or thing sought to be filed or introduced under seal in

17 connection with a dispositive motion or trial, the party seeking protection must

18 articulate compelling reasons, supported by specific facts and legal justification, for the

19 requested sealing order. Again, competent evidence supporting the application to file

20 documents under seal must be provided by declaration.

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

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

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

24 the confidential, privileged, or otherwise protectable portions of the document, shall be

25 filed. Any application that seeks to file documents under seal in their entirety should

26 include an explanation of why redaction is not feasible.

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1 2. DEFINITIONS

2 2.1 Action: the above-captioned pending federal lawsuit entitled, Ten-X, LLC

3 v. Rational Real Estate XII, LLC, No. 8:23-cv-00200-JWH-JDE, in the United States

4 District Court, Central District of California.

5 2.2 Challenging Party: a Party or Non-Party that challenges the designation of

6 information or items under this Order.

7 2.3 “CONFIDENTIAL” Information or Items: information (regardless of how

8 it is generated, stored or maintained) or tangible things that qualify for protection under

9 Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause

10 Statement.

11 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their

12 support staff).

13 2.5 Designating Party: a Party or Non-Party that designates information or

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

15 “CONFIDENTIAL.”

16 2.6 Disclosure or Discovery Material: all items or information, regardless of

17 the medium or manner in which it is generated, stored, or maintained (including, among

18 other things, testimony, transcripts, and tangible things), that are produced or generated

19 in disclosures or responses to discovery in this matter.

20 2.7 Expert: a person with specialized knowledge or experience in a matter

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

22 expert witness or as a consultant in this Action.

23 2.8 House Counsel: attorneys who are employees of a party to this Action.

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

25 counsel.

26 2.9 Non-Party: any natural person, partnership, corporation, association, or

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

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1 2.10 Outside Counsel of Record: attorneys who are not employees of a party to

2 this Action but are retained to represent or advise a party to this Action and have

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

4 appeared on behalf of that party, including support staff.

5 2.11 Party: any party to this Action, including all of its officers, directors,

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

7 support staffs).

8 2.12 Producing Party: a Party or Non-Party that produces Disclosure or

9 Discovery Material in this Action.

10 2.13 Professional Vendors: persons or entities that provide litigation support

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

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

13 their employees and subcontractors.

14 2.14 Protected Material: any Disclosure or Discovery Material that is designated

15 as “CONFIDENTIAL.”

16 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material

17 from a Producing Party.

18 3. SCOPE

19 The protections conferred by this Stipulation and Order cover not only Protected

20 Material (as defined above), but also (1) any information copied or extracted from

21 Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected

22 Material; and (3) any testimony, conversations, or presentations by Parties or their

23 Counsel that might reveal Protected Material.

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

25 judge. This Order does not govern the use of Protected Material at trial.

26 In addition, a Receiving Party that receives any Disclosures or Discovery

27 Material by another Party or Non-Party may only use those Disclosures or Discovery

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1 Disclosures or Discovery Material may be disclosed to the categories of persons under

2 section 7.2 below.

3 4. DURATION

4 Once a case proceeds to trial, all of the court-filed information to be introduced

5 that was previously designated as confidential or maintained pursuant to this protective

6 order becomes public and will be presumptively available to all members of the public,

7 including the press, unless compelling reasons supported by specific factual findings to

8 proceed otherwise are made to the trial judge in advance of the trial. See Kamakana v.

9 City and County of Honolulu, 447 F.3d 1172, 1180-81 (9th Cir. 2006) (distinguishing

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

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

12 Accordingly, the terms of this protective order do not extend beyond the

13 commencement of the trial.

14 Otherwise, even after final disposition of this litigation, the confidentiality

15 obligations imposed by this Order shall remain in effect until a Designating Party agrees

16 otherwise in writing or a court order otherwise directs. Final disposition shall be

17 deemed to be the later of (1) dismissal of all claims and defenses in this Action, with or

18 without prejudice; and (2) final judgment herein after the completion and exhaustion of

19 all appeals, rehearings, remands, trials, or reviews of this Action, including the time

20 limits for filing any motions or applications for extension of time pursuant to applicable

21 law.

22 5. DESIGNATING PROTECTED MATERIAL

23 5.1 Exercise of Restraint and Care in Designating Material for Protection.

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

25 Order must take care to limit any such designation to specific material that qualifies

26 under the appropriate standards. The Designating Party must designate for protection

27 only those parts of material, documents, items, or oral or written communications that

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1 which protection is not warranted are not swept unjustifiably within the ambit of this

2 Order.

3 Mass, indiscriminate, or routinized designations are prohibited. Designations that

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

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

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

7 to sanctions.

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

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

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

11 5.2 Manner and Timing of Designations. Except as otherwise provided in this

12 Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or

13 ordered, Disclosure or Discovery Material that qualifies for protection under this Order

14 must be clearly so designated before the material is disclosed or produced.

15 Designation in conformity with this Order requires:

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

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

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

19 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that

20 contains protected material. If only a portion or portions of the material on a page

21 qualifies for protection, the Producing Party also must clearly identify the protected

22 portion(s) (e.g., by making appropriate markings in the margins).

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

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

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

26 the designation, all of the material made available for inspection shall be deemed

27 “CONFIDENTIAL.” After the inspecting Party has identified the documents it wants

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1 thereof, qualify for protection under this Order. Then, before producing the specified

2 documents, the Producing Party must affix the “CONFIDENTIAL legend” to each page

3 that contains Protected Material. If only a portion or portions of the material on a page

4 qualifies for protection, the Producing Party also must clearly identify the protected

5 portion(s) (e.g., by making appropriate markings in the margins).

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

7 identify the Disclosure or Discovery Material on the record, before the close of the

8 deposition, of all protected testimony designated as Protected Material. Alternatively,

9 the Designating Party may, within a reasonable time not to exceed twenty-one (21)

10 days, after the deposition transcript is delivered to the Designating Party, provide to all

11 counsel written notice identifying the specific portion (by page and line numbers) that

12 the Designating Party seeks to protect, and all parties to the litigation will mark the

13 pages with the appropriate legends.

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

15 for any other tangible items, that the Producing Party affix in a prominent place on the

16 exterior of the container or containers in which the information is stored the legend

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

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

19 portion(s).

20 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent

21 failure to designate qualified information or items does not, standing alone, waive the

22 Designating Party’s right to secure protection under this Order for such material. Upon

23 timely correction of a designation, the Receiving Party must make reasonable efforts to

24 assure that the material is treated in accordance with the provisions of this Order.

25 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS

26 6.1 Timing of Challenges. Any Party or Non-Party may challenge a

27 designation of confidentiality at any time consistent with the Court’s Scheduling Order.

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1 6.2 Meet and Confer. The Challenging Party shall initiate the dispute

2 resolution process under Local Rule 37.1, et seq. Any discovery motion must strictly

3 comply with the procedures set forth in Local Rules 37-1, 37-2, and 37-3.

4 6.3 Joint Stipulation. Any challenge submitted to the Court shall be via a joint

5 stipulation pursuant to Local Rule 37-2.

6 6.4 Burden. The burden of persuasion in any such challenge proceeding shall

7 be on the Designating Party. Frivolous challenges, and those made for an improper

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

9 may expose the Challenging Party to sanctions. Unless the Designating Party has

10 waived or withdrawn the confidentiality designation, all parties shall continue to afford

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

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

13 7. ACCESS TO AND USE OF PROTECTED MATERIAL

14 7.1 Basic Principles. A Receiving Party may use Protected Material that is

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

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

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

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

19 Party must comply with the provisions of section 13 below (FINAL DISPOSITION).

20 Protected Material must be stored and maintained by a Receiving Party at a

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

22 authorized under this Order.

23 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

24 ordered by the Court or permitted in writing by the Designating Party, a Receiving

25 Party may disclose any information or item designated “CONFIDENTIAL” only to:

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

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

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

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

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

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

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

6 (d) the Court and its personnel;

7 (e) court reporters and their staff;

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

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

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

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

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

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

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

15 requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will not

16 be permitted to keep any confidential information unless they sign the

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

18 by the Designating Party or ordered by the Court. Pages of transcribed deposition

19 testimony or exhibits to depositions that reveal Protected Material may be separately

20 bound by the court reporter and may not be disclosed to anyone except as permitted

21 under this Stipulated Protective Order; and

22 (i) any mediator or settlement officer, and their supporting personnel,

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

24 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

25 IN OTHER LITIGATION

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

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

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

2 include a copy of the subpoena or court order;

3 (b) promptly notify in writing the party who caused the subpoena or order to

4 issue in the other litigation that some or all of the material covered by the subpoena or

5 order is subject to this Protective Order. Such notification shall include a copy of this

6 Stipulated Protective Order; and

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

8 by the Designating Party whose Protected Material may be affected.

9 If the Designating Party timely seeks a protective order, the Party served with the

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

11 “CONFIDENTIAL,” before a determination by the court from which the subpoena or

12 order issued, unless the Party has obtained the Designating Party’s permission. The

13 Designating Party shall bear the burden and expense of seeking protection in that court

14 of its confidential material and nothing in these provisions should be construed as

15 authorizing or encouraging a Receiving Party in this Action to disobey a lawful

16 directive from another court.

17 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

18 PRODUCED IN THIS LITIGATION

19 (a) The terms of this Order are applicable to information produced by a Non-

20 Party in this Action and designated as “CONFIDENTIAL.” Such information produced

21 by Non-Parties in connection with this litigation is protected by the remedies and relief

22 provided by this Order. Nothing in these provisions should be construed as prohibiting a

23 Non-Party from seeking additional protections.

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

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

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

27 information, then the Party shall:

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

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

3 with a Non-Party;

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

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

6 specific description of the information requested; and

7 (3) make the information requested available for inspection by the Non-

8 Party, if requested.

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

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

11 produce the Non-Party’s confidential information responsive to the discovery request. If

12 the Non-Party timely seeks a protective order, the Receiving Party shall not produce any

13 information in its possession or control that is subject to the confidentiality agreement

14 with the Non-Party before a determination by the Court. Absent a court order to the

15 contrary, the Non-Party shall bear the burden and expense of seeking protection in this

16 Court of its Protected Material.

17 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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

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

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

21 the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve

22 all unauthorized copies of the Protected Material, (c) inform the person or persons to

23 whom unauthorized disclosures were made of all the terms of this Order, and (d)

24 request such person or persons to execute the “Acknowledgment and Agreement to Be

25 Bound” that is attached hereto as Exhibit A.

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1 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

2 PROTECTED MATERIAL

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

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

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

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

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

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

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

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

11 parties may incorporate their agreement in the stipulated protective order submitted to

12 the Court.

13 12. MISCELLANEOUS

14 12.1 Right to Further Relief. Nothing in this Order abridges the right of any

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

16 12.2 Right to Assert Other Objections. By stipulating to the entry of this

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

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

19 Stipulated Protective Order. Similarly, no Party waives any right to object on any

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

21 12.3 Filing Protected Material. A Party that seeks to file under seal any

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

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

24 Protected Material at issue; good cause must be shown in the request to file under seal.

25 If a Party’s request to file Protected Material under seal is denied by the Court, then the

26 Receiving Party may file the information in the public record unless otherwise

27 instructed by the Court.

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1/13. FINAL DISPOSITION

2 After the final disposition of this Action, as defined in paragraph 4, within 60

3 || days of a written request by the Designating Party, each Receiving Party must return all

4 | Protected Material to the Producing Party or destroy such material. As used in this

5 || subdivision, “all Protected Material” includes all copies, abstracts, compilations.

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

7 Material. Whether the Protected Material is returned or destroyed, the Receiving Party

8 | must submit a written certification to the Producing Party (and, if not the same person

9 | or entity, to the Designating Party) by the 60 day deadline that (1) identifies (by

10 | category, where appropriate) all the Protected Material that was returned or □□□□□□□□□

11 | and (2) affirms that the Receiving Party has not retained any copies, abstracts.

12 | compilations, summaries or any other format reproducing or capturing any of the

13 | Protected Material. Notwithstanding this provision, counsel are entitled to retain ar

14 | archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts.

15 | legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney

16 | work product, and consultant and expert work product, even if such materials contair

17 | Protected Material. Any such archival copies that contain or constitute Protected

18 | Material remain subject to this Protective Order as set forth in Section 4 (DURATION).

19 || 14. VIOLATION

20 Any violation of this Order may be punished by any and all appropriate measures

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

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23 For good cause shown, IT IS SO ORDERED.

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25 | Dated: December 04, 2023 By: ye Ke,

26 ited Staten Magistrate tidge

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1 EXHIBIT A

2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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4 I, ________________________________________________ [print full name],

5 of ____________________________________________________ [print full address],

6 declare under penalty of perjury that I have read in its entirety and understand the

7 Stipulated Protective Order that was issued by the United States District Court for the

8 Central District of California in the case of Ten-X, LLC v. Rational Real Estate XII,

9 LLC, No. 8:23-cv-00200-JWH-JDE. I agree to comply with and to be bound by all of

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

11 failure to so comply could expose me to sanctions and punishment in the nature of

12 contempt. I solemnly promise that I will not disclose in any manner any information or

13 item that is subject to this Stipulated Protective Order to any person or entity except in

14 strict compliance with the provisions of this Order.

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

16 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.

19 I hereby appoint _____________________________________ [print full name]

20 of __________________________________________________ [print full address and

21 telephone number] as my California agent for service of process in connection with this

22 action or any proceedings related to enforcement of this Stipulated Protective Order.

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24 Date: _________________________________

25 City and State where sworn and signed: _________________________________

26 Printed name: ______________________________

27 Signature: _________________________________

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