distinguishing “good cause” showing for sealing documents 21 produced in discovery from “compelling reasons” standard when merits-related 22 documents are part of court record
How later courts described this case
- distinguishing “good cause” showing for sealing documents 21 produced in discovery from “compelling reasons” standard when merits-related 22 documents are part of court record
- even stipulated protective orders require 23 good cause showing
Written by the judges who cited it.
The opinion
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10 WESTERN DIVISION
11 T & R CHEMICALS, INC., Case No. 2:23-cv-03539 PD
12 Plaintiff,
STIPULATED PROTECTIVE
13 vs. ORDER
14 CARAGUM INTERNATIONAL,
15 Defendant.
16
CARAGUM INTERNATIONAL,
17
Counterclaimant,
18
vs.
19
T & R CHEMICALS, INC.,
20
Counterdefendant.
21
22
23
24
25
26
27
1 1. A. PURPOSES AND LIMITATIONS
2 This is an action between direct competitors, each alleging the other has engaged
3 in wrongful conduct amounting to unfair competition. Discovery in this action is likely
4 to involve production of confidential, proprietary, or private information for which
5 special protection from public disclosure and from use for any purpose other than
6 prosecuting this litigation may be warranted. Accordingly, the parties hereby stipulate
7 to and petition the Court to enter the following Stipulated Protective Order. The parties
8 acknowledge that this Order does not confer blanket protections on all disclosures or
9 responses to discovery and that the protection it affords from public disclosure and use
10 extends only to the limited information or items that are entitled to confidential
11 treatment under the applicable legal principles.
12
13 B. GOOD CAUSE STATEMENT
14 This action is a true competitor case. Both Plaintiff and Counterdefendant T&R
15 Chemicals, Inc. (“T&R”) and Defendant and Counterclaimant CARAGUM
16 International (“CARAGUM”) sell glycerol ester of wood rosin (“GEWR”) for food and
17 beverage applications in the United States and, in doing so, compete for the same
18 customers and sales. In this lawsuit, T&R brings Lanham Act, unfair competition and
19 false advertising claims against CARAGUM, alleging that the product that CARAGUM
20 sells as GEWR is mislabeled glycerol ester of gum rosin (“GEGR”), a chemically
21 equivalent but cheaper alternative that is approved for food and beverage applications
22 in the United States, but not the European Union. CARAGUM denies T&R’s claims
23 and brings counterclaims for trade libel, libel, and tortious interference based on T&R’s
24 issuance of a press release containing statements that CARAGUM contends are false
25 and harmful about CARAGUM’s products and business practices. T&R denies
26 CARAGUM’s claims.
27
1 The parties expect that discovery in this case will include trade secrets, customer
2 and pricing lists and other valuable research, development, commercial, financial,
3 technical and/or proprietary information for which special protection from public
4 disclosure and from use for any purpose other than prosecution of this action is
5 warranted. Such confidential and proprietary materials and information will consist of,
6 among other things, sales figures, expenses, pricing, customer lists, marketing plans,
7 future commercial plans, or other confidential research, development, or commercial
8 information (including information implicating privacy rights of third parties, such as
9 the parties’ suppliers, manufacturers, and customers), information otherwise generally
10 unavailable to the public, or which may be privileged or otherwise protected from
11 disclosure under state or federal statutes, court rules, case decisions, or common law.
12 Further, given the nature of the parties’ claims, there is likely to be substantial third-
13 party discovery, including into non-public and commercially sensitive information
14 belonging to the parties’ suppliers, manufacturers, and customers. This includes, for
15 example, trade secret information regarding the sourcing of raw materials and
16 manufacturing process for production of CARAGUM’s products labeled and sold as
17 “GEWR”. The parties believe that they (and the affected third parties) may be harmed
18 if this information was publicly disclosed.
19 Further, for the most sensitive information, the parties do not want each other to
20 access such information, as it could give the receiving party a competitive advantage
21 and cause the disclosing party competitive harm. Each party alleges that the other seeks
22 to gain an unfair and unlawful advantage over the other in the U.S. market for GEWR.
23 Given these allegations, and the fact that the parties are direct competitors, a two-tiered
24 protective order is proper and necessary here to narrow the universe of persons with
25 whom highly sensitive information can be shared.
26 Accordingly, to expedite the flow of information, to facilitate the prompt
27 resolution of disputes over confidentiality of discovery materials, to adequately protect
1 information the parties and third parties are entitled to keep confidential, to ensure that
2 the parties are permitted reasonable necessary uses of such material in preparation for
3 and in the conduct of trial, to address their handling at the end of the litigation, and
4 serve the ends of justice, a protective order for such information is justified in this
5 matter. It is the intent of the parties that information will not be designated as
6 confidential or attorneys’ eyes only for tactical reasons and that nothing be so
7 designated without a good faith belief that it has been maintained in a confidential,
8 non-public manner, and there is good cause why it should not be part of the public
9 record of this case.
10
11 C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL
12 The parties further acknowledge, as set forth in Section 12.3, below, that this
13 Stipulated Protective Order does not entitle them to file confidential or attorneys’-eyes-
14 only information under seal; Local Civil Rule 79-5 sets forth the procedures that must
15 be followed and the standards that will be applied when a party seeks permission from
16 the court to file material under seal.
17 There is a strong presumption that the public has a right of access to judicial
18 proceedings and records in civil cases. In connection with non-dispositive motions,
19 good cause must be shown to support a filing under seal. See Kamakana v. City and
20 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors
21 Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electronics,
22 Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders require
23 good cause showing), and a specific showing of good cause or compelling reasons with
24 proper evidentiary support and legal justification, must be made with respect to
25
Protected Material that a party seeks to file under seal. The parties’ mere designation
26
of Disclosure or Discovery Material as CONFIDENTIAL or HIGHLY
27
CONFIDENTIAL – ATTORNEYS’ EYES ONLY does not—without the submission
1 of competent evidence by declaration, establishing that the material sought to be filed
2 under seal qualifies as confidential, privileged, or otherwise protectable—constitute
3 good cause.
4 Further, if a party requests sealing related to a dispositive motion or trial, then
5 compelling reasons, not only good cause, for the sealing must be shown, and the relief
6 sought shall be narrowly tailored to serve the specific interest to be protected. See
7 Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). For each item
8 or type of information, document, or thing sought to be filed or introduced under seal
9 in connection with a dispositive motion or trial, the party seeking protection must
10 articulate compelling reasons, supported by specific facts and legal justification, for
11 the requested sealing order. Again, competent evidence supporting the application to
12 file documents under seal must be provided by declaration.
13 Any document that is not confidential, privileged, or otherwise protectable in its
14 entirety will not be filed under seal if the confidential portions can be redacted. If
15 documents can be redacted, then a redacted version for public viewing, omitting only
16 the confidential, privileged, or otherwise protectable portions of the document, shall
17 be filed. Any application that seeks to file documents under seal in their entirety should
18 include an explanation of why redaction is not feasible.
19
20 2. DEFINITIONS
21
2.1 Action: this pending federal law suit.
22
2.2 Challenging Party: a Party or Non-Party that challenges the
23
designation of information or items under this Order.
24
2.3 “CONFIDENTIAL” Information or Items: information (regardless of
25
how it is generated, stored or maintained) or tangible things that qualify for protection
26
under Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause
27
Statement. Any party or third party covered by this Order that produces or discloses
1 any Confidential Material shall mark it with the following or a substantially similar
2 legend: “CONFIDENTIAL.”
3 2.4 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
4 Information or Items: information (regardless of how it is generated, stored or
5 maintained) or tangible things that qualify for protection under Federal Rule of Civil
6 Procedure 26(c), and as specified above in the Good Cause Statement, that the
7 Designating Party reasonably believes is among that which is considered to be
8 extremely sensitive by that party, the disclosure of which is highly likely to cause
9 significant harm to an individual or to the business or competitive position of the
10 Designating Party. Any Party to this litigation or Non-Party covered by this Order that
11 produces or discloses any such Attorneys’ Eyes Only Material shall mark the same
12 with the following, or a substantially similar, legend: “HIGHLY CONFIDENTIAL –
13 ATTORNEYS’ EYES ONLY.”
14 2.5 Counsel: Outside Counsel and House Counsel (as well as their support
15 staff).
16 2.6 Designating Party: a Party or Non-Party that designates information or
17 items that it produces in disclosures or in responses to discovery as
18 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
19 ONLY.”
20 2.7 Disclosure or Discovery Material: all items or information, regardless of
21 the medium or manner in which it is generated, stored, or maintained (including,
22 among other things, testimony, transcripts, and tangible things), that are produced or
23 generated in disclosures or responses to discovery in this matter.
24 2.8 Expert: a non-party-affiliated person with specialized knowledge or
25 experience in a matter pertinent to the litigation who has been retained by a Party or
26 its counsel to serve as an expert witness or as a consultant in this Action.
27
1 2.9 House Counsel: attorneys who are employees of a party to this Action.
2 House Counsel does not include Outside Counsel.
3 2.10 Non-Party: any natural person, partnership, corporation, association, or
4 other legal entity not named as a Party to this action.
5 2.11 Outside Counsel: attorneys who are not employees of a party to this
6 Action but are retained to represent or advise a party to this Action or are affiliated
7 with a law firm which has been retained to represent or advise a party to this Action,
8 and includes support staff.
9 2.12 Party: any party to this Action, including all of its officers, directors, and
10 employees.
11 2.13 Producing Party: a Party or Non-Party that produces Disclosure or
12 Discovery Material in this Action.
13 2.14 Professional Vendors: persons or entities that provide litigation support
14 services (e.g., photocopying, videotaping, translating, preparing exhibits or
15 demonstrations, and organizing, storing, or retrieving data in any form or medium) and
16 their employees and subcontractors.
17 2.15 Protected Material: any Disclosure or Discovery Material that is
18 designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’
19 EYES ONLY.”
20 2.16 Receiving Party: a Party that receives Disclosure or Discovery Material
21 from a Producing Party.
22
23 3. SCOPE
24
The protections conferred by this Stipulation and Order cover not only Protected
25
Material (as defined above), but also (1) any information copied or extracted from
26
Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected
27
1 Material; and (3) any testimony, conversations, or presentations by Parties or their
2 Counsel that might reveal Protected Material.
3 Any use of Protected Material at trial shall be governed by the orders of the trial
4 judge. This Order does not govern the use of Protected Material at trial.
5
6 4. DURATION
7 FINAL DISPOSITION of the action is defined as the conclusion of any appellate
8 proceedings, or, if no appeal is taken, when the time for filing of an appeal has run.
9 Except as set forth below, the terms of this protective order apply through FINAL
10 DISPOSITION of the action. The parties may stipulate that they will be contractually
11 bound by the terms of this agreement beyond FINAL DISPOSITION, but will have to
12 file a separate action for enforcement of the agreement once all proceedings in this case
13 are complete.
14 Once a case proceeds to trial, information that was designated as
15 CONFIDENTIAL OR HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY or
16 maintained pursuant to this protective order used or introduced as an exhibit at trial
17 becomes public and will be presumptively available to all members of the public,
18 including the press, unless compelling reasons supported by specific factual findings
19 to proceed otherwise are made to the trial judge in advance of the trial. See Kamakana,
20 447 F.3d at 1180-81 (distinguishing “good cause” showing for sealing documents
21 produced in discovery from “compelling reasons” standard when merits-related
22 documents are part of court record). Accordingly, for such materials, the terms of this
23 protective order do not extend beyond the commencement of the trial.
24
25 5. DESIGNATING PROTECTED MATERIAL
26 5.1 Exercise of Restraint and Care in Designating Material for
27 Protection. Each Party or Non-Party that designates information or items for protection
1 under this Order must take care to limit any such designation to specific material that
2 qualifies under the appropriate standards. The Designating Party must designate for
3 protection only those parts of material, documents, items, or oral or written
4 communications that qualify so that other portions of the material, documents, items,
5 or communications for which protection is not warranted are not swept unjustifiably
6 within the ambit of this Order.
7 Mass, indiscriminate, or routinized designations are prohibited. Designations
8 that are shown to be clearly unjustified or that have been made for an improper purpose
9 (e.g., to unnecessarily encumber the case development process or to impose
10 unnecessary expenses and burdens on other parties) may expose the Designating Party
11 to sanctions.
12 If it comes to a Designating Party’s attention that information or items that it
13 designated for protection do not qualify for protection, that Designating Party must
14 promptly notify all other Parties that it is withdrawing the inapplicable designation.
15 5.2 Manner and Timing of Designations. Except as otherwise provided in this
16 Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated
17 or ordered, Disclosure or Discovery Material that qualifies for protection under this
18 Order must be clearly so designated before the material is disclosed or produced.
19 Designation in conformity with this Order requires:
20 (a) for information in documentary form (e.g., paper or electronic documents,
21 but excluding transcripts of depositions or other pretrial or trial proceedings), that the
22 Producing Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter
23 “CONFIDENTIAL legend”) or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
24 ONLY” (hereinafter “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY
25 legend”), to each page that contains protected material. To facilitate the expedient
26 production of documents, a Producing Party may designate the entirety of a document
27 that contains protected material with the corresponding legend. If the Receiving Party
1 wishes to use such documents (such as at deposition or as an exhibit to a filing), the
2 Parties shall meet and confer within a reasonable time in advance of such filing or
3 deposition in an attempt to eliminate or minimize the need for filing under seal by
4 means of redaction, or to otherwise narrow the designations to the extent possible.
5 A Party or Non-Party that makes original documents available for inspection
6 need not designate them for protection until after the inspecting Party has indicated
7 which documents it would like copied and produced. During the inspection and before
8 the designation, all of the material made available for inspection shall be deemed
9 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” After the inspecting
10 Party has identified the documents it wants copied and produced, the Producing Party
11 must determine which documents, or portions thereof, qualify for protection under this
12 Order and what level of protection. Then, before producing the specified documents,
13 the Producing Party must affix the “CONFIDENTIAL legend” or “HIGHLY
14 CONFIDENTIAL – ATTORNEYS’ EYES ONLY legend” to each page that contains
15 Protected Material.
16 (b) for testimony given in depositions that the Designating Party
17 identify the Disclosure or Discovery Material on the record, before the close of the
18 deposition all protected testimony. Alternatively, the Designating Party may designate
19 the entirety of the testimony at the deposition as “CONFIDENTIAL” or “HIGHLY
20 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” (before the deposition is
21 concluded) and shall have until twenty-one (21) days after receipt of the deposition
22 transcript within which to inform all parties the specific portions of the transcript that
23 are to be designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
24 ATTORNEYS’ EYES ONLY,” which period may be extended by agreement of the
25 parties. Failure to make a specific designation during this period will be construed as
26 the withdrawing of the general confidentiality designation. During the 21-day period,
27
1 the entire deposition will be treated pursuant to the general designation, unless
2 otherwise agreed to by the party or third party making the general designation.
3 (c) for information produced in some form other than documentary and for
4 any other tangible items, that the Producing Party affix in a prominent place on the
5 exterior of the container or containers in which the information is stored the legend
6 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
7 ONLY.” If only a portion or portions of the information warrants protection, the
8 Producing Party, to the extent practicable, shall identify the protected portion(s).
9 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
10 failure to designate qualified information or items does not, standing alone, waive the
11 Designating Party’s right to secure protection under this Order for such material. Upon
12 timely correction of a designation, the Receiving Party must make reasonable efforts
13 to assure that the material is treated in accordance with the provisions of this Order.
14
15 6. CHALLENGING DESIGNATIONS
16
6.1 Timing of Challenges. Any Party or Non-Party may challenge a
17
designation at any time that is consistent with the Court’s Scheduling Order.
18
6.2 Meet and Confer. The Challenging Party shall initiate the dispute
19
resolution process under Local Rule 37.1 et seq.
20
6.3 Burden. The burden of persuasion in any such challenge proceeding shall
21
be on the Designating Party. Frivolous challenges, and those made for an improper
22
purpose (e.g., to harass or impose unnecessary expenses and burdens on other parties)
23
may expose the Challenging Party to sanctions. Unless the Designating Party has
24
waived or withdrawn the designation, all parties shall continue to afford the material
25
in question the level of protection to which it is entitled under the Producing Party’s
26
designation until the Court rules on the challenge.
27
1 7. ACCESS TO AND USE OF PROTECTED MATERIAL
2 7.1 Basic Principles. A Receiving Party may use Protected Material that is
3 disclosed or produced by another Party or by a Non-Party in connection with this
4 Action only for prosecuting, defending, or attempting to settle this Action. Such
5 Protected Material may be disclosed only to the categories of persons and under the
6 conditions described in this Order. When the Action has been terminated, a Receiving
7 Party must comply with the provisions of section 13 below (FINAL DISPOSITION).
8 Protected Material must be stored and maintained by a Receiving Party at a
9 location and in a secure manner that ensures that access is limited to the persons
10 authorized under this Order.
11 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless
12 otherwise ordered by the court or permitted in writing by the Designating Party,
13 information or items designated “CONFIDENTIAL” may be disclosed only to:
14 (a) the Receiving Party’s Outside Counsel in this Action, as well as
15 employees of said Outside Counsel to whom it is reasonably necessary to disclose the
16 information for this Action;
17 (b) the officers, directors, and employees (including House Counsel) of the
18 Receiving Party to whom disclosure is reasonably necessary for this Action;
19 (c) Experts (as defined in this Order) of the Receiving Party to whom
20 disclosure is reasonably necessary for this Action and who have signed the
21 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
22
(d) the court and its personnel;
23 (e) court reporters and their staff;
24 (f) professional jury or trial consultants, mock jurors, and Professional
25 Vendors to whom disclosure is reasonably necessary for this Action and who have
26 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
27
1 (g) the author or recipient of a document containing the information or a
2 custodian or other person who otherwise possessed or knew the information;
3 (h) during their depositions, witnesses, and attorneys for witnesses, in the
4 Action to whom disclosure is reasonably necessary provided: (1) the deposing party
5 requests that the witness sign the form attached as Exhibit A hereto; and (2) they will
6 not be permitted to keep any confidential information unless they sign the
7 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise agreed
8 by the Designating Party or ordered by the court. Pages of transcribed deposition
9 testimony or exhibits to depositions that reveal Protected Material may be separately
10 bound by the court reporter and may not be disclosed to anyone except as permitted
11 under this Stipulated Protective Order;
12 (i) any mediator or settlement officer, and their supporting personnel,
13 mutually agreed upon by any of the parties engaged in settlement discussions; and
14 (j) any Party to this Action.
15 7.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
16 ONLY” Information or Items. Unless otherwise ordered by the court or permitted in
17 writing by the Designating Party, any information or item designated “HIGHLY
18 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” may be disclosed only to the
19 people listed above in paragraphs 7.2(a), (c)-(g), and (i), as well as any witness who is
20 shown or examined about any Protected Material, if it appears that the witness
21 originated, authored or received a copy of it, was involved in the specific subject matter
22 described therein, or is employed or was formerly employed by the party who produced
23 the Protected Material, or if the producing party consents to such disclosure.
24
25
26
27
1 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
2 OTHER LITIGATION
3 If a Party is served with a subpoena or a court order issued in other litigation that
4 compels disclosure of any information or items designated in this Action as
5 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
6 ONLY,” that Party must:
7
(a) promptly notify in writing the Designating Party. Such notification shall
8
include a copy of the subpoena or court order;
9
(b) promptly notify in writing the party who caused the subpoena or order to
10
issue in the other litigation that some or all of the material covered by the subpoena or
11
order is subject to this Protective Order. Such notification shall include a copy of this
12
Stipulated Protective Order; and
13
(c) cooperate with respect to all reasonable procedures sought to be pursued
14
by the Designating Party whose Protected Material may be affected.
15
If the Designating Party timely seeks a protective order, the Party served with
16
the subpoena or court order shall not produce any information designated in this action
17
as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
18
ONLY” before a determination by the court from which the subpoena or order issued,
19
unless the Party has obtained the Designating Party’s permission. The Designating
20
Party shall bear the burden and expense of seeking protection in that court of its
21
Protected Material and nothing in these provisions should be construed as authorizing
22
or encouraging a Receiving Party in this Action to disobey a lawful directive from
23
another court.
24
25
26
27
1 9. A NON-PARTY’S PROTECTED MATERIAL PRODUCED IN THIS
2 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
5 CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Such information produced by
6 Non-Parties in connection with this litigation is protected by the remedies and relief
7 provided by this Order. Nothing in these provisions should be construed as prohibiting
8 a Non-Party from seeking additional protections.
9 (b) In the event that a Party is required, by a valid discovery request, to
10 produce a Non-Party’s confidential or attorneys’-eyes-only information in its
11 possession, and the Party is subject to an agreement with the Non-Party not to
12 produce the Non-Party’s confidential or attorneys’-eyes-only information, then the
13 Party shall:
14
(1) promptly notify in writing the Requesting Party and the Non-Party
15
that some or all of the information requested is subject to a confidentiality agreement
16
with a Non-Party;
17
(2) promptly provide the Non-Party with a copy of the Stipulated
18
Protective Order in this Action, the relevant discovery request(s), and a reasonably
19
specific description of the information requested; and
20
(3) make the information requested available for inspection by the Non-
21
Party, if requested.
22
(c) If the Non-Party fails to seek a protective order from this court within 14
23
days of receiving the notice and accompanying information, the Receiving Party may
24
produce the Non-Party’s confidential or attorneys’-eyes-only information responsive
25
to the discovery request. If the Non-Party timely seeks a protective order, the
26
Receiving Party shall not produce any information in its possession or control that is
27
subject to the confidentiality agreement with the Non-Party before a determination by
1 the court. Absent a court order to the contrary, the Non-Party shall bear the burden and
2 expense of seeking protection in this court of its Protected Material.
3
4 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
5
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
6
Protected Material to any person or in any circumstance not authorized under this
7
Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing
8
the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve
9
all unauthorized copies of the Protected Material, (c) inform the person or persons to
10
whom unauthorized disclosures were made of all the terms of this Order, and (d)
11
request such person or persons to execute the “Acknowledgment and Agreement to Be
12
Bound” that is attached hereto as Exhibit A.
13
14 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
15 PROTECTED MATERIAL
16 When a Producing Party gives notice to Receiving Parties that certain
17 inadvertently produced material is subject to a claim of privilege or other protection,
18 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
19 Procedure 26(b)(5)(B). In addition, if a Receiving Party identifies produced documents
20 or information that appears on its face to contain inadvertently produced privileged
21 information or attorney work product, the Receiving Party shall immediately notify the
22 producing Party of the potentially privileged or work product material, and sequester
23 the materials until the producing Party confirms whether the material is privileged or
24 work product. This provision is not intended to modify whatever procedure may be
25 established in an e-discovery order that provides for production without prior privilege
26 review.
27
1 12. MISCELLANEOUS
2 12.1 Right to Further Relief. Nothing in this Order abridges the right of any
3 person to seek its modification by the Court in the future.
4 12.2 Right to Assert Other Objections. By stipulating to the entry of this
5 Protective Order no Party waives any right it otherwise would have to object to
6 disclosing or producing any information or item on any ground not addressed in this
7 Stipulated Protective Order. Similarly, no Party waives any right to object on any
8 ground to use in evidence of any of the material covered by this Protective Order. A
9 party shall not be obligated to challenge the propriety of a designation at the time made,
10 and failure to do so shall not preclude a subsequent challenge thereto at any time during
11 this litigation. If counsel for a party receiving documents or information in discovery
12 in this case objects to the designation of any of them as Protected Material, the
13 following procedures shall apply:
14 (a) Counsel for the objecting party shall serve on the Designating Party or
15 third party a written objection to such designation, which shall describe with
16 particularity the documents or information in question and state the grounds for
17 objection. Counsel for the Designating Party or third party shall either: (i) respond in
18 writing to the objection within fourteen (14) days (or such later date as may be agreed
19 to by counsel), and state with particularity the grounds for asserting that the document
20 or information is “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
21 ATTORNEYS’ EYES ONLY” Or (ii) make themselves available to meet-and-confer
22 with objecting party. In the event the parties cannot reach agreement through their
23 meet-and-confer, the objecting party may challenge the designations through the
24 procedures set forth in Local Rule 37-1, or any alternate discovery resolution
25 procedures put in place by the Court. Pending a resolution of the objecting party’s
26 objections, any and all existing designations on the Documents, Testimony, or
27 Information at issue in such shall remain in place. The Designating Party shall have
1 the burden of establishing the applicability of its “CONFIDENTIAL” or “HIGHLY
2 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” designation.
3 12.3 Filing Protected Material. Documents containing Protected Material shall
4 not be filed with the Court except as necessary. Any such filings will be made in good
5 faith and not solely for an improper purpose such as harming, harassing, or
6 embarrassing another party. To the extent documents containing Protected Material
7 are filed with the court, the filing party shall seek to file those documents under seal.
8 A Party that seeks to file under seal any Protected Material must comply with Civil
9 Local Rule 79-5. Protected Material may only be filed under seal pursuant to a court
10 order authorizing the sealing of the specific Protected Material at issue. If a Party's
11 request to file Protected Material under seal is denied by the court, then the Receiving
12 Party may file the information in the public record unless otherwise instructed by the
13 court.
14 12.4 Using Protected Material at Hearing. If the need arises during a hearing
15 to disclose publicly Confidential Material or Attorneys’ Eyes Only Material, the party
16 seeking to make such disclosure shall attempt to provide the other party prior notice,
17 if feasible, to discuss how best to handle the disclosure.
18
19 13. FINAL DISPOSITION
20 After the final disposition of this Action, as defined in paragraph 4, within 60
21 days of a written request by the Designating Party, each Receiving Party must return
22 all Protected Material to the Producing Party or destroy such material. As used in this
23 subdivision, “all Protected Material” includes all copies, abstracts, compilations,
24 summaries, and any other format reproducing or capturing any of the Protected
25
Material. Whether the Protected Material is returned or destroyed, the Receiving Party
26
must submit a written certification to the Producing Party (and, if not the same person
27
or entity, to the Designating Party) by the 60 day deadline that (1) identifies (by
1 category, where appropriate) all the Protected Material that was returned or destroyed
2 and (2) affirms that the Receiving Party has not retained any copies, abstracts,
3 compilations, summaries or any other format reproducing or capturing any of the
4 Protected Material. Notwithstanding this provision, Counsel are entitled to retain an
5 archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts,
6 legal memoranda, correspondence, deposition and trial exhibits, expert reports,
7 attorney work product, and consultant and expert work product, even if such materials
8 contain Protected Material. Any such archival copies that contain or constitute
9 Protected Material remain subject to this Protective Order as set forth in Section 4
10 (DURATION).
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
1 14. Any violation of this Order may be punished by any and all appropriate
2 ||measures including, without limitation, contempt proceedings and/or monetary
3 || sanctions.
4
5 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
6
7 Dated: January 17, 2024 PILLSBURY WINTHROP SHAW
PITTMAN LLP
8
_/s/Mark D. Litvack
? By: MARK D. LITVACK
10 JEFFREY D. WEXLER
PAULEEN TRUONG
11
Attorneys for Defendant and
Counterclaimant CARAGUM
13 INTERNATIONAL
14 |} Dated: January 17, 2024 STEPTOE & JOHNSON LLP
15
/s/Melanie A. Averh
16 By: SETH GOLDBERG
ANTHONY HOPP (pro hac vice)
17 MELANIE A. AYE
18 Attorneys for Plaintiff and
19 Counterdefendant T&R
CHEMICALS, INC.
20
21 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
22
Dated: January 17, 2024 ‘. □
23 Pali Lona koe_
24 By: Patricia Donahue
25 United States Magistrate Judge
26
27
28
20
QTIPTIT ATERT) PROTECTIVE □□□□□
1 EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
2
3
4 I, ________________________ [print or type full name], of
5 _________________ [print or type full address], declare under penalty of perjury
6 that I have read in its entirety and understand the Stipulated Protective Order that was
7 issued by the United States District Court for the Central District of California on
8 [date] in the case of T & R Chemicals, Inc. v. CARAGUM International, Case No.
9 2:23-cv-03539 PD. I agree to comply with and to be bound by all the terms of this
10 Stipulated Protective Order and I understand and acknowledge that failure to so
11 comply could expose me to sanctions and punishment in the nature of contempt. I
12 solemnly promise that I will not disclose in any manner any information or item that
13 is subject to this Stipulated Protective Order to any person or entity except in strict
14 compliance with the 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 ________________________ [print or
19 type full name] of _________ [print or type full address and telephone number] as
20 my California agent for service of process in connection with this action or any
21 proceedings related to enforcement of this Stipulated Protective Order.
22 Date: __________________________
23
City and State where sworn and signed: ____________________________
24
25 Printed name: ____________________________________
26
Signature: ________________________________
27