Eden Environmental Citizen's Group, LLC v. California Cascade Building Materials, Inc.

Opinion

1 Kent J. Schmidt (SBN 195969) schmidt.kent@dorsey.com 2 DORSEY & WHITNEY LLP 600 Anton Boulevard, Suite 2000 3 Costa Mesa, CA 92626-7655 Telephone: (714) 800-1400 4 Facsimile: (714) 800-1499

5 M. Benjamin Machlis (admitted pro hac vice) machlis.ben@dorsey.com 6 Megan Houdeshel (admitted pro hac vice) houdeshel.megan@dorsey.com 7 DORSEY & WHITNEY LLP 111 S. Main Street, 21st Floor 8 Salt Lake City, UT 84111-2176 Telephone: (801) 933-7360 9 Facsimile: (801) 933-7373 10 Attorneys for Defendants California Cascade Building Materials, Inc., Amar S. Doman and 11 James Code 12 13 UNITED STATES DISTRICT COURT 14 EASTERN DISTRICT OF CALIFORNIA 15 16 EDEN ENVIRONMENTAL CITIZEN’S CASE NO: 2:19-cv-01936 TLN KJN GROUP, LLC, a California limited liability 17 company, STIPULATION REGARDING PROTECTIVE ORDER 18 Plaintiff, 19 v. 20 CALIFORNIA CASCADE BUILDING MATERIALS, INC., a Delaware corporation; 21 AMAR S. DOMAN, an individual; and JAMES CODE, an individual, 22 Defendants. 23 24

27 1 Pursuant to L.R. 141.1, California Cascade Building Materials, Inc. and Eden Environmental 2 Citizen’s Group, LLC (“PARTIES”) hereby submit a proposed stipulated protective order for the 3 Court’s consideration and approval. 4 I. PURPOSES AND LIMITATIONS, AND GOOD CAUSE STATEMENT 5 A. PURPOSES AND LIMITATIONS 6 (1) Disclosure and discovery activity in this action are likely to involve production of 7 confidential, proprietary, or private information for which special protection from public disclosure 8 and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly, the 9 PARTIES hereby stipulate to and petition the Court to enter the following Stipulated Protective Order. 10 The PARTIES acknowledge that this Order does not confer blanket protections on all disclosures or 11 responses to discovery and that the protection it affords from public disclosure and use extends only to 12 the limited information or items that are entitled to confidential treatment under the applicable legal 13 principles. The PARTIES further acknowledge, as set forth in Section G, below, that this Stipulated 14 Protective Order does not entitle them to file confidential information under seal. 15 B. GOOD CAUSE STATEMENT 16 (2) This case involves proprietary business information and other sensitive commercial, 17 financial, technical, and/or proprietary information (“MATERIAL”) for which special protection from 18 public disclosure, disclosure to the other Party, and from use for any purpose other than prosecution of 19 this action is warranted. Such confidential and proprietary MATERIAL consists of, among other 20 things, confidential business or financial information, information regarding confidential business 21 practices, or other confidential information (including information implicating privacy rights of third 22 parties), information otherwise generally unavailable to the public, or which may be privileged or 23 otherwise protected from disclosure under state or federal statutes, court rules, case decisions, or 24 common law. Accordingly, to expedite the flow of information, to facilitate the prompt resolution of 25 disputes over confidentiality of discovery materials, to adequately protect information the PARTIES 26 are entitled to keep confidential, to ensure that the PARTIES are permitted reasonable necessary uses 27 of such material in preparation for and in the conduct of trial, to address their handling at the end of the litigation, and serve the ends of justice, a protective order for such information is justified in this 1 matter. It is the intent of the PARTIES that information will not be designated as confidential or 2 attorneys’ eyes only for tactical reasons and that nothing be so designated without a good faith belief 3 that it has been maintained in a confidential, non-public manner, and there is good cause why it should 4 not be part of the public record of this case. 5 (2) The PARTIES, by and through their respective counsel, hereby stipulate and agree that 6 any MATERIAL deemed by any Party or by any person or entity that is not a party to this action 7 (“THIRD-PARTY”) to be confidential, proprietary, trade secret and/or subject to a right of privacy 8 (“CONFIDENTIAL INFORMATION”), shall be designated and protected according to the following 9 terms and conditions: 10 C. DESIGNATING PROTECTED MATERIAL 11 (3) Any Party or THIRD-PARTY may determine in good faith whether any MATERIAL 12 should be designated as “CONFIDENTIAL” or “CONFIDENTIAL-ATTORNEYS’ EYES ONLY” 13 (“DESIGNATING PARTY”). However, such good faith belief must be based on the fact that such 14 information has not been made public and the DESIGNATING PARTY must have a good faith belief 15 that if such information is disclosed it will have the effect of causing harm to a Party’s competitive 16 position or otherwise impinge upon a Party’s right to privacy. PARTIES and THIRD-PARTIES shall 17 also have the right to designate as “CONFIDENTIAL” or “CONFIDENTIAL-ATTORNEYS’ EYES 18 ONLY,” MATERIAL produced, served or provided by other PARTIES or THIRD-PARTIES, in 19 which case the DESIGNATING PARTY shall notify the other PARTIES and/or THIRD-PARTIES of 20 the MATERIAL that should be treated as “CONFIDENTIAL” or “CONFIDENTIAL-ATTORNEYS’ 21 EYES ONLY” pursuant to this Stipulated Protective Order. Any MATERIAL, or any part thereof, 22 designated as “CONFIDENTIAL” or “CONFIDENTIAL-ATTORNEYS’ EYES ONLY” shall be used 23 only for the preparation and trial of this action, including discovery, pre-trial proceedings, trial, 24 appellate proceedings and petitions for reconsideration and/or review, and shall not be used for any 25 business, commercial or other purpose. Except as otherwise provided in this Stipulated Protective 26 Order, or as otherwise stipulated or ordered, any MATERIAL that a Party or THIRD-PARTY deems 27 “CONFIDENTIAL” or “CONFIDENTIAL-ATTORNEYS’ EYES ONLY” must be clearly so designated. Designation in conformity with this Stipulated Protective Order requires the following: 1 a. For MATERIAL in documentary form (apart from transcripts of depositions or other 2 pretrial or trial proceedings), the DESIGNATING PARTY producing the documents shall affix the 3 legend “CONFIDENTIAL” or “CONFIDENTIAL-ATTORNEYS’ EYES ONLY” at the top or bottom 4 or by watermarking of each page of a document that contains CONFIDENTIAL INFORMATION. The 5 DESIGNATING PARTY that makes original documents available for inspection need not designate 6 them for protection under this Stipulated Protective Order until after the inspecting Party has indicated 7 which documents it would like copied and produced. During the inspection and before the designation, 8 all of the documents made available for inspection shall be deemed “CONFIDENTIAL- 9 ATTORNEYS’ EYES ONLY.” After the inspecting Party has identified the documents it wants copied 10 and produced, the DESIGNATING PARTY must determine which documents qualify for protection 11 under this Stipulated Protective Order; then, before producing the specified documents, the producing 12 Party must affix the legend “CONFIDENTIAL” or “CONFIDENTIAL-ATTORNEYS’ EYES ONLY” 13 to each page of the documents that contain CONFIDENTIAL INFORMATION. If, after production, a 14 Party or THIRD-PARTY designates as “CONFIDENTIAL” or “CONFIDENTIAL-ATTORNEYS’ 15 EYES ONLY” documents not previously designated, then any Party in possession of such documents 16 shall designate the documents as such in accordance with this Stipulated Protective Order. 17 b. For testimony given in deposition or in other pretrial or trial proceedings, the 18 DESIGNATING PARTY shall identify either (a) on the record before the close of the deposition, 19 hearing or other proceeding, or (b) within 20 days after receiving the transcript of such deposition, 20 hearing or other proceeding, all portions of the testimony that it wants to designate as 21 “CONFIDENTIAL” or “CONFIDENTIAL-ATTORNEYS’ EYES ONLY.” Only those portions of the 22 testimony that are designated for protection during the deposition or other pretrial or trial proceedings, 23 or within the 20 days after receipt of the transcript of such testimony, shall be covered by the 24 provisions of this Stipulated Protective Order. The court reporter shall affix to the top or bottom of 25 each page of a transcript containing CONFIDENTIAL INFORMATION the legend 26 “CONFIDENTIAL” or “CONFIDENTIAL-ATTORNEYS’ EYES ONLY,” as instructed by a 27 DESIGNATING PARTY’s instructions. 1 c. For any MATERIAL produced in other than documentary form and for any other 2 tangible items, the DESIGNATING PARTY producing such MATERIAL or tangible item shall affix 3 in a prominent place on the exterior of the container or containers in which the material or item is 4 stored the legend “CONFIDENTIAL” or “CONFIDENTIAL-ATTORNEYS’ EYES ONLY.” If only 5 portions of the information or item warrant protection, the DESIGNATING PARTY, to the extent 6 practicable, shall identify the protected portions. If, after production, a Party or THIRD-PARTY 7 designates as “CONFIDENTIAL” or “CONFIDENTIAL-ATTORNEYS’ EYES ONLY” any non- 8 documentary MATERIAL or tangible item not previously designated, then any Party in possession of 9 such MATERIAL or tangible item shall designate it as such in accordance with this Stipulated 10 Protective Order. 11 D. ACCESS TO AND USE OF CONFIDENTIAL INFORMATION 12 (5) Subject to paragraph 10 below, all MATERIAL designated as “CONFIDENTIAL” may 13 be disclosed only to: 14 a. Counsel for a Party, as well as their employees and other persons or entities retained by 15 such counsel to provide litigation-related services; 16 b. Experts, consultants and other independent contractors retained or employed to consult 17 with, advise or assist counsel for a Party in the preparation or trial of this case, as well as their 18 employees and who have signed the “Acknowledgment and Agreement to Be Bound” by Protective 19 Order (Exhibit A); 20 c. The PARTIES to this action and their current directors, officers and employees; 21 d. Witnesses who are being prepared by counsel to give testimony at a deposition or at 22 trial, or who are being examined by counsel at a deposition or at trial; 23 e. Personnel employed by the this Court or any appellate court, including, the Ninth 24 Circuit Court of Appeals, appellate court justices, court reporters, clerks and administrative support 25 personnel; 26 f. Professional jury or trial consultants, and professional vendors to whom disclosure is 27 reasonably necessary for this Action and who have signed the “Acknowledgment and Agreement to Be Bound” by Protective Order (Exhibit A); 1 g. The author or co-author of the document or the original source of the information; 2 h. Any mediator or settlement officer (and their supporting personnel) mutually agreed 3 upon by any of the PARTIES engaged in settlement discussions. 4 (6) A DESIGNATING PARTY may designate as “CONFIDENTIAL-ATTORNEYS 5 EYES ONLY” any MATERIAL that contains private, confidential, proprietary and/or trade secret 6 information that is so sensitive that such MATERIAL should not be disclosed to the directors, officers 7 or non-attorney employees of other PARTIES. MATERIAL designated as “CONFIDENTIAL- 8 ATTORNEYS’ EYES ONLY” may be disclosed only to those persons and entities identified in 9 paragraph (5) (a), (b), (e), (f), (g), and (h), above. 10 (7) PARTIES shall take appropriate measures to ensure that all persons permitted access to 11 MATERIAL designated as “CONFIDENTIAL” or “CONFIDENTIAL-ATTORNEYS’ EYES ONLY” 12 under paragraph 5(b), (c) or (d) of this Stipulated Protective Order have agreed, prior to reviewing any 13 such CONFIDENTIAL INFORMATION, to be bound by the terms and conditions hereof with respect 14 to the restricted disclosure and use of such CONFIDENTIAL INFORMATION. Prior to receiving any 15 CONFIDENTIAL INFORMATION, those persons shall sign a copy of the statement attached hereto 16 as Exhibit A, agreeing to be bound by the terms of this Stipulated Protective Order and submitting to 17 the jurisdiction of this Court to enforce this Stipulated Protective Order. The Party who obtains any 18 such signed statements shall retain possession of the statements and shall provide a copy of the 19 statements at the written request of another Party. However, under no circumstances shall any Party be 20 required to disclose the identity or existence of any expert, consultant or witness until otherwise 21 required to do so by law or order of this Court. 22 E. CHALLENGING CONFIDENTIALITY DESIGNATIONS 23 (8) If, at any time during the pendency of this action, counsel for any Party wishes to 24 challenge a DESIGNATING PARTY’s designation of MATERIAL as containing CONFIDENTIAL 25 INFORMATION, and to exclude such MATERIAL from the provisions of this Stipulated Protective 26 Order, the Party may proceed by petition before this Court. The PARTIES shall first meet and confer 27 in a good faith effort to resolve informally any disputes concerning this Stipulated Protective Order 1 before bringing any such petition before this Court. The DESIGNATING PARTY bears the burden of 2 establishing the appropriateness of a confidentiality designation. 3 F. INADVERTENT OR UNAUTHORIZED DISCLOSURE OF CONFIDENTIAL 4 INFORMATION 5 (9) Pursuant to Rule 502 of the Federal Rules of Evidence, the production of documents, 6 electronically stored information (“ESI”), or other information subject to the attorney-client privilege 7 or the work-product doctrine, whether inadvertent or otherwise, will not waive the attorney-client 8 privilege or the work-product doctrine. In addition, the PARTIES agree that if a document, ESI or 9 other information subject to the attorney-client privilege or the work product doctrine is included in 10 documents, ESI or other information made available for inspection, such disclosure shall be considered 11 not a waiver of the attorney-client privilege or the work-product doctrine. Upon entry by this Court of 12 the present Protective Order, the privilege or protection is deemed not waived by disclosure in 13 connection with this Action, as well as any other Federal or State proceeding. This Protective Order 14 shall be interpreted to provide the maximum protection allowed by Federal Rule of Evidence 502(d). 15 (10) If a Party believes that it has inadvertently produced any document, ESI or other 16 information that it believes may be subject to the attorney-client privilege or work-product doctrine 17 (“Protected Document”), the Party may claw back the Protected Document by making a written 18 request to the Receiving Party specifically identifying the Protected Document, including the date, 19 author, addressees, and topic of the document as well as a brief explanation of the reason for the claim 20 of privilege. Upon receipt of this written request, each Party receiving said document, ESI or other 21 information shall immediately cease use of this document, ESI or other information and information 22 contained therein and shall return it and all physical copies and delete all electronic copies within five 23 (5) business days to the Producing Party. The record of the identity and nature of an inadvertently 24 produced document, ESI or other information may not be used for any purpose other than in 25 preparation of a motion to compel the production of the same document in this Action. No information 26 in an inadvertently produced document, ESI or other information may be used or relied upon for any 27 other purpose in this Action until the Court so orders. After the return of the document(s), ESI or other 1 information, the Receiving Party may challenge the Producing Party’s claim(s) of privilege or work- 2 product by making a motion to the Court. 3 (11) Nothing contained herein is intended to or shall serve to limit a Party’s right to conduct 4 a review of documents, ESI, or other information (including metadata) for relevance, responsiveness, 5 and/or segregation of privileged and/or protected information prior to production. 6 G. MAINTENANCE AND FILING OF CONFIDENTIAL INFORMATION 7 (12) All MATERIAL designated as “CONFIDENTIAL” or “CONFIDENTIAL- 8 ATTORNEYS’ EYES ONLY,” shall be kept in secure facilities. A “secure facility” is a place where 9 access is restricted to only to those designated persons set forth in paragraphs 5(a) and (b) of this 10 Stipulated Protective Order. Such requirement is not applicable to the Court. 11 (13) The PARTIES recognize the Court is a public institution where the sealing of Court 12 records is the exception rather than the rule. A Party that seeks to file under seal any MATERIAL 13 designated as “CONFIDENTIAL” or “CONFIDENTIAL-ATTORNEYS’ EYES ONLY” must comply 14 with Local Civil Rule 141.1. As such, the PARTIES agree that when utilizing CONFIDENTIAL 15 INFORMATION in a proceeding before the Court or in submission of any documents to the Court 16 with a pleading or in evidence, that each Party shall make every effort to minimize the number of 17 documents such Party requests to be sealed, and attempt only to seal the portion of the document or 18 pleading that includes CONFIDENTIAL INFORMATION. 19 (14) A Party that seeks to file under seal any MATERIAL designated as “CONFIDENTIAL” 20 or “CONFIDENTIAL-ATTORNEYS’ EYES ONLY” must comply with Local Civil Rule 141.1. 21 MATERIAL may only be filed under seal pursuant to a court order authorizing the sealing of the 22 specific MATERIAL at issue. If a Party's request to file MATERIAL under seal is denied by the Court, 23 then the Receiving Party may file the information in the public record unless otherwise instructed by 24 the Court. 25 (15) If previously sealed documents are ordered unsealed for use at trial, counsel for the 26 Party offering the document as evidence shall identify which entries to the docket represents the 27 exhibits actually received, within five (5) business days after the conclusion of the trial. 1 H. CONFIDENTIAL INFORMATION SUBPOENAED OR ORDERED 2 PRODUCED IN OTHER LITIGATION 3 (16) The terms of this Stipulated Protective Order shall apply to all manner and means of 4 discovery, including subpoenas duces tecum. 5 (17) In the event that a Party is served with a subpoena that seeks to compel the production 6 of MATERIAL designated as “CONFIDENTIAL” or “CONFIDENTIAL-ATTORNEYS’ EYES 7 ONLY,” the Party upon whom the subpoena is served shall give written notice of the subpoena to the 8 DESIGNATING PARTY at least seven (7) calendar days before the production date (or, if the 9 subpoena provides less than seven (7) days’ notice, within one (1) business day after service of the 10 subpoena). The DESIGNATING PARTY may then file a petition or motion to quash the subpoena 11 and/or obtain such other relief as will protect the confidential nature of the documents. If the 12 DESIGNATING PARTY files such a petition before the production date specified in the subpoena, the 13 Party upon whom the subpoena is served shall not produce the requested documents until after this 14 Court or appropriate court has ruled on the petition or motion. 15 I. FINAL DISPOSITION 16 (18) Within sixty (60) days after the final termination of this action, counsel for each Party 17 shall destroy any and all MATERIAL designated as “CONFIDENTIAL” or “CONFIDENTIAL- 18 ATTORNEYS’ EYES ONLY” and shall destroy all copies, digests or summaries which have been 19 made of, or prepared from, such CONFIDENTIAL INFORMATION, and shall provide counsel for the 20 Party or THIRD-PARTY who produced such MATERIAL (upon request) with a declaration under 21 penalty of perjury attesting to such return and/or destruction. For purposes of this Stipulated Protective 22 Order, the term “final termination” shall refer to the time after any final order or award is entered in 23 this action, with no timely petition for reconsideration or petition for review having been filed, or, if 24 any such petition is filed, after a final decision is rendered by the United States District Court or any 25 appellate court with no further petition or appeal pending or possible. 26 27 1 J. MISCELLANEOUS 2 (19) Nothing in this Stipulated Protective Order shall be construed to relieve any Party from 3 the obligation to timely respond to a discovery request, nor shall this Stipulated Protective Order be 4 construed as a waiver of the right to assert any objection to a discovery request. 5 (20) This Stipulated Protective Order is intended to regulate the production and 6 dissemination of CONFIDENTIAL INFORMATION during the entirety of this action, and thereafter 7 shall remain in full force and effect, unless and until modified, superseded or terminated by written 8 agreement of all PARTIES or by order of this Court. Nothing in this Order abridges the right of any 9 person or entity to seek its modification by the Court in the future. This Stipulated Protective Order 10 shall become effective as among the PARTIES when executed by all PARTIES, with or without the 11 Court’s entry of the order. This Court shall retain jurisdiction to enforce the provisions of this 12 Stipulated Protective Order and to enter amendments, modifications and additions to this Stipulated 13 Protective Order as this Court may from time to time deem appropriate upon noticed motion of a Party 14 or upon this Court’s own motion upon notice to the PARTIES. 15 (21) Counsel for both PARTIES shall make every attempt to redact exhibits for use at trial as 16 opposed to marking such exhibits “CONFIDENTIAL” so as to reduce the burden of sealing for the 17 Court during trial. 18 (22) Nothing in this Stipulated Protective Order shall be construed as improperly limiting the 19 rights of third PARTIES involved in other actions to conduct discovery or to limit the subpoena power 20 of another court unless a Court grants a properly noticed motion for protective order in such other 21 proceedings. 22 (23) Documents exchanged pursuant to this Stipulated Protective Order may only be used in 23 connection with the present action, and may not be used by any Party or its respective counsel in any 24 future or parallel proceeding. 25 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD: 26 27 1 D ated: May 19, 2020 DORSEY & WHITNEY LLP 2 By: /s/ M. Benjamin Machlis 3 Kent J. Schmidt (SBN 195969) M. Benjamin Machlis (admitted pro hac vice) 4 Megan Houdeshel (admitted pro hac vice)

5 Attorneys for Defendants California Cascade Building Materials, Inc., Amar S. Doman and 6 James Code 7 Dated: May 19, 2020 ENVIRONMENTAL ADVOCATES

8 9 By: /s/ Brian Orion (with permission) 10 Christopher Sproul (SBN 126398) Brian Orion (SBN 239460) 11 Attorneys for Plaintiff Eden 12 Environmental Citizen’s Group, LLC. 13

14 15 16 17 18 19 20 21 22 23 24 25 26 27 WAU 2.497 VV OIYVU PLINUINGIN MVVULPIOCEIL “ror PHM Vvioticy Payet 4¢ Vi At

1 ORDER 2 The Court has reviewed the parties’ stipulated protective order, which comports with the 3 relevant authorities and the Court’s applicable local rule. See L.R. 141.1(c);! see also Phillips ex rel. 4 Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1210 (9th Cir. 2002) (“Generally, the public cai 5 || gain access to litigation documents and information produced during discovery unless the party 6 || opposing disclosure shows ‘good cause’ why a protective order is necessary.”) Therefore, the Court 7 || GRANTS the request subject to the following clarification. 8 This Court’s Local Rules indicate that once this action is closed, “unless otherwise ordered, th: 9 || Court will not retain jurisdiction over enforcement of the terms of any protective order filed in that 10 action.” L.R. 141.1(f). Courts in the district generally do not agree to retain jurisdiction after closure 11 || of the case, and the Court will not do so here. See, e.g., MD Helicopters, Inc. v. Aerometals, Inc., 12 ||2017 WL 495778 (E.D. Cal., February 03, 2017). Based on this rationale, the Court will not retain 13. jurisdiction over this protective order once the action is closed. 14 || Dated: May 21, 2020 15 Ad 16 KENDALL. UNITED STATES MAGISTRATE JUDGE 17 18 eden.1936 19 20 21 ! The Court’s Local Rules instruct the parties, when requesting a protective order, to include ir 22 || their submission: 23 (1) A description of the types of information eligible for protection under the order, with the description provided in general terms sufficient to reveal the nature of the 24 information (e.g., customer list, formula for soda, diary of a troubled child); (2) A showing of particularized need for protection as to each category of information 25 proposed to be covered by the order; and (3) A showing as to why the need for protection should be addressed by a court order, 6 as opposed to a private agreement between or among the parties. 27 28 Local Rule 141.1(c). 12

1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _____________________________ [print or type full name], of 4 ____________________________________ [print or type full address], declare under penalty 5 of perjury that I have read in its entirety and understand the Stipulated Protective Order that was issued 6 by this Court on [date] in the case of Eden Environmental Citizen’s Group, LLC v. California Cascade 7 Building Materials, Inc., et al, Case No. 2:19-cv-01936-TLN-KJN. I agree to comply with and to be 8 bound by all the terms of this Stipulated Protective Order and I understand and acknowledge that 9 failure to so comply could expose me to sanctions and punishment in the nature of contempt. I 10 solemnly promise that I will not disclose in any manner any information or item that is subject to this 11 Stipulated Protective Order to any person or entity except in strict compliance with the provisions of 12 this Order. 13 I further agree to submit to the jurisdiction of this Court for the purpose of enforcing the terms 14 of this Stipulated Protective Order, even if such enforcement proceedings occur after termination of 15 this action. I hereby appoint _______________________________ [print or type full name] of 16 ________________________________________ [print or type full address and telephone number] as 17 my California agent for service of process in connection with this action or any proceedings related to 18 enforcement of this Stipulated Protective Order. 19 Date: ______________________________________ 20 City and State where sworn and signed: _________________________________ 21 Printed name: _______________________________ 22 Signature: _______________________________ 23 24 25 26 27 1

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27