Greater Oceans, Inc. v. Eric Thorstenson

Opinion

1 Bbbrelankt eHly. @Blbalkaekleyl y(lSaBwNgr 1o5u7p2.c9o2m) Qiongyue Hu (SBN 319839) 2 qhu@blakelylawgroup.com BLAKELY LAW GROUP 3 1334 Parkview Avenue, Suite 280 Manhattan Beach, California 90266 4 Telephone: (310) 546-7400 Facsimile: (310) 546-7401 5 Attorneys for Plaintiff 6 Greater Oceans, Inc.

7 Meghan C. Murphey (SBN 259487) meghan@themurpheylawyers.com 8 Matthew D. Murphey (SBN 194111) matt@themurpheylawyers.com 9 MURPHEY & MURPHEY, A.P.C. 120 Vantis Drive Suite 300 10 Aliso Viejo, California 92656 Telephone: (949) 464-4540 11 Facsimile: (562)375-6674

12 Attorneys for Defendant Eric Thorstenson 13

14 UNITED STATES DISTRICT COURT

15 CENTRAL DISTRICT OF CALIFORNIA

16 GREATER OCEANS, INC., a ) CASE NO.: 2:20-cv-11340-FMO-PLAx 17 California Corporation, ) ) 18 ) FIRST-AMENDED STIPULATED Plaintiff, ) PROTECTIVE ORDER 19 ) v. ) 20 ) Assigned to Judge: ) Hon. Fernando M. Olguin 21 ERIC THORSTENSON, an individual; ) and DOES 1-10, inclusive, ) Discovery Matters, Magistrate Judge: 22 ) Hon. Paul L. Abrams ) 23 Defendants. ) ) 24 Plaintiff Greater Oceans, Inc. (“Plaintiff” or “Greater Oceans”) and Defendant 25 Eric Thorstenson (“Defendant” or “Thorstenson”) (together with Plaintiff, the 26 “Parties”) hereby stipulate to Court’s Preferred Form Protective Order as follows: 27

28 1 1. GENERAL 2 1.1 Purposes and Limitations. Discovery in this action is likely to involve 3 production of confidential, proprietary, or private information for which special 4 protection from public disclosure and from use for any purpose other than prosecuting 5 this litigation may be warranted. Accordingly, the parties hereby stipulate to and 6 petition the Court to enter the following Stipulated Protective Order. The parties 7 acknowledge that this Order does not confer blanket protections on all disclosures or 8 responses to discovery and that the protection it affords from public disclosure and 9 use extends only to the limited information or items that are entitled to confidential 10 treatment under the applicable legal principles. The parties further acknowledge, as 11 set forth in Section 12.3, below, that this Stipulated Protective Order does not entitle 12 them to file confidential information. 13 14 1.2 Good Cause Statement. 15 This action is likely to involve trade secrets, customer and pricing lists and other 16 valuable research, development, commercial, financial, technical and/or proprietary 17 information for which special protection from public disclosure and from use for any 18 purpose other than prosecution of this action is warranted. Such confidential and 19 proprietary materials and information consist of, among other things, confidential 20 business or financial information, information regarding confidential business 21 practices, or other confidential research, development, or commercial information 22 (including information implicating privacy rights of third parties), information 23 otherwise generally unavailable to the public, or which may be privileged or otherwise 24 protected from disclosure under state or federal statutes, court rules, case decisions, or 25 common law. Accordingly, to expedite the flow of information, to facilitate the 26 prompt resolution of disputes over confidentiality of discovery materials, to 27 adequately protect information the parties are entitled to keep confidential, to ensure 28 that the parties are permitted reasonable necessary uses of such material in preparation 1 for and in the conduct of trial, to address their handling at the end of the litigation, and 2 serve the ends of justice, a protective order for such information is justified in this 3 matter. It is the intent of the parties that information will not be designated as 4 confidential for tactical reasons and that nothing be so designated without a good faith 5 belief that it has been maintained in a confidential, non-public manner, and there is 6 good cause why it should not be part of the public record of this case. 7 8 2. DEFINITIONS 9 2.1 Action: Greater Oceans, Inc. v. Eric Thorstenson, 2:20-cv-11340-FMO- 10 PLA. 11 2.2 “ATTORNEYS-EYES ONLY” Information or Items: extremely 12 sensitive “CONFIDENTIAL” Information or Items, the disclosure of which to another 13 Party or Non-Party would create a substantial risk of serious harm that could not be 14 avoided by less restrictive means. 15 2.3 Challenging Party: a Party or Non-Party that challenges the designation of 16 information or items under this Order. 17 2.4 “CONFIDENTIAL” Information or Items: information (regardless of how 18 it is generated, stored or maintained) or tangible things that qualify for protection 19 under Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause 20 Statement. 21 2.5 Counsel: Outside Counsel of Record and House Counsel (as well as their 22 support staff). 23 2.6 Designating Party: a Party or Non-Party that designates information or items 24 that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 25 2.7 Disclosure or Discovery Material: all items or information, regardless of the 26 medium or manner in which it is generated, stored, or maintained (including, among 27 other things, testimony, transcripts, and tangible things), that are produced or 28 generated in disclosures or responses to discovery in this matter. 1 2.8 Expert: a person with specialized knowledge or experience in a matter 2 pertinent to the litigation who has been retained by a Party or its counsel to serve as 3 an expert witness or as a consultant in this Action. 4 2.9 House Counsel: attorneys who are employees of a party to this Action. 5 House Counsel does not include Outside Counsel of Record or any other outside 6 counsel. 7 2.10 Non-Party: any natural person, partnership, corporation, association, or 8 other legal entity not named as a Party to this action. 9 2.11 Outside Counsel of Record: attorneys who are not employees of a party to 10 this Action but are retained to represent or advise a party to this Action and have 11 appeared in this Action on behalf of that party or are affiliated with a law firm that has 12 appeared on behalf of that party, including support staff. 13 2.12 Party: any party to this Action, including all of its officers, directors, 14 employees, consultants, retained experts, and Outside Counsel of Record (and their 15 support staffs). 16 2.13 Producing Party: a Party or Non-Party that produces Disclosure or 17 Discovery Material in this Action. 18 2.14 Professional Vendors: persons or entities that provide litigation support 19 services (e.g., photocopying, videotaping, translating, preparing exhibits or 20 demonstrations, and organizing, storing, or retrieving data in any form or medium) 21 and their employees and subcontractors. 22 2.15 Protected Material: any Disclosure or Discovery Material that is 23 designated as “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY.” 24 2.16 Receiving Party: a Party that receives Disclosure or Discovery Material 25 from a Producing Party. 26 27 28 1 3. SCOPE 2 The protections conferred by this Stipulation and Order cover not only 3 Protected Material (as defined above), but also (1) any information copied or extracted 4 from Protected Material; (2) all copies, excerpts, summaries, or compilations of 5 Protected Material; and (3) any testimony, conversations, or presentations by Parties 6 or their Counsel that might reveal Protected Material. 7 Any use of Protected Material at trial shall be governed by the orders of the trial 8 judge. This Order does not govern the use of Protected Material at trial. 9 10 4. DURATION 11 Once a case proceeds to trial, all of the court-filed information to be introduced 12 that was previously designated as confidential or maintained pursuant to this 13 protective order becomes public and will be presumptively available to all members 14 of the public, including the press, unless compelling reasons supported by specific 15 factual findings to proceed otherwise are made to the trial judge in advance of the trial. 16 See Kamakana v. City and Cty. of Honolulu, 447 F.3d 1172, 1180-81 (9th Cir. 2006) 17 (distinguishing “good cause” showing for sealing documents produced in discovery 18 from “compelling reasons” standard when merits-related documents are part of court 19 record). Accordingly, the terms of this protective order do not extend beyond the 20 commencement of the trial. 21 22 5. DESIGNATING PROTECTED MATERIAL 23 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each 24 Party or Non-Party that designates information or items for protection under this Order 25 must take care to limit any such designation to specific material that qualifies under 26 the appropriate standards. The Designating Party must designate for protection only 27 those parts of material, documents, items, or oral or written communications that 28 qualify so that other portions of the material, documents, items, or communications 1 for which protection is not warranted are not swept unjustifiably within the ambit of 2 this Order. 3 Mass, indiscriminate, or routinized designations are prohibited. Designations 4 that 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 13 or ordered, Disclosure or Discovery Material that qualifies for protection under this 14 Order 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 documents, 17 but excluding transcripts of depositions or other pretrial or trial proceedings), that the 18 Producing Party affix, at a minimum, the legend “CONFIDENTIAL” or 19 “ATTORNEYS’ EYES ONLY” (hereinafter “CONFIDENTIAL legend” or “AEO 20 legend”), to each page that contains protected material. If only a portion or portions 21 of the material on a page qualifies for protection, the Producing Party also must clearly 22 identify the protected portion(s) (e.g., by making appropriate markings in the 23 margins). 24 A Party or Non-Party that makes original documents available for inspection 25 need not designate them for protection until after the inspecting Party has indicated 26 which documents it would like copied and produced. During the inspection and before 27 the designation, all of the material made available for inspection shall be deemed 28 “CONFIDENTIAL.” After the inspecting Party has identified the documents it wants 1 copied and produced, the Producing Party must determine which documents, or 2 portions thereof, qualify for protection under this Order. Then, before producing the 3 specified documents, the Producing Party must affix the “CONFIDENTIAL legend” 4 or “AEO legend” to each page that contains Protected Material. If only a portion or 5 portions of the material on a page qualifies for protection, the Producing Party also 6 must clearly identify the protected portion(s) (e.g., by making appropriate markings 7 in the margins). 8 (b) for testimony given in depositions that the Designating Party identify the 9 Disclosure or Discovery Material on the record, before the close of the deposition. 10 (c) for information produced in some form other than documentary and for any 11 other tangible items, that the Producing Party affix in a prominent place on the exterior 12 of the container or containers in which the information is stored the as 13 “CONFIDENTIAL” or “ATTORNEYS EYES ONLY” (as the case may be). If only 14 a portion or portions of the information warrants protection, the Producing Party, to 15 the extent practicable, shall identify the protected portion(s). 16 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure 17 to designate qualified information or items does not, standing alone, waive the 18 Designating Party’s right to secure protection under this Order for such material. Upon 19 timely correction of a designation, the Receiving Party must make reasonable efforts 20 to assure that the material is treated in accordance with the provisions of this Order. 21 22 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 23 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation 24 of confidentiality at any time that is consistent with the Court’s Scheduling Order. 25 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution 26 process under Local Rule 37-1, et seq. Any discovery motion must strictly comply 27 with the procedures set forth in Local Rules 37-1, 37-2, and 37-3. 28 1 6.3 Burden. The burden of persuasion in any such challenge proceeding shall 2 be on the Designating Party. Frivolous challenges, and those made for an improper 3 purpose (e.g., to harass or impose unnecessary expenses and burdens on other parties) 4 may expose the Challenging Party to sanctions. Unless the Designating Party has 5 waived or withdrawn the confidentiality designation, all parties shall continue to 6 afford the material in question the level of protection to which it is entitled under the 7 Producing Party’s designation until the Court rules on the challenge. 8 9 7. ACCESS TO AND USE OF PROTECTED MATERIAL 10 7.1 Basic Principles. A Receiving Party may use Protected Material that is 11 disclosed or produced by another Party or by a Non-Party in connection with this 12 Action only for prosecuting, defending, or attempting to settle this Action. Such 13 Protected Material may be disclosed only to the categories of persons and under the 14 conditions described in this Order. When the Action has been terminated, a Receiving 15 Party must comply with the provisions of section 13 below (FINAL DISPOSITION). 16 Protected Material must be stored and maintained by a Receiving Party at a 17 location and in a secure manner that ensures that access is limited to the persons 18 authorized under this Order. 19 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise 20 ordered by the Court or permitted in writing by the Designating Party, a Receiving 21 Party may disclose any information or item designated “CONFIDENTIAL” only to: 22 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well as 23 employees of said Outside Counsel of Record to whom it is reasonably necessary to 24 disclose the information for this Action; 25 (b) the officers, directors, and employees (including House Counsel) of the 26 Receiving Party to whom disclosure is reasonably necessary for this Action; 27 28 1 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure 2 is reasonably necessary for this Action and who have signed the “Acknowledgment 3 and Agreement to Be Bound” (Exhibit A); 4 (d) the Court and its personnel; 5 (e) court reporters and their staff; 6 (f) professional jury or trial consultants, mock jurors, and Professional Vendors 7 to whom disclosure is reasonably necessary for this Action and who have signed the 8 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 9 (g) the author or recipient of a document containing the information or a 10 custodian or other person who otherwise possessed or knew the information; 11 (h) during their depositions, witnesses, and attorneys for witnesses, in the 12 Action to whom disclosure is reasonably necessary provided: (1) the deposing party 13 requests that the witness sign the form attached as Exhibit A hereto; and (2) they will 14 not be permitted to keep any confidential information unless they sign the 15 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise agreed 16 by the Designating Party or ordered by the Court. Pages of transcribed deposition 17 testimony or exhibits to depositions that reveal Protected Material may be separately 18 bound by the court reporter and may not be disclosed to anyone except as permitted 19 under this Stipulated Protective Order; and 20 (i) any mediator or settlement officer, and their supporting personnel, mutually 21 agreed upon by any of the parties engaged in settlement discussions. 22 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 23 IN OTHER LITIGATION 24 If a Party is served with a subpoena or a court order issued in other litigation 25 that compels disclosure of any information or items designated in this Action as 26 “CONFIDENTIAL,” or “ATTORNEYS’ EYES ONLY” (as the case may be), that 27 Party must: 28 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 by 8 the Designating Party whose Protected Material may be affected. 9 If the Designating Party timely seeks a protective order, the Party served with 10 the subpoena or court order shall not produce any information designated in this action 11 as “CONFIDENTIAL” or “ATTORNEYS EYES ONLY” before a determination by 12 the court from which the subpoena or order issued, unless the Party has obtained the 13 Designating Party’s permission. The Designating Party shall bear the burden and 14 expense of seeking protection in that court of its confidential material and nothing in 15 these provisions should be construed as authorizing or encouraging a Receiving Party 16 in this Action to disobey a lawful directive from another court. 17 18 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 19 PRODUCED IN THIS LITIGATION 20 (a) The terms of this Order are applicable to information produced by a Non- 21 Party in this Action and designated as “CONFIDENTIAL” or “ATTORNEYS EYES 22 ONLY.” Such information produced by Non-Parties in connection with this litigation 23 is protected by the remedies and relief provided by this Order. Nothing in these 24 provisions should be construed as prohibiting a Non-Party from seeking additional 25 protections. 26 (b) In the event that a Party is required, by a valid discovery request, to produce 27 a Non-Party’s confidential information in its possession, and the Party is subject to an 28 1 agreement with the Non-Party not to produce the Non-Party’s confidential 2 information, then the Party shall: 3 (1) promptly notify in writing the Requesting Party and the Non-Party that some 4 or all of the information requested is subject to a confidentiality agreement with a 5 Non-Party; 6 (2) promptly provide the Non-Party with a copy of the Stipulated Protective 7 Order in this Action, the relevant discovery request(s), and a reasonably specific 8 description of the information requested; and 9 (3) make the information requested available for inspection by the Non-Party, 10 if requested. 11 (c) If the Non-Party fails to seek a protective order from this Court within 14 12 days of receiving the notice and accompanying information, the Receiving Party may 13 produce the Non-Party’s confidential information responsive to the discovery request. 14 If the Non-Party timely seeks a protective order, the Receiving Party shall not produce 15 any information in its possession or control that is subject to the confidentiality 16 agreement with the Non-Party before a determination by the Court. Absent a court 17 order to the contrary, the Non-Party shall bear the burden and expense of seeking 18 protection in this Court of its Protected Material. 19 20 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 21 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 22 Protected Material to any person or in any circumstance not authorized under this 23 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 24 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts 25 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or 26 persons to whom unauthorized disclosures were made of all the terms of this Order, 27 and (d) request such person or persons to execute the “Acknowledgment and 28 Agreement to Be Bound” that is attached hereto as Exhibit A. 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, 5 the 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 14 12. MISCELLANEOUS 15 12.1 Right to Further Relief. Nothing in this Order abridges the right of any 16 person to seek its modification by the Court in the future. 17 12.2 Right to Assert Other Objections. By stipulating to the entry of this 18 Protective Order, no Party waives any right it otherwise would have to object to 19 disclosing or producing any information or item on any ground not addressed in this 20 Stipulated Protective Order. Similarly, no Party waives any right to object on any 21 ground to use in evidence of any of the material covered by this Protective Order. 22 12.3 Filing Protected Material. A Party that seeks to file under seal any 23 Protected Material must comply with Civil Local Rule 79-5. Protected Material may 24 only be filed under seal pursuant to a court order authorizing the sealing of the specific 25 Protected Material at issue; good cause must be shown in the request to file under seal. 26 If a Party’s request to file Protected Material under seal is denied by the Court, then 27 the Receiving Party may file the information in the public record unless otherwise 28 instructed by the Court. 1 13. FINAL DISPOSITION 2 After the final disposition of this Action, within 60 days of a written request by 3 the Designating Party, each Receiving Party must return all Protected Material to the 4 Producing Party or destroy such material. As used in this subdivision, “all Protected 5 Material” includes all copies, abstracts, compilations, summaries, and any other 6 format reproducing or capturing any of the Protected Material. Whether the Protected 7 Material is returned or destroyed, the Receiving Party must submit a written 8 certification to the Producing Party (and, if not the same person or entity, to the 9 Designating Party) by the 60 day deadline that (1) identifies (by category, where 10 appropriate) all the Protected Material that was returned or destroyed, and (2) affirms 11 that the Receiving Party has not retained any copies, abstracts, compilations, 12 summaries or any other format reproducing or capturing any of the Protected Material. 13 Notwithstanding this provision, counsel are entitled to retain an archival copy of all 14 pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda, 15 correspondence, deposition and trial exhibits, expert reports, attorney work product, 16 and consultant and expert work product, even if such materials contain Protected 17 Material. Any such archival copies that contain or constitute Protected Material 18 remain subject to this Protective Order as set forth in Section 4 (DURATION). 19 \\\ 20 \\\ 21 \\\ 22 \\\ 23 \\\ 24 \\\ 25 \\\ 26 \\\ 27 \\\ 28 \\\ 1 ||/14. VIOLATION OF ORDER 2 Any violation of this Order may be punished by any and all appropriate 3 ||measures including, without limitation, contempt proceedings and/or monetary 4 || sanctions. 5 6 || IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD, 7 8 Dated: September 1, 2021, /s/ Brent H. Blakel Brent H. Blakely 9 Qiongyue Hu Attorneys for Plaintiff Greater 10 Oceans, Inc. 11 |) Dated: September 1, 2021, /s/ Matthew D. Murphey 12 Mathew D. Murphey Meghan C. Murphey 13 Attorneys for Defendant Eric Thorstenson 14 15 ATTESTATION RE ELECTRONIC SIGNATURES

7 The filer of this document attest that all other Signatories to this document, on

1 whose behalf this filing is submitted, concur as to the content and have authorized

19 their signature and filing of the document.

20 Dated: September 1, 2021 By: s/ Matthew D. Murphey 21 Matthew D. Murphey 22 23 |} IT IS SO ORDERED. 24 > 25 ||DATED: September 9, 2021 By: %6 Honorable Paul L. Abrams United States Magistrate Judge 27 28 14

1 EXHIBIT A ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 2 I, _______________________________________________ [print full name], 3 of __________________________________________________ [print full address], 4 declare under penalty of perjury that I have read in its entirety and understand the 5 Stipulated Protective Order that was issued by the United States District Court for the 6 Central District of California on __________[date] in the case of Greater Oceans, Inc. 7 v. Eric Thorstenson, 2:20-cv-11340-FMO-PLA. I agree to comply with and to be 8 bound by all the terms of this Stipulated Protective Order and I understand and 9 acknowledge that failure to so comply could expose me to sanctions and punishment 10 in the nature of contempt. 11 I solemnly promise that I will not disclose in any manner any information or 12 item that is subject to this Stipulated Protective Order to any person or entity except 13 in strict compliance with the provisions of this Order. 14 I further agree to submit to the jurisdiction of the United States District Court 15 for the Central District of California for the purpose of enforcing the terms of this 16 Stipulated Protective Order, even if such enforcement proceedings occur after 17 termination of this action. 18

19 Date: ______________________________________ 20

21 City and State Where Sworn and Signed: _________________________________ 22

23 Printed Name: _______________________________ 24

25 Signature: __________________________________ 26 27 28