M.O. Dion and Sons, Inc. v. VP Racing Fuels, Inc.

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 M.O. DION & SONS, INC., et al., Case No. 2:19-cv-05154-MWF-KESx 11 Plaintiff, 12 v. PROTECTIVE ORDER 13 VP RACING FUELS, INC., et al., 14 Defendants. 15 16 17 1. A. PURPOSES AND LIMITATIONS 18 As the parties have represented that discovery in this action is likely to 19 involve production of confidential, proprietary, or private information for which 20 special protection from public disclosure and from use for any purpose other than 21 prosecuting this litigation may be warranted, this Court enters the following 22 Protective Order. This Order does not confer blanket protections on all disclosures 23 or responses to discovery. The protection it affords from public disclosure and use 24 extends only to the limited information or items that are entitled to confidential 25 treatment under the applicable legal principles. Further, as set forth in Section 12.3, 26 below, this Protective Order does not entitle the parties to file confidential 27 information under seal. Rather, when the parties seek permission from the court to 1 file material under seal, the parties must comply with Civil Local Rule 79-5 and 2 with any pertinent orders of the assigned District Judge and Magistrate Judge. 4 In light of the nature of the claims and allegations in this case—e.g., a dispute 5 between competitors in connection with racing fuel and the anticipated need for the 6 disclosure of information regarding research and development, formulation, 7 manufacturing, specifications, etc. of racing fuels—and the parties’ representations 8 that discovery in this case will involve the production of confidential records, and in 9 order to expedite the flow of information, to facilitate the prompt resolution of 10 disputes over confidentiality of discovery materials, to adequately protect 11 information the parties are entitled to keep confidential, to ensure that the parties are 12 permitted reasonable necessary uses of such material in connection with this action, 13 to address their handling of such material at the end of the litigation, and to serve the 14 ends of justice, a protective order for such information is justified in this matter. 15 The parties shall not designate any information/documents as confidential without a 16 good faith belief that such information/documents have been maintained in a 17 confidential, non-public manner, and that there is good cause or a compelling reason 18 why it should not be part of the public record of this case. 19 2. DEFINITIONS 20 2.1 Action: The instant action: M.O. Dion & Sons, Inc., et al. v. VP 21 Racing Fuels, Inc., et al., C.D. Cal. Case No. 2:19-cv-05154-MWF-SSx. 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 26 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 27 the Good Cause Statement. 1 Information or Items: extremely sensitive “CONFIDENTIAL” Information or 2 Items, the disclosure of which to another Party or Non-Party would create a 3 substantial risk of serious harm that could not be avoided by less restrictive means. 4 2.5 Counsel: Outside Counsel of Record and House Counsel (as well as 5 their support staff). 6 2.6 Designating Party: a Party or Non-Party that designates information or 7 items that it produces in disclosures or in responses to discovery as 8 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL -- ATTORNEYS’ EYES 9 ONLY.” 10 2.7 Disclosure or Discovery Material: all items or information, regardless 11 of the medium or manner in which it is generated, stored, or maintained (including, 12 among other things, testimony, transcripts, and tangible things), that are produced or 13 generated in disclosures or responses to discovery in this matter. 14 2.8 Expert: a person with specialized knowledge or experience in a matter 15 pertinent to the litigation who has been retained by a Party or its counsel to serve as 16 an expert witness or as a consultant in this Action. 17 2.9 House Counsel: attorneys who are employees of a party to this Action. 18 House Counsel does not include Outside Counsel of Record or any other outside 19 counsel. 20 2.10 Non-Party: any natural person, partnership, corporation, association, or 21 other legal entity not named as a Party to this action. 22 2.11 Outside Counsel of Record: attorneys who are not employees of a 23 party to this Action but are retained to represent or advise a party to this Action and 24 have appeared in this Action on behalf of that party or are affiliated with a law firm 25 which has appeared on behalf of that party, and includes support staff. 26 2.12 Party: any party to this Action, including all of its officers, directors, 27 employees, consultants, retained experts, and Outside Counsel of Record (and their 1 2.13 Producing Party: a Party or Non-Party that produces Disclosure or 2 Discovery Material in this Action. 3 2.14 Professional Vendors: persons or entities that provide litigation 4 support services (e.g., photocopying, videotaping, translating, preparing exhibits or 5 demonstrations, and organizing, storing, or retrieving data in any form or medium) 6 and their employees and subcontractors. 7 2.15 Protected Material: any Disclosure or Discovery Material that is 8 designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL -- 9 ATTORNEYS’ EYES ONLY.” 10 2.16 Receiving Party: a Party that receives Disclosure or Discovery 11 Material from a Producing Party. 12 3. SCOPE 13 The protections conferred by this Order cover not only Protected Material (as 14 defined above), but also (1) any information copied or extracted from Protected 15 Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; 16 and (3) any deposition testimony, conversations, or presentations by Parties or their 17 Counsel that might reveal Protected Material, other than during a court hearing or at 18 trial. 19 However, the protections conferred by this Order do not cover the following 20 information: (a) any information that is in the public domain at the time of 21 disclosure to a Receiving Party or which becomes part of the public domain after its 22 disclosure to a Receiving Party as a result of publication not involving a violation of 23 this Order, including becoming part of the public record through trial or otherwise; 24 and (b) any information known to the Receiving Party prior to the disclosure or 25 obtained by the Receiving Party after the disclosure from a source who obtained the 26 information lawfully and under no obligation of confidentiality to the Designating 27 Party. 1 Any use of Protected Material during a court hearing or at trial shall be 2 governed by the orders of the presiding judge. This Order does not govern the use 3 of Protected Material during a court hearing or at trial. 4 4. DURATION 5 Once a case proceeds to trial, any Party may use at trial any of the 6 information that was designated “CONFIDENTIAL” or “HIGHLY 7 CONFIDENTIAL -- ATTORNEYS’ EYES ONLY” or maintained as such pursuant 8 to this protective order, and such information will become public and will be 9 presumptively available to all members of the public, unless compelling reasons 10 supported by specific factual findings to proceed otherwise are made to the trial 11 judge by the Designating Party in advance of the trial. See Kamakana v. City and 12 County of Honolulu, 447 F.3d 1172, 1180-81 (9th Cir. 2006) (distinguishing “good 13 cause” showing for sealing documents produced in discovery from “compelling 14 reasons” standard when merits-related documents are part of court record). 15 As to any of the information that was designated “CONFIDENTIAL” or 16 “HIGHLY CONFIDENTIAL -- ATTORNEYS’ EYES ONLY” or maintained as 17 such pursuant to this protective order and not used during trial, the terms of this 18 protective order extend beyond final disposition of this litigation, such that the 19 confidentiality obligations imposed by this Order with respect to said information 20 shall remain in effect until a Designating Party agrees otherwise in writing or a court 21 order otherwise directs. Final disposition shall be deemed to be the later of (1) 22 dismissal of all claims and defenses in this Action, with or without prejudice; and 23 (2) final judgment herein after the completion and exhaustion of all appeals, 24 rehearings, remands, trials, or reviews of this Action, including the time limits for 25 filing any motions or applications for extension of time pursuant to applicable law. 26 5. DESIGNATING PROTECTED MATERIAL 27 5.1 Exercise of Restraint and Care in Designating Material for Protection. 1 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, 5 items, or communications for which protection is not warranted are not swept 6 unjustifiably 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 9 purpose (e.g., to unnecessarily encumber the case development process or to impose 10 unnecessary expenses and burdens on other parties) may expose the Designating 11 Party 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 16 this Order (see, e.g., second paragraph of Section 5.2(a) below), or as otherwise 17 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 18 under this Order must be clearly so designated before the material is disclosed or 19 produced. 20 Designation in conformity with this Order requires: 21 (a) for information in documentary form (e.g., paper or electronic 22 documents, but excluding transcripts of depositions), that the Producing Party affix 23 at a minimum, the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL -- 24 ATTORNEYS’ EYES ONLY” to each page that contains protected material. If only 25 a portion or portions of the material on a page qualifies for protection, the Producing 26 Party also must clearly identify the protected portion(s) (e.g., by making appropriate 27 markings in the margins). 1 need not designate them for protection until after the inspecting Party has indicated 2 which documents it would like copied and produced. During the inspection and 3 before the designation, all of the material made available for inspection shall be 4 deemed “CONFIDENTIAL.” After the inspecting Party has identified the 5 documents it wants copied and produced, the Producing Party must determine which 6 documents, or portions thereof, qualify for protection under this Order. Then, 7 before producing the specified documents, the Producing Party must affix the 8 “CONFIDENTIAL”, or “HIGHLY CONFIDENTIAL -- ATTORNEYS’ EYES 9 ONLY” legend to each page that contains Protected Material. If only a portion or 10 portions of the material on a page qualifies for protection, the Producing Party also 11 must clearly identify the protected portion(s) (e.g., by making appropriate markings 12 in the margins). 13 (b) For testimony given in deposition or in other pretrial or trial 14 proceedings, that the Designating Party identify on the record, before the close of 15 the deposition, hearing, or other proceeding, all protected testimony. Alternatively, 16 immediately following the deposition, hearing, or other proceeding, and before the 17 transcript of the proceeding has been delivered to the Designating Party, the 18 Designating Party may designate all or part of the entirety of the transcribed 19 testimony as “CONFIDENTIAL.” The entirety of said portion of the transcribed 20 testimony designated as “CONFIDENTIAL” shall remain CONFIDENTIAL 21 pending the Designating Party’s reasonable opportunity to timely review the 22 transcript of said testimony and to designate only appropriate portions therein as 23 “CONFIDENTIAL.” A reasonable opportunity to timely review the transcript and 24 designate portions as “CONFIDENTIAL” under this paragraph shall be 30 days 25 from the date the transcript is completed, unless otherwise agreed by the Parties. 26 (c) for information that has been designated as protected material pursuant to 27 a protective order entered in another case or proceeding, and that is in the possession 1 “CONFIDENTIAL” pursuant to the terms of this Order assuming it otherwise meets 2 the “CONFIDENTIAL” definition as used in this Order, and shall be deemed to 3 remain “CONFIDENTIAL” unless and until a Party or Non-Party successfully 4 challenges said designation pursuant to Section 6 herein. 5 (d) for information produced in some form other than documentary and for 6 any other tangible items, that the Producing Party affix in a prominent place on the 7 exterior of the container or containers in which the information is stored the legend 8 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL -- ATTORNEYS’ EYES 9 ONLY.” If only a portion or portions of the information warrants protection, the 10 Producing Party, to the extent practicable, shall identify the protected portion(s). 11 5.3 Inadvertent Failures to Designate. 12 Should any information designated as “CONFIDENTIAL” or “HIGHLY 13 CONFIDENTIAL -- ATTORNEYS’ EYES ONLY” be disclosed, through 14 inadvertence or otherwise, to any person not authorized to receive it under this 15 Order, the disclosing person(s) shall promptly: (a) inform counsel for the other 16 Party about the unauthorized disclosure; (b) notify the relevant Designating Party 17 and/or the other Party about the circumstances precipitating the unauthorized 18 disclosure; and (c) use best efforts to bind the recipient(s) to the terms of this Order. 19 If timely corrected (i.e., reasonably promptly following discovery of the 20 disclosure), an inadvertent failure to designate qualified information or items does 21 not, standing alone, waive the Designating Party’s right to secure protection under 22 this Order for such material. Upon timely correction of a designation, the Receiving 23 Party must make reasonable efforts to assure that the material is treated in 24 accordance with the provisions of this Order. 25 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 26 6.1 Timing of Challenges. In the event that counsel for a Party receiving 27 Protected Material (documents, testimony or other information) in discovery 1 ATTORNEYS’ EYES ONLY” objects to such designation with respect to any or all 2 of such items, said counsel shall advise counsel for the Designating Party, in 3 writing, of such objections, the specific Protected Material (i.e., specific documents, 4 testimony or other information) to which each objection pertains, and the specific 5 reasons and support for such objections (the “Designation Objections”). Counsel for 6 the Designating Party shall have twenty (20) days from receipt of the written 7 Designation Objections to either (a) agree in writing to de-designate the challenged 8 Protected Material pursuant to any or all of the Designation Objections and/or (b) 9 file a motion with the Court seeking to uphold any or all designations on Protected 10 Material addressed by the Designation Objections (the “Designation Motion”). The 11 Parties hereby stipulate and agree that said Designation Motion can be heard on 12 shortened time, subject to Court’s requirements relating thereto and the Court’s and 13 Parties’ availability. Pending a resolution of the Designation Motion by the Court, 14 any and all existing designations on the Protected Material at issue in such 15 Designation Motion shall remain in place. The Designating Party shall have the 16 burden on any Designation Motion of establishing the applicability of its 17 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL -- ATTORNEYS’ EYES 18 ONLY” designations. In the event that the Designation Objections are neither 19 timely agreed to nor timely addressed in the Designation Motion, then such 20 challenged Protected Material shall be de-designated in accordance with the 21 Designation Objection applicable to such material. Any Party or Non-Party may 22 object to a designation of confidentiality at any time. Unless a prompt objection to a 23 Designating Party’s confidentiality designation is necessary to avoid foreseeable, 24 substantial unfairness, unnecessary economic burdens, or a significant disruption or 25 delay of the litigation, a Party does not waive its right to object to a confidentiality 26 designation by electing not to object promptly after the original designation is 27 disclosed. 1 resolution process under Local Rule 37-1 et seq. 2 6.3 Judicial Intervention. If the Parties cannot resolve an objection to a 3 designation (or designations) without Court intervention, the Designating Party may 4 file a Designation Motion within the time period set forth above in section 6.1 to 5 retain confidentiality. Each such motion must be accompanied by a competent 6 declaration affirming that the movant has complied with the meet and confer 7 requirements imposed in the preceding paragraph. Unless the deadline has been 8 changed by the Parties as set forth above, failure by the Designating Party to timely 9 make such a motion including the required declaration shall automatically waive the 10 confidentiality designation for each challenged designation. In addition, the 11 Challenging Party may, but is not required to, file a motion challenging a 12 confidentiality designation at any time if there is good cause for doing so, including 13 a challenge to the designation of a deposition transcript or any portions thereof. 14 Any motion brought pursuant to this provision must be accompanied by a competent 15 declaration affirming that the movant has complied with the meet and confer 16 requirements imposed by the preceding paragraph. The burden of persuasion in any 17 such challenge proceeding shall be on the Designating Party. Frivolous challenges, 18 and those made for an improper purpose (e.g., to harass or impose unnecessary 19 expenses and burdens on other parties) may expose the Challenging Party to 20 sanctions. Unless the Designating Party has waived or withdrawn the 21 confidentiality designation, all parties shall continue to afford the material in 22 question the level of protection to which it is entitled under the Producing Party’s 23 designation until the Court rules on the challenge. 24 6.4 Information Remains CONFIDENTIAL While Challenge Pending. 25 Notwithstanding any challenge to the designation of Discovery Material as 26 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL -- ATTORNEYS’ EYES 27 ONLY,” all such designated Discovery Material shall be treated as such and shall be 1 (a) The Party or Non-Party who claims that the Discovery Material is 2 CONFIDENTIAL withdraws such designation in writing; or 3 (b) The Party or Non-Party who claims that the Discovery Material is 4 CONFIDENTIAL fails to apply to the Court for an order designating the Discovery 5 Material as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL -- ATTORNEYS’ 6 EYES ONLY” within the time period specified above after receipt of a written 7 challenge to such designation; or 8 (c) The Court rules the Discovery Material is not CONFIDENTIAL. 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 15 Receiving Party must comply with the provisions of Section 13 below. 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 20 otherwise ordered by the court or permitted in writing by the Designating Party, a 21 Receiving Party may disclose any information or item designated 22 “CONFIDENTIAL” only to: 23 (a) the Receiving Party’s Outside Counsel of Record in this Action, as 24 well as employees of said Outside Counsel of Record to whom it is reasonably 25 necessary to disclose the information for this Action; 26 (b) the officers, directors, and employees (including House Counsel) of 27 the Receiving Party to whom disclosure is reasonably necessary for this Action; 1 disclosure is reasonably necessary for this Action and who have signed the 2 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 3 (d) the court and its personnel; 4 (e) private court reporters and their staff to whom disclosure is reasonably 5 necessary for this Action and who have signed the “Acknowledgment and 6 Agreement to Be Bound” (Exhibit A); 7 (f) professional jury or trial consultants, mock jurors, and Professional 8 Vendors to whom disclosure is reasonably necessary for this Action and who have 9 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 10 (g) the author or recipient of a document containing the information or a 11 custodian or other person who otherwise possessed or knew the information; 12 (h) during their depositions, witnesses, and attorneys for witnesses, in the 13 Action to whom disclosure is reasonably necessary provided: (1) the deposing party 14 requests that the witness sign the “Acknowledgment and Agreement to Be Bound” 15 (Exhibit A); and (2) they will not be permitted to keep any confidential information 16 unless they sign the “Acknowledgment and Agreement to Be Bound” (Exhibit A), 17 unless otherwise agreed by the Designating Party or ordered by the court. Pages of 18 transcribed deposition testimony or exhibits to depositions that reveal Protected 19 Material may be separately bound by the court reporter and may not be disclosed to 20 anyone except as permitted under this Protective Order; and 21 (i) any mediator or settlement officer, and their supporting personnel, 22 mutually agreed upon by any of the parties engaged in settlement discussions. 23 7.3 Disclosure of “HIGHLY CONFIDENTIAL -- ATTORNEYS’ EYES 24 ONLY” Information or Items. Unless otherwise ordered by the court or permitted in 25 writing by the Designating Party, a Receiving Party may disclose any information or 26 item designated “CONFIDENTIAL” only to: 27 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well 1 to disclose the information for this Action; 2 (b) Experts (as defined in this Order) of the Receiving Party to whom 3 disclosure is reasonably necessary for this Action and who have signed the 4 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 5 (c) the court and its personnel; 6 (d) private court reporters and their staff to whom disclosure is reasonably 7 necessary for this Action and who have signed the “Acknowledgment and 8 Agreement to Be Bound” (Exhibit A); 9 (e) professional jury or trial consultants, mock jurors, and Professional 10 Vendors to whom disclosure is reasonably necessary for this Action and who have 11 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 12 (f) the author or recipient of a document containing the information or a 13 custodian or other person who otherwise possessed or knew the information; and 14 (g) any mediator or settlement officer, and their supporting personnel, 15 mutually agreed upon by any of the parties engaged in settlement discussions. 16 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED 18 If a Party is served with a subpoena or a court order issued in other litigation 19 that compels disclosure of any information or items designated in this Action as 20 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL -- ATTORNEYS’ EYES 21 ONLY,” that Party must: 22 (a) promptly notify in writing the Designating Party. Such notification 23 shall include a copy of the subpoena or court order unless prohibited by law; 24 (b) promptly notify in writing the party who caused the subpoena or order 25 to issue in the other litigation that some or all of the material covered by the 26 subpoena or order is subject to this Protective Order. Such notification shall include 27 a copy of this Protective Order; and 1 pursued by the Designating Party whose Protected Material may be affected. 2 If the Designating Party timely seeks a protective order, the Party served with 3 the subpoena or court order shall not produce any information designated in this 4 action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL -- ATTORNEYS’ 5 EYES ONLY” before a determination by the court from which the subpoena or 6 order issued, unless the Party has obtained the Designating Party’s permission, or 7 unless otherwise required by the law or court order. The Designating Party shall 8 bear the burden and expense of seeking protection in that court of its confidential 9 material and nothing in these provisions should be construed as authorizing or 10 encouraging a Receiving Party in this Action to disobey a lawful directive from 11 another court. 12 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 14 (a) The terms of this Order are applicable to information produced by a 15 Non-Party in this Action and designated as “CONFIDENTIAL” or “HIGHLY 16 CONFIDENTIAL -- ATTORNEYS’ EYES ONLY.” Such information produced by 17 Non-Parties in connection with this litigation is protected by the remedies and relief 18 provided by this Order. Nothing in these provisions should be construed as 19 prohibiting a Non-Party from seeking additional protections. 20 (b) In the event that a Party is required, by a valid discovery request, to 21 produce a Non-Party’s confidential information in its possession, and the Party is 22 subject to an agreement with the Non-Party not to produce the Non-Party’s 23 confidential information, then the Party shall: 24 (1) promptly notify in writing the Requesting Party and the Non-Party 25 that some or all of the information requested is subject to a confidentiality 26 agreement with a Non-Party; 27 (2) promptly provide the Non-Party with a copy of the Protective 1 description of the information requested; and 2 (3) make the information requested available for inspection by the 3 Non-Party, if requested. 4 (c) If a Non-Party represented by counsel fails to commence the process 5 called for by Local Rules 45-1 and 37-1 et seq. within 14 days of receiving the 6 notice and accompanying information or fails contemporaneously to notify the 7 Receiving Party that it has done so, the Receiving Party may produce the Non- 8 Party’s confidential information responsive to the discovery request. If an 9 unrepresented 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 11 may produce the Non-Party’s confidential information responsive to the discovery 12 request. If the Non-Party timely seeks a protective order, the Receiving Party shall 13 not produce any information in its possession or control that is subject to the 14 confidentiality agreement with the Non-Party before a determination by the court 15 unless otherwise required by the law or court order. Absent a court order to the 16 contrary, the Non-Party shall bear the burden and expense of seeking protection in 17 this court of its Protected Material. 18 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 19 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 20 Protected Material to any person or in any circumstance not authorized under this 21 Protective Order, the Receiving Party must immediately (a) notify in writing the 22 Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve 23 all unauthorized copies of the Protected Material, (c) inform the person or persons to 24 whom unauthorized disclosures were made of all the terms of this Order, and 25 (d) request such person or persons to execute the “Acknowledgment and Agreement 26 to Be Bound” (Exhibit A). 27 11. INADVERTENT PRODUCTION OF PRIVILEGED OR 1 When a Producing Party gives notice to Receiving Parties that certain 2 inadvertently produced material is subject to a claim of privilege or other protection, 3 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 4 Procedure 26(b)(5)(B). This provision is not intended to modify whatever 5 procedure may be established in an e-discovery order that provides for production 6 without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and 7 (e), insofar as the parties reach an agreement on the effect of disclosure of a 8 communication or information covered by the attorney-client privilege or work 9 product protection, the parties may incorporate their agreement into this Protective 10 Order. The parties have incorporated their “Clawback” agreement as set forth in 11 Exhibit “B.” 12 12. MISCELLANEOUS 13 12.1 Right to Further Relief. Nothing in this Order abridges the right of any 14 person to seek its modification by the Court in the future. 15 12.2 Right to Assert Other Objections. No Party waives any right it 16 otherwise would have to object to disclosing or producing any information or item 17 on any ground not addressed in this Protective Order. Similarly, no Party waives 18 any right to object on any ground to use in evidence of any of the material covered 19 by this Protective Order. 20 12.3 Filing Protected Material. A Party that seeks to file under seal any 21 Protected Material must comply with Civil Local Rule 79-5 and with any pertinent 22 orders of the assigned District Judge and Magistrate Judge. Protected Material may 23 only be filed under seal pursuant to a court order authorizing the sealing of the 24 specific Protected Material at issue. If a Party’s request to file Protected Material 25 under seal is denied by the court, then the Receiving Party may file the information 26 in the public record unless otherwise instructed by the court. 27 13. FINAL DISPOSITION 1 days of a written request by the Designating Party, each Receiving Party must return 2 all Protected Material to the Producing Party or destroy such material. As used in 3 this subdivision, “all Protected Material” includes all copies, abstracts, compilations, 4 summaries, and any other format reproducing or capturing any of the Protected 5 Material. Whether the Protected Material is returned or destroyed, the Receiving 6 Party must submit a written certification to the Producing Party (and, if not the same 7 person or entity, to the Designating Party) by the 60 day deadline that (1) identifies 8 (by category, where appropriate) all the Protected Material that was returned or 9 destroyed and (2) affirms that the Receiving Party has not retained any copies, 10 abstracts, compilations, summaries or any other format reproducing or capturing any 11 of the Protected Material. Notwithstanding this provision, Counsel are entitled to 12 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing 13 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert 14 reports, attorney work product, and consultant and expert work product, even if such 15 materials contain Protected Material. Any such archival copies that contain or 16 constitute Protected Material remain subject to this Protective Order as set forth in 17 Section 4. 18 14. Any violation of this Order may be punished by any and all appropriate 19 measures including, without limitation, contempt proceedings and/or monetary 20 sanctions. 22 DATED: March 4, 2020 23 24 _________________________ Honorable _K_a_r_e_n_ E__. _S_c_o_tt___ 25 United States Magistrate Judge 26 27 3 4 I, _____________________________ [print or type full name], of 5 _________________ [print or type full address], declare under penalty of perjury that 6 I have read in its entirety and understand the Protective Order that was issued by the 7 United States District Court for the Central District of California on 8 _________________________ in the case of 9 _____________________________________. I agree to comply with and to be 10 bound by all the terms of this 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 13 or item that is subject to this 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 Protective Order, even if such enforcement proceedings occur after termination of this 18 action. I hereby appoint __________________________ [print or type full name] of 19 _______________________________________ [print or type full address and 20 telephone number] as my California agent for service of process in connection with 21 this action or any proceedings related to enforcement of this Protective Order. 22 Date: ______________________________________ 23 City and State where sworn and signed: _________________________________ 24 25 Printed name: _______________________________ 26 27 Signature: __________________________________ 2 (CLAWBACK PROCEDURE TO RECALL PRIVILEGED MATERIAL 4 In addition to the provisions of FRCP Rule 26(b)(5) and FRE 502, the Parties agree 5 to the following procedure to reclaim privileged materials inadvertently produced: 6 7 (a) If electronically stored information produced in discovery is subject to a claim of 8 privilege or of protection as attorney work product, the party making the claim may 9 notify any party that received the information of the claim and the basis for the 10 claim. 11 12 (b) After being notified of a claim of privilege or of protection under subdivision 13 (a), a party that received the information shall immediately sequester the 14 information and either return the specified information and any copies that may exist 15 or present the information to the Court conditionally under seal for a determination 16 of the claim. 17 18 (c) (1) Prior to the resolution of the motion brought under subdivision (d), a party 19 shall be precluded from using or disclosing the specified information until the claim 20 of privilege is resolved. 21 22 (2) A party who received and disclosed the information before being notified of a 23 claim of privilege or of protection under subdivision (a) shall, after that notification, 24 immediately take reasonable steps to retrieve the information. 25 26 (d) (1) If the receiving party contests the legitimacy of a claim of privilege or 27 protection, it, he or she may seek a determination of the claim from the Court by 1 information to the Court conditionally under seal. 2 3 (2) Until the legitimacy of the claim of privilege or protection is resolved, the 4 receiving party shall preserve the information and keep it confidential and shall be 5 precluded from using the information in any manner. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27