PAUL L. ABRAMS, Magistrate Judge.
A. Plaintiff Charter School Capital, Inc. ("CSC" or "Plaintiff") and Defendants Paul Im, David Park, Charter Asset Management Fund, LP., Charter Asset Management Fund GP LLC, and Charter Asset Management, LLC (collectively "Defendants"), in the above-captioned action titled and numbered Charter School Capital, Inc. v. Charter Asset Management Fund, LP. et al., Case No. 2:14-cv-03385-GHW (PLAx) ("Litigation" or "Action"), contemplate that discovery of documents and other information in the Litigation may involve the production of documents and other information a party may reasonably believe in good faith to be protected from public disclosure and/or disclosure to a competitor under Rule 26(c) of the Federal Rules of Civil Procedure.
B. Plaintiff and Defendants (each referred to individually as a "Party," and collectively as "Parties") stipulate to and petition the Court to enter this [Proposed] Stipulated Protective Order ("Order") to facilitate the discovery process by protecting against the unauthorized disclosure of confidential materials.
C. The Parties acknowledge that this Order does not confer blanket protections on all disclosures or responses to discovery but that the protection it affords only extends to documents and other information or items that are either entitled to confidential treatment under applicable legal principles or, if not entitled to confidential treatment, are subject to the Parties' agreement to treat such information or items as "Confidential" or "Highly Confidential — Outside Counsels' Eyes Only," as those terms are defined herein.
D. The Parties believe good cause exists for entering this Stipulated Protective Order because it seeks to protect the confidentiality of information that a Party (or non-party witness ("Third Parties" or singularly, "Third Party")) asserts in objective good faith belief is not generally available to the public and/or competitors, the disclosure of which may cause harm to the Party or Third Party. This Action concerns alleged claims of copyright infringement against Defendants. The Parties anticipate that discovery necessarily will involve the exchange of information in which one or more Parties or Third Parties assert an interest in confidentiality. For instance, discovery in this Action is likely to involve disclosure of non-public financial information, marketing or business strategies, and other kinds of competitive, commercially sensitive, or proprietary information between business competitors.
The Parties agree, by and through their undersigned counsel, to the following terms and conditions that will govern their disclosures and production of documents and other information that a Party in objective good faith deems to be confidential, and further jointly request that the Court enter this Stipulated Protective Order (hereafter "Protective Order" or "Order").
The following terms, conditions, procedures, and restrictions govern with respect to documents, electronic data, graphics, and any other forms of information already produced or voluntarily exchanged, or to be produced or voluntarily exchanged, in the Litigation by any Party or Third Party, including any "writing," "recording," "photograph," "original," or "duplicate" (as those terms are defined in Rule 1001 of the Federal Rules of Evidence); all discovery contemplated by Rules 26-36 of Federal Rules of Civil Procedure, including initial disclosures, responses to all written discovery requests and demands, deposition testimony, and exhibits, however recorded; and any other written, recorded, or graphic matters produced by a Party ("Produced Material"). Produced Material that is designated, in accordance with this Protective Order, as "Confidential" or "Highly Confidential — Outside Counsels' Eyes Only" shall be referred to as "Protected Material" within the meaning of this Protective Order.
Each Party agrees that designation of Protected Material and responses to requests to permit further disclosure of Protected Material shall be made in objective good faith and not to impose burden or delay on an opposing Party. Further, each Party agrees to make best efforts to avoid, except to the extent necessary for purposes of this Litigation, inclusion of Protected Material in briefs and other captioned documents filed in court, in order to minimize sealing and designating such briefs and other captioned documents as Protected Material.
The protections conferred by this Order cover not only Protected Material (as defined above), but also (1) any information copied or extracted from Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, conversations, or presentations by Parties or their Counsel that might reveal Protected Material. However, the protections conferred by this Order do not cover the following information: (a) any information that is in the public domain at the time of disclosure to a Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as a result of publication not involving a violation of this Order, any other confidentiality agreement, or other legal restriction or obligation of confidentiality, including becoming part of the public record through trial or otherwise; and (b) any information known to the Receiving Party prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who obtained the information lawfully and under no obligation of confidentiality to the Designating Party. Any use of Protected Material at trial shall be governed by a separate agreement or order.
It shall be the duty of the Party producing any Protected Material ("Producing Party") to give notice that such Protected Material is covered by this Protective Order in the manner set forth in paragraph 8 below. A Party — including the Party or Parties receiving the Protected Material ("Receiving Party") or a Third Party — with an interest, other than the Producing Party, in the confidentiality of the Produced Material, either before or after production, may also give notice that the material is Protected Material covered by this Protective Order and should be designated in the manner set forth in paragraph 8 below (collectively with Producing Party, the "Designating Party").
The duty of the Receiving Party and of all other persons bound by this Protective Order to maintain the confidentiality of Protected Material in accordance with this Protective Order shall commence with notice of a designation made in accordance with paragraphs 4 and 8. Protected Material shall be designated by Designating Party, subject to the provisions of this Order, with one of the following designations:
a. "Confidential"; or
b. "Highly Confidential — Outside Counsels' Eyes Only." No person subject to this Protective Order may disclose, in public or private, any Protected Material designated by a Party or Third Party other than itself as "Confidential" or "Highly Confidential — Outside Counsels' Eyes Only," except as provided for in this Protective Order or as further ordered by the Court.
Protected Material may be designated as "Confidential" if the Designating Party believes in objective good faith that such material constitutes or discloses or relates to non-public information (regardless of how it is generated, stored, or maintained) or tangible things that qualify for protection under Federal Rule of Civil Procedure 26(c).
"Highly Confidential — Outside Counsels' Eyes Only" is extremely sensitive "Confidential" information or items, disclosure of which to another Party or Non-Party would create a substantial risk of serious harm that could not be avoided by less restrictive means.
Any Produced Material that the Designating Party in good faith wishes to designate as Protected Material must be labeled with the legend "Confidential" or "Highly Confidential — Outside Counsels' Eyes Only," as appropriate, at the time the material, or a copy thereof, is provided to the Receiving Party, or at any time thereafter. In the case of material contained in or on media other than paper, the Producing Party shall affix such a label to the material or use its best efforts to identify the material as Protected Material. With respect to material produced by another Party, a Designating Party may give notice to all other Parties in the Action, in writing, that the material is Protected Material covered by this Protective Order.
A Party or Third Party that makes original documents or materials available for inspection need not designate them for protection until after the inspecting Party has indicated which material it would like copied and produced. During the inspection and before the designation, all of the material made available for inspection shall be deemed "HIGHLY CONFIDENTIAL — OUTSIDE COUNSELS' EYES ONLY." After the inspecting Party has identified the documents it wants copied and produced, the Producing Party must determine which documents, or portions thereof, qualify for protection under this Order. Then, before producing the specified documents, the Producing Party must affix the appropriate legend ("CONFIDENTIAL" or "HIGHLY CONFIDENTIAL — OUTSIDE COUNSELS' EYES ONLY") to each page that contains Protected Material. If only a portion or portions of the material on a page qualifies for protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate markings in the margins) and must specify, for each portion, the level of protection being asserted.
For testimony given in deposition or in other pretrial or trial proceedings, the witness under deposition or his or her counsel shall invoke the provisions of this Stipulated Protective Order within twenty-one (21) days of receipt of the deposition transcript and designate the portions of the testimony to be protected and the level of restriction. Only those portions of the testimony that are appropriately designated for protection within the twenty-one (21) day period after receipt of the deposition transcript shall be covered by the provisions of this Order. Alternatively, a Designating Party may specify, at the deposition, or up to twenty-one (21) days after receipt of the deposition transcript, if that period is properly invoked, that the entire transcript shall be treated as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL — OUTSIDE COUNSELS' EYES ONLY."
A Receiving Party may use Protected Material that is disclosed or produced by another Party or by a Third Party in connection with this Litigation only for prosecuting, defending, or attempting to settle this Litigation.
Such Protected Material may be disclosed only to the categories of persons and under the conditions described in this Order. Protected Material shall not be used by anyone subject to the terms of this Protective Order for any business, commercial, or competitive purpose. The Parties agree this Court or any Court with jurisdiction over the unauthorized disclosure may enforce this use restriction.
When the Litigation has been terminated, a Receiving Party must comply with the provisions of section 31 below (Survival and Final Disposition of Designated Material). Protected Material must be stored and maintained by a Receiving Party at a location and in a secure manner that ensures that access is limited to the persons authorized under this Order.
Only the following persons shall have access to or retain material designated as "Confidential" pursuant to paragraph 8 of this Order:
a. The Court and its official personnel;
b. Outside Counsel for a Party. For the purposes of this Protective Order, "Outside Counsel" means attorneys for the law firms retained by the Parties for this Action, including paralegals, office clerks, secretaries, and other support staff assisting those attorneys, working on the Action;
c. Outside experts and consultants retained by the Receiving Party's Outside Counsel to assist in this litigation (and the experts' or consultants' staff whose duties and responsibilities require access to such materials) and agree, in writing, to be bound by this Protective Order by executing the
d. Court reporters and translators who agree, in writing, to be bound by this Protective Order by executing an acknowledgment in the form of Exhibit A;
e. Outside litigation support personnel retained by Outside Counsel to assist in the preparation and/or litigation of the Action, including contract attorneys or outside copying service vendors or electronic document management vendors who agree, in writing, to be bound by this Protective Order by executing an acknowledgment in the form of Exhibit A;
f. Any person who was involved in the preparation of such material, or who has otherwise been authorized by the Designating Party to view the Protected Material and agrees, in writing, to be bound by this Protective Order by executing an acknowledgment in the form of Exhibit A;
g. The Parties and the employees, officers, directors, and executives of the Parties to this Action, including the Parties' inside counsel; and
h. Persons whom the Designating Party agrees in writing or on the record at a deposition may be shown "Confidential" material, and who agree, in writing, to be bound by this Protective Order by executing an acknowledgment in the form of Exhibit A.
Only the following persons shall have access to or retain material designated as "Highly Confidential — Attorneys' Eyes Only" pursuant to paragraph 8 of this Order:
a. Persons listed in paragraph 10(a), (b), (c), (d), (e), and (f); and
b. Persons whom the Designating Party, if applicable, agrees in writing or on the record at a deposition may be shown "Highly Confidential — Outside Counsels' Eyes Only" material, and who agree, in writing, to be bound by this Protective Order by executing an acknowledgment in the form of Exhibit A.
The
During the course of this Action, a Party may be requested to produce to another Party documents and other information that is subject to contractual or other obligations of confidentiality owed to a Third Party by the Party receiving the request. The Party subject to such contractual or other obligation of confidentiality shall timely contact the Third Party to determine whether such Third Party is willing to permit disclosure of the confidential documents, things, or information under the terms of this Protective Order and shall inform the Third Party of the contents of this Protective Order and specifically of this paragraph. If the Third Party consents to the disclosure of the subject material to the requesting Party, the documents, things, or information shall be produced in accordance with this Order. If the Third Party does not consent to the disclosure of the confidential documents, things, or information under the terms of this Protective Order, the Party subject to such contractual or other obligation of confidentiality shall promptly notify the demanding Party in writing of the Third Party's refusal to consent. Unless the Party subject to such contractual or other obligation of confidentiality moves for a protective order under Rule 26(c) of the Federal Rules of Civil Procedure, such Party shall also provide the demanding Party (a) a copy of any document imposing the contractual or other obligation of confidentiality, so long as that document is not itself subject to a contractual or other obligation of confidentiality, (b) a log of the categories of documents, things, or information being withheld, and (c) the Third Party's name and contact information such that the demanding Party may subpoena documents directly from the Third Party.
If documents, things, or information are requested from a Third Party and such Third Party claims that certain of the documents, things, or information requested are confidential or proprietary to such Third Party or contain information that is protected from public disclosure by a person's right to privacy, such Third Party may, if it desires, adopt the benefits and burdens of this Order as it applies to Parties in this case by agreeing to be bound by the terms of this Order.
The Parties may request that the Court permit filing of any material designated "Confidential" or "Highly Confidential — Outside Counsels' Eyes Only," pursuant to paragraph 8 above, under seal and that such Protected Material be made available only to the Court and to persons authorized by the terms of this Protective Order. The Party filing any paper that contains, summarizes, or reflects any such Protected Material shall request that the material be filed under seal pursuant to the procedures set forth in Central District of California Local Civil Rule 79-5.1. The request that the material be filed under seal shall be directed to the judge to whom the papers are directed
Nothing contained in this Protective Order shall be construed to prejudice any Party's right to use before the Court any "Confidential" or "Highly Confidential — Outside Counsels' Eyes Only" Protected Material. However, before doing so, to the extent not otherwise authorized to be so used hereunder, the Party intending to use "Confidential" or "Highly Confidential — Outside Counsels' Eyes Only" Protected Material shall so inform the Court and all other Parties or affected Third Parties (i.e., Third Parties whose Protected Material would be used before the Court) with enough time to reasonably allow any Party or affected Third Party to apply to the Court for appropriate protection, including clearing the hearing room or courtroom of persons not entitled to receive "Confidential" or "Highly Confidential — Outside Counsels' Eyes Only" Protected Material pursuant to paragraphs 10 and 11. "Confidential" or "Highly Confidential — Outside Counsels' Eyes Only" Protected Material shall not be publicly presented to the Court before giving a Party or Third Party opposing public disclosure a reasonable opportunity to be heard by the Court on the proposed public disclosures, unless the material is filed under seal or otherwise protected from public disclosure.
All testimony elicited during hearings and other proceedings that counsel for a Party or Third Party indicates on the record may be subject to the protections of this Order shall be deemed "Highly Confidential — Outside Counsels' Eyes Only" until the expiration of twenty-one (21) days after delivery of a copy of the transcript of the testimony by the court reporter to counsel who requested a copy of the transcript. Within the twenty-one (21) day period following such mailing of the transcript, any Party may move to seal the transcript under Local Civil Rule 79-5.1, designating all or any portion of the testimony as "Confidential" or "Highly Confidential — Outside Counsels' Eyes Only." Upon being informed that certain portions of a transcript are designated as "Confidential" or "Highly Confidential — Outside Counsels' Eyes Only" each Party must have each copy in their custody, possession, or control immediately marked with the appropriate designation at the appropriate pages. Such designation must remain until the Court rules on the motion to seal.
The restrictions set forth in this Protective Order shall not apply to documents, things, or information that the Parties agree, or that the Court rules:
a. Have become public knowledge in a manner other than through a violation of this Order; or
b. Have been independently obtained by the non-Designating Party from sources that suggest the documents, things, or information are not confidential, as evidenced by written documentation.
If a Receiving Party seeks removal of protection for particular items designated as Protected Material on the ground that such protection is not warranted under controlling law or the Protective Order, the following procedure shall be used:
a. The Receiving Party seeking such removal shall give counsel of record for the Designating Party notice thereof in writing, by facsimile, email, or overnight courier, specifying the documents and/or other information for which such removal is sought and the reasons for the request. The Designating Party shall have fourteen (14) business days after receiving that notification within which to object to the removal of protection afforded by this Protective Order. Any such objection shall be made in writing (by facsimile, email, or overnight courier).
b. If the Designating Party objects to the removal of the protection afforded by this Protective Order and the Receiving Party intends to submit the dispute to the Court for a ruling, the Receiving Party shall request to meet-and-confer with the Designating Party. Local Civil Rule 37-1 shall govern the meet-and-confer process.
c. If the Parties, or the Party and Third Party, cannot reach agreement concerning the matter, the Receiving Party seeking such removal may submit to the Court for ruling a noticed motion to be relieved entirely or in part from the provisions of this Protective Order. The noticed motion shall be made in accordance with Local Civil Rule 37, and the burden of persuasion in any such challenge proceeding shall be on the Designating Party. The Protected Material shall continue to be treated in accordance with the original designation until the issue is resolved by Order of this Court or by agreement of the Parties, or the Party and Third Party.
For purposes of the Action or any other action, no Party concedes that any Protected Material designated by any other person does in fact contain or reflect proprietary or confidential information. A Party shall not be obligated to challenge the propriety of the designation of Protected Material at the time made, and failure to do so shall not preclude a subsequent challenge.
The failure by a Designating Party to designate specific documents or materials as Protected Material shall not, by itself, be deemed a waiver in whole or in part of a claim of confidentiality as to such documents or materials. Upon written notice to the Receiving Party of such failure to designate, or of incorrect designation, the Receiving Party shall cooperate to retrieve disseminated copies, and restore the confidentiality of the inadvertently disclosed information beyond those persons authorized to review such information pursuant to paragraphs 10 and 11, and shall thereafter take reasonable steps to ensure that the Protected Material is treated in accordance with the designation. No person or Party shall incur any liability under this Protective Order with respect to disclosure that occurred prior to the receipt of written notice of the mistaken designation.
Nothing in this Protective Order shall affect the right of the Designating Party to disclose to its officers, directors, employees, consultants, or experts, any documents, things, or information designated by it as Protected Material; such disclosure shall not waive the protection of this Protective Order and shall not entitle other Parties or their attorneys to disclose such information, documents, things, or information in violation of this Order.
If information subject to this Protective Order is disclosed to any unauthorized person either through inadvertence, mistake, or otherwise without authorization by the Designating Party, or other than in the manner authorized by this Protective Order, the person responsible for the disclosure shall immediately (a) inform the Designating Party of all pertinent facts relating to such disclosure, including without limitation, the name, address, and telephone number of the recipient and his or her employer; (b) use his or her best efforts to retrieve the disclosed information and all copies thereof; (c) advise the recipient of the improperly disclosed information, in writing, of the terms of this Protective Order; (d) make his or her best efforts to require the recipient to execute an agreement to be bound by the terms of this Protective Order in the form of the declaration attached to this Protective Order as Exhibit A; and (e) take all other reasonable steps to prevent further disclosure by or to the unauthorized person who received the Protected Material.
This Protective Order shall not constitute a waiver of any Party's or Third-Party's right to object to the admissibility into evidence of any Protected Material as provided under applicable law.
This Protective Order is intended to provide a mechanism for handling the disclosure or production of confidential information to which there is no objection other than confidentiality. The protection afforded by this Order shall in no way affect a Producing Party's right to withhold documents as: (a) privileged under the attorney-client or other privilege, (b) protected by the work product doctrine, or (c) otherwise exempted from discovery under Rule 26 of the Federal Rules of Civil Procedure. Additionally, this Protective Order shall not prejudice the right of a Party to: (a) seek additional protective treatment for any such information it considers to be very highly sensitive and that the protections in this Protective Order would be insufficient, (b) object to the designation of any document or information as "Confidential" or "Highly Confidential — Outside Counsels' Eyes Only," or (c) seek any modification of or relief from any provision of this Protective Order, either generally or as to any particular Protected Material, by properly noticed motion with notice to all Parties and their respective counsel.
If, in connection with the Action, a Producing Party inadvertently discloses information subject to a claim of attorney-client privilege or attorney-work product protection ("Inadvertently Disclosed Information"), the disclosure of the Inadvertently Disclosed Information will not constitute or be deemed a waiver or forfeiture of any claim of privilege or work product protection that the Producing Party would otherwise be entitled to assert with respect to the Inadvertently Disclosed Information and its subject matter.
The provisions of Federal Rule of Civil Procedure 26(b)(4)(B) and (C) that took effect on December 1, 2010, shall govern this Litigation.
Except for motions for a Temporary Restraining Order or Injunctive Relief under paragraph 29, prior to filing any motion or application before the Court to enforce this Protective Order, the moving party shall notify the other Party(ies) in writing and meet and confer in good faith in an attempt to resolve their dispute(s). Local Civil Rule 37-1 shall govern the meet-and-confer process.
In the event anyone violates or threatens to violate any of the terms of this Protective Order, the Parties and Third Parties agree that the aggrieved party may apply to the Court to obtain injunctive relief against any such person violating or threatening to violate any of the terms of this Protective Order, without obtaining a bond or other undertaking for such relief. In the event the aggrieved party brings such motion or application, the responding person subject to the provisions of this Protective Order shall not employ as a defense the claim that the aggrieved party possesses an adequate remedy at law. The Parties and Third Parties shall not use or reveal, directly or indirectly, any information in violation of this Protective Order. Because of the confidential and proprietary nature of the information contemplated to be covered by this Protective Order, the Parties and Third Parties agree that legal remedies are inadequate. Therefore, the Parties and Third Parties stipulate that injunctive relief is an appropriate remedy to prevent any person from using or disclosing Protected Material in violation of this Protective Order. The Parties and Third Parties waive and release any and all requirements for a bond or undertaking to support any injunctive relief for enforcement of this Protective Order.
If any Party is (a) subpoenaed in another action, (b) served with a demand in another action to which it is a Party, or (c) served with any legal process by one not a party to this action, seeking information or material which was produced or designated as "Confidential" or "Highly Confidential — Outside Counsels' Eyes Only" by someone other than that Party, the Party shall give prompt actual written notice, by email or facsimile transmission, to those who produced and/or designated the Protected Material as "Confidential" or "Highly Confidential — Outside Counsels' Eyes Only" prior to compliance with the subpoena to allow the Producing and/or Designating Parties reasonable time to seek protection from the relevant court(s). Nothing in this Protective Order shall be construed as requiring the Party or anyone else covered by this Protective Order to challenge or appeal any order requiring production of information or material covered by this Protective Order, or to subject itself to any penalties for noncompliance with any legal process or order, or to seek any relief from this Court.
Final termination of the Litigation, including exhaustion of appellate remedies, shall not terminate the limitations on use and disclosure imposed by the Protective Order. Upon final termination of the litigation by final judgment (whether by settlement, trial, or otherwise), including the time for filing and resolution of all appeals, or within such other period as the Parties may agree upon, and upon written request of the producing Party, all Protected Material and copies of Protected Material, including such material in the hands of outside experts or consultants, shall be delivered to counsel of record for the Producing Party of such material. In the absence of any such written request, any Protected Material shall be destroyed within sixty (60) calendar days of final termination of the Litigation. In the event of destruction or return of Protected Material, the Party in possession of Protected Material other than the Parties' own Protected Material shall promptly (and within sixty (60) calendar days of final termination of the Litigation) advise and certify in writing to the Designating and Producing Parties that all such Protected Material and any hard or electronic copy has been returned or destroyed. Any Protected Material filed or lodged with and retained by the Court shall not be subject to the provisions of this paragraph. Notwithstanding the foregoing, outside counsel of record may retain copies of briefs and other papers filed with the Court, deposition transcripts, discovery responses, attorney work product, communications, and client files that contain or constitute Protected Material, so long as such briefs and other papers are maintained in accordance with the provisions of the Protective Order.
No part of the restrictions imposed by this Protective Order may be terminated except by written stipulation executed by counsel of record for each Producing Party or by an Order of this Court for good cause shown. The terms of this Protective Order shall survive termination of the Action.
The Court retains jurisdiction subsequent to settlement or entry of judgment to enforce the terms of this Protective Order. Each person to whom disclosure of any Protected Information is made agrees to subject itself, himself, or herself to the jurisdiction of the Court in which this action is pending for the purpose of proceedings relating to the performance under, compliance with, or violation of this Protective Order.
For good cause shown, pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, all discovery and other materials exchanged by the Parties or Third Parties, or filed with the Court, in Charter School Capital, Inc. v. Charter Asset Management Fund, LP. et al., Case No. 2:14-cv-03385-GW-PLA, shall be provided subject to the conditions set forth in the foregoing Stipulated Protective Order.
I, _________________________, declare under penalty of perjury that I have read in its entirety and understand the Amended Stipulated Protective Order that was issued by the United States District Court for the Central District of California in the case of Charter School Capital, Inc. v. Charter Asset Management Fund, L.P., et al., Case No. 2:14-cv-03385-GW-PLA.
I agree to comply with and to be bound by all the terms of this Stipulated Protective Order, and I understand and acknowledge that failure to so comply could expose me to sanctions and punishment in the nature of contempt of court. I solemnly promise that I will not disclose in any manner any information or item that is subject to the Stipulated Protective Order to any person or entity except in strict compliance with the provisions of this Order.
I further agree to submit to the jurisdiction of the United States District Court for the Central District of California for the purpose of enforcing the terms of this Stipulated Protective Order, even if such enforcement proceedings occur after termination of this action.
I hereby appoint _______________________________ as my California agent for service of process in connection with this action or any proceedings related to enforcement of this Stipulated Protective Order.
