ORDER
SUZANNE H. SEGAL, Magistrate Judge.
And realted Counterclaim THIS CAUSE COMING TO BE HEARD on the Parties' Stipulation for Protective Order, the Court fully advised in the premises, and good cause being shown, it is hereby Ordered the Stipulation for Protective Order is entered forthwith.
IT IS SO ORDERED.
1.
A. PURPOSES AND LIMITATIONS
Plaintiff Social Reality, Inc. ("Plaintiff'), intends to propound discovery on Defendant Adam Johnson and OpTi, LLC ("Defendants") concerning, among othe things, allegations concerning violations of Ca. Civ. Code § 3426.3 (Trade Secrets Act). Before Plaintiff can propound written discovery, it must identify and disclose those secrets with reasonable particularity before obtaining discovery from the Defendant. Therefore, the Parties have agreed to enter into this stipulation.
Notably, Discovery in this action is likely to involve production of confidential, proprietary, or private information for which special protection from public disclosure and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly, the parties hereby stipulate to and petition the Court to enter the following Stipulated Protective Order. The parties acknowledge that this Order does not confer blanket protections on all disclosures or responses to discovery and that the protection it affords from public disclosure and use extends only to the limited information or items that are entitled to confidential treatment under the applicable legal principles. The parties further acknowledge, as set forth in Section 12.3 below, that this Stipulated Protective Order does not entitle them to file confidential information under seal.
1. B. GOOD CAUSE STATEMENT
This action directly involves alleged misappropriation of, and alleged use of, trade secrets, customer lists, pipelines of business contacts, computer download technologies, computer security system passwords, customer pricing lists, invaluable customer development, private customer e-mail addresses, commercial, financial technical and/or proprietary information for which special protection from public disclosure and from use for any purpose other than prosecution of this action is warranted. Such alleged confidential and proprietary materials and information consist of, among other things, confidential business practices, or othe confidential development, or commercial information (including information involving privacy rights of third parties), information otherwise generally unavailable to the public, or which may be privileged or otherwise protected from disclosure under state or federal statutes, court rules, case decisions, or common law. By signing off on this order, neither Opti, LLC, nor Johnson, are conceding or indicating that the trade secrets identified by Social Reality actually constitute trade secrets, are confidential, or can otherwise form the basis of a claim. Indeed, by signing the order, the Defendants (individually and collectively_ are not waiving and affirmatively preserve all available and potential defenses to Plaintiff's claims.
Accordingly, to expedite the flow of information, to facilitate the prompt resolutions of disputes over confidentiality of discovery materials, to adequately protect information the parties are entitled to keep confidential, to ensure that the parties are permitted reasonably necessary uses of such material in preparation for and in the conduct of trial, to address their handling at the end of the litigation, and serve the ends of justice, a protective order for such information is justified in this matter. It is the intent of the parties that information will not be designated as confidential for tactical reasons and that nothing be so designated without a good faith belief that it has been maintained in a confidential, non-public manner, and there is good cause why it should not be part of the public record in this case.
2. DEFINITIONS
2.1 Action: this pending case and all cross-actions .
2.2 Challenging Party: a party or non-party that challenges the designation of information or items under this Order.
2.3 "Confidential" Information: information (regardless of how it is generated, stored or maintained) or tangible things that qualify for protection under FRCP 26(c), and as specified above in the Good Cause Statement.
2.4 Counsel: all counsel of record and their staff.
2.5 Designating Party: a party or non-party that designates information or items that it produces in disclosures or in responses to discovery as "Confidential"
2.6 Disclosure or Discovery Material: all items or information, regardless of the medium or manner in which it is generated, stored, or maintained (including, but not limited to, testimony, diagrams, lists, spreadsheets, URLs, Log Records for exports and imports, records of which information was downloaded or accessed, reportIDs, and other tangible things) that are produced or generated in disclosures (Pursuant to CCP § 219, et seq.) or responses to discovery in this Action.
2.7 Expert: a person with specialized knowledge or experience in a matter pertinent to the litigation who has been retained by a party or its counsel to serve as an expert witness or as a consultant in this Action.
2.8 House Counsel: attorneys who are employees of a party to this Action. House counsel does not include outside counsel of record or any other outside counsel.
2.9 Non-party: any natural person, partnership, corporation, association, or other legal entity not maned as a party to this Action.
2.10 Outside Counsel of Record: attorneys who are not employees of a party to this Action but are retained to represent or advise a party to this Action on behalf of that party or are affiliated with a law firm which has appeared on behalf of that party and includes support staff.
2.11 Party: any party to this Action, including all of its officers, directors, employees, consultants, retained experts, and outside counsel of record and their staff.
2.12 Producing Party: a party or non-party that produces Disclosure or Discovery material in this Action.
2.13 Professional Vendors: persons or entities that provide litigation support services and their employees and subcontractors.
2.14 Protected Material: any Disclosure or Discovery Material from a producing party.
3. SCOPE
The protections conferred by this Stipulation and Order cover not only Protected Material, 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.
4. DURATION
Even after final disposition of this litigation, the confidentiality obligations imposed by this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and defenses in this Action, with or without prejudice; and (2) final judgment herein after the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action, including the time limits for filing any motions or applications for extension of time pursuant to applicable law.
5. DESIGNATING PROTECTED MATERIAL
5.1 Exercise of Restraint and Care in Designating Material for Protection
Each party or non-party that designates information or items for protection under this Order must take care to limit any such designation to specific material that qualifies under the appropriate standards. The Designating Party must designate for protection only those parts of material, documents, items or oral or written communications that qualify so that other portions of the material, documents or items, or communications for which protection is not warranted are not swept unjustifiably within the ambit of this Order. The non-designating party is responsible for the costs of all copies of all Designated Material.
Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown to be clearly unjustified or that have been made for an improper purpose (e.g., to impose unnecessary expense) may expose the Designating Party to sanctions. If it comes to a Designating Party's attention that information or items that it designated for protection do not qualify for protection, that Designating Party must promptly notify all other Parties that it is withdrawing the inapplicable designation.
5.2. Manner and Timing of Designations
Except as otherwise provided in this Order, or as otherwise stipulated or ordered, Disclosure of Discovery Material that qualifies for protection under this Order must be clearly so designated before the material is disclosed or produced.
Designation in conformity with this Order requires:
(a) for information in documentary form, that the Producing Party affix at a minimum, the legend "CONFIDENTIAL" to each page that contains protected material. If only a portion qualifies for protection, the Producing Party must clearly identify the protected portions.
A non-party or party that makes the original documents available for inspection need not designate them for protection until after the inspecting party has indicated which documents it would like copied and produced. During the inspection and before the designation, all of the material made available for inspection shall be deemed "CONFIDENTIAL." 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 "CONFIDENTIAL" legend 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 must also clearly identify the protection portion(s).
(b) for testimony given in depositions that the Designating Party identify the Disclosure or Discovery Material on the record, before the close of the deposition all protected testimony.
(c) for information produced in some form other than documentary and/or other tangible items, that the Producing Party affix in a prominent place on the exterior of the container with the legend "CONFIDENTIAL."
5.3 Inadvertent Failure to Designate
If timely corrected, an inadvertent failure to designate qualified information does not, standing alone, waive the Designating Party's right to secure protection under this Order for such material. Upon timely correction of a designation, the Receiving Party must make reasonable efforts to assure that the material treated in accordance with the provisions of this Order.
6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1 Timing of Challenges
Any party or non-party may challenge a designation of confidentiality at any time that is consistent with the Court's Scheduling Order.
6.2. Meet and Confer
The challenging party shall initiate the dispute resolution process under Local Rule 37.1, et seq.
6.3 Burdens of Persuasion
The burden of persuasion in any such challenge proceeding shall be on the Designating Party. Frivolous challenges, and those made for an improper purpose (e.g., unnecessary delay or expense) may expose the Challenging Party to sanctions. Unless the Designating Party has waived or withdrawn the confidentiality designation, all parties shall continue to afford the material in question the level of protection to which it is entitled under the Producing Party's designation until the Court rules on the challenge.
7. ACCESS TO AND USE OF PROTECTED MATERIAL
7.1 Basic Principles
A Receiving Party may use the Protected Material that is disclosed or produced by another party or by a non-party in connection with this Action only for prosecuting, defending or attempting to settle this Action. Such Protected Material may be disclosed only to the categories of persons and under the conditions of this Order. When the Action has been terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL DISPOSITION).
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.
7.2 Disclosure of "CONFIDENTIAL" Information or Items
Unless otherwise ordered by the Court or permitted in writing by the Designating Party, a Receiving Party may disclose any information or item designated "CONFDIENTIAL" only to:
(a) The Receiving Party's outside counsel of record in this Action, as well as outside counsel's employees if necessary;
(b) The officers, director and employees of the Receiv ing Party if necessary for this Action;
(c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is made only for this Action and who have signed the "Acknowledgement and Agreement to be Bound" (Ex. "A");
(d) The Court and its personnel;
(e) Court reporters and their staff;
(f) Professional jury or consultants, professional vendors to whom disclosure is reasonably necessary for this Action and who have signed Ex. "A" to this Order;
(g) During their depositions, witnesses, and attorneys for witnesses, in the Action to whom disclosure is reasonably necessary provided: (1) the deposing party requests that the witness sign the form attached as Ex. "1: attached hereto; and (2) they will not be permitted to keep any confidential information unless they sign Ex. "A" to this Order. Pages of transcribed deposition testimony or exhibits to depositions that reveal Protected Material may be separately bound by the court reporter and may not be disclosed to anyone except as permitted under this Stipulated Protective Order; and
(h) Any mediator or settlement officer, and their supporting personnel.
8. PROTECED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION
If a party is served with a subpoena or a court order issued in other litigation that compels disclosure of any information or items designated in this Action as "CONFIDENTIAL," that party must:
(a) Promptly notify in writing the Designating Party. Such notification shall include a copy of the subpoena or court order;
(b) Promptly notify in writing the party who caused the subpoena or order to issue in the other litigation that some or all of the material covered by the subpoena or order is subject to this Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and
(c) Cooperate with respect to all reasonable procedures sought to be pursued by the Designating Party whose Protected material may be affected. If th Designating Party timely seeks a protective order, the Party served with the subpoena or court order shall not produce any information designated in this action as "CONFIDENTIAL" before a determination by the court from which the subpoena or order issued, unless the Party has obtained the Designating Party's permission. The Designating Party shall bear the burden and expense of seeking protection in that court of tis confidential material and nothing in these provisions should be construed as authorizing or encouraging a Receiving Party in this Action to disobey a lawful directive from another court.
9. A NON-PARTY'S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION
The terms of this Order are applicab le to information produced by a Non-Party in this Action and designated as "CONFIDENT IAL." Such information produced by Non-Parties in connection with this litigation is protected by the remedies and relief provided by this Order. Nothing in these provisons should be construed as prohibiting an Non-Party from seeking additional protections.
In the event that a Party is required, by a valid discovery request, to produce a Non-Party's confidential information in its possession, and the Party is subject to an agreement with the Non-Party not to produce the Non-Party's confidential information, then the Party shall:
(1) Promptly notify in writing the Requesting Party and the Non-Party that some or all of the information requested is subject to a confidentiality agreement with a Non-Party;
(2) Promptly provide the Non-Party with a copy of the Stipulated Protective Order in this Action, the relevant discovery request(s), and a reasonably specific description of the information requested; and
(3) Make the information requested available for inspecdtion by the Non-Party, if requested.
If the Non-Party fails to seek a protective order from this Court within 14 days of receiving the notice and accompanying information, the Receiving Party may produce the Non-Party's confidential information responsive to the discovery request. If the Non-Party timely seeks a protective order, the Recifving Party shall not produce any information in its possession or control that is subject to the confidentiality agreement with the Non-Party before a determination by the court. Absent a court order to the contrary, the Non-Party shall bear the burden and expense of seeking protection in this Court of its Protected Material.
10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected Material to any person or in any circumstance not authorized under this Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform the person or persons to whom unauthorized disclosures were made of all the terms of this Order, and (d) request such person or persons to execute the "Acknowledgment and Agreement to be Bound" that is attached hereto as Ex. "A" to this Stipulated Order.
11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL
When a producing party gives notice to Receiving Parties that certain inadvertently produced material is subject to a claim of privilege or other protection, the obligations of the Receiving Parties are those set forth in FRCP 26(b)(5)(B). This provision is not intended to modify whatever procedure may be established in an e-discovery order that provides for production without prior privilege review. Pursuant to FRE 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a communication or information covered by the attorney-client privilege or work product protection, the parties may incorporate their agreement in the stipulated protective order submitted to the court.
12. MISCELLANEOUS
12.1 Right to further relief — nothing in this Order abridges the right of any person to seek its modification by the Court in the future.
12.2 Right to Assert Other Objections — by stipulating to the entry of this Protective Order no Party waives any right it otherwise would have to object to disclosing or producing any information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no party waives any right to object on any ground to use in evidence of any of the material covered by this Protective Order.
12.3 Filing Protected Material — a party that seeks to file under seal any Protected Material must comply with Civil Local Rule 79-5.
13. FINAL DISPOSITION
After the final disposition of this Action, as defined in Paragraph 4, within 60 days of a written request by the Designating Party, each Receiving Party must return all Protected Material to the Producing Party or destroy such material. "Protected Material" includes copies, abstracts, summaries, spread sheets, and any other format reproducing or capturing any of the Protected Material. The Receiving Party must submit a written certification to the Producing Party by the 60-day deadline that all Protected Material was either returned or destroyed. Counsel may retain a copy for its own files but must hold the Protected Material in trust and never release it without court order and without providing Producing Party written notice 15 days before production.
13. 1 Any violation of this Order may be punished by any and all appropriate measures including, but not limited to, contempt proceedings and/or monetary sanctions.
IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD
FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I, _______________, of [insert address], declare under penalty of perjury that I have read in its entirety and understand the Stipulated Protective Order that was issued by the Unites States District Court for the Central District of California on [date] in the case of Social Reality, Inc., v. Adam Johnson, et al., Case No.: 2:l 7-CV-05089-MWF-SS . 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. I solemnly promise that I will not disclose in any manner any information or item that is subject to this 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 Unites 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.
Date:____________________
City and State where sworn and signed:_______________________
Printed name:__________________
Signature:_____________________
