ALICIA G. ROSENBERG, Magistrate Judge.
IT IS HEREBY STIPULATED by the parties
1. This Protective Order shall govern the handling of confidential, proprietary or trade secret information produced by or on behalf of any Producing Party (as defined below) furnished by any person associated with any Producing Party (as defined below) on or after the date of this Protective Order in documents, information contained in documents, deposition testimony, deposition exhibits, deposition transcripts, written discovery requests, interrogatory responses, responses to requests to admit, and responses to requests for documents, and any other information or material or things produced, given or exchanged and any information contained therein or derived therefrom, including, without limitation, documents, materials and things produced pursuant to Rules 34 and 45 of the Federal Rules of Civil Procedure in this Action ("Discovery Material").
2. Nothing in this Protective Order shall prevent disclosure beyond the terms of this Protective Order if the designating Party consents in writing to such disclosure or if the Court allows such disclosure.
3. Any Party, non-Party, person or entity producing Discovery Material in this Action ("Producing Party") may designate such Discovery Material, in appropriate circumstances, as (1) "CONFIDENTIAL" or (2) "CONFIDENTIAL — ATTORNEYS' EYES ONLY". All "CONFIDENTIAL" designations must be based on a good faith belief that the Discovery Material so designated contains non-public, confidential, proprietary, commercially sensitive information, and/or information subject to a legally protected right of privacy. All "CONFIDENTIAL — ATTORNEYS EYES' ONLY" designations must be based on a good faith belief that the Discovery Material so designated contains extremely sensitive confidential information, the disclosure of which would create a substantial risk of serious competitive injury. The identification of Discovery Material with either of these designations is referred to herein as "Confidential Designation" or "Designated Pursuant To This Protective Order."
4. The Confidential Designation of Discovery Material shall be made by written notice in the Discovery Material by affixing, stamping or otherwise clearly marking the words "CONFIDENTIAL" or "CONFIDENTIAL — ATTORNEYS' EYES ONLY" to every page in a location that makes the Confidential Designation readily apparent and in a manner that does not interfere with the legibility. Wherever practicable, the Confidential Designation shall be made prior to, or contemporaneously with, the production or disclosure of Discovery Material.
5. A Party shall have the right to request a Confidential Designation for Discovery Material called for by another Party's subpoena to a non-Party, in cases where the Discovery Material was provided by the Party to the non-Party, or viceversa, pursuant to an agreement that the Discovery Material was primarily provided on a confidential or highly confidential basis, provided such request is made to the non-Party, and copied to the other Party, within fourteen (14) days of production of the Discovery Material to the requesting Party. Further, if Discovery Material marked with a Confidential Designation is called for in a subpoena by a non-Party to this Action, the non-Party to whom the subpoena is directed shall immediately give written notice thereof to each Party that has designated the Discovery Material and shall provide each such designating Party with an opportunity to object to the production of such Discovery Material in response to the subpoena.
6. In the event that a Producing Party makes Discovery Material available for inspection rather than delivering copies of Discovery Material to another Party, no Confidential Designation need be made in advance of the initial inspection. For purposes of the initial inspection, all Discovery Material shall be considered as having been designated at least "CONFIDENTIAL — ATTORNEYS' EYES ONLY".
7.
8.
9. Notwithstanding Paragraph 7(e) and 8(d), Discovery Material Designated Pursuant To This Protective Order may be disclosed to persons listed therein only to the extent necessary for such Independent Expert to prepare a written opinion, to prepare to testify, or to assist counsel in this Action, provided that such Independent Expert (i) is not currently an employee of, or advising or discussing employment with, or consultant to, any Party or any competitor or potential transaction counterparty of any Party, as far as the Independent Expert can reasonably determine, and (ii) is using said Discovery Material solely in connection with this Action. Independent Experts are hereby specifically advised, informed, and otherwise on actual notice that their written work product that contains or discloses the substance of Discovery Material Designated Pursuant To This Protective Order is subject to all the provisions of this Protective Order. Counsel for the Party showing, providing, or disclosing Discovery Material Designated Pursuant To This Protective Order to any person required to execute an undertaking pursuant to this Protective Order shall be responsible for obtaining such signed undertaking and retaining the original, executed copy thereof.
10. Notwithstanding Paragraph 7(f), Discovery Material Designated Pursuant To This Protective Order may be disclosed to persons listed therein only after such witness or deponent is first provided with a copy of this Protective Order and (i) confirms his or her understanding and agreement to abide by the terms of this Protective Order by making such a statement on the record, and by signing an undertaking in the form attached as Exhibit A hereto, or (ii) a court of competent jurisdiction orders him or her to abide by the terms of this Protective Order. Counsel for the Party showing, providing, or disclosing Discovery Material Designated Pursuant To This Protective Order to any person required to execute an undertaking pursuant to this Protective Order shall be responsible for obtaining such signed undertaking and retaining the original, executed copy thereof
11. The procedure for the Party seeking to reveal Discovery Material Designated Pursuant To This Protective Order to any of the persons referred to in Paragraphs 7(e), 7(f), 7(g), 8(d), and 8(e) above shall be as follows:
No copies, extracts, or summaries of any Discovery Material Designated Pursuant To This Protective Order shall be made except by or on behalf of Outside Counsel of Record. Any such copies, extracts, or summaries shall also be designated and treated as "CONFIDENTIAL" or "CONFIDENTIAL — ATTORNEYS' EYES ONLY", respectively, and shall not be delivered or exhibited to any persons except as provided by this Protective Order.
12. Any document or thing containing or embodying "CONFIDENTIAL" or "CONFIDENTIAL — ATTORNEYS' EYES ONLY" Information that is to be filed in this action shall be filed with an application to file under seal in accordance with Local Rule 79-5 concerning protective orders and the filing of confidential information under seal. Documents filed under seal shall be served upon all counsel of record via electronic mail on the same day they are filed. Local Rule 79-5 shall apply.
If any party fails to file Discovery Material Designatged Pursuant to this Protective Order with an application to file under seal or to properly designate, delineate, delete or redact the Discovery Materials Designated Pursuant To This Protective Order from the Filing, the Producing Party or the Party claiming the confidentiality of the Discovery Materials may request that the Court place the Filings under seal.
13. Discovery Material shall be used solely for purposes of this Action, and shall not be used for any other purpose, including, without limitation, any business, commercial, governmental or regulatory purpose or function, or any other litigation or proceeding, except as may be subpoenaed by any court or administrative or legislative body, provided, however, that the foregoing shall not apply to Discovery Material that is, or becomes, part of the public record.
14. Neither the provisions of this Protective Order nor the filing of any Discovery Material under seal shall prevent the use, in open court, at any hearing or at trial of this case, of any Discovery Material that is subject to this Protective Order or filed under seal pursuant to its provisions. The Parties shall meet and confer concerning appropriate methods for dealing with Discovery Material Designated Pursuant To This Protective Order at hearings and at trial.
15. The inadvertent failure to make a Confidential Designation of Discovery Material shall not constitute a waiver of such claim and may be corrected. A Producing Party may give written notice to the receiving Party, including copies of the Discovery Material appropriately Designated Pursuant To This Protective Order, that the Discovery Material is deemed Designated Pursuant To The Protective Order and should be treated as such in accordance with the provisions of this Protective Order. Upon receiving such notification of the Confidential Designation of the Discovery Material, the receiving Party shall use its reasonable and good faith efforts to collect any and all copies of the inadvertently-produced Discovery Material from persons not entitled access to such Discovery Material had it initially been properly designated, and the Discovery Material shall thereafter be treated as if it had been timely Designated Pursuant To This Protective Order. If the receiving Party is subject to excessive costs or burden in connection with undertaking to comply with this Paragraph, then the Producing Party shall reimburse the receiving Party for the reasonable expenses incurred in connection therewith. In no event shall the inadvertent disclosure by the Producing Party of Discovery Material without the appropriate Confidential Designation be deemed to be a waiver in whole or in part of the Producing Party's claim of confidentiality, either as to the specific information disclosed or as to any other information relating thereto or on the same or a related subject.
16. Any inadvertent production of Discovery Material containing privileged information shall not be deemed to be a waiver of the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine. Each Party specifically reserves the right to demand the return of any privileged document or other Discovery Material that it may produce inadvertently during discovery if the Party determines that such Discovery Material contains privileged information. After receiving notice of such inadvertent production by the Producing Party, the receiving Party shall make reasonable and good faith efforts to locate and return to the Producing Party all copies of such inadvertently-produced Discovery Material. If the receiving Party is subject to excessive costs or burden in connection with undertaking to comply with this Paragraph, then the Producing Party shall reimburse the receiving Party for the reasonable expenses incurred in connection therewith.
17. Unless and until otherwise ordered by the Court or agreed to in writing by the Parties, all Discovery Material Designated Pursuant To This Protective Order shall be treated in accordance with its designation and shall not be disclosed except under the terms of this Protective Order.
18. In the event that a Party challenges another Party's Confidential Designation, counsel shall make a good faith effort to resolve the dispute, by the following procedure:
19. This Protective Order shall not constitute a waiver of either Party's rights under the Federal Rules of Civil Procedure or the Local Rules of this Court.
20. No later than sixty (60) days after the final adjudication of this Action, including any appeals, and upon written request by a designating Party, all Discovery Material Designated Pursuant To This Protective Order shall be returned to the designating Party or shall be destroyed, unless a motion seeking modification of this Protective Order is filed. In the event that such materials are destroyed, the person(s) responsible for such destruction shall certify in writing to the completion and manner of destruction. Notwithstanding the foregoing, a Party may retain one archival copy of each pleading, ruling and order, each deposition, hearing, and trial transcript and exhibit, and correspondence maintained by the Parties' Outside Counsel of Record in their respective litigation files in the ordinary course of business.
21. Nothing in this Protective Order shall limit any Producing Party's use or disclosure of its own Discovery Material for any purpose, nor shall it impose any restrictions on the use or disclosure by any person of Discovery Material Designated Pursuant To This Protective Order obtained lawfully by such person independently of the discovery proceedings in this Action, and not otherwise subject to confidentiality restrictions.
22. The Court retains jurisdiction to make such amendments, modifications and additions to this Protective Order as it may from time to time deem appropriate. Either Party may make a request to the Court for any reasonable amendment to this Protective Order to facilitate the efficient and appropriate handling of Discovery Material Designated Pursuant To This Protective Order.
23. Nothing in this Protective Order shall prevent or otherwise restrict Outside Counsel of Record from rendering advice to their clients and in the course thereof, relying generally on examination and review of Discovery Material Designated Pursuant To This Protective Order; provided, however, that in rendering such advice or otherwise communicating with such client, counsel shall not make specific disclosure of Discovery Material Designated Pursuant To This Protective Order.
24. Nothing in this Protective Order constitutes an admission by any party that Discovery Material Designated Pursuant To This Protective Order disclosed in this case is relevant or admissible. Each party specifically reserves the right to object to the use or admissibility of all disclosed Discovery Material Designated Pursuant To This Protective Order, in accordance with applicable laws and court rules.
FOOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
I_____________________,
I will not disclose Confidential Designation materials to anyone other than persons specifically authorized by the Order and agree to return all such materials that come into my possession to counsel from whom I received such materials. I hereby consent to be subject to the personal jurisdiction of the United States District Court for the Central District of California with respect to any proceedings relative to the enforcement of the Order, including any proceeding related to contempt of Court. I hereby appoint________________________ [print or type full name] of ________________________________________ [print or type full address and telephone number] as my California agent for service of process in connection with this action or any proceedings related to enforcement of the Order.
I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct and that this Undertaking is executed this ____ day of ______________________, 2017.
