[PROPOSED] STIPULATED PROTECTIVE ORDER BETWEEN PLAINTIFFS AND DEFENDANT THE BOEING COMPANY REGARDING CONFIDENTIAL AND EXPORT-CONTROLLED MATERIALS

KAREN L. STEVENSON, Magistrate Judge.

Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure and based on Plaintiffs' and Defendant The Boeing Company's (the "parties") Stipulation Regarding Confidential and Export-Controlled Materials ("Stipulation") filed on October 26, 2016 and their subsequent showing of good cause, the terms of the protective order to which the parties have agreed are adopted as a protective order of this Court (which generally shall govern the pretrial phase of this action) except to the extent, as set forth below, that those terms have been modified by the Court's amendment of paragraphs titled "Purposes and Limitations," "Good Cause Statement," and numbered 1, 2, 3, 4, 11, 12, 13, 14, 17, 19, and 24 of, and Exhibit A to, the Stipulation.

AGREED TERMS OF THE PROTECTIVE ORDER AS ADOPTED AND MODIFIED BY THE COURT1

PURPOSES AND LIMITATIONS

Counsel for the Plaintiffs and for The Boeing Company ("Boeing"), have meet and conferred over the last several weeks regarding production of documents by Boeing to the Plaintiffs, which are agreed by all parties to be relevant and responsive to discovery in this matter. It has been represented by Boeing and the parties agree that some of the responsive documents fall within categories which require them to be subject to a protective order. The parties acknowledge that this Order does not It is not the party's intent to 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 but rather to limit the information or items that are entitled to confidential treatment to those items which fall within certain under the applicable legal principles. The burden of establishing that documents and/or materials have been properly designated as "CONFIDENTIAL" shall be upon the Designating Party at all times.

GOOD CAUSE STATEMENT

This action involves production of documents and discussions of trade secrets, research and development and/or proprietary information for which special protection from public disclosure is warranted and for which special protection from public disclosure and from use for any purpose other than prosecution of this action is warranted. In addition, Boeing asserts that some of the responsive documents in this matter fall within the protections of the export-and import-control laws and regulations of the United States, including, but not limited to, the U.S. Arms Export Control Act, as amended, 22 U.S.C. §§ 2751-2799, the International Traffic In Arms Regulations ("ITAR"), as amended, 22 C.F.R. §§ 120-130), the Export Administration Act, as amended, 50 U.S.C. §§ 2401-2420, and/or the U.S. Export Administration Regulations, as amended, 15 C.F.R. §§ 730, et seq. (collectively, "U.S. Export Control Laws").

Specifically, ITAR regulations control the export and import of defense-related articles and services on the United States Munitions List ("USML"). The Department of State Directorate of Defense Trade Controls ("DDTC") interprets and enforces ITAR, and its goal is to safeguard U.S. national security and further U.S. foreign policy objectives. ITAR regulations dictate that information and material pertaining to defense and military-related technologies (for items listed on the U.S. Munitions List) may only be shared with U.S. Persons unless authorization from the Department of State is received or a special exemption is used. Corporations such as Boeing can face heavy fines if they have, intentionally or not, provided non-U.S. persons with access to ITAR-protected defense articles, services or technical data. Prior to disclosure, documents subject to U.S. Export Control Laws must be stamped to indicate that the materials are subject to export control laws. Any access to the documents must be restricted to ensure that sensitive information is not disclosed in violation of U.S. Export Control Laws. Violation of these statutes will subject Boeing to draconian fines and other potential penalties.1

This Court has authority to issue a protective order for good cause. Fed. R. Civ. P. 26(c)(1). The parties agree and stipulate that Because of the national security interests and the potential for severe criminal and civil penalties, there is a clear showing of a particular and specific need for the protective order. Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975).

In similar circumstances, courts have found good cause for protective orders in cases involving documents and information deemed confidential under U.S. Export Control Laws. See, e.g., Ross-Hime Designs, Inc. v. United States., 109 Fed. Cl. 725, 744-46 (2013) (structure descriptions, drawings, and photographs requiring an export license pursuant to the Export Administration Regulations were within the scope of restricted information covered by a protective order); United States v. Int'l Bus. Machs. Corp., 461 F.Supp. 732 (S.D.N.Y. 1978) (protective order issued for defense exhibits, including applications and licenses deemed confidential pursuant to the Export Administration Act).)

These export control requirements make it imperative that documents produced in discovery are handled in such a way so that violation of the various controls on dissemination of the information are not violated. Accordingly, to expedite the flow of information, to facilitate the prompt resolution of disputes over confidentiality of discovery materials, to adequately protect information which the parties are required to keep confidential under the laws of the United States, while ensuring the parties are permitted reasonable and necessary uses of such material in preparation for and in the conduct of trial, and to 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 shall 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 of this case. Wherefore:

1. It is hereby ordered by the Court that The following shall apply to information, documents, testimony, and excerpts from documents and other materials produced in this action by certain Defendants pursuant to the Federal Rules of Civil Procedure and the Local Civil Rules of the Central District of California governing disclosure and discovery.

2. Information, testimony, documents and other materials produced pursuant to FRCP 26 and all any discovery requests and/or responses in this matter, may be designated ("Designated Material" or "Protected Material") by any of the parties to this lawsuit ("Designating Party(ies)") in the manner permitted as set forth in this order. All such information, testimony, documents, excerpts from documents, and other materials produced in this matter will constitute "Designated Material" under this Order. The designations shall be (a) "CONFIDENTIAL"; (b) "SENSITIVE—SUBJECT TO EXPORT CONTROL— U.S. Arms Export Act, International Traffic In Arms Regulations, Export Administration Act, U.S. Export Administration Regulations," (hereinafter: "Export-Controlled"); and/or, (c) "Limited Distribution;" and/or (d) "Proprietary."

5. "EXPORT-CONTROLLED" and "LIMITED DISTRIBUTION" Information: The Designating Party shall designate any materials, testimony or information that it believes to be subject to U.S. Export Control Laws2 as "SENSITIVE— SUBJECT TO EXPORT CONTROL—U.S. Arms Export Act, International Traffic In Arms Regulations, Export Administration Act, U.S. Export Administration Regulations." The Designating Party shall further designate any Export-Controlled documents that also contain a distribution limitation statement from the Department of Defense or any branch of the U.S. Military as "Limited Distribution" in addition to "Export-Controlled."

6. Material designated as "Export-Controlled" and/or "Limited Distribution" Information may only be released, disclosed or made accessible to U.S. Persons (as that term is defined at 22 CFR. 120.15 and hereafter "U.S. Person" or "U.S. Persons"), that are not named on any restricted or denied party/individual/entity list maintained by relevant government agencies, as determined by an ITAR-compliant screening process performed by the party releasing the materials, testimony, and/or information to that person. This restriction and screening requirement applies to any Designated Material which has been designated as Export-Controlled, whether stored electronically on a server or otherwise. Before Designated Material is disclosed to any person, each such person must agree to be bound by this Order by signing a copy of Exhibit "A". It is the responsibility of the party disclosing the Designated Material to obtain and maintain the signed Exhibit "A" form for each person to whom that party discloses Designated Material.

7. In addition to the other requirements of this Order, by accepting Material designated as "Export-Controlled" and/or "Limited Distribution" information, the receiving Party represents and warrants that he/she/it is a "U.S. Person" (as that term is defined as set forth above and at 22 CFR. 120.15) and that the receiving Party will comply with all applicable export, import and sanctions laws, regulations, orders and authorizations. By accepting documents designated as "Limited Distribution," the receiving party further represents and warrants that he/she/it will comply with the limitation restrictions as set forth in the document designated as Limited Distribution as to disclosure and distribution of that document.

8. Prior to disclosing or displaying any Designated Material to any person, counsel shall:

9. A person having custody of Designated Material shall maintain it in a manner that limits access to the Designated Material to persons permitted such access under this Order.

10. Counsel shall maintain a collection of all signed documents by which persons have agreed to be bound by this Order and shall make copies of them available for the Court's in camera review upon reasonable request.

11. Documents shall be designated by bates stamping and then stamping or otherwise marking the documents with the words "CONFIDENTIAL," "SENSITIVE—SUBJECT TO EXPORT CONTROL—U.S. Arms Export Act, International Traffic In Arms Regulations, Export Administration Act, U.S. Export Administration Regulations," and/or, "Limited Distribution," thus clearly identifying the category of Designated Material for which protection is sought under the terms of this Order. Depending on the nature and substance of the document, it may be designated with more than one designation under this order. Designated Material not reduced to documentary form shall be designated by the producing party in a reasonably equivalent way. 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).

12. The Designating Parties will use reasonable care to avoid designating documents or information that does not need to be designated as such. 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 unnecessarily encumber the case development process or to impose unnecessary expenses and burdens on other parties) 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.

13. At any time that is consistent with the Court's Scheduling Order a party may submit a request in writing to the Designating Party that produced Designated Material that the designation be modified or withdrawn. If the Designating Party does not agree to the withdrawal or re-designation within ten (10) business days, the objecting party may apply to the Court for relief. Upon any such application, the burden shall be on the Designating Party to show why the designation is proper. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose unnecessary expenses and burdens on other parties) may expose the Challenging Party to sanctions. Before serving a written challenge, the objecting party must attempt in good faith to meet and confer with the Designating Party in an effort to resolve the matter. The Challenging Party shall initiate the dispute resolution process under Local Rule 37.1 et seq. 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.

14. When testimony concerning Export-Controlled and/or Limited Distribution Information is given at a deposition or when Export Controlled and/or Limited Distribution Material is produced at a deposition, the Designating Party may exclude from the deposition all persons other than those to whom the Designating Party has confirmed that Designated Material may be disclosed under this order. Prior to the exclusion from of any person representing any party at a deposition the Designating Party must first make an effort to contact and inform the Magistrate Judge of the exclusion under this provision.

15. A party may mark Designated Material as a deposition exhibit, provided the deposition witness and all others in attendance (including the court reporter and any videographer) have been confirmed as people to whom the exhibit marked as Designated Material may be disclosed under this Order and the exhibit and related transcript pages receive the same designation as the original Designated Material.

16. Deposition transcripts, or portions thereof, may be designated either (a) when the testimony is recorded, or (b) by written notice to all counsel of record, given within ten (10) business days after the Designating Party's receipt of the final transcript, in which case all counsel receiving such notice shall be responsible for marking the copies of the designated transcript or portion thereof in their possession or control as directed by the Designating Party. Pending expiration of the ten business days, the deposition transcript shall be treated as designated Export-Controlled and Confidential in its entirety.

17. Any party that intends to file Designated Material with a court must first request approval from the court to file the Designated Material under seal and identify the Designated Material as being subject to this Protective Order and protected from being opened except by court order. Filing pleadings or other papers disclosing or containing Designated Material does not waive the designated status of the material. The parties acknowledge that this Stipulated Protective Order does not entitle them to file confidential information under seal; If any Party should desire to include any Confidential Information or Item in any papers filed with the Court, the Party shall file an application, in accordance with the requirements of Local Rule 79-5, and provide the requisite showing based on competent evidence of "good cause" or "compelling reasons," for a Court order allowing such papers to be filed under seal pursuant to Federal Rule of Civil Procedure Rule 5.2(d). If any party seeks to file or lodge with the Court any portion of any Protected Document or information taken from any Protected Document, such material shall be submitted to the Court with an application to file under seal in accordance with this Court's Local Rule 79-5.1

18. A party which reasonably anticipates it will produce or that it will be requested to produce information or material at a hearing or discovery proceeding that is or will be designated as Export-Controlled material must notify all parties of the same within seven (7) days of receiving notice of the hearing or discovery proceeding. Parties who expect to attend any hearing or discovery proceeding where notice has been given about the possible disclosure of Export-Controlled material pursuant to this paragraph must provide to the Designating Party the names and sufficient personal information necessary to conduct the screening described in paragraph No. 6, above, of all persons whom they wish to attend the hearing or discovery proceeding. The names and identifying information must be provided to the Designating Party at least fourteen (14) calendar days before the date noticed for the hearing or discovery proceeding, the Designating Party will respond no later than three (3) days before the hearing or discovery proceeding with the results of the screening. Any party that fails to timely provide the names and necessary identifying information may waive its right to be present at the subject hearing or discovery proceeding.

19. 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. When the Lawsuit reaches its final resolution for the Designating Party (whether by settlement, judgment, dismissal, or otherwise), including any and all appeals, within forty-five (45) days:

e. Notwithstanding this provision, Counsel are entitled to retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work product, and consultant and expert work product, even if such materials contain Protected Material. Any such archival copies that contain or constitute Protected Material remain subject to this Protective Order as set forth above.

20. Inadvertent production of confidential material prior to its designation as such in accordance with this Order shall not be deemed a waiver of a claim of confidentiality. Any such error shall be corrected within a reasonable time.

21. Nothing in this Order shall require disclosure of information protected by the attorney-client privilege, or other privilege or immunity, and the inadvertent production of such information shall not operate as a waiver. If a Designating Party becomes aware that it has inadvertently produced information protected by the attorney-client privilege, or other privilege or immunity, the Designating Party will promptly notify each receiving party in writing of the inadvertent production. When a party receives notice of such inadvertent production, it shall return all copies of inadvertently produced material within three business days.

22. The foregoing is entirely without prejudice to the right of any party to apply to the Court for any further Protective Order relating to Designated Material; or to object to the production of Designated Material; or to apply to the Court for an order compelling production of Designated Material; or for modification of this Order; or to seek any other relief from the Court.

23. The restrictions imposed by this Order may be modified or terminated only by further order of the Court.

24. Any violation of this Order may be punished by any and all appropriate measures including, without limitation, contempt proceedings and/or monetary sanctions.

FOR GOOD CAUSE SHOWN, IT IS SO ORDERED:

EXHIBIT "A"

I _______________ [print or type full name], of ____________[print or type full address], declare under penalty of perjury that I have read in its entirety and understand the Stipulated Protective Order that was issued by the United States District Court for the Central District of California on [date] have read and received a copy of the Protective Order entered in the lawsuit entitled Ponzio v. 3M Company, et al., Case No. 2:16-cv-3521-JFW (KSx).

I attest that I am a U.S. Person as that is defined at 22 CFR. 120.15 and as referenced in paragraph 6 of the Protective Order. I agree that I will provide sufficient information to any party releasing "Export-Controlled" or Limited Distribution information or documents in this matter so that the releasing party may conduct the screening set forth in paragraph No. 6 of this order.

I attest that I am, (a) a consultant retained by a party in this case and any Designated Material that I receive will be used solely to provide services related to this matter; or (b) not presently employed by a competitor of the Designating Party and do not have an intention to be employed or conduct any type of work whatsoever with or for any such competitor(s) in the immediate future.

I hereby agree that I will not disclose any information contained in Designated Material to any person. I further agree not to use any such information for any purpose other than this litigation and pursuant to the restrictions set forth in the protective order.

Within forty-five (45) days after the final disposition of the Lawsuit for the Designating Party, including any and all appeals, I agree to destroy or return any and all copies of Designated Materials produced by the Designating Party to counsel for the Party that I am working for or associated with so that they can be returned to the Party that produced that information (or in the case of transcripts, all portions marked as Designated Materials were permanently redacted). I will not maintain a copy of any Designated Materials in my possession (or any notes, summaries, or abstracts of its substance) without the express, written authority from the Party that produced the Designated Material.

As a condition to being allowed access to Designated Material, I agree and consent to be subject to the jurisdiction of the United States District Court for the Central District of California with respect the enforcement of the provisions of said Protective Order, even if such enforcement proceedings occur after termination of this action.