ANDREW J. WISTRICH, Magistrate Judge.
Disclosure and discovery activity in this action are 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, defending, or settling 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, as set forth below, that this Stipulated Protective Order does not entitle them to file confidential information under seal. The Local Rules (including Local Rule 79-5.1), this Court's orders (including section VII of the Initial Standing Order Following Assignment of Civil Case to Judge Carter, ECF #8), and applicable law set forth the procedures that must be followed and the standards that will be applied when a party seeks permission from the Court to file material under seal.
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(1) The protections conferred by this Stipulation and Order cover not only Protected Material (as defined above), but also: (a) any information copied or extracted from Protected Material; (b) all copies, excerpts, summaries, or compilations of Protected Material; and (c) any testimony, conversations, or presentations by Parties or their Counsel that might reveal Protected Material.
(2) The protections conferred by this Stipulation and 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, 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.
(3) Any use of Protected Material at trial shall be governed by a separate agreement or order.
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.
Except as otherwise provided in this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, Disclosure or 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:
An inadvertent failure to designate qualified information or items as protected does not, standing alone, waive the Designating Party's right to secure protection under this Order for such material unless the correction is both (1) substantially prejudicial to the Receiving Party and (2) unreasonable in light of the sensitivity of the information or items not designated, the delay in making the correction, and the volume, nature and complexity of the information or items involved. The Receiving Party may dispute the corrected designation pursuant to the provisions of this Order for challenging designations. Upon receiving a correction and until any dispute concerning the correction is resolved, the Receiving Party must make reasonable efforts to assure that the material is treated in accordance with the corrected designation.
Any Party or Non-Party may challenge a designation of material as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY" at any time. Unless a prompt challenge to a Designating Party's confidentiality designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to challenge a confidentiality designation by electing not to mount a challenge promptly after the original designation is disclosed.
(a) The Challenging Party shall initiate the dispute resolution process by providing written notice of each designation it is challenging and describing the basis for each challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must recite that the challenge to confidentiality is being made in accordance with this specific paragraph of this Order.
(b) The parties shall attempt to resolve each challenge in good faith. The parties must begin the process by conferring within 14 days of the date of service of notice. In conferring, the Challenging Party must explain the basis for its belief that the confidentiality designation was not proper and must give the Designating Party an opportunity to review the designated material in light of such explanation, to reconsider the circumstances, and, if no change in designation is offered, to explain the basis for the chosen designation. A Challenging Party may proceed to the next stage of the challenge process only if it has engaged in this meet and confer process first or establishes that the Designating Party is unwilling to participate in the meet and confer process in a timely manner.
(a) If the Parties cannot resolve a challenge without Court intervention: (i) the Challenging Party may file and serve a motion to remove or change confidentiality; or (ii) the Designating Party may file a motion to retain a confidentiality designation (this includes a motion to retain the designation of a deposition transcript or any portions thereof).
(b) Each motion, whether by the Challenging Party or the Designating Party, must comply with the Local Rules and must be accompanied by a competent declaration affirming that the movant has complied with the meet and confer requirements imposed by this Order.
(c) The burden of persuasion in each motion, whether by the Challenging Party or the Designating Party, shall be on the Designating Party. 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.
(d) 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 (including any correction thereof) until the court rules on the motion.
(a) A Receiving Party may use Protected Material that is disclosed or produced by another Party or by a Non-Party in connection with this case 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. When the litigation has been terminated, a Receiving Party must comply with the provisions of Section M below (FINAL DISPOSITION).
(b) 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.
(c) Protected Material shall not be copied or reproduced except to the extent such copying or reproduction is reasonably necessary to the conduct of this action, and all such copies and reproductions shall be subject to the terms of this Order. If the duplicating process by which copies and reproductions of Protected Materials are made does not preserve the confidentiality designation legends that appear on the original documents, all such copies and reproductions shall be stamped or labeled appropriately in accordance with the terms of this Order.
(d) Any work product or other materials generated in preparation for this Action by experts or other consultants retained for purposes of this Action that contain or reference information designated "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY" shall have the following text clearly displayed: "CONTAINS CONFIDENTIAL INFORMATION PROTECTED BY COURT ORDER FROM UNAUTHORIZED USE" or "CONTAINS HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY INFORMATION PROTECTED BY COURT ORDER FROM UNAUTHORIZED USE" as applicable. For documents that contain or reference Protected Materials, including but not limited to memoranda, drafts and other materials, the text shall also be placed prominently on the first page of such document. For file folders, such as red-welds or binders, that hold papers containing or referencing Protected Materials, the text shall be affixed on the outside of such file. For electronic files, the text shall be affixed to the labels for any discs containing or referencing Protected Materials.
(e) Notwithstanding the foregoing, nothing in this Order shall limit a Party's use or disclosure of its own information.
(f) No information designated "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY" shall lose such status under this Order as the result of the use of such document or information in any hearing, trial, or other Court proceeding in this Action, provided that such use is consistent with the terms of this Order. In the event that any Party wishes to use such information in a Court proceeding in this action, then counsel for the Parties shall consult with each other to work out any objections to the use of such information and to propose such amendments to this Order as the Parties agree are necessary, to determine whether and how such information can be used while still protecting its confidentiality.
(g) This Order is without prejudice to the right of any Party hereto to: (i) object to any discovery request; (ii) apply to the Court for any further order relating to any confidential information; or (iii) apply to the Court for an order permitting disclosure of Protected Materials or Information other than as provided herein.
(h) The provisions of this Order may also be modified on a Party's or the Court's own motion.
Unless otherwise ordered by the Court or permitted in writing by the Designating Party, a Receiving Party may disclose any information or item designated "CONFIDENTIAL" only to:
Unless otherwise ordered by the Court or permitted in writing by the Designating Party, a Receiving Party may disclose any information or item designated "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY" only to:
(1) If a Party or Non-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" or "HIGHLY CONFIDENTIAL—ATTORNEYS' EYES ONLY" that Party or Non-Party must:
(2) If the Designating Party timely seeks a protective order, the Party or Non-Party served with the subpoena or court order shall not produce any information designated in this action as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY" before a determination by the court from which the subpoena or order issued, unless the Party or Non-Party has obtained the Designating Party's permission.
(3) The Designating Party shall bear the burden and expense of seeking protection in that court of its confidential material. 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.
(1) The terms of this Order are applicable to information produced by a Non-Party in this action and designated as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY." 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 provisions should be construed as prohibiting a Non-Party from seeking additional protections.
(2) If 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:
(3) If the Non-Party fails to seek a protective order from this Court within 30 days of receiving the notice and accompanying information, the Party that received the discovery request may produce the Non-Party's confidential information responsive to the discovery request. If the Non-Party timely seeks a protective order, the Party that received the discovery request 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 its seeking protection in this Court of its confidential information.
(4) The Party that received the discovery request may seek a protective order prohibiting, limiting, or conditioning production of the Non-Party's confidential information, but it is not required to do so.
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 Order, the Receiving Party must immediately: (1) notify in writing the Designating Party of the unauthorized disclosures; (2) use its best efforts to retrieve all unauthorized copies of the Protected Material; (3) inform the person or persons to whom unauthorized disclosures were made of all the terms of this Order; and (4) request such person or persons to execute the "Acknowledgment and Agreement to Be Bound" (Exhibit A).
(1) Inadvertent production of materials or information that are or may be subject attorney client privilege, work product protection, or other protection shall not constitute waiver of any applicable privilege or other protection regardless of the steps or care taken to prevent disclosure of such materials or information.
(2) When a Producing Party gives notice to Receiving Parties that certain inadvertently produced material or information is subject to a claim of privilege or other protection, the obligations of the Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B).
(3) 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.
Nothing in this Order abridges the right of any person to seek its modification by the Court in the future.
By stipulating to the entry of this 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 Order. Similarly, no Party waives any right to object on any ground to use in evidence of any of the material covered by this Order.
Without written permission from the Designating Party or a Court order secured after appropriate notice to all interested persons, a Party may not file in the public record in this action any Protected Material.
Protected Material may only be filed under seal pursuant to a Court order. A Party that seeks to file any Protected Material under seal must comply with the Local Rules (including Local Rule 79-5.1), Court orders (including section VII of the Initial Standing Order Following Assignment of Civil Case to Judge Carter, ECF #8), and applicable law.
If a Party's request to file Protected Material under seal is denied by the Court, then that Party may file the information in the public record, unless otherwise instructed by the Court.
(1) Within 60 days after the Final Disposition of this action, each Receiving Party must return all Protected Material to the Producing Party or destroy such material. As used in this subdivision, "all Protected Material" includes all copies, abstracts, compilations, summaries, and any other format reproducing or capturing any of the Protected Material.
(2) Whether the Protected Material is returned or destroyed, the Receiving Party must submit a written certification to the Producing Party (and, if not the same person or entity, to the Designating Party) by the 60 day deadline that (a) identifies (by category, where appropriate) all the Protected Material that was returned or destroyed and (b) affirms that the Receiving Party has not retained any copies, abstracts, compilations, summaries or any other format reproducing or capturing any of the Protected Material.
(3) 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 in Section D (DURATION).
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] in the case of Philadelphia Indemnity Insurance Company v. IEC Corporation, Case No. 8:16-cv-295-DOC (AJW). 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 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.
