Opinion
Case No. 10CV-06438 JAK (PLAx).
October 11, 2011
DAVIS WRIGHT TREMAINE LLP, LOS ANGELES, CALIFORNIA, ALONZO WICKERS IV (State Bar No. 169454), KAREN A. HENRY (State Bar No. 229707), Attorneys for Defendants, BLACK ENTERTAINMENT TELEVISION, LLC, BET INTERACTIVE, FILM GARDEN ENTERTAINMENT, INC.
TROUTMAN SANDERS LLP, MATTHEW D. MURPHEY, Erik M. Ideta, Attorneys for Plaintiff, SINDEN COLLIER d/b/a SINDEN COLLIER PHOTOGRAPHY.
DEWEY LEBOEUFF LLP, JOHN E. SCHREIBER, Mindy M. Yu, Attorneys for Defendants, JONES MAGAZINE, THE NORTHSTAR GROUP, TRACEY FERGUSON, and L. LONDELL McMILLAN.
DISCOVERY MATTER ORDER GRANTING FIRST AMENDED STIPULATED PROTECTIVE ORDER
[First Amended Stipulated Protective Order Filed Concurrently]
Action Filed: August 27, 2010
Having considered the First Amended Stipulated Protective Order of the parties, and good cause appearing therefor, the Court hereby vacates the protective order entered on June 8, 2011, and adopts the parties' First Amended Stipulated Protective Order as the order of the Court in this matter.
IT IS SO ORDERED.
FIRST AMENDED STIPULATED PROTECTIVE ORDER [[Proposed] Order Granting First Amended Stipulated Protective Order Lodged Concurrently]
Action Filed: August 27, 2010
Plaintiff SINDEN COLLIER d/b/a SINDEN COLLIER PHOTOGRAPHY, on the one hand, and Defendants JONES MAGAZINE, THE NORTHSTAR GROUP, TRACEY FERGUSON, L. LONDELL McMILLAN, BLACK ENTERTAINMENT TELEVISION, LLC, BET INTERACTIVE, AND FILM GARDEN ENTERTAINMENT, INC., on the other hand, through their respective counsel of record in the above-captioned matter, hereby stipulate to entry of this First Amended Stipulated Protective Order ("Order") pursuant to Federal Rule of Civil Procedure 26(c)(1), Local Rule 79-5, and applicable decisional law regarding the treatment of confidential information. 1. PURPOSES AND LIMITATIONS
A prior protective order was entered on June 8, 2011. That order is hereby amended to add later-served defendants and to create a two-tier designation system for confidential information.
The parties acknowledge that disclosure and discovery activity in this litigation has included production of confidential, proprietary, trade secret or otherwise private information for which special protection from public dissemination or disclosure (and from use for any purpose other than prosecuting and defending this matter) is warranted. Thus, this Order is warranted and required to prevent and/or limit disclosure of such information and/or documents that have been and may be exchanged and/or produced in this case. The parties further acknowledge that this Order does not confer blanket protections on all disclosures or responses to discovery and that the protection it affords extends only to the limited information or items that are entitled to treatment as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY" Information or Items.
2. DEFINITIONS
Except as otherwise expressly defined in this Order, the following definitions shall apply:
2.1 Disclosure or Discovery Material . All items or information, regardless of the medium or manner generated, stored, or maintained (including, among other things, testimony, transcripts, or tangible things) that are produced or generated in disclosures, responses to discovery, or other requests for documentation in this matter.
2.2 "CONFIDENTIAL" Information or Items . Information (regardless of how generated, stored or maintained) or tangible things that constitute private records, trade secrets, or other confidential material, research, development, commercial, or protected information. The use of the term CONFIDENTIAL in this Order shall be included under this definition.
2.3 "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY" Information or Items . Information that is CONFIDENTIAL and whose disclosure to another party would create a substantial risk of injury that could not be avoided by less restrictive means.
2.4 Receiving Party . A party that receives Disclosure or Discovery Material from a Producing Party.
2.5 Producing Party . A party that produces Disclosure or Discovery Material in this case.
2.6 Designating Party . A Party that designates information or items that it produces in disclosures or in responses to discovery or otherwise as "CONFIDENTIAL" Information or Items or "HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY" Information or Items.
2.7 Protected Material . Any Disclosure or Discovery Material that is designated as "CONFIDENTIAL" Information or Items or "HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY" Information or Items.
2.8 Expert . A person with specialized knowledge or experience in a matter pertinent to the litigation who has been retained by a party or his/her/its counsel to serve as an expert witness or as a consultant in this action. This definition includes a professional jury or trial consultant retained in connection with this litigation. An expert for purposes of this Order shall not include anyone who is a past or current employee of a party or a competitor of a party.
3. SCOPE
The protections conferred by this Order cover not only Protected Material (as defined above), but also any information copied or extracted therefrom, as well as all copies, excerpts, summaries, or compilations thereof, plus testimony, conversations, or presentations by parties or counsel to or in this litigation or in other settings that might reveal Protected Material. Nothing in the Order shall be construed as requiring disclosure of documents, information, or any other materials that are privileged in nature, or subject to the attorney-client privilege or the attorney work-product doctrine, and/or documents, information or other materials that are, or may be claimed to be, otherwise beyond the scope of permissible discovery. Each party shall produce unredacted documents, except to the extent such documents contain information protected on the grounds of privilege or third party privacy or as otherwise required by law. Additional documents that are requested and produced will, in instances where there is a redaction on the grounds of privilege or privacy, be subject to appropriate challenge and briefing.
4. DURATION
This order shall apply from the time it is entered, and shall survive the termination of this litigation. Further, within five (5) court days from the issuance of a judgment in this matter, the parties agree to "meet and confer" in good faith to ensure that Protected Material does not become part of the public record and ensure that Protected Material is not impermissibly disclosed to third parties.
5. DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection . Each 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. A Designating Party must take care to 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, items, or communications for which protection is not warranted are not swept unjustifiably within the ambit of this Order.
If it comes to a party's attention that information or items that it designated for protection do not qualify for protection at all, or do not qualify for the level of protection initially asserted, that party must promptly notify all other parties that it is withdrawing the mistaken designation.
5.2 Manner and Timing of Designations . Except as otherwise provided in this Order, or as otherwise stipulated or ordered, material that qualifies for protection under this Order must be clearly so designated before the material is disclosed or produced:
(a) For information in documentary form (apart from transcripts of depositions or other pretrial or trial proceedings), that the Producing Party affix the legend "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY" at the top or bottom of each page that contains Protected Material.
(b) For testimony given in deposition or in other pre-trial or trial proceedings, that the Designating Party within seven (7) days of the deposition, hearing, or other proceeding, shall designate and specify any portions of the testimony that qualify as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY." When it is impractical to identify separately each portion of testimony that is entitled to protection, the Designating Party may later identify within a reasonable period the specific portions of the testimony as to which protection is sought, and specify the level of protection being asserted ("CONFIDENTIAL" or "HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY"). Transcript pages containing Protected Material must be separately bound by the court reporter, who must affix to the top of each such page the legend "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY" as instructed by the Designating Party.
(c) For information produced in some form other than documentary, and for any other tangible items, that the Producing Party affix in a prominent place on the exterior of the container or containers in which the information or item is stored the legend "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY." If only portions of the information or item warrant protection, the Producing Party, to the extent practicable, shall identify the protected portions, specifying whether they qualify as "CONFIDENTIAL" or as "HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY."5.3 Inadvertent Failure to Designate or Disclosure . An inadvertent failure to designate qualified information or items as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY" does not waive the Designating Party's right to secure protection under this Order for such material. If material is designated as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY" after the material was initially produced, the Receiving Party, on timely notification of the designation, must make reasonable efforts to assure that the material is treated in accordance with the provisions of this Order. Additionally, the parties recognize the possibility of inadvertent production of materials to which a party may make a claim of privilege or of protection from discovery as trial preparation material. The inadvertent production of such material shall not operate as a waiver of that privilege or protection and shall not operate as any subject matter waiver of that privilege or protection. The Receiving Party, on timely notification of the inadvertent production, must make reasonable efforts to assure that the material is returned to the Producing Party.
5.4 Challenging Other Party's Designation. A party shall not be obligated to challenge the propriety of any "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY" designation at the time made, and failure to do so shall not preclude a subsequent challenge thereto or constitute an admission that such designation was proper. If a party contends that any material is not entitled to "CONFIDENTIAL or "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY" treatment, such party may give written notice to the party or non-party who designated the material as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY." Any objection to a designation shall be made within forty-five (45) calendar days of learning the facts giving rise to the objection. The parties shall first try to dispose of such dispute in good faith on an informal basis. If the dispute cannot be resolved within seven (7) calendar days of the written notice described above, the party or non-party who designated the material as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY" shall have seven (7) calendar days from the receipt of such written notice to apply to the Court Pursuant to Local Rule 37 for an order confirming the material should retain its designation as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY." The material shall be treated as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY" until that motion is decided by the Court.
6. ACCESS TO AND USE OF PROTECTED MATERIAL 6.1 Basic Principles . A Receiving Party may only use Protected Material that is disclosed or produced by another party in connection with this case for prosecuting and defending this litigation. Such Protected Material may be disclosed only to the Court and to the categories of persons described in this Order who are permitted access to such Protected Material. No other persons shall be provided with the Protected Material. When the litigation has been concluded, a Receiving Party shall comply with the provisions of Paragraphs 4 and 9 herein. Counsel for a Receiving Party which provides Protected Material to a permitted person specified below shall maintain a copy of the signed Exhibit A, Acknowledgment and Agreement To Be Bound.
6.2 "CONFIDENTIAL" Information May Be Disclosed Only to the Following Persons :
Protected Material designated as "CONFIDENTIAL" by a Designating Party may be disclosed only to the following persons:
(a) "Outside Counsel", which shall specifically be defined as attorneys, paralegals, and their staff who are employed by or members of the law firms currently retained by the parties to this action as indicated by the caption and all independent companies or agencies that are directly engaged by Outside Counsel to perform litigation support services under the supervision of such counsel whose duties and responsibilities require access to the CONFIDENTIAL Information or Items.
(b) "In-House Counsel", which shall be defined as attorneys who are employees of a party and all independent companies or agencies that are directly engaged by inside counsel to perform litigation support services, paralegal assistants, stenographic, clerical or other staff working under the supervision of such counsel and managers and others charged with making strategic decisions, including regarding settlement, whose duties and responsibilities require access to the CONFIDENTIAL" Information or Items, and only after execution of Exhibit A hereto by that person.
(c) Experts (as defined in Paragraph 2.8 above) who have been retained to assist in preparation of this action for trial, and only after execution of Exhibit A hereto by that person.
(d) The parties and the employees, contractors, officers, directors and board members of the parties, and only after execution of Exhibit A hereto by that person.
(e) Any person whose testimony is taken in this litigation, provided that such person may only be shown copies of "CONFIDENTIAL" Information or Items during his or her testimony, and may not retain any "CONFIDENTIAL" Information or Items, and only after execution of Exhibit A hereto by that person.
(f) Any prospective witness and only after execution of Exhibit A hereto by that person, subject to the provisions in Section 6.4 below.
(g) Any other person by written agreement of the Designating Party and only after execution of Exhibit A hereto by that person.
(h) The Court in this proceeding and the Court's clerical or other staff working under the Court's supervision, and any jury empanelled at trial in this action.6.3 Information Designated as "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY" May Be Disclosed Only to the Following Persons :
Protected Material designated as "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY" Information or Items by a Designating Party may be disclosed only to the following persons:
(a) Outside Counsel (as defined in Paragraph 6.2 above), and only after execution of Exhibit A hereto by that person.
(b) In-House Counsel (as defined in Paragraph 6.2 above), and only after execution of Exhibit A hereto by that person.
(c) Experts (as defined in Paragraph 2.8 above) above who have been retained to assist in preparation of this action for trial, with disclosure only to the extent necessary to perform such work, and only after execution of Exhibit A hereto by that person.
(d) Any person whose testimony is taken, provided that such person may only be shown copies of "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY" Information during his or her testimony, and may not retain any "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY" Information, and only after execution of Exhibit A hereto by that person.
(e) The Court in this proceeding and the Court's clerical or other staff working under the Court's supervision, and any jury empanelled at trial in this action.6.4 Provision of Confidential Information to Prospective Witnesses/Experts
Unless otherwise ordered by the Court or agreed in writing by the Designating Party, a party that seeks to disclose to a "prospective witness" any "CONFIDENTIAL" Information or Items or "HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY" Information or Items, or that seeks to disclose "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY" Information or Items to a party, must comply with the procedures of this paragraph.
(a) Notice. The party first must make a written request to the Designating Party that (1) identifies the specific "CONFIDENTIAL" Information or Items or "HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY" Information or Items that the Receiving Party seeks permission to disclose to the prospective witness, or the "HIGHLY CONFIDENTIAL-ATTORNEYS EYES ONLY" Information or Items that the Receiving Party seeks permission to disclose to a party, and (2) sets forth the full name of the prospective witness or party and the address of his or her primary residence.
(b) Objections. A party that makes a request and provides the information specified in paragraph 6.4(a) above must wait eight (8) calendar days after complying with paragraph 6.4(a) and then may disclose the subject Protected Material to the identified prospective witness or party unless, within seven (7) calendar days of receipt of the request, the party receives a written objection from the Designating Party. Any such objection must set forth in detail the grounds on which it is based.
(c) Resolution of Objections. A party that receives a timely written objection must meet and confer with the Designating Party to try to resolve the matter by agreement. If no agreement is reached, the party seeking to make the disclosure to the prospective witness or party may file a motion Pursuant to Local Rule 37 seeking permission from the Court to do so. Any such motion must describe the circumstances with specificity, set forth in detail the reasons for which the disclosure to the prospective witness or party is reasonably necessary, assess the risk of harm that the disclosure would entail, and suggest any additional means that might be used to reduce that risk. In addition, any such motion must be accompanied by a competent declaration in which the movant describes the parties' efforts to resolve the matter by agreement (i.e., the extent and the content of the meet and confer discussions) and sets forth the reasons advanced by the Designating Party for its refusal to approve the disclosure.6.5 Duty to Maintain "Protected Material" Securely. Protected Material must be stored and maintained by a Receiving Party in a secure manner that ensures that access is limited to the persons authorized under this Order. Nothing in this Order shall be deemed to restrict in any way any Producing Party with respect to the use of its own Protected Material.
6.6 Presentation Of Protected Material To Court.
a. For any documents, pleadings, applications and/or motions submitted to the Court by any party, in connection with any proceeding other than a discovery motion, that attach, quote from, or refer to the substance of documents or materials containing or consisting of "CONFIDENTIAL Information or Items" or "HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY Information or Items," the submitting party shall present to the Court a written application and a proposed order demonstrating good cause along with the document(s) submitted for filing under seal in conformance with United States District Court for the Central District of California Local Rule ("Local Rule") 79-5.1. The proposed order shall address both the sealing of the application and order itself, if appropriate. The original and judge's copy of the documents containing the purported "CONFIDENTIAL Information or Items" or "HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY Information or Items" shall be submitted to the Court in separate sealed envelopes or other appropriate sealed containers with a copy of the title page attached to the front of each such envelope or container, and a statement substantially in the following form: "This envelope is sealed pursuant to [statute or rule], contains ["CONFIDENTIAL Information or Items" or "HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY Information or Items"] and is not to be opened or the contents revealed, except by Order of the Court or agreement by the parties."
b. Where filings under seal are explicitly authorized by statute or rule, the authority therefor shall appear on the title page of the proposed filing as required by Local Rule 79-5.1.
c. Applications and Orders to Seal, along with the material to be placed under seal, shall not be electronically filed, but shall be filed manually, and a Notice of Manual Filing shall be electronically filed identifying the manually filed materials.7. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION
If a Receiving Party is served with a subpoena or an order issued in other litigation that would compel disclosure of any information or items designated in this action as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY", the Receiving Party must so notify the Designating Party, in writing (by fax, if possible) within a reasonable time period and in no event more than three (3) court days after receiving the subpoena or order. Such notification must include a copy of the subpoena or court order. The Receiving Party also must immediately inform in writing the party who caused the subpoena or order to issue in the other litigation that some or all the material covered by the subpoena or order is the subject of this Order. In addition, the Receiving Party must deliver a copy of this Order promptly to the party in the other action that caused the subpoena or order to issue.
The purpose of imposing these duties is to alert the interested parties to the existence of this Order and to afford the Designating Party in this case an opportunity to protect its confidentiality interests in the court from which the subpoena or order issued.
8. 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 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 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 Exhibit A. The Designating Party reserves all rights against the Receiving Party for its violations. In the event any party or person violates or threatens to violate any term of this Order, any party may seek immediate injunctive relief against any such party or person violating or threatening to violate any term of this Order.
9. FINAL DISPOSITION
Unless otherwise ordered or agreed in writing by the Producing Party, within thirty (30) calendar days after the final termination of this litigation (including any appeals or court review), each Receiving Party, upon written request by opposing counsel, must return all Protected Material to the Producing Party. As used in this subdivision, all Protected Material includes all copies, abstracts, compilations, summaries or any other form of reproducing or capturing any of the Protected Material. With express permission in writing from the Producing Party, the Receiving Party may destroy some or all of the Protected Material instead of returning it. Whether the Protected Material is returned or destroyed, the Receiving Party must submit a written certification under penalty of perjury to the Producing Party (and, if not the same person or entity, to the Designating Party) by the thirty calendar day deadline that affirms that the Receiving Party has not retained any copies, abstracts, compilations, summaries or other forms of reproducing or capturing any of the Protected Material. Notwithstanding this provision, counsel are entitled to retain one archival copy of all pleadings, exhibits used in the litigation, motion papers, transcripts, legal memoranda, correspondence or attorney work-product, even if such materials contain Protected Material. Any such archival copies that contain or constitute Protected Material remain subject to this Order.
10. MISCELLANEOUS 10.1 Right to Further Relief . Nothing in this Order abridges the right of any person to seek its modification by the Court in the future. Each party expressly acknowledges that such modifications may be necessary. Further, each party expressly acknowledges that written modifications to this Order approved by the parties may be necessary as the case goes forward.
10.2 Enforcement . Each party and person bound by this Order, including all those who have executed Exhibit A, agrees that the United States District Court for the Central District of California has jurisdiction to enforce the terms of this Order, and that such jurisdiction continues beyond the date this matter is concluded. The United States District Court for the Central District of California shall retain jurisdiction over all parties and persons who have received Protected Material for the purpose of enforcing the provisions of the Order after the action is otherwise terminated, making such rulings and entering such orders as may be necessary to compel compliance and impose sanctions as the Court shall determine. Should a dispute materialize concerning whether a person was improperly provided Protected Material, the party in possession of Exhibit A for that person shall provide it to the complaining party upon five (5) court days written notice. 10.3 Right to Assert Other Objections . 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. The parties specifically agree that they shall not use this Order to support a waiver argument in any discovery motion, or to argue that any party waived its objections to produce any particular documents or information.
IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
EXHIBIT A ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I, __________________, of _________________ have read in its entirety and understand the First Amended Stipulated Protective Order ("Order") in the litigation of Sinden Collier d/b/a Sinden Collier Photography v. Jones Magazine, et al, United States District Court for the Central District of California Case Number CV10-06438-JAK (PLAx). I agree to comply with and to be bound by all the terms of this Order. I solemnly promise that I will not disclose in any manner any information or item that is subject to this Order to any person or entity except in strict compliance with the provisions of this Order. I fully understand that if I violate any provision of the Order, I will be subject to sanctions by the Court, in addition to any other remedies that a party may have. If I am not a party to this dispute, I agree that the Court may enforce this agreement at any time, including following the conclusion of this matter, and that an action may be brought in the United States District Court for the Central District of California to enforce the terms of this Order, and I submit to the jurisdiction of this Court.I hereby declare under penalty of perjury under the laws of the United States of America and the State of California that the foregoing is true and correct of my own personal knowledge.
Dated: ______________ Signature: _____________________ Full Name: _____________________ Address: _____________________ _____________________ Phone Number: __________________