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Insomniac, Inc. v. D Donnie Productions, Inc.

United States District Court, Ninth Circuit

November 5, 2013

INSOMNIAC, INC., a California corporation; and PASQUALE ROTELLA, an individual, Plaintiffs,
v.
D DONNIE PRODUCTIONS, INC., formerly known as DISCO PRODUCTIONS, INC., a Louisiana corporation; JAMES D. ESTOPINAL, JR., aka DISCO DONNIE, an individual; and DOES 1 through 10, inclusive, Defendants. DISCO PRODUCTIONS, INC., a Florida corporation and JAMES DONALD ESTOPINAL, an individual, Counterclaim Plaintiffs,
v.
PASQUALE ROTELLA, an individual and INSOMNIAC, INC., a California corporation, Counterclaim Defendants.

PROTECTIVE ORDER ENTERED PURSUANT TO THE PARTIES' STIPULATION

MARGARET A. NAGLE, Magistrate Judge.

Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure and based on the parties' [Proposed] Stipulated Protective Order Governing Confidential Information ("Stipulation") filed on October 29, 2013, 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 substantively modified by the Court's amendment of paragraph V. A. of the Stipulation.

The parties are expressly cautioned that the designation of any information, document, or thing as Confidential, Highly Confidential - Attorneys' Eyes Only, or other designation(s) used by the parties, does not, in and of itself, create any entitlement to file such information, document, or thing, in whole or in part, under seal. Accordingly, reference to this Protective Order or to the parties' designation of any information, document, or thing as Confidential, Highly Confidential - Attorneys' Eyes Only, or other designation(s) used by the parties, is wholly insufficient to warrant a filing under seal.

There is a strong presumption that the public has a right of access to judicial proceedings and records in civil cases. In connection with non-dispositive motions, good cause must be shown to support a filing under seal. The parties' mere designation of any information, document, or thing as Confidential, Highly Confidential - Attorneys' Eyes Only, or other designation(s) used by parties, does not - without the submission of competent evidence, in the form of a declaration or declarations, establishing that the material sought to be filed under seal qualifies as confidential, privileged, or otherwise protectable - constitute good cause.

Further, if sealing is requested in connection with a dispositive motion or trial, then compelling reasons, as opposed to good cause, for the sealing must be shown, and the relief sought shall be narrowly tailored to serve the specific interest to be protected. See Pintos v. Pacific Creditors Ass'n , 605 F.3d 665, 677-79 (9th Cir. 2010). For each item or type of information, document, or thing sought to be filed or introduced under seal in connection with a dispositive motion or trial, the party seeking protection must articulate compelling reasons, supported by specific facts and legal justification, for the requested sealing order. Again, competent evidence supporting the application to file documents under seal must be provided by declaration.

Any document that is not confidential, privileged, or otherwise protectable in its entirety will not be filed under seal if the confidential portions can be redacted. If documents can be redacted, then a redacted version for public viewing, omitting only the confidential, privileged, or otherwise protectable portions of the document, shall be filed. Any application that seeks to file documents under seal in their entirety should include an explanation of why redaction is not feasible.

Notwithstanding any other provision of this Protective Order, in the event that this case proceeds to trial, all information, documents, and things discussed or introduced into evidence at trial will become public and available to all members of the public, including the press, unless sufficient cause is shown in advance of trial to proceed otherwise.

TERMS OF PROTECTIVE ORDER

I. SCOPE

This Protective Order shall apply to and govern documents, information, and other matter produced or furnished during the course of discovery in the above-captioned proceedings pursuant to the Federal Rules of Civil Procedure, the Local Rules of the above-entitled Court ("Local Rules"), or otherwise, to the extent such materials are designated as constituting or containing Confidential Information pursuant to Section III of this Protective Order. This Protective Order does not affect the enforceability of any existing confidentiality agreements, confidentiality provisions, or protective orders governing documents, information, or other matter produced in connection with this Action, including, but not limited to, confidentiality agreements, protective orders, or restrictions on the dissemination of materials collected or created in the course of other litigation.

II. DEFINITIONS

A. "Action" shall refer to the above-entitled proceedings in the United States District Court for the Central District of California.

B. "Designating Party" shall mean a party or third party that designates information as confidential pursuant to Section III below.

C. "Furnishing Party" shall mean a party to the Action, or a third party subject to subpoena, on behalf of which documents, things, or information are furnished or produced in connection with the Action.

D. "Receiving Party" shall mean a party to the Action to which documents, things, or information are furnished or produced in connection with the Action.

E. "Confidential Information" shall mean confidential or proprietary business, personal, or technical information that is not generally known and that the Designating Party would not normally reveal to third parties, or would cause or require third parties to maintain in confidence, that is designated with a legend set forth in Section III hereof.

F. "Counsel" shall mean counsel of record for a party to this Action and secretarial, clerical, and paralegal personnel assisting such counsel. "Counsel" shall not include persons engaged or retained by or on behalf of any party as an Expert Consultant.

G. "Expert Consultant" shall mean any person other than Counsel who is retained or sought to be retained by or on behalf of a party to the Action to advise and assist in the preparation and presentation of the party's case. For purposes of this Protective Order, Expert Consultants shall include individuals retained as experts, whether or not designated to testify at trial.

III. DESIGNATION OF INFORMATION

A. Documents, information, and other matter produced or furnished during the course of the Action, including, without limitation, documents, information, and matter produced in response to requests for production of documents, to interrogatories, to requests for admissions, to subpoenas, or during depositions, may be designated as constituting or containing Confidential Information, prior to producing or furnishing the documents or things, by placing on each page and each thing to which the designation applies a legend stating "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY." The Designating Party shall make this designation based on its good faith determination that such designation applies.

B. For information produced in some form other than documentary and for any other physical items, the Designating Party shall affix in a prominent place on the exterior of the container or containers in which the information or item is stored the legend stating "CONFIDENTIAL, " or "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY."

C. The parties agree Confidential Information may include, but is in no way limited to, non-public financial information, accounting records, financial and business models, and trade secrets. Pursuant to Section VII below, any party's inadvertent failure to mark such materials as constituting or containing ...


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