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IV Solutions, Inc. v. Takecare Insurance Co., Inc.

United States District Court, Ninth Circuit

December 18, 2013

IV SOLUTIONS, INC., a California corporation, Plaintiff,
v.
TAKECARE INSURANCE COMPANY, INC., a Guam corporation; and DOES 1 through 25, inclusive, Defendants.

PROTECTIVE ORDER ENTERED PURSUANT TO THE PARTIES' STIPULATION

MARGARET A. NAGLE, District Judge.

Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure and based on the parties' Stipulated Protective Order and [Proposed] Order Thereon ("Stipulation") filed on November 22, 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 paragraphs 6(a), 8(b), 9, 12, 17, and 22 of, and Exhibit A to, the Stipulation.

The parties are expressly cautioned that the designation of any information, document, or thing as "Confidential, " "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, " "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, " "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.

THE PARTIES ARE DIRECTED TO REVIEW CAREFULLY AND ACT IN COMPLIANCE WITH ALL ORDERS ISSUED BY THE HONORABLE JOHN F. WALKER, UNITED STATES DISTRICT JUDGE, INCLUDING THOSE APPLICABLE TO PROTECTIVE ORDERS AND FILINGS UNDER SEAL.

TERMS OF PROTECTIVE ORDER

1. Definitions: For purposes of this Protective Order, the following definitions shall apply:

a. "Confidential Material": Information (regardless of how created, generated, stored, or maintained) or tangible things that have not been made public, the disclosure of which the disclosing Party contends could cause harm to the business operations of the disclosing Party or provide improper advantage to others, as well as information that includes non-public personal or private information, such as (without limitation) personal health information.
b. "Confidential Attorneys' Eyes Only" Material ("AEO Material"): Confidential Material that is technical, commercial, financial, or marketing in nature and that the disclosing Party reasonably and in good faith believes is so highly sensitive that its disclosure to an employee of a receiving Party would reveal significant business or financial advantages of the disclosing Party. It includes, without limitation, information that the Designating Party reasonably and in good faith believes relates to: (1) current business/strategic plans; (2) technical product specifications and information; (3) sales, cost, and price information including future sales/financial projections; (4) non-public marketing information including future marketing plans; (5) detailed sales and financial data; (6) customer or supplier lists; or (7) other information of competitive, technical, financial, or commercial significance comparable to the items listed in this paragraph.
c. "Challenging Party": A Party that challenges the designation of information or items under this Protective Order.
d. "Designating Party": A Party that designates information or items that it produces in disclosures or in responses to discovery as "Confidential" or "Confidential Attorneys' Eyes Only" Material.

2. This Protective Order shall govern the production, use, and handling of Confidential Material and AEO Material produced by any Party or non-Party that provides discovery in connection with the above-captioned action (hereinafter referred to as "Parties" or "Party"), including responses to written discovery and deposition testimony. All Confidential Material and AEO Material subject to this Protective Order shall be used solely for the prosecution and/or defense of the Action and shall not be used by any other Party, other than the Party that produced it, in any litigation other than the Action, for business, for competitive purposes, or for any other purpose whatsoever. The protections conferred by this Protective Order cover not only Confidential Material and AEO Material, but also: (1) any information copied or extracted from such Material; (2) all copies, excerpts, summaries, or compilations of such Material; and (3) any testimony, conversations, or presentations by Parties or their Counsel that might reveal such Material. However, the protections conferred by this Protective 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 Protective 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. Each Party shall designate Confidential Material by placing a "CONFIDENTIAL" stamp on each page so designated, for each document or for such information that, in good faith, the Party believes is Confidential Material. Any testimony designated as "CONFIDENTIAL" shall be so designated by a Party at the time of said deposition or within seven (7) business days of receipt of the deposition transcript, whichever is the later. Documents and written discovery responses shall be designated as "CONFIDENTIAL" at the time of production. If timely corrected, an inadvertent failure to designate qualified information or items does not, standing alone, waive the Designating Party's right to secure protection under this Protective Order for such material. Upon timely correction of a designation, the receiving Party must make reasonable efforts to assure that the material is treated in accordance with the provisions of this Protective Order.

4. Each Party shall designate AEO Material by placing a "CONFIDENTIAL ATTORNEYS' EYES ONLY" stamp on each page so designated, for each document or information that, in good faith, the Party believes is AEO Material. Any deposition testimony designated as "CONFIDENTIAL ATTORNEYS' EYES ONLY" shall be so designated by a Party at the time of said deposition or within seven (7) business days of receipt of the deposition transcript, whichever is later. Documents and written discovery responses shall be designated as "CONFIDENTIAL ATTORNEYS' EYES ONLY" at the time of production. Notwithstanding any other terms of this Protective Order, a Party may not designate material produced by another Party as AEO Material. If timely corrected, an inadvertent failure to designate qualified information or items does not, standing alone, waive the Designating Party's right to secure protection under this Protective Order for such material. Upon timely correction of a designation, the receiving Party must make reasonable efforts to assure that the material is treated in accordance with the provisions of this Protective Order.

5. Confidential Material shall not be shown, revealed, released, disclosed, or communicated in any way to any person or entity, except those listed in Paragraphs 6 and 9 below, without the advance written authorization of the Designating Party.

6. Confidential Material may only be disclosed to the following:

a. To the Court and its personnel, subject to Paragraph 9 below;
b. Outside counsel for the Parties to the Action, their respective associates, partners, clerks, paralegals, legal assistants, secretaries, and other support staff who are actively engaged in assisting such ...

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