United States District Court, C.D. California, Western Division
February 26, 2014
Adela Ramirez, et al., Plaintiffs,
ITW Food Equipment Group LLC, Defendant.
Luiza Manuelian Sally Hosn Poole & Shaffrey, LLP Los Angeles, CA Attorneys for Defendant ITW FOOD EQUIPMENT GROUP LLC
Elizabeth B. Wright (admitted pro hac vice) Andrew H. Cox (admitted pro hac vice) Conor A. McLaughlin (admitted pro hac vice) Thompson Nine LLP Cleveland, OH Attorneys for Defendant ITW FOOD EQUIPMENT GROUP LLC
Frank J. D'Oro carl Kremer Wesierski & Zurek LLP Los Angeles, California Attorneys for Plaintiffs ADELA RAMIREZ and VALLARTA FOOD ENTERPRISES, INC.
Dennis W. Ryan Dennis W. Ryan, Inc. Woodland Hills, CA Attorney for Plaintiff ADELA RAMIREZ
STIPULATED SHARING AND NON-SHARING PROTECTIVE ORDER
ALICIA G. ROSENBERG, Magistrate Judge.
In order to preserve and maintain the confidentiality of certain confidential, commercial and/or proprietary documents and information produced or to be produced by ITW Food Equipment Group LLC ("ITW FBG") in this action, it is ordered that:
1. Documents to be produced by ITW FEG in this litigation that contain confidential, commercially sensitive and/or proprietary information shall hereafter be referred to as "Protected Documents." A document or portion of a document that ITW FEG determines in good faith to be a Protected Document may be designated as confidential by marking or placing the applicable notice "Subject to Non-Sharing Protective Order, " "Subject to Protective Order, " "Confidential, " or substantially similar language on media containing Protected Documents, on the document itself, or on a copy of the document, in such a way that it does not obscure the text or other content of the document.
2. As used in this Order, the term "documents" means all written material, videotapes and all other tangible items, produced in whatever format (e.g., hard copy, electronic, digital, etc.) and on whatever media (e.g., hard copy, videotape, computer diskette, CD-ROM, DVD, hard drive or otherwise).
3. Any document or any information designated as "Subject to Non-Sharing Protective Order, " "Subject to Protective Order, " "Confidential, " or substantially similar language in accordance with the provisions of this Order shall only be used, shown or disclosed as provided in this Order.
4. If a party disagrees with the "Protected" designation of any document, the party will so notify, ITW FEG in a written letter, identifying the challenged document(s) with specificity, including Bates number(s) where available. If the parties are unable to resolve the issue of confidentiality regarding the challenged document(s), ITW FEG will then timely apply to the Court to set a hearing for the purpose of establishing that the challenged document(s) is/are confidential. Any document so marked as "Protected" will continue to be treated as such pending determination by the Court as to its confidential status.
5. Protected Documents and any copies thereof received pursuant to paragraph 6 below shall be maintained confidential by the receiving party, his/her attorney, other representatives, and expert witnesses, and shall be used only for preparation for the trial of this matter, subject to the limitations set forth herein.
6. Protected Documents shall be disclosed only to "Qualified Persons." Qualified Persons are limited to:
a. Counsel of Record for the parties;
b. Non-technical and clerical staff employed by Counsel of Record and involved in the preparation and trial of this action;
c. Experts and non-attorney consultants retained by the parties for the preparation and/or trial of this case, provided that no disclosure shall be made to any expert or consultant who is employed by a competitor of ITW FEG; and
d. The Court, the Court's staff, witnesses, and the jury in this case; and
e. With respect to documents designated as "Sharing" or "Subject to Protective Order, " attorneys representing Plaintiff(s), and the experts and non-attorney consultants retained by such attorneys, in other cases pending against ITW PEG relating to the MG 1532 mixer-grinder, provided no disclosure shall be made to any expert or consultant who is employed by a competitor of ITW FEG.
7. Plaintiff/Plaintiffs' Counsel must make reasonable efforts to ensure the individuals described in paragraphs 6(c) and 6(e) above are Qualified Persons.
8. Before receiving access to any Protected Document or the information contained therein, each person described in paragraphs 6(c) and 6(e) above shall execute a "Written Assurance" in the form contained in Exhibit A, attached hereto. Counsel for Plaintiffs shall retain each such executed Written Assurance and shall keep a list identifying (a) all persons described in paragraphs 6(c) and 6(e) above to whom Protected Documents have been disclosed, and (b) all Protected Documents disclosed to such persons. Each such executed Written Assurance and list shall be submitted to counsel for ITW FEG at the termination of this litigation or upon Order of the Court requiring production, whichever comes first. However, for consulting experts who were not designated as testifying experts, Plaintiffs' counsel may redact the name, address, and signature of the consultant before disclosing the executed Exhibit A and document list for that person. To the extent the "Qualified Persons" described in paragraph 6(c) or 6(e) above include privileged non-testifying expert consultants, Counsel for Plaintiffs shall retain each such executed Exhibit A and shall keep a list identifying (a) all such non-testifying expert consultants described in paragraphs 6(c) and 6(e) above to whom Protected Documents have been disclosed, and (b) all Protected Documents disclosed to such persons. In the event that ITW FEG seeks to compel the production of each unredacted and executed Exhibit A for good cause, Counsel for Plaintiffs shall submit each unredacted and executed Exhibit A and list to the Court for in camera inspection. Persons described in paragraph 6(b) shall be covered under the signature of Counsel of Record.
9. As the Protected Documents may only be distributed to Qualified Persons, Plaintiff's/Plaintiffs' Counsel, and all persons described in paragraph 6 above, may not post Protected Documents on any website or internet accessible document repository and shall not under any circumstance sell, offer for sale, advertise, or publicize either the Protected Documents and the Confidential information contained therein or the fact that such persons have obtained ITW FEG's Protected Documents and Confidential information.
10. To the extent that Protected Documents or information obtained therefrom are used in the taking of depositions and/or used as exhibits at trial, such documents or information shall remain subject to the provisions of this Order, along with the transcript pages of the deposition testimony and/or trial testimony dealing with, referring to or referencing the Protected Documents or information.
11. All documents that are filed with the Court that contain any portion of any Protected Document or information taken from any Protected Document shall be submitted with an application to file under seal pursuant to local rule 79-5.
12. Any court reporter or transcriber who reports or transcribes deposition testimony in this action shall agree that all "confidential" information designated as such under this Order shall remain "confidential" and shall not be disclosed by them, except pursuant to the terms of this Order, and that any notes or transcriptions of such testimony (and any accompanying exhibits) will be retained by the reporter or delivered to counsel of record.
13. To the extent ITW FEG is requested to produce documents it has determined should not be subject to the sharing provision of this protective order in paragraph 6(e), ITW PEG will designate such documents as "Non-Sharing." Documents designated as "Non-Sharing" shall not be shared under paragraph 6(e).
14. With respect to Protected Documents designated as "Non-Sharing, " within ninety (90) days after the conclusion of this case, counsel for the parties who received Protected Documents, including any documents that any such party disclosed to any person described in paragraph 6(c) above, shall either (a) return to ITW FEG the Protected Documents; or (b) securely destroy the Protected Documents and certify such destruction to ITW FEG.
15. With respect to documents designated as "Sharing" or "Subject to Protective Order, " Counsel for the parties shall not be required to return the Protected Documents to ITW FEG after the conclusion of this case and may retain the documents pursuant to the terms of this Order.
16. Inadvertent or unintentional production of documents or information containing confidential information that should have been designated as Protected Document(s) shall not be deemed a waiver in whole or in part of the party's claims of confidentiality.
17. This Protective Order may not be waived, modified, abandoned or terminated, in whole or part, except by an instrument in writing signed by the parties. If any provision of this Protective Order shall be held invalid for any reason whatsoever, the remaining provisions shall not be affected thereby.
18. After termination of this litigation, the provisions of this Order shall continue to be binding. This Court retains and shall have jurisdiction over the parties and recipients of the Protected Documents for enforcement of the provisions of this Order following termination of this litigation.
19. This Protective Order shall be binding upon the parties hereto, upon their attorneys, and upon the parties' and their attorneys' successors, executors, personal representatives, administrators, heirs, legal representatives, assigns, subsidiaries, divisions, employees, agents, independent contractors, or other persons or organizations over which they have control.
20. A breach of the terms of this Order may entitle ITW FEG to appropriate sanctions, including, but not limited to attorneys' fees and costs incurred in the enforcement of this Order.
AFFIDAVIT OF ________________________________________, being duly sworn and personally appearing before the undersigned attesting officer, duly authorized by law to administer oaths, deposes and says that the within statements are true and correct:
I have read the Stipulated Sharing and Non-Sharing Protective Order attached hereto, and I understand its terms and meanings.
I agree that my signature below submits me to the jurisdiction of the United States District Court, Central District of California, in the above captioned case and binds me to the provisions of the Stipulated Sharing and Non-Sharing Protective Order, including to all promises undertaken in the Order, as if originally agreed by me.