VPR Brands LP v. Jupiter Research LLC, No. 2:2020cv02185 - Document 24 (D. Ariz. 2021)
Court Description: ORDER granting the parties' 21 Motion for Protective Order. Signed by Judge Diane J Humetewa on 9/15/2021. (See Order for details.) (LFIG)
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 VPR Brands LP, 9 Plaintiff, 10 11 v. 12 Jupiter Research LLC, 13 No. CV-20-02185-PHX-DJH ORDER Defendant. 14 15 Pending before the Court is the parties’ Motion for Protective Order (Doc. 21). For 16 good cause appearing, the Court finds that a protective order regarding discovery material 17 (defined below) and the use of confidential documents is necessary because certain 18 information and documentation subject to disclosure and sought through discovery are 19 personal, confidential, and proprietary in nature.1 20 Accordingly, 21 IT IS HEREBY ORDERED AS FOLLOWS: 22 I. DEFINITIONS Designated Material 23 24 The term “Designated Material” shall mean any Discovery Material (as defined in 25 Section I.C) designated by a Producing Party (as defined in Section I.F) as either 26 1 27 28 The Court made one change from the parties’ proposed order. Under Section IX, Unintentional Disclosure of Attorney-Client or Work Product Material, if the parties disagree about whether a returned or destroyed document is subject to the protections of the attorney-client privilege or work product immunity, they must first attempt to resolve the dispute in accordance with the Court’s discovery dispute protocol as outlined in the Rule 16 Scheduling Order. (Doc. 19 at ¶ 10). 1 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY” in 2 accordance with Paragraphs III.A to III.D below. All Designated Material and any 3 information or material copied or derived therefrom, and all copies, excerpts, and 4 summaries thereof, as well as testimony and oral conversations which reveal that 5 information, shall be treated as and hereinafter referred to as Designated Material. 6 Confidential and Highly Confidential - Attorneys’ Eyes Only 7 1. “CONFIDENTIAL” comprises or contains information that the 8 Producing Party claims in good faith to constitute or relate to sensitive business, 9 financial, or commercial information (including identifying information for 10 customers of the Producing Party) that is not publicly available and provides a 11 commercial advantage to its possessor and the disclosure of which to persons other 12 than those set forth in Section V.A. below would create a substantial risk of serious 13 harm that could not be avoided by less restrictive means. 14 2. “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY” 15 comprises or contains information that the Producing Party claims in good faith is 16 information that is of a highly confidential nature and is competitively sensitive or 17 important to the Producing Party’s business, including, but not limited to, non- 18 public pricing and revenue information, and other sensitive financial data, the 19 disclosure of which to persons other than those set forth in Section V.B below could 20 create a risk of harm that could not be avoided by less restrictive means. 21 Discovery Material 22 The term “Discovery Material” shall mean any Document (as defined at Section 23 I.D), material, item, testimony, or thing filed with or presented to the Court or produced, 24 served, exchanged, or generated during the discovery process, including, for example, 25 exhibits; answers to interrogatories; responses to requests for admissions; responses to 26 requests for production and any documents produced in connection therewith; subpoenas; 27 declarations; affidavits; letters; emails; deposition testimony or transcripts; and all copies, 28 extracts, summaries, compilations, designations, and portions thereof. -2- 1 Documents 2 The term “Document” shall mean all writings, recordings, or photographic materials 3 as described and defined in Rule 1001 of the Federal Rules of Evidence, including 4 electronically stored information and data, whether produced or created by a Party or 5 another person, and whether produced pursuant to Federal Rule of Civil Procedure 34, 6 pursuant to a subpoena, by agreement, or otherwise. This shall include, but not be restricted 7 to, all interrogatory answers, responses to requests for production or for admission(s), 8 deposition testimony, and deposition exhibits. This Protective Order is not intended to, and 9 shall not, expand, enlarge, or otherwise change any Party’s obligations concerning the 10 scope, limitations, and form of discovery as set forth in any Discovery Plan and Scheduling 11 Order put in place in the Lawsuit. 12 Party 13 14 15 The term “Party” shall refer to any plaintiff or defendant in the Lawsuit, namely, VPR Brands, LP, Jupiter Research, LLC. Producing Party 16 The term “Producing Party” shall mean any Party to the Lawsuit or any non-party, 17 including its counsel, retained experts, directors, officers, employees, or agents, who 18 produces any Discovery Material during discovery for the Lawsuit. 19 Receiving Party 20 The term “Receiving Party” shall mean any Party to the Lawsuit, including its 21 counsel, retained experts, directors, officers, employees, or agents, who receives any 22 Discovery Material. 23 II. RESTRICTION ON DISCLOSURE AND USE OF DESIGNATED MATERIAL 24 Scope 25 This Order shall encompass all Discovery Material produced during this Lawsuit 26 except that this Order shall not encompass information that (a) is lawfully in the possession 27 of or otherwise known to the Receiving Party or the public before the date of its 28 transmission to the Receiving Party, (b) lawfully comes into the possession of the -3- 1 Receiving Party by means other than by production by Producing Party, or (c) lawfully 2 comes into the possession of or otherwise becomes known to the public after the date of its 3 transmission to the Receiving Party, provided that such information does not become 4 publicly known by any act or omission of the Receiving Party that would be in violation 5 of this Order. 6 Purpose 7 Designated Materials shall be used solely for purposes of and in connection with 8 this Lawsuit and the information contained therein shall not be used or disclosed for any 9 other purpose, including, without limitation, any business or commercial purpose. 10 Confidentiality 11 Designated Material and the information derived from such Designated Material 12 (excluding information which is derived lawfully from an independent source) shall not be 13 given, shown, made available, discussed, or otherwise communicated or disclosed in any 14 manner, either directly or indirectly, to any person not authorized to receive the information 15 under the terms of this Order. 16 Maintenance of Designated Material 17 Designated Material shall be maintained by the Receiving Party at a location and 18 under circumstances reasonably designed to ensure compliance with this Order. The 19 Receiving Party shall protect the confidentiality of Designated Material using procedures 20 that are no less stringent than the measures used to protect the Receiving Parties’ own 21 Designated Material or similar confidential material. 22 Restrictions on Designated Materials 23 The restrictions on the use of Designated Material established by this Order are 24 applicable to the Receiving Party. A Producing Party is free to do whatever it desires with 25 its own Designated Material. 26 Discovery from Non-Parties 27 Information sought or obtained from a person not a Party to the Lawsuit (“non- 28 party”) shall be treated as Designated Material if requested by the non-party. Any such -4- 1 information designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - 2 ATTORNEYS’ EYES ONLY” pursuant to Paragraphs III.A to III.D by a non-party will 3 be accorded the same protection as the parties’ Designated Material, and will be subject to 4 the same procedures as those governing disclosure of the parties’ Designated Material 5 pursuant to this Order. Any Party may seek to challenge designations by a non-party under 6 the provisions of Paragraph IV.B after providing at least ten (10) business days written 7 notice to the non-party and agreeing that it will not object to the non-party appearing in 8 this Lawsuit for the limited purpose of seeking to preserve its requested designation. Unintentional Disclosure of Designated Material 9 10 If Designated Material, or any portion thereof, is disclosed by the Receiving Party 11 to any person or Party not authorized to receive such Designated Material under this 12 Protective Order, then the Receiving Party shall use its best efforts to retrieve immediately 13 all copies of such Designated Material, and to bind such person to the terms of this Order. 14 In such event, the Receiving Party shall also (a) promptly inform such person of all the 15 provisions of this Order; (b) identify such person immediately to the Producing Party; and 16 (c) request that such person execute the Confidentiality Undertaking in Exhibit A. 17 III. PROCEDURE FOR MARKING DESIGNATED MATERIAL 18 Any Producing Party may mark Designated Material as either “CONFIDENTIAL” 19 or “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY” in accordance with this 20 Order. The burden of establishing that Designated Material is either “CONFIDENTIAL” 21 or “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY” as defined herein shall 22 be on the Producing Party. 23 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY” 24 shall be deemed effective unless and until the Court orders otherwise or the Producing 25 Party withdraws the designation. Designated material must be marked in the following 26 manner: 27 28 1. The designation of Designated Material as either In the case of documents or any other tangible thing produced, designation shall be made by placing the legend “CONFIDENTIAL” or -5- 1 “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY” on each page of 2 the document or on the cover or in a prominent place on any other tangible thing 3 prior to production of the document or tangible thing along with a designation, 4 e.g., bates number prefix, of the identity of the Producing Party; 5 In the case of electronically stored information (“ESI”) produced in 2. 6 native format, designation shall be made by contemporaneously producing a 7 bates-numbered slip sheet bearing the legend “CONFIDENTIAL” or “HIGHLY 8 CONFIDENTIAL - ATTORNEYS’ EYES ONLY,” and including the 9 corresponding bates number in the file name of the native-format file (e.g., 10 [FILENAME].xls). Any Party printing or otherwise creating a tangible copy of 11 the native file shall include the legend “CONFIDENTIAL” or “HIGHLY 12 CONFIDENTIAL - ATTORNEYS’ EYES ONLY” on each page of the 13 document; 14 3. In producing original files and records for inspection, no marking 15 need be made by the Producing Party in advance of the inspection. For the 16 purposes of the inspection, all documents produced shall be considered as 17 marked “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY.” 18 Thereafter, upon selection of specified documents for copying by the Receiving 19 Party, the Producing Party shall mark as either “CONFIDENTIAL” or 20 “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY,” as applicable, 21 the copies of such documents as may contain either CONFIDENTIAL or 22 HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY, as defined in 23 Paragraphs I.B.1 and I.B.2 at the time the copies are produced to the Receiving 24 Party. 25 CONFIDENTIAL or HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES 26 ONLY information before it is copied and marked pursuant to this Order; and 27 28 There will be no waiver of confidentiality by the inspection of 4. In the case of testimony provided during a deposition or hearing, transcripts or portions thereof shall be designated by the Producing Party either -6- 1 (i) on the record during the deposition or hearing, in which case the pages of the 2 transcript containing Designated Material shall be marked “CONFIDENTIAL” 3 or “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY,” as applicable, 4 by the reporter, as a Party may direct; or (ii) by captioned, written notice to the 5 reporter and all counsel of record, given within thirty (30) business days after 6 the reporter sends written notice to the witness or the witness’s counsel that the 7 transcript is available for review, in which case all counsel receiving such notice 8 shall be responsible for marking the copies of the designated transcript or portion 9 thereof in their possession or control as directed by the Producing Party or 10 witness. Pending expiration of the thirty-day period or the receipt of such written 11 notice from a Party (whichever comes first), all parties and, if applicable, any 12 third-party witnesses or attorneys, shall treat the deposition transcript and the 13 information contained therein as if it had been designated HIGHLY 14 CONFIDENTIAL - ATTORNEYS’ EYES ONLY. If no such written notice is 15 provided within the thirty-day period, the designation(s) made during the 16 deposition shall stand. If such written notice is provided, the designation(s) 17 provided in such notice shall be effective upon receipt. No person other than a 18 court reporter or Court personnel shall attend the designated portions of such 19 depositions unless such person is an authorized recipient of Designated Material 20 under the terms of this Order. 21 5. In the event that a deposition or hearing is attended only by persons 22 authorized to receive Designated Material, counsel may, for purposes of 23 efficiency, state on the record that the entire transcript for that day is to be treated 24 as Designated Material until such time as there is a written request to specifically 25 identify the portions of the transcript that are CONFIDENTIAL or HIGHLY 26 CONFIDENTIAL - ATTORNEYS’ EYES ONLY. In the event of such request, 27 the Party desiring to maintain the treatment of any portion of the transcript as 28 CONFIDENTIAL or HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES -7- 1 ONLY shall specify, by page and line numbers, the designated portions within 2 thirty (30) days of the written request. 3 IV. CONTESTING THE DESIGNATION 4 No Party to this Lawsuit shall be obligated to challenge the propriety of any 5 designation by any Producing Party, and a failure to do so shall not constitute a waiver or 6 in any way preclude a subsequent challenge in the Lawsuit to the propriety of such 7 designation. 8 Any Party may contest a claim of confidentiality. Any Party objecting to the 9 designation of any Discovery Material as either CONFIDENTIAL or HIGHLY 10 CONFIDENTIAL - ATTORNEYS’ EYES ONLY must give outside counsel of record for 11 the Producing Party (or, if the Producing Party is not represented by counsel in the Lawsuit, 12 the Producing Party itself) written notice of its reasons for the objection at least thirty (30) 13 days prior to the commencement of trial in this Lawsuit. The Producing Party will then 14 have ten (10) business days after receipt of such notice to change the designation or respond 15 in writing why the designation is appropriate. Failing resolution after service of the written 16 notice of its reasons for the objection, the Producing Party objecting may, on a duly noticed 17 motion, seek a protective order to maintain the designation. On such motion, the Producing 18 Party asserting confidentiality has the burden of showing that the designation is 19 appropriate. The information designated as either CONFIDENTIAL or HIGHLY 20 CONFIDENTIAL - ATTORNEYS’ EYES ONLY shall remain as such (i) unless the 21 Producing Party does not respond in writing why the designation is appropriate within ten 22 (10) business days after receipt of the written notice of the objecting Party’s reasons for 23 the objection; (ii) until the matter is resolved by Court order; or (iii) until agreement of the 24 Producing Party. 25 V. DISCLOSURE OF DESIGNATED MATERIALS 26 Unless otherwise directed by the Court or authorized in writing by the Producing 27 Party, Discovery Material designated as CONFIDENTIAL under this Order may be 28 disclosed by the Receiving Party only to the following persons: -8- 1 1. counsel of record for the Receiving Party, including their regularly 2 employed support staff (law clerks, paralegals, secretaries, and clerical staff) 3 assisting with the Lawsuit; 4 2. the parties’ respective attorneys (irrespective of whether they are 5 counsel of record in the Lawsuit), including their in-house counsel and regularly 6 employed support staff (law clerks, paralegals, secretaries, and clerical staff) 7 assisting with the Lawsuit; 8 9 10 3. the officers, directors, and employees of the Receiving Party to whom disclosure is directly necessary for the Lawsuit; 4. Judges, Magistrate Judges, law clerks, and clerical personnel of 11 the Court before which the Lawsuit is pending including any appellate Court, 12 and the jury, if any; 13 14 15 5. court reporters and other persons involved in recording or transcribing hearings, trial testimony, or deposition testimony in the Lawsuit; 6. consultants (not including trial and jury consultants), or experts 16 and their staff who are expressly retained or sought to be retained by an attorney 17 described in subparagraph 1 or 2 of this section to provide assistance in the 18 Lawsuit, provided that any such persons first execute the Confidentiality 19 Undertaking in Exhibit A. Disclosures under this sub-paragraph are to be made 20 only to the extent necessary to perform such assistance; 21 7. any person who authored and/or received the particular 22 CONFIDENTIAL information sought to be disclosed to that person, or any 23 witness testifying in a deposition or hearing when the examining attorney has a 24 good faith basis to believe the witness is the author and/or received the particular 25 CONFIDENTIAL information sought to be disclosed to that witness. Any 26 witness testifying in a deposition or hearing may be shown CONFIDENTIAL 27 information of a Producing Party provided that the witness is: (a) a current 28 employee, attorney, director, officer, or agent of the Producing Party, or a -9- 1 corporate designee of the Producing Party under Rule 30(b)(6) of the Federal 2 Rules of Civil Procedure; or (b) a former employee, attorney, director, officer, 3 or agent of the Producing Party if, at the time of the witness’ employment, the 4 CONFIDENTIAL information was in existence and the witness had access to 5 such CONFIDENTIAL information; 6 8. litigation support vendors retained by outside counsel for such 7 functions as photocopying, scanning, stenography, videography, imaging, or 8 preparation of graphics, demonstratives, and audio and/or video productions or 9 other exhibits for deposition, trial, or other court proceedings in the Lawsuit, but 10 only if they execute the Confidentiality Undertaking in Exhibit A, and only to 11 the extent necessary for the particular litigation support services being rendered 12 and in accordance with the vendor’s ordinary operating procedure; 13 9. mock jurors, trial consultants, and jury consultants engaged by the 14 parties in preparation for trial, provided that (i) no Party will use any mock juror, 15 trial consultant, or jury consultant who is employed or affiliated with or who 16 knows any person employed by or affiliated with either Party to the Lawsuit; (ii) 17 mock jurors, trial consultants, and jury consultants will not be allowed to retain 18 any tangible materials that contain or disclose any Designated Material; and (iii) 19 any such persons first execute the Confidentiality Undertaking in Exhibit A; and 20 10. persons who have been retained by a Party to provide translation 21 or interpretation from one language to another, provided that such translators 22 execute the Confidentiality Undertaking in Exhibit A. 23 Unless otherwise directed by the Court or authorized in writing by the Producing 24 Party, Discovery Material designated as HIGHLY CONFIDENTIAL - ATTORNEYS’ 25 EYES ONLY may be disclosed by the Receiving Party only to the following persons: 26 1. counsel of record for the Receiving Party, including their regularly 27 employed support staff (law clerks, paralegals, secretaries, and clerical 28 staff) assisting with the Lawsuit; - 10 - 1 2. the parties’ respective attorneys (irrespective of whether they are 2 counsel of record in the Lawsuit), including their in-house counsel and regularly 3 employed support staff (law clerks, paralegals, secretaries, and clerical staff) 4 assisting with the Lawsuit; 5 3. Judges, Magistrate Judges, law clerks, and clerical personnel of the 6 Court before which the Lawsuit is pending including any appellate Court, and 7 the jury, if any; 8 court reporters and other persons involved in recording or transcribing 9 hearings, trial testimony, or deposition testimony in the Lawsuit; 10 consultants (not including trial and jury consultants), or experts and their 11 staff who are expressly retained or sought to be retained by an attorney 12 described in subparagraph 1 or 2 of Section V.A to provide assistance in 13 the Lawsuit, provided that any such persons first execute the 14 Confidentiality Undertaking in Exhibit A. Disclosures under this sub- 15 paragraph are to be made only to the extent necessary to perform such 16 work; 17 4. any person who authored and/or received the particular HIGHLY 18 CONFIDENTIAL - ATTORNEYS’ EYES ONLY information sought to be 19 disclosed to that person, or any witness testifying in a deposition or hearing when 20 the examining attorney has a good faith basis to believe the witness is the author 21 and/or received the particular HIGHLY CONFIDENTIAL - ATTORNEYS’ 22 EYES ONLY information sought to be disclosed to that witness. Any witness 23 testifying in a deposition or hearing may be shown HIGHLY CONFIDENTIAL 24 - ATTORNEYS’ EYES ONLY information of a Producing Party provided that 25 the witness is: (a) a current employee, attorney, director, officer, or agent of the 26 Producing Party, or a corporate designee of the Producing Party under Rule 27 30(b)(6) of the Federal Rules of Civil Procedure; or (b) a former employee, 28 attorney, director, officer, or agent of the Producing Party if, at the time of the - 11 - 1 witness’ employment, the HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES 2 ONLY information was in existence and the witness had access to such 3 HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY information; 4 5. litigation support vendors retained by outside counsel for such 5 functions as photocopying, scanning, stenography, videography, imaging, or 6 preparation of graphics, demonstratives, and audio and/or video productions or 7 other exhibits for deposition, trial, or other court proceedings in the Lawsuit, but 8 only if they execute the Confidentiality Undertaking in Exhibit A, and only to 9 the extent necessary for the particular litigation support services being rendered and in accordance with the vendor’s ordinary operating procedure; 10 11 6. mock jurors, trial consultants, and jury consultants engaged by the 12 parties in preparation for trial, provided that (i) no Party will use any mock juror, 13 trial consultant, or jury consultant who is employed or affiliated with or who 14 knows any person employed by or affiliated with either Party to the Lawsuit; (ii) 15 mock jurors, trial consultants, and jury consultants will not be allowed to retain 16 any tangible materials that contain or disclose any Designated Material; and (iii) 17 any such persons first execute the Confidentiality Undertaking in Exhibit A; and 18 7. persons who have been retained by a Party to provide translation or 19 interpretation from one language to another, provided that such translators 20 execute the Confidentiality Undertaking in Exhibit A. 21 22 23 VI. COURT PROCEDURES Designated Material may be included with, or referred to in, papers filed with the Court in the Lawsuit only in accordance with the following procedures: 24 Any documents (including briefs), tangible things, or information designated as (or 25 including information designated as) CONFIDENTIAL or HIGHLY CONFIDENTIAL – 26 ATTORNEY’S EYES ONLY that are submitted to the Court in support of or in opposition 27 to a motion or introduced at a hearing or during trial may retain their protected confidential 28 status only by order of the Court in accordance with the procedures outlined in section II.c. - 12 - 1 of the Court's Standing Order Regarding Civil Litigation. 2 VII. PROCEDURE FOR DISCLOSURES TO OTHER PERSONS 3 At the written request of the Receiving Party, the Producing Party may agree in 4 writing to allow the Receiving Party to disclose to a specified third party any of the 5 Producing Party’s Designated Material identified in the written request. 6 VIII. UNINTENTIONAL FAILURE TO DESIGNATE 7 If any Producing Party discovers that it has inadvertently failed to designate and 8 mark any Discovery Material as either CONFIDENTIAL or HIGHLY CONFIDENTIAL 9 - ATTORNEYS’ EYES ONLY, the Producing Party may subsequently inform the 10 Receiving Party of the confidential nature of the disclosed Designated Material, and the 11 Receiving Party shall treat the disclosed Discovery Material as either CONFIDENTIAL or 12 HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY upon receipt of written notice 13 from the Producing Party. Disclosure of such Discovery Material to persons not authorized 14 to receive that material prior to receipt of the confidentiality designation shall not be 15 deemed a violation of this Order. 16 However, in the event the material has been distributed in a manner inconsistent 17 with the later-applied designation, the Receiving Party will take the steps necessary to 18 conform distribution to the categorical designation, i.e., by retrieving all copies of the 19 Discovery Material, or notes or extracts thereof, in the possession of the persons not 20 authorized under this Order to possess such Discovery Material and advising the persons 21 to whom disclosure was made that the Producing Party has designated the material as 22 confidential and that such material must be treated as provided in the Order unless 23 otherwise agreed by the parties or ordered by the Court. 24 IX. 25 PRODUCT MATERIAL UNINTENTIONAL DISCLOSURE OF ATTORNEY-CLIENT OR WORK 26 Pursuant to Federal Rule of Evidence 502(d) and (e), the production of any discovery 27 material by any Party, whether inadvertent or not, shall be without prejudice to any 28 subsequent claim by the Producing Party that such discovery material is privileged or - 13 - 1 attorney-work product, and shall not be deemed a waiver of any such privilege or protection 2 in either the litigation pending before the court, or any other federal or state proceeding. 3 The Producing Party may give written notice to the Receiving Party that the 4 document is subject to a claim of attorney-client privilege or work product immunity and 5 request that the document be destroyed or returned to the Producing Party. Unless the 6 Producing Party claims that the entire document is subject to a claim of attorney-client 7 privilege or work product immunity, the Producing Party shall, together with its written 8 notice, produce a copy of the document with the claimed privileged material redacted. 9 Within five (5) business days of receiving written notice and a copy of the document 10 with claimed privileged material redacted, the Receiving Party shall return or destroy all 11 copies of such document, along with any notes or other work product reflecting the contents 12 of such document, and shall destroy all excerpts thereof. Upon request of the Producing 13 Party, the Receiving Party of the inadvertent production shall provide an affidavit to the 14 Producing Party that all copies and excerpts, along with any notes or other work product 15 reflecting the contents of such document, and were returned or destroyed. In any event, all 16 material shall be deleted from any litigation-support or other database. No use shall be made 17 of such materials during depositions or at trial, nor shall they be disclosed to anyone who 18 was not given access to them before the request to return or destroy. 19 Return or destruction of the document by the Receiving Party shall not constitute an 20 admission or concession, or permit any inference, that the returned document is, in fact, 21 properly subject to a claim of attorney-client privilege or work product immunity. If the 22 Receiving Party believes that the document is not subject to the protections of the attorney- 23 client privilege or work product immunity, the Receiving Party will contact counsel for the 24 Producing Party within five (5) business days of receiving written notice from the 25 Producing Party that the document is subject to a claim of attorney-client privilege or work 26 product immunity so that the parties’ counsel may meet and confer on the matter. If the 27 parties cannot resolve the dispute, the parties shall follow the discovery dispute protocol 28 outlined in the Court’s Rule 16 Scheduling Order. (Doc. 19 at ¶ 10). - 14 - 1 The parties agree that employing electronic keyword searching to identify and 2 prevent disclosure of privileged material constitutes “reasonable steps to prevent 3 disclosure” under Federal Rule of Evidence 502(b)(2). 4 Unless previously waived, the inadvertent disclosure of any documents subject to a 5 privilege or immunity shall not be deemed a waiver of that privilege or immunity as to any 6 other documents, testimony, or evidence. 7 X. 8 9 10 11 RESERVATION OF RIGHTS AND MISCELLANEOUS PROVISIONS No Limitation of Other Rights This Order shall be without prejudice to the right of any party to oppose production of any information on any and all grounds other than confidentiality. Release From or Modification of This Order 12 This Order is entered without prejudice to the right of any party to apply to the Court 13 at any time for additional protection, or to release, rescind, or modify the restrictions of 14 this Order, to determine whether a particular person shall be entitled to receive any 15 particular information or to seek relief from inadvertent disclosure of privileged or work- 16 product information. This Order does not preclude all of the parties to this Order from 17 entering into any stipulation (in writing or on the record) constituting a modification of this 18 Order subject to the Court’s review. 19 Admissibility and No Admissions 20 Nothing herein shall be construed to affect in any way the evidentiary admissibility 21 or relevance of any document, testimony, or other matter at any court proceeding related 22 to this matter. Neither designation or lack of designation of documents or information as 23 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY” nor 24 agreeing to treat documents produced under those designations pursuant to this Agreement 25 constitutes any admission or acknowledgement that any such documents or information do 26 or do not constitute trade secrets or proprietary information or do or do not enjoy any other 27 legal status, and is inadmissible for any such purpose. 28 Non-Party Request/Subpoena of Designated Material - 15 - 1 If a Receiving Party receives a subpoena or other compulsory process from a non- 2 Party to this Order seeking production or other disclosure of a Producing Party’s 3 Designated Material, that Receiving Party shall give written notice to outside counsel of 4 record for the Producing Party (or, if the Producing Party is not represented by counsel in 5 this Lawsuit, to the Producing Party itself) within ten (10) business days after receipt of the 6 subpoena or other compulsory process identifying the specific Designated Material sought 7 and enclosing a copy of the subpoena or other compulsory process. If the Producing Party 8 timely seeks a protective order, the Receiving Party to whom the subpoena or other 9 compulsory process was issued or served shall not produce the Designated Material 10 requested prior to receiving a Court order or consent of the Producing Party. In the event 11 that Designated Material is produced to the non-party, such material shall be treated as 12 Designated Material pursuant to this Order. Counsel’s Right to Provide Advice 13 14 Nothing in this Order shall bar or otherwise restrict any counsel herein from 15 rendering advice to the counsel’s party-client with respect to the Lawsuit, and in the course 16 thereof, relying upon an examination of Designated Material, provided, however, that in 17 rendering such advice and in otherwise communicating with the party-client, the counsel 18 shall not disclose any Designated Material, nor the source of any Designated Material, to 19 anyone not authorized to receive such Designated Material pursuant to the terms of this 20 Order. 21 Privileged and Irrelevant Materials 22 Nothing in this Order shall be construed as requiring disclosure of privileged 23 materials, materials subject to protection under the work product doctrine, or materials 24 which are otherwise beyond the scope of permissible discovery. 25 Notice 26 Transmission by overnight courier, facsimile or electronic mail is acceptable for all 27 notification purposes, provided that, with regard to electronic mail, all counsel of record 28 are included on the notification. - 16 - 1 XI. 2 FINAL DISPOSITION The ultimate disposition of Designated Materials will be subject to a final order of 3 the Court upon completion of the Lawsuit. 4 XII. TERMINATION 5 The termination of the Lawsuit shall not automatically terminate the effectiveness 6 of this Order, and persons subject to this Order shall be bound by the confidentiality 7 obligations of this Order until the Producing Party agrees otherwise in writing or this Court 8 (or any other court or competent jurisdiction) orders otherwise. 9 XIII. USE AT TRIAL 10 This Order is not intended to govern the use of Designated Material at the trial of 11 the Lawsuit. Procedures governing the use of Designated Material at trial, if necessary, 12 will be established by separate order, pursuant to application by one or more of the parties 13 to the Court, or sua sponte pursuant to the Court’s own procedures, and may be addressed 14 at the pre-trial conference. 15 Dated this 15th day of September, 2021. 16 17 18 19 Honorable Diane J. Humetewa United States District Judge 20 21 22 23 24 25 26 27 28 - 17 -
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