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Octaform Systems Inc. v. Johnston

United States District Court, D. Nevada

March 17, 2017

OCTAFORM SYSTEMS INC. and OCTAFORM INC., Plaintiffs,
v.
BRUCE JOHNSTON, ALBA LUCIA LOZANO HERNANDEZ JOHNSTON, JUN YU, CAROLINA DIAZ, and H-PAC PLASTICS, LLC, Defendants.

          HOWARD & HOWARD ATTORNEYS PLLC W. WEST ALLEN Nevada Bar. No. 5566 Attorneys for Plaintiffs Octaform Systems Inc. and Octaform Inc.

          DICKINSON WRIGHT PLLC JOHN L. KRIEGER Nevada Bar No.: 6023 Attorneys for Defendants Bruce Johnston, Alba Lucia Lozano Hernandez Johnston, Jun Yu, Carolina Diaz, and H-Pac Plastics, LLC

          (PROPOSED) STIPULATED PROTECTIVE ORDER

         Plaintiffs Octaform Systems Inc. and Octaform Inc. (collectively, “Octaform” or “Plaintiff”) and Defendants Bruce Johnston, Alba Lucia Lozano Hernandez Johnston, Jun Yu, Carolina Diaz, and H-PAC Plastics, LLC (collectively, “Defendants”), the Parties to this action (collectively, the “Parties” and individually a “Party”), and possible third-party witnesses, possess Confidential Information as defined below, which may be disclosed in responding to discovery requests, providing testimony, or otherwise in the above-captioned action (the “Action”) and which must be protected in order to preserve the legitimate business and other interests of the Parties.

         The Parties have, through counsel, stipulated to the entry of this Stipulated Protective Order to prevent unnecessary dissemination or disclosure of such Confidential Information.

         Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, the Court having reviewed the terms and conditions of the Stipulated Protective Order submitted by the Parties finds good cause to enter the following Stipulated Protective Order (“Order” or “Stipulated Protective Order”):

         IT IS HEREBY STIPULATED AND ORDERED THAT:

         1. This Stipulated Protective Order shall apply to all information, documents and things subject to discovery or provided in this Action, including without limitation, testimony adduced at depositions upon oral examination or upon written questions, answers to interrogatories, documents and things produced (including documents and things produced for inspection and documents and things provided, whether in the form of originals or copies), information obtained from inspection of premises or things, and answers to requests for admissions. This Stipulated Protective Order is binding upon the Parties to this Action, including their respective corporate parents, subsidiaries and affiliates and their respective attorneys, agents, representatives, officers, employees, as well as others as set forth in this Stipulated Protective Order.

         DEFINITIONS

         2. The term “Confidential Information” as used in this Stipulated Protective Order is to include all non-public, sensitive or confidential information, including personal identity information, income tax returns (including attached schedules and forms), W-2 forms and 1099 forms, medical information concerning any individual and information that the Party or third party designating the information in accordance with the terms of this Stipulated Protective Order believes in good faith constitutes or discloses or relates to processes, operations, research, technical or developmental information, source code, production, marketing, sales, shipments, purchases, pricing, transfers or other proprietary, secret, or sensitive data or information of commercial value, including, but not limited to, trade secrets or any other information within the meaning of Federal Rules of Civil Procedure 26(c)(1)(G).

         3. The terms “Designating Party” and “Producing Party” mean, respectively, the Party or third party designating information, documents, or things as “CONFIDENTIAL, ” or “HIGHLY CONFIDENTIAL-ATTORNEYS EYES ONLY, ” under this Stipulated Protective Order and the Party or third party producing information, documents, or things so designated in this action.

         4. The term “Receiving Party” shall mean any person to whom Confidential Information is disclosed pursuant to this Stipulated Protective Order.

         5. The term “this Action” shall mean the above-captioned litigation.

         6. The term “Outside Counsel” shall mean law firms and/or lawyers that have been retained by a Party to provide advice in connection with this Action and who have made an appearance in this Action.

         DESIGNATION OF CONFIDENTIAL INFORMATION

         7. Any Party who produces or discloses any information, document or thing that it believes in good faith comprises Confidential Information may designate the same at the time of such production or disclosure by the marking of the word “CONFIDENTIAL” prominently on each page of all documents containing the information or, as to things other than documents, by prominently marking the thing, to the extent reasonably possible, with the word “CONFIDENTIAL.” When the Designating Party believes in good faith that the Confidential Information additionally meets the requirements set forth in this Stipulated Protective Order, the information, document, or thing may be further designated as “HIGHLY CONFIDENTIAL-ATTORNEYS EYES ONLY” by being marked as described above with those words.

         8. Confidential Information may include, without limitation: information, documents, and things produced in this Action during formal discovery or otherwise; documents and information produced by third parties that the Producing Party or Designating Party is under an obligation to maintain in confidence or believes comprises Confidential Information; answers to interrogatories, responses to requests for production, responses to requests for admission, or other discovery requests; deposition transcripts; and tangible things or objects that are designated “CONFIDENTIAL” pursuant to this Stipulated Protective Order. The information contained therein and all copies, abstracts, excerpts, analyses or other writings that contain, reflect, reveal, suggest or otherwise disclose Confidential Information, as well as all testimony and oral conversations that contain or disclose Confidential Information, shall also be deemed Confidential Information. Information, documents or things originally designated as “CONFIDENTIAL” pursuant to this Stipulated Protective Order shall not retain Confidential Information status after any ruling by any court of competent jurisdiction denying such status.

         9. If a Producing Party elects to produce original files and records for inspection and the Receiving Party desires to inspect those files, no confidentiality designations need be made by the Producing Party in advance of the initial inspection, but the Receiving Party shall maintain the confidentiality of all those original files and records that it reviews and treat such information as “HIGHLY CONFIDENTIAL-ATTORNEYS EYES ONLY.” Thereafter, upon selection of specified documents, materials or things for copying by the Receiving Party, the Producing Party shall mark the copies of such documents as may contain protected subject matter with the appropriate designation at the time the copies are produced to the Receiving Party.

         10. A Party seeking discovery from a third party may provide a copy of this Stipulated Protective Order to any third party required to produce information, documents or things or otherwise formally disclose information in response to discovery requests during this Action. Such third parties may elect to avail themselves of, and agree to be bound by, the terms and conditions of this Stipulated Protective Order through the execution of the Declaration of Compliance, attached to this Stipulated Protective Order as Appendix A, and thereby become a “Designating Party” or a “Producing Party” within the meaning of those terms as they are used in the context of this Stipulated Protective Order.

         11. Confidential Information that originated with a third party, subject to the terms of any confidentiality obligation to that third party, may be designated as “CONFIDENTIAL” and shall, once designated, be subject to the restrictions on disclosure specified in this Stipulated Protective Order.

         12. Except as otherwise provided in this Stipulated Protective Order, in the event any Producing Party produces Confidential Information that has not been designated as permitted by this Stipulated Protective Order, or that has not been correctly designated, the Producing Party or any other Party with a good faith, legitimate interest in protecting the Confidential Information may designate or re-designate the information, document or thing to the same extent as it may have designated the information before production by a subsequent notice in writing specifically identifying the re-designated information accompanied by a replacement set of such undesignated or incorrectly designated documents bearing the appropriate designation thereon. In that event, the Parties and all persons subject to this Stipulated Protective Order shall henceforth treat such information in accord with this Stipulated Protective Order, and shall undertake their best efforts to correct any disclosure of such information contrary to the re-designation. Further, the Receiving Party shall immediately return the documents that lacked the correct designation to the Designating Party upon receiving the replacement set of documents bearing the appropriate designation. No showing of error, inadvertence, or excusable neglect shall be required for such re-designation.

         13. Any Receiving Party may at any time request that the Producing Party add, remove or change the designation under this Stipulated Protective Order of any information, document, or thing. Such request shall be served in writing on counsel for the Designating Party, and shall particularly identify the designated information that the Receiving Party contends is not confidential or is not properly designated and the reasons supporting its contention. A party challenging the designation of any information must do so in good faith and must give the designating party an opportunity to review the designated material, to reconsider the designation and, if no change in designation is offered, to explain the basis for the designation. The Designating Party must respond to a request to add, remove or change the designation of information under this Stipulated Protective Order within five (5) business days. If the Designating Party does not agree to remove or change the designation within ten (10) calendar days of receipt of the request, then the party contending that such documents are mis-designated may file a motion to remove or change such designation. Unless and until the Court acts on such motion, the information, document or thing shall be treated as designated by the Designating Party.

         14. The failure to challenge a designation of information as provided in Paragraph 13 above shall not be construed or presented as an admission that, or as support for an argument that, such material constitutes a trade secret or as support for an argument that, such material constitutes a trade secret or is otherwise entitled to protection by contract or statute, beyond the discovery protections contained herein. Likewise, inspection, receipt, or filing under seal by a party of information, a document or thing designated hereunder shall not constitute a concession or admission by that Party, or be construed or presented as support for an argument, that the information, document or thing is or contains Confidential Information and/or constitutes a trade secret. Nor shall the designation of any information, document or thing hereunder be construed as an admission that such Confidential Information is relevant or material to any issues in this Action.

         SPECIAL PROTECTIONS FOR HIGHLY SENSITIVE CONFIDENTIAL INFORMATION

         15. Confidential Information may be designated “HIGHLY CONFIDENTIAL ATTORNEYS EYES ONLY, ” and shall be treated as provided in this Stipulated Protective Order, if: (i) the Designating Party believes in good faith the information to be highly sensitive from a commercial or competitive perspective, or (ii) of another person that the Designating Party is under a contractual or legal obligation to protect from disclosure.

         16. Only the following individuals shall have access to “HIGHLY CONFIDENTIAL- ATTORNEYS EYES ONLY” materials, absent the express written consent of the Designating Party or further court order:

a. Outside counsel of record for the Parties to this Action, including any attorneys, paralegals, technology specialists and clerical employees of their respective ...

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