Summary
stating that although "defendants' failure to raise all of its arguments" in its initial motion to dismiss was "sloppy," the Court could consider the new arguments raised in the defendant's motion for judgment on the pleadings
Summary of this case from Flores v. City of PhoenixOpinion
Case No: O3CV1398K (RBB)
May 31, 2004
Daniel T. Pascucci, Andrew D. Skale, Kristi B. Panikowski, FISH RICHARDSON P.C., San Diego, California, for Plaintiff SPRINT TELEPHONY PCS., L.P.
Jesse Jauregui, Esq., Elaine M. Lemke, Esq., WESTON, BENSHOOF, ROCHEFORT, RUBALCAVA MACCUISH LLP, Los Angeles, CA, for Plaintiff CINGULAR WIRELESS
John J. Sansone, County Counsel, County of San Diego, C. Ellen Pilsecker, Senior Deputy, Thomas D. Bunton, Senior Deputy, San Diego, CA, for Defendants COUNTY OF SAN DIEGO, GREG COX, DIANNE JACOB, PAM SLATER, RON ROBERTS and BILL HORN
PROTECTIVE ORDER
This Protective Order Regarding Confidential Information ("Protective Order") between SPRINT TELEPHONY PCS, L.P. ("Sprint") and PACIFIC BELL WIRELESS, LLC dba CINGULAR WIRELESS ("Cingular") (collectively "Plaintiffs") and COUNTY OF SAN DIEGO ("County"), GREG COX, in his capacity as a supervisor of the County of San Diego; DIANNE JACOB, in her capacity as a supervisor of the County of San Diego; PAM SLATER, in her capacity as a supervisor of the County of San Diego; RON ROBERTS, in his capacity as a supervisor of the County of San Diego; and BILL HORN, in his capacity as a supervisor of the County of San Diego ("collectively "Defendants") by and through their counsel of record, is made in the above-captioned action with respect to the following recitals:
WHEREAS, the Plaintiffs to this action expect that they will be requested to produce documents, provide testimony and/or otherwise disclose sensitive and confidential financial and business information and other information that requires protection as sensitive, confidential, proprietary or trade secret information, and/or by the right to privacy; and
WHEREAS, the parties to this action seek to establish procedures that will protect all confidential information while expediting the discovery process, limiting the necessity for objections or subsequent motions seeking to limit discovery and facilitating the disposition by the Court of any disputes that may arise in connection with discovery.
NOW, THEREFORE, subject to the approval of the Court, it is hereby stipulated and agreed, by and between the parties, through their respective counsel, as follows:
1. DEFINITIONS
The following definitions shall apply to this Protective Order:
a. The "Action" shall mean and refer to the above-captioned matter and to all actions now or later consolidated with the Action, and any appeal from the Action, and from any other action consolidated at any time under the above-captioned matter, through final judgment.
b. "Confidential Document" shall mean any document that any Designating Party (as defined below) designates as "Confidential" or "Confidential — Attorneys' Eyes Only" in the manner set forth in this Protective Order; provided, however, that by agreeing to this Protective Order, no party waives the right to challenge any other party's designation of any document as "Confidential" or "Confidential — Attorneys' Eyes Only."
c. "Confidential Information" shall mean any information not made available to the general public that concerns or relates to trade secret, business, financial, and/or personal information.
d. "Designating Party" shall mean any party in this Action designating information or a document as "Confidential" or "Confidential — Attorneys' Eyes Only."
e. "Receiving Party" shall mean any party in this Action receiving Confidential Documents or Confidential Information of a Designating Party. A Receiving Party may be a co-Plaintiff with the Designating Party.
f. "Legend" as used herein shall mean a stamp or similar insignia stating "Confidential" or "Confidential — Attorneys' Eyes Only," or other appropriate term or terms identifying the level of confidentiality of the document.
g. When reference is made in this Protective Order to any document, the singular shall include the plural, and plural shall include the singular.
2. DESIGNATION OF DOCUMENTS
a. The Designating Party may designate a document as "Confidential" or "Confidential — Attorneys' Eyes Only" by affixing the appropriate Legend to all copies of the document at the time of production. Except as provided herein, the Designating Party must make document designations at the time of production or within fourteen (14) days of the entry of this Protective Order, whichever is later.
b. A party may designate as "Confidential" or "Confidential — Attorneys' Eyes Only" a document produced by someone else by informing in writing all parties the control number of such document within seven (7) days of that party's receipt of the document or within seven (7) days of the entry of this Protective Order, whichever is later.
c. All parties receiving written notice of such designation shall affix the appropriate Legend to all pages of any copy or copies of such document in their possession.
d. Any party may designate a deposition or hearing transcript (or any portion thereof or exhibit thereto) as "Confidential" or "Confidential — Attorneys' Eyes Only" by: (i) making such designation on the record during the deposition or hearing (in which case the stenographer shall affix the appropriate Legend to the cover page and all designated pages of the transcript and all copies thereof); or (ii) informing counsel for all other parties of such designation in writing within seven (7) days after receipt of the transcript (in which case any party in possession of an original or copy of the transcript shall affix the appropriate Legend to the cover page and all designated pages and exhibits).
3. PROVISIONS AND LIMITATIONS OF USE
a. All Confidential Documents and Confidential Information in this Action shall be used by the Receiving Party solely for purposes of the prosecution, defense or settlement of this Action, including, without limitation, discovery, motions, briefs and preparation for the trial, and for no other purpose, except as otherwise stated within this Protective Order. This Protective Order does not necessarily permit the use of Confidential Documents or Confidential Information at trial. At the time of preparing a joint exhibit list, the parties shall fashion an order governing the use of Confidential Documents and Confidential Information at trial, and, if necessary, shall bring any disputes to the Court for resolution.
b. Unless the Designating Party agrees otherwise, and subject to the provisions of Sections 4 and 10 below, documents designated "Confidential" and any summaries, charts or notes made therefrom, and any facts or information contained therein or derived therefrom, shall not be disclosed to any person except: (i) the Court and its officers; (ii) designated counsel of record and employees of designated counsel of record; (iii) in-house counsel for a party and in-house counsel staff working on this litigation; (iv-a) the Plaintiffs to this Action (including any current employees, agents, officers or directors of such parties); (iv-b) the Defendants to this Action (including any current employees, officials or agents of such parties); (v) independent contractors, experts, consultants or advisors who are employed or retained by, or on behalf of, any of the parties or counsel for the parties to this Action to assist in preparation of the trial; (vi) stenographic reporters who are involved in depositions or any Court hearings or proceedings; and (vii) any other person as to whom the parties agree in writing that disclosure is appropriate.
c. Unless the Designating Party agrees otherwise, and subject to the provisions of Sections 4 and 10 below, documents designated "Confidential — Attorneys' Eyes Only" and any summaries, charts or notes made therefrom, and any facts or information contained therein or derived therefrom, shall not be disclosed to any persons other than those identified in subparagraphs 3b(i), (ii), (v), (vi) and (vii) above. However, subject to the provisions of Section 4a, documents designated "Confidential — Attorneys' Eyes Only" and any summaries, charts or notes made therefrom, may be shown to persons identified in subparagraph 3b(iv-b) provided that: (1) persons identified in subparagraph 3b(iv-b) are not provided with a copy, in any form, of documents designated "Confidential — Attorneys' Eyes Only" or any summaries, charts or notes made therefrom; and (2) persons identified in subparagraph 3b(iv-b) cannot make any copies, in any form, of documents designated "Confidential — Attorneys' Eyes Only" and any summaries, charts or notes made therefrom.
d. "Designated counsel" as set forth in Section 3b(ii) above are limited to counsel of record in this Action, which includes all attorneys of the Firms or Offices that have appeared in this Action on behalf of a party, either in person or in writing. Other than persons as expressly set forth in this Section, no other counsel shall be permitted access to documents designated "Confidential — Attorney's Eyes Only" in this Action unless otherwise agreed to by all of the parties in writing. Documents designated "Confidential — Attorneys' Eyes Only" shall not be disclosed to a party, or to any officer, director, employee or agent of a party, unless otherwise agreed by the Designating Party or Parties in writing or as expressly provided herein.
4. DUTY TO INFORM OF ORDER/SIGNATURE.
a. Duty to Inform of Order. Confidential Documents or Confidential Information may be disclosed to the persons permitted under Section 3, only after such persons have been: (a) provided with, and have reviewed, a copy of this Protective Order; and/or (b) informed of the terms and restrictions of this Protective Order. In addition, such person must acknowledge that they understand they are bound by and have to abide by the terms of this Protective Order.
b. Persons Required to Sign Order. Confidential Documents or Confidential Information may be disclosed to persons referred to in categories (v) and (vii) of Section 3b only after these persons have been provided with a copy of this Protective Order and have signed a statement in the form attached hereto as Exhibit "A." This statement shall be provided to counsel of the Designating Party prior to the Receiving Party disclosing the Confidential Documents or Confidential Information to the person referred to in Section 3b (v) and (vii).
5. COPIES
All copies of any Confidential Documents or documents containing Confidential Information shall also constitute, and be treated as, Confidential Documents as provided in this Protective Order. Any person making, or causing to be made, copies of any Confidential Documents or documents containing Confidential Information, shall make certain that each copy bears the appropriate Legend pursuant to the requirements of this Protective Order.
6. AGREEMENT TO MAINTAIN CONFIDENTIALITY
Any Designating Party may designate any document as "Confidential" that the party reasonably and in good faith believes contains or refers to Confidential Information. Further, any Designating Party may designate any document as "Confidential — Attorneys' Eyes Only" that the Designating Party reasonably and in good faith asserts contains confidential financial, proprietary, personal or trade secret information that cannot be disclosed to anyone other than counsel of record to the parties in this Action without prejudicing the Designating Party, including without limitation: (1) information related to the costs to Plaintiffs of installing wireless facilities, including salaries, consulting fees, and legal expenses; (2) information regarding plans for development and installation of wireless facilities in the geographic region of the County of San Diego; and (3) proprietary financial information of a party. Unless and until otherwise ordered by the Court or otherwise agreed by the parties, all documents designated as "Confidential" or "Confidential — Attorneys' Eyes Only" shall be treated as such under this Protective Order.
7. OBJECTIONS TO DESIGNATION
Following the receipt of documents marked "Confidential" or "Confidential — Attorneys' Eyes Only," any party to the Action may object to the designation of such document and seek a modification of such designation by serving a written objection on the Designating Party. Thereafter, the objecting party shall first make a good-faith effort to resolve such dispute with counsel for the Designating Party, If the objecting party and the Designating Party are unable to resolve the objection, the objecting party shall, within thirty (30) days of having asserted an objection move the Court for an order with respect to the disputed information. After a prima facia showing by the objecting party as to the grounds for its objection to the designation of the document, the designating party shall have the burden to show that the document is correctly designated as "Confidential" or "Confidential-Attorneys' Eyes Only." In the event that any party files a motion to release a document from a designation as "Confidential" or "Confidential-Attorneys' Eyes Only" the motion must be filed under seal and the document(s) to which the objection to designation has been raised shall be submitted to the Court as an exhibit, under seal as well.
8. SEPARATE PROTECTIVE ORDER OR MODIFICATION OF THIS PROTECTIVE ORDER
This Protective Order shall be without prejudice to the right of the parties to the Action to present a motion to the Court for a separate protective order as to any particular document or information, including restrictions differing from those specified in this Protective Order. In addition, this Protective Order shall not be deemed to prejudice the parties in any way in any future application for modification of this Protective Order.
9. FILING CONFIDENTIAL MATERIAL
No "Confidential" or Confidential — Attorneys' Eyes Only" material shall be filed in the public record of this action. AH material so designated in accordance with the terms of this Protective Order that is filed with the Court, and any pleadings, motions or other papers containing Confidential Documents or Confidential Information, shall be filed in a sealed envelope and kept under seal by the Clerk of this Court until further order of the Court. Where possible, only confidential portions of filings with the Court shall be filed under seal. To facilitate compliance with this Protective Order by the Clerk's office, material filed under the designation "Confidential" or "Confidential — Attorneys' Eyes Only" shall be contained in a sealed envelope bearing such designation on its front face. In addition, the envelope shall bear the caption of the case, shall contain a concise, non-disclosing inventory of its contents for docketing purposes, and shall state thereon that it is filed under the terms of this Protective Order.
10. SUMMARIES
Any Receiving Party who obtains access to material designated as "Confidential" or "Confidential — Attorneys' Eyes Only" under this Protective Order shall not make copies, abstracts, extracts, analyses, summaries, or other materials which contain, reflect or disclose confidential information, except for use in this litigation or as otherwise provided herein, and each such copy, abstract, extract, analysis, summary, or other material which contains, reflects or discloses Confidential Documents or Confidential Information, is to be treated in accordance with the provisions of this Protective Order. All copies made by a Receiving Party of material stamped "Confidential" or "Confidential — Attorneys' Eyes Only" in accordance with Paragraph 2 of this Protective Order shall again be stamped with the respective designation if the original stamp was not reproduced in the duplicating process. If a Receiving Party elects to make a microfiche copy of a microfiche original produced by a Disclosing Party and the original microfiche sheet contains any Confidential Documents or Confidential Information, the entire duplicate microfiche sheet shall be deemed confidential even though not marked as such. If the Receiving Party makes a hard copy of the duplicate microfiche sheet, the hard copy shall be stamped "Confidential" or "Confidential — Attorneys' Eyes Only" by the Receiving Party, and shall remain confidential unless otherwise agreed by the parties in writing or ordered by the Court.
11. INADVERTENT PRODUCTION OF CONFIDENTIAL DOCUMENTS OR INFORMATION
The inadvertent production or disclosure of any Confidential Document or Confidential Information shall not in itself constitute a waiver or impairment of any claim of confidentiality, privilege or other protection from discovery. All parties, however, reserve all rights to challenge the confidential status of such inadvertent production or disclosure. Upon learning that information protected from discovery has been inadvertently produced or disclosed, the Receiving Party who received such information shall make good faith and reasonable efforts to return any such document and copies, including those that may have been provided to any third party, to the Disclosing Party, and prevent further disclosures or dissemination of such information.
12. EVIDENTIARY OBJECTIONS NOT WAIVED
Notwithstanding anything to the contrary contained within this Protective Order, all objections as to admissibility of any Confidential Document or Confidential Information are reserved and are not waived by any terms of this Protective Order.
13. SUBPOENA OF CONFIDENTIAL DOCUMENT OR CONFIDENTIAL INFORMATION
If at any time any Confidential Document or Confidential Information is subpoenaed, or otherwise requested by any other person or entity purporting to have authority to require the production of any such document or information, the party to whom the subpoena or other request is directed shall give written notice within three (3) business days thereof to the Designating Party and shall make no disclosure unless seven (7) days have elapsed or the Designating Party has consented in writing.
14. CONTINUATION OF PROTECTION AFTER DISPOSITION
The termination of proceedings in the Action shall not relieve any Receiving Party from the obligation of maintaining the confidentiality of all Confidential Documents and Confidential Information produced and designated pursuant to this Protective Order, unless all of the parties to the Action agree otherwise. Upon the final disposition of the Action, the parties shall automatically promptly return any Confidential Documents (and all copies made thereof) to the Disclosing Party from whom such Confidential Documents or documents containing Confidential Information were obtained or providing to counsel for the Disclosing Party certification in writing that all such Confidential Documents and documents containing Confidential Information have been destroyed; provided, however, that the parties shall be entitled to keep in their possession any court filings, attorney work product, deposition transcripts or hearing transcripts, all of which shall continue to be governed by this Protective Order. The Court retains and shall have continuing jurisdiction over the parties and recipients of Confidential Documents and/or Confidential Information for enforcement of this Protective Order following termination of this Action.
15. USE OF CONFIDENTIAL DOCUMENTS AND INFORMATION IN RELATED ACTION, CASE NO. GIC 813987
Except as provided below, Confidential Documents and Confidential Information produced and designated pursuant to this Protective Order may be used in the action entitled Sprint Telephony PCS, L.P., et. al v. County of San Diego, et. al., Case No. GIC 813987 ("the Related Action") currently pending in the Superior Court of the County of San Diego. To that end, the parties shall procure a protective order in the Related Action similar in terms to this Protective Order prior to using in the Related Action any Confidential Document or Confidential Information produced and designated pursuant to this Protective Order.
Because of the differences between the Protective Order in this Action and the Protective Order in the Related Action, documents and information designated "Confidential — Attorneys' Eyes Only" produced and designated pursuant to the Protective Order in this case shall not be used in the Related Action unless agreed to in writing by the Designating Party, All other documents produced and designated in this action may be used in the Related Action.
16. RESERVATION OF RIGHTS AND OBJECTIONS
The parties hereby reserve and retain all rights, privileges, and objections to the production of any document or tangible thing as set forth under federal law and court authority interpreting such applicable law. The parties further expressly agree that execution of this Protective Order does not waive any of their rights, privileges, and objections to the production of any document or tangible thing under federal law and court authority interpreting such applicable law. IT IS SO STIPULATED.
GOOD CAUSE EXISTING THEREFOR, IT IS SO ORDERED.
EXHIBIT A NON-DISCLOSURE AGREEMENT
I, hereby certify my understanding that documents designated as "Confidential" and/or "Confidential — Attorney's Eyes Only" are being provided to me pursuant to the Protective Order ("Protective Order") entered by order of the Court in connection with the action entitled Sprint Telephony PCS, et. al. v. County of San Diego, et. al., Case No. 03CV1398K filed in the United States District Court for the Southern District of California. I agree to be bound by and abide by this Protective Order.I further certify that I have been provided a copy of and have read the Protective Order and hereby agree to subject myself to the jurisdiction of the Court for purposes of enforcement of the terms and restrictions of the Protective Order. I understand the violation of the Protective Order is punishable as contempt of court.