1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 STEVEN GINSBURG, an individual, Case No. 8:19-cv-01645-DOC-JDE 11 Plaintiff, Hon. David O. Carter Courtroom 9D 12 vs. Magistrate Judge: Hon. John D. Early 13 DIAMOND RESORTS

INTERNATIONAL MARKETING, STIPULATION AND PROPOSED

14 INC.; and DOES 1-50, inclusive, PROTECTIVE ORDER

15 Defendants. 16

17 Trial: October 20, 2020

18 19 Based on the parties’ Stipulation (Dkt. 34), the Court finds as follows. 20 1. PURPOSES AND LIMITATIONS 21 Discovery in this action is likely to involve production of confidential, 22 proprietary or private information for which special protection from public 23 disclosure and from use for any purpose other than pursuing this litigation may be 24 warranted. Accordingly, the parties hereby stipulate to and petition the Court to 25 enter the following Stipulated Protective Order. The parties acknowledge that this 26 Order does not confer blanket protections on all disclosures or responses to 27 discovery and that the protection it affords from public disclosure and use extends 28 1 only to the limited information or items that are entitled to confidential treatment 2 under the applicable legal principles. 3 2. GOOD CAUSE STATEMENT 4 This action is likely to involve trade secrets, confidential financial 5 information, and other valuable research, commercial, financial and/or proprietary 6 information for which special protection from public disclosure and from use for 7 any purpose other than prosecution of this action is warranted. Such confidential 8 and proprietary materials and information consist of, among other things, 9 confidential business or financial information, including profit and loss 10 information, sales goals, or other confidential research, development, or 11 commercial information (including information implicating privacy rights of third 12 parties), information otherwise generally unavailable to the public, or which may be 13 privileged or otherwise protected from disclosure under state or federal statutes, 14 court rules, case decisions, or common law. Accordingly, to expedite the flow of 15 information, to facilitate the prompt resolution of disputes over confidentiality of 16 discovery materials, to adequately protect information the parties are entitled to 17 keep confidential, to ensure that the parties are permitted reasonable necessary uses 18 of such material in preparation for and in the conduct of trial, to address their 19 handling at the end of the litigation, and serve the ends of justice, a protective order 20 for such information is justified in this matter. It is the intent of the parties that 21 information will not be designated as confidential for tactical reasons and that 22 nothing be so designated without a good faith belief that it has been maintained in a 23 confidential, non-public manner, and there is good cause why it should not be part 24 of the public record of this case. 25 3. ACKNOWLEDGMENT OF UNDER SEAL FILING 26 PROCEDURE 27 The parties further acknowledge, as set forth in Section 14.3, below, that this 28 Stipulated Protective Order does not entitle them to file confidential information 1 under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed 2 and the standards that will be applied when a party seeks permission from the court 3 to file material under seal. There is a strong presumption that the public has a right 4 of access to judicial proceedings and records in civil cases. In connection with non- 5 dispositive motions, good cause must be shown to support a filing under seal. See 6 Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), 7 Phillips v. Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar- 8 Welbon v. Sony Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even 9 stipulated protective orders require good cause showing), and a specific showing of 10 good cause or compelling reasons with proper evidentiary support and legal 11 justification, must be made with respect to Protected Material that a party seeks to 12 file under seal. The parties’ mere designation of Disclosure or Discovery Material 13 as CONFIDENTIAL does not— without the submission of competent evidence by 14 declaration, establishing that the material sought to be filed under seal qualifies as 15 confidential, privileged, or otherwise protectable—constitute good cause. 16 Further, if a party requests sealing related to a dispositive motion or trial, 17 then compelling reasons, not only good cause, for the sealing must be shown, and 18 the relief sought shall be narrowly tailored to serve the specific interest to be 19 protected. See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir. 20 2010). For each item or type of information, document, or thing sought to be filed 21 or introduced under seal, the party seeking protection must articulate compelling 22 reasons, supported by specific facts and legal justification, for the requested sealing 23 order. Again, competent evidence supporting the application to file documents 24 under seal must be provided by declaration. 25 Any document that is not confidential, privileged, or otherwise protectable in 26 its entirety will not be filed under seal if the confidential portions can be redacted. 27 If documents can be redacted, then a redacted version for public viewing, omitting 28 only the confidential, privileged, or otherwise protectable portions of the document, 1 shall be filed. Any application that seeks to file documents under seal in their 2 entirety should include an explanation of why redaction is not feasible. 3 4. DEFINITIONS 4 4.1 Action: means and refers to the above-captioned lawsuit entitled 5 Steven Ginsburg v. Diamond Resorts International Marketing, Inc., Case No. 8:19- 6 cv-01645-DOC-JDE, in United States District Court – Central District of 7 California, and any appeal from the Action, through final judgment. 8 4.2 Challenging Party: a Party or Non-Party that challenges the 9 designation of information or items under this Order. 10 4.3 “CONFIDENTIAL” Information or Items: information (regardless of 11 how it is generated, stored or maintained) or tangible things that qualify for 12 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 13 the Good Cause Statement. 14 4.4 Counsel: Outside Counsel of Record and House Counsel (as well as 15 their support staff). 16 4.5 Designating Party: a Party or Non-Party that designates information or 17 items that it produces in disclosures or in responses to discovery as 18 “CONFIDENTIAL.” 19 4.6 Disclosure or Discovery Material: all items or information, regardless 20 of the medium or manner in which it is generated, stored, or maintained (including, 21 among other things, testimony, transcripts, and tangible things), that are produced 22 or generated in disclosures or responses to discovery. 23 4.7 Expert: a person with specialized knowledge or experience in a matter 24 pertinent to the litigation who has been retained by a Party or its counsel to serve as 25 an expert witness or as a consultant in this Action. 26 4.8 House Counsel: attorneys who are employees of a party to this Action. 27 House Counsel does not include Outside Counsel of Record or any other outside 28 counsel. 1 4.9 Non-Party: any natural person, partnership, corporation, association or 2 other legal entity not named as a Party to this action. 3 4.10 Outside Counsel of Record: attorneys who are not employees of a 4 party to this Action but are retained to represent a party to this Action and have 5 appeared in this Action on behalf of that party or are affiliated with a law firm that 6 has appeared on behalf of that party, and includes support staff. 7 4.11 Party: any party to this Action, including all of its officers, directors, 8 employees, consultants, retained experts, and Outside Counsel of Record (and their 9 support staffs). 10 4.12 Producing Party: a Party or Non-Party that produces Disclosure or 11 Discovery Material in this Action. 12 4.13 Professional Vendors: persons or entities that provide litigation 13 support services (e.g., photocopying, videotaping, translating, preparing exhibits or 14 demonstrations, and organizing, storing, or retrieving data in any form or medium) 15 and their employees and subcontractors. 16 4.14 Protected Material: any Disclosure or Discovery Material that is 17 designated as “CONFIDENTIAL.” 18 4.15 Receiving Party: a Party that receives Disclosure or Discovery 19 Material from a Producing Party. 20 5. SCOPE 21 The protections conferred by this Stipulation and Order cover not only 22 Protected Material (as defined above), but also (1) any information copied or 23 extracted from Protected Material; (2) all copies, excerpts, summaries, or 24 compilations of Protected Material; and (3) any testimony, conversations, or 25 presentations by Parties or their Counsel that might reveal Protected Material. 26 Any use of Protected Material at trial shall be governed by the orders of the 27 trial judge and other applicable authorities. This Order does not govern the use of 28 Protected Material at trial. 1 6. DURATION 2 Once a case proceeds to trial, information that was designated as 3 CONFIDENTIAL or maintained pursuant to this protective order used or 4 introduced as an exhibit at trial becomes public and will be presumptively available 5 to all members of the public, including the press, unless compelling reasons 6 supported by specific factual findings to proceed otherwise are made to the trial 7 judge in advance of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing 8 “good cause” showing for sealing documents produced in discovery from 9 “compelling reasons” standard when merits-related documents are part of court 10 record). Accordingly, the terms of this protective order do not extend beyond the 11 commencement of the trial. 12 7. DESIGNATING PROTECTED MATERIAL 13 7.1 Exercise of Restraint and Care in Designating Material for 14 Protection. Each Party or Non-Party that designates information or 15 items for protection under this Order must take care to limit any such designation to 16 specific material that qualifies under the appropriate standards. The Designating 17 Party must designate for protection only those parts of material, documents, items 18 or oral or written communications that qualify so that other portions of the material, 19 documents, items or communications for which protection is not warranted are not 20 swept unjustifiably within the ambit of this Order. 21 Mass, indiscriminate or routinized designations are prohibited. Designations 22 that are shown to be clearly unjustified or that have been made for an improper 23 purpose (e.g., to unnecessarily encumber the case development process or to 24 impose unnecessary expenses and burdens on other parties) may expose the 25 Designating Party to sanctions. 26 If it comes to a Designating Party’s attention that information or items that it 27 designated for protection do not qualify for protection, that Designating Party must 28 promptly notify all other Parties that it is withdrawing the inapplicable designation. 1 7.2 Manner and Timing of Designations. Except as otherwise provided in 2 this Order, or as otherwise stipulated or ordered, Disclosure of Discovery Material 3 that qualifies for protection under this Order must be clearly so designated before 4 the material is disclosed or produced. 5 Designation in conformity with this Order requires: 6 (a) for information in documentary form (e.g., paper or electronic 7 documents, but excluding transcripts of depositions or other pretrial or trial 8 proceedings), that the Producing Party affix at a minimum, the legend 9 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that 10 contains protected material. If only a portion of the material on a page qualifies for 11 protection, the Producing Party also must clearly identify the protected portion(s) 12 (e.g., by making appropriate markings in the margins). 13 A Party or Non-Party that makes original documents available for inspection 14 need not designate them for protection until after the inspecting Party has indicated 15 which documents it would like copied and produced. During the inspection and 16 before the designation, all of the material made available for inspection shall be 17 deemed “CONFIDENTIAL.” After the inspecting Party has identified the 18 documents it wants copied and produced, the Producing Party must determine 19 which documents, or portions thereof, qualify for protection under this Order. Then, 20 before producing the specified documents, the Producing Party must affix the 21 “CONFIDENTIAL legend” to each page that contains Protected Material. If only a 22 portion of the material on a page qualifies for protection, the Producing Party also 23 must clearly identify the protected portion(s) (e.g., by making appropriate markings 24 in the margins). 25 (b) for testimony given in depositions that the Designating Party 26 identifies the Disclosure or Discovery Material on the record, before the close of 27 the deposition all protected testimony. 28 (c) for information produced in some form other than documentary and 1 for any other tangible items, that the Producing Party affix in a prominent place on 2 the exterior of the container or containers in which the information is stored the 3 legend “CONFIDENTIAL.” If only a portion or portions of the information 4 warrants protection, the Producing Party, to the extent practicable, shall identify the 5 protected portion(s). 6 7.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 7 failure to designate qualified information or items does not, standing alone, waive 8 the Designating Party’s right to secure protection under this Order for such 9 material. Upon timely correction of a designation, the Receiving Party must make 10 reasonable efforts to assure that the material is treated in accordance with the 11 provisions of this Order. 12 8. CHALLENGING CONFIDENTIALITY DESIGNATIONS 13 8.1. Timing of Challenges. Any Party or Non-Party may challenge a 14 designation of confidentiality at any time that is consistent with the Court’s 15 Scheduling Order. 16 8.2 Meet and Confer. The Challenging Party shall initiate the dispute 17 resolution process under Local Rule 37-1 et seq. 18 8.3 Joint Stipulation. Any challenge submitted to the Court shall be via a 19 joint stipulation pursuant to Local Rule 37-2. 20 8.4 The burden of persuasion in any such challenge proceeding shall be on 21 the Designating Party. Frivolous challenges, and those made for an improper 22 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 23 parties) may expose the Challenging Party to sanctions. Unless the Designating 24 Party has waived or withdrawn the confidentiality designation, all parties shall 25 continue to afford the material in question the level of protection to which it is 26 entitled under the Producing Party’s designation until the Court rules on the 27 challenge. 28 /// 1 9. ACCESS TO AND USE OF PROTECTED MATERIAL 2 9.1 Basic Principles. A Receiving Party may use Protected Material that is 3 disclosed or produced by another Party or by a Non-Party in connection with this 4 Action only for prosecuting, defending or attempting to settle this Action. Such 5 Protected Material may be disclosed only to the categories of persons and under the 6 conditions described in this Order. When the Action has been terminated, a 7 Receiving Party must comply with the provisions of section 15 below (FINAL 8 DISPOSITION). 9 Protected Material must be stored and maintained by a Receiving Party at a 10 location and in a secure manner that ensures that access is limited to the persons 11 authorized under this Order. 12 9.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 13 otherwise ordered by the court or permitted in writing by the Designating Party, a 14 Receiving Party may disclose any information or item designated 15 “CONFIDENTIAL” only to: 16 (a) the Receiving Party’s Outside Counsel of Record in this Action, as 17 well as employees of said Outside Counsel of Record to whom it is reasonably 18 necessary to disclose the information for this Action; 19 (b) the officers, directors, and employees (including House Counsel) of 20 the Receiving Party to whom disclosure is reasonably necessary for this Action; 21 (c) Experts (as defined in this Order) of the Receiving Party to whom 22 disclosure is reasonably necessary for this Action and who have signed the 23 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 24 (d) the court and its personnel; 25 (e) court reporters and their staff; 26 (f) professional jury or trial consultants, mock jurors, and Professional 27 Vendors to whom disclosure is reasonably necessary for this Action and who have 28 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 1 (g) the author or recipient of a document containing the information or 2 a custodian or other person who otherwise possessed or knew the information; 3 (h) during their depositions, witnesses, and attorneys for witnesses, in 4 the Action to whom disclosure is reasonably necessary provided: (1) the deposing 5 party requests that the witness sign the form attached as Exhibit A hereto; and (2) 6 they will not be permitted to keep any confidential information unless they sign the 7 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 8 agreed by the Designating Party or ordered by the court. Pages of transcribed 9 deposition testimony or exhibits to depositions that reveal Protected Material may 10 be separately bound by the court reporter and may not be disclosed to anyone 11 except as permitted under this Stipulated Protective Order; and 12 (i) any mediators or settlement officers and their supporting personnel, 13 mutually agreed upon by any of the parties engaged in settlement discussions. 14 10. PROTECTED MATERIAL SUBPOENAED OR ORDERED 15 PRODUCED IN OTHER LITIGATION 16 If a Party is served with a subpoena or a court order issued in other litigation 17 that compels disclosure of any information or items designated in this Action as 18 “CONFIDENTIAL,” that Party must: 19 (a) promptly notify in writing the Designating Party. Such notification 20 shall include a copy of the subpoena or court order; 21 (b) promptly notify in writing the party who caused the subpoena or 22 order to issue in the other litigation that some or all of the material covered by the 23 subpoena or order is subject to this Protective Order. Such notification shall include 24 a copy of this Stipulated Protective Order; and 25 (c) cooperate with respect to all reasonable procedures sought to be 26 pursued by the Designating Party whose Protected Material may be affected. If the 27 Designating Party timely seeks a protective order, the Party served with the 28 subpoena or court order shall not produce any information designated in this action 1 as “CONFIDENTIAL” before a determination by the court from which the 2 subpoena or order issued, unless the Party has obtained the Designating Party’s 3 permission. The Designating Party shall bear the burden and expense of seeking 4 protection in that court of its confidential material and nothing in these provisions 5 should be construed as authorizing or encouraging a Receiving Party in this Action 6 to disobey a lawful directive from another court. 7 11. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO 8 BE PRODUCED IN THIS LITIGATION 9 (a) The terms of this Order are applicable to information produced by a 10 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information 11 produced by Non-Parties in connection with this litigation is protected by the 12 remedies and relief provided by this Order. Nothing in these provisions should be 13 construed as prohibiting a Non-Party from seeking additional protections. 14 (b) In the event that a Party is required, by a valid discovery request, to 15 produce a Non-Party’s confidential information in its possession, and the Party is 16 subject to an agreement with the Non-Party not to produce the Non-Party’s 17 confidential information, then the Party shall: 18 (1) promptly notify in writing the Requesting Party and the Non- 19 Party that some or all of the information requested is subject to a confidentiality 20 agreement with a Non-Party; 21 (2) promptly provide the Non-Party with a copy of the 22 Stipulated Protective Order in this Action, the relevant discovery request(s), and a 23 reasonably specific description of the information requested; and 24 (3) make the information requested available for inspection by 25 the Non-Party, if requested. 26 (c) If the Non-Party fails to seek a protective order from this court 27 within 14 days of receiving the notice and accompanying information, the 28 Receiving Party may produce the Non-Party’s confidential information responsive 1 to the discovery request. If the Non-Party timely seeks a protective order, the 2 Receiving Party shall not produce any information in its possession or control that 3 is subject to the confidentiality agreement with the Non-Party before a 4 determination by the court. Absent a court order to the contrary, the Non-Party shall 5 bear the burden and expense of seeking protection in this court of its Protected 6 Material. 7 12. UNAUTHORIZED DISCLOSURE OF PROTECTED 8 MATERIAL 9 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 10 Protected Material to any person or in any circumstance not authorized under this 11 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 12 writing the Designating Party of the unauthorized disclosures, (b) use its best 13 efforts to retrieve all unauthorized copies of the Protected Material, (c) inform the 14 person or persons to whom unauthorized disclosures were made of all the terms of 15 this Order, and (d) request such person or persons to execute the “Acknowledgment 16 an Agreement to Be Bound” attached hereto as Exhibit A. 17 13. INADVERTENT PRODUCTION OF PRIVILEGED OR 18 OTHERWISE PROTECTED MATERIAL 19 When a Producing Party gives notice to Receiving Parties that certain 20 inadvertently produced material is subject to a claim of privilege or other 21 protection, the obligations of the Receiving Parties are those set forth in Federal 22 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify 23 whatever procedure may be established in an e-discovery order that provides for 24 production without prior privilege review. Pursuant to Federal Rule of Evidence 25 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure 26 of a communication or information covered by the attorney-client privilege or work 27 product protection, the parties may incorporate their agreement in the stipulated 28 protective order submitted to the court. 1 14. MISCELLANEOUS 2 14.1 Right to Further Relief. Nothing in this Order abridges the right of any 3 person to seek its modification by the Court in the future. 4 14.2 Right to Assert Other Objections. By stipulating to the entry of this 5 Protective Order, no Party waives any right it otherwise would have to object to 6 disclosing or producing any information or item on any ground not addressed in 7 this Stipulated Protective Order. Similarly, no Party waives any right to object on 8 any ground to use in evidence of any of the material covered by this Protective 9 Order. 10 14.3 Filing Protected Material. A Party that seeks to file under seal any 11 Protected Material must comply with Local Civil Rule 79-5. Protected Material 12 may only be filed under seal pursuant to a court order authorizing the sealing of the 13 specific Protected Material. If a Party’s request to file Protected Material under seal 14 is denied by the court, then the Receiving Party may file the information in the 15 public record unless otherwise instructed by the court. 16 15. FINAL DISPOSITION 17 After the final disposition of this Action, as defined in paragraph 6, within 60 18 days of a written request by the Designating Party, each Receiving Party must 19 return all Protected Material to the Producing Party or destroy such material. As 20 used in this subdivision, “all Protected Material” includes all copies, abstracts, 21 compilations, summaries, and any other format reproducing or capturing any of the 22 Protected Material. Whether the Protected Material is returned or destroyed, the 23 Receiving Party must submit a written certification to the Producing Party (and, if 24 not the same person or entity, to the Designating Party) by the 60-day deadline that 25 (1) identifies (by category, where appropriate) all the Protected Material that was 26 returned or destroyed and (2) affirms that the Receiving Party has not retained any 27 copies, abstracts, compilations, summaries or any other format reproducing or 28 capturing any of the Protected Material. Notwithstanding this provision, Counsel 1 || are entitled to retain an archival copy of all pleadings, motion papers, trial, 2 || deposition, and hearing transcripts, legal memoranda, correspondence, deposition 3 || and trial exhibits, expert reports, attorney work product, and consultant and expert 4 || work product, even if such materials contain Protected Material. Any such archival 5 || copies that contain or constitute Protected Material remain subject to this Protective 6 || Order as set forth in Section 6 (DURATION). 7 16. MIOLATION 8 Any violation of this Order may be punished by appropriate measures 9 || including, without limitation, contempt proceedings and/or monetary sanctions. 10 11 Based on the Parties’ Stipulation (Dkt. 34), and good cause appearing 12 || therefor, IT IS SO ORDERED. 13 14 □□ DATED: May 20, 2020 □ 15 JOHN D. EARLY 16 ed States Magistrate Ju 17 18 19 20 21 22 23 24 25 26 27 28

STIPULATION AND PROPOSED

1 EXHIBIT A 2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3 I, ______________________________, of 4 _____________________________________ [print or type full address], declare 5 under penalty of perjury that I have read in its entirety and understand the 6 Protective Order that was issued by the United States District Court for the Central 7 District of California on ____________________ in the case of Ginsburg v. 8 Diamond Resorts International Marketing, Inc., Case No. 8:19-cv-01645-DOC- 9 JDE. I agree to comply with and to be bound by all the terms of this Protective 10 Order and I understand and acknowledge that failure to so comply could expose me 11 to sanctions and punishment in the nature of contempt. I solemnly promise that I 12 will not disclose in any manner any information or item that is subject to this 13 Protective Order to any person or entity except in strict compliance with the 14 provisions of this Protective Order. 15 I further agree to submit to the jurisdiction of the United States District 16 Court for the Central District of California for the purpose of enforcing the terms of 17 this Protective Order, even if such enforcement proceedings occur after termination 18 of this action. 19 I hereby appoint ____________________________ of 20 ___________________ ______________________________________ as my 21 California agent for service of process in connection with this action or any 22 proceedings related to enforcement of this Protective Order. 23 Date: 24 City and State where sworn and signed: 25 26 Signature: 27 28 Printed name: