Bravado International Group Merchandising Services, Inc. v. Spin Media, LLC et al

Filing 60

PROTECTIVE ORDER by Magistrate Judge Frederick F. Mumm. IT IS HEREBY ORDERED that the terms and conditions of this Protective Order shall govern the handling of all documents and information exchanged by the parties in this action. 56 (es)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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BRAVADO INTERNATIONAL
GROUP MERCHANDISING
SERVICES, INC.

NOTE CHANGES MADE BY
COURT

v.

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Plaintiff,

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Case No.: CV 10-02701 JAK (FFM)

SPIN MEDIA, LLC, MCEVOY
GROUP, LLC, CENTRAL MILLS,
INC., d/b/a FREEZE and CHARLES
TEBELE a/k/a CHARLIE TEBELE,

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Defendants.

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AND RELATED CROSSCLAIMS.

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IT IS HEREBY ORDERED that the terms and conditions of this Protective

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Order shall govern the handling of all documents and information exchanged by

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the parties in this action.

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1.

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PURPOSES AND LIMITATIONS
Plaintiff Bravado International Group Merchandising Services, Inc.

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(“Bravado”) and defendants Spin Media, LLC (“Spin”), McEvoy Group, LLC

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(“McEvoy”), Central Mills, Inc. d/b/a Freeze (“Freeze”), and Charles Tebele a/k/a

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Charlie Tebele (“Tebele”) (collectively, “the parties”) acknowledge that disclosure

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and discovery activity in this action are likely to involve production of
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confidential, proprietary, or private information for which special protection from

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public disclosure and from use for any purpose other than prosecuting this

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litigation would be warranted. Accordingly, the parties hereby stipulate to and

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petition the court to enter the following Stipulated Protective Order. The parties

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acknowledge that this Order does not confer blanket protections on all disclosures

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or responses to discovery and that the protection it affords extends only to the

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limited information or items that are entitled under the applicable legal principles

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to treatment as confidential. The parties further acknowledge, as set forth in

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Section 10, below, that this Stipulated Protective Order creates no entitlement to

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file confidential information under seal; Civil Local Rule 79-5 sets forth the

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procedures that must be followed and reflects the standards that will be applied

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when a party seeks permission from the court to file material under seal.

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2.

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DEFINITIONS
2.1

Action: this case no. CV 10-02701 JAK (FFM) and any subsequent

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adjudication of the claims asserted herein by and among any of the parties to this

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case, including but not limited to requests to enforce or challenge any award

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entered or any appeals or retrials.

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2.2

Party: any party to this Action, including all of its officers, directors,

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employees, consultants, retained experts, and outside counsel (and their support

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staff).

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2.3

Disclosure or Discovery Material: all items or information, regardless

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of the medium or manner generated, stored, or maintained (including, among other

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things, testimony, transcripts, or tangible things) that are produced or generated in

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disclosures or responses to discovery in this matter.

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2.4

“Confidential” Information or Items: information (regardless of how

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generated, stored or maintained) or tangible things that qualify for protection under

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standards developed under F.R.Civ.P. 26(c).

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2.5

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“Attorneys’ Eyes Only” Information or Items: extremely sensitive

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“Confidential Information or Items” whose disclosure to another Party or nonparty

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would create a substantial risk of serious injury that could not be avoided by less

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restrictive means.

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2.6

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Material from a Producing Party.
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Receiving Party: a Party that receives Disclosure or Discovery

Producing Party: a Party or non-party that produces Disclosure or

Discovery Material in this Action.
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Designating Party: a Party or non-party that designates information or

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items that it produces in disclosures or in responses to discovery as “Confidential”

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or “Attorneys’ Eyes Only.”
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designated as “Confidential” or as “Attorneys’ Eyes Only.”
2.10 Outside Counsel: attorneys who are not employees of a Party but who

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Protected Material: any Disclosure or Discovery Material that is

are retained to represent or advise a Party in this Action.

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2.11 House Counsel: attorneys who are employees of a Party.

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2.12 Counsel (without qualifier): Outside Counsel and House Counsel (as

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well as their support staffs).

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2.13 Expert: a person with specialized knowledge or experience in a matter

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pertinent to the litigation who has been retained by a Party or its counsel to serve as

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an expert witness or as a consultant in this Action and who is not a past or a current

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employee of an opposing Party or of a competitor of a Party and who, at the time

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of retention, is not anticipated to become an employee of a Party or a competitor of

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a Party. This definition includes a professional jury or trial consultant retained in

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connection with this litigation.

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2.14 Professional Vendors: persons or entities that provide litigation

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support services (e.g., photocopying; videotaping; translating; preparing exhibits or

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demonstrations; organizing, storing, retrieving data in any form or medium; etc.)

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and their employees and subcontractors.

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3.

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The protections conferred by this Stipulation and Order cover not only Protected

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Material (as defined above), but also any information copied or extracted

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therefrom, as well as all copies, excerpts, summaries, or compilations thereof, plus

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testimony, conversations, or presentations by parties or counsel to or in court or in

SCOPE

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other settings that might reveal Protected Material (FFM).

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4.

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Even after the termination of this litigation, the confidentiality obligations imposed

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by this Order shall remain in effect until a Designating Party agrees otherwise in

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writing or a court order otherwise directs.

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5.

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DURATION

DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection.

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Each Party or non-party that designates information or items for protection under

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this Order must take care to limit any such designation to specific material that

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qualifies under the appropriate standards. Indiscriminate designations are

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prohibited.

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If it comes to a Party’s or a non-party’s attention that information or items

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that it designated for protection do not qualify for protection at all, or do not

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qualify for the level of protection initially asserted, that Party or non-party must

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promptly notify all other parties that it is withdrawing the mistaken designation.

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5.2

Manner and Timing of Designations. Except as otherwise provided in

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this Order (see, e.g., second paragraph of section 5.2(a), below), or as otherwise

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stipulated or ordered, material that qualifies for protection under this Order must be

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clearly so designated before the material is disclosed or produced.
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Designation in conformity with this Order requires:
(a)

for information in documentary form (apart from transcripts of

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depositions or other pretrial or trial proceedings), that the Producing Party affix the

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legend “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” at the top of each

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page that contains protected material.

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A Party or non-party that makes original documents or materials available

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for inspection need not designate them for protection until after the inspecting

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Party has indicated which material it would like copied and produced. During the

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inspection and before the designation, all of the material made available for

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inspection shall be deemed “ATTORNEYS’ EYES ONLY.” After the inspecting

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Party has identified the documents it wants copied and produced, the Producing

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Party must determine which documents, or portions thereof, qualify for protection

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under this Order, then, before producing the specified documents, the Producing

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Party must affix the appropriate legend (“CONFIDENTIAL” or “ATTORNEYS’

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EYES ONLY”) on each page that contains Protected Material.

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(b)

for testimony given in deposition or in other pretrial or trial

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proceedings (FFM), that the Party or non-party offering or sponsoring the

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testimony identify on the record, before the close of the deposition, hearing, or

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other proceeding (FFM), all protected testimony, and further specify any portions

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of the testimony that qualify as “ATTORNEYS’ EYES ONLY.” When it is

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impractical to identify separately each portion of testimony that is entitled to

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protection, and when it appears that substantial portions of the testimony may

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qualify for protection, the Party or non-party that sponsors, offers, or gives the

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testimony may invoke on the record (before the deposition or proceeding (FFM) is

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concluded) a right to have up to 20 days to identify the specific portions of the

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testimony as to which protection is sought and to specify the level of protection

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being asserted (“CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY”). Only

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those portions of the testimony that are appropriately designated for protection
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within the 20 days shall be covered by the provisions of this Stipulated Protective

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Order.
Transcript pages containing Protected Material must be separately

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bound by the court reporter, who must affix to the top of each such page the legend

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“CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY,” as instructed by the Party

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or nonparty offering or sponsoring the witness or presenting the testimony.
(c)

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for information produced in some form other than documentary,

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and for any other tangible items, that the Producing Party affix in a prominent

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place on the exterior of the container or containers in which the information or item

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is stored the legend “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY.” If

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only portions of the information or item warrant protection, the Producing Party, to

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the extent practicable, shall identify the protected portions, specifying whether they

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qualify as “Confidential” or as “Attorneys’ Eyes Only.”
5.3

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Inadvertent Failures to Designate. If timely corrected, an inadvertent

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failure to designate qualified information or items as “Confidential” or “Attorneys’

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Eyes Only” does not, standing alone, waive the Designating Party’s right to secure

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protection under this Order for such material. If material is appropriately

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designated as “Confidential” or “Attorneys’ Eyes Only” after the material was

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initially produced, the Receiving Party, on timely notification of the designation,

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must make reasonable efforts to assure that the material is treated in accordance

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with the provisions of this Order.

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6.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges. A Party does not waive its right to challenge a

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confidentiality designation by electing not to mount a challenge promptly after the

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original designation is disclosed.

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6.2

Meet and Confer. A Party that elects to initiate a challenge to a
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Designating Party’s confidentiality designation must do so in good faith and must

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begin the process by conferring directly (in voice to voice dialogue; other forms of

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communication are not sufficient) with counsel for the Designating Party. In

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conferring, the challenging Party must explain the basis for its belief that the

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confidentiality designation was not proper and must give the Designating Party an

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opportunity to review the designated material, to reconsider the circumstances,

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and, if no change in designation is offered, to explain the basis for the chosen

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designation. A challenging Party may proceed to the next stage of the challenge

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process only if it has engaged in this meet and confer process first.
6.3

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Judicial Intervention. A Party that elects to press a challenge to a

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confidentiality designation after considering the justification offered by the

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Designating Party may file and serve a motion under Civil Local Rule 37 (FFM)

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(and in compliance with Civil Local Rule 79-5, if applicable) that identifies the

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challenged material and sets forth in detail the basis for the challenge. Each such

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motion must be accompanied by a competent declaration that affirms that the

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movant has complied with the meet and confer requirements imposed in the

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preceding paragraph and that sets forth with specificity the justification for the

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confidentiality designation that was given by the Designating Party in the meet and

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confer dialogue.
The burden of persuasion in any such challenge proceeding shall be on the

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Designating Party. Until the court rules on the challenge, all parties shall continue

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to afford the material in question the level of protection to which it is entitled under

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the Producing Party’s designation.

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7.

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ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

Basic Principles. A Receiving Party may use Protected Material that is

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disclosed or produced by another Party or by a non-party in connection with this

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case only for prosecuting, defending, or attempting to settle this litigation. Such

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Protected Material may be disclosed only to the categories of persons and under
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the conditions described in this Order. When the litigation has been terminated, a

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Receiving Party must comply with the provisions of section 11, below (FINAL

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DISPOSITION).

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Protected Material must be stored and maintained by a Receiving Party at a

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location and in a secure manner that ensures that access is limited to the persons

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authorized under this Order. Protected Material shall not be copied, reproduced,

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summarized, or abstracted except to the extent that such copying, reproduction,

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summarization, or abstraction is reasonably necessary for the conduct of this

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Action. Any such copies, reproductions, summaries, and abstracts shall be subject

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to the terms of this Order and labeled in the same manner as the Protected Material

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upon which they are based.

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7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless

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otherwise ordered by the court or permitted in writing by the Designating Party, a

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Receiving Party may disclose any information or item designated

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CONFIDENTIAL only to:

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(a)

the Receiving Party’s Outside Counsel of record in this Action,

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as well as employees of said Counsel to whom it is reasonably necessary to

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disclose the information for this litigation;

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(b)

the officers, directors, and employees (including House

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Counsel) of the Receiving Party to whom disclosure is reasonably necessary for

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this litigation;

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(c)

experts (as defined in this Order) of the Receiving Party to

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whom disclosure is reasonably necessary for this litigation and who have signed

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the “Agreement to Be Bound by Protective Order” (Exhibit A);

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(d)

the Court and its personnel;

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(e)

court reporters, their staffs, and professional vendors to whom

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disclosure is reasonably necessary for this litigation;
(f)

during their depositions, witnesses in the Action to whom
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disclosure is reasonably necessary and who have signed the “Agreement to Be

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Bound by Protective Order” (Exhibit A).
(g)

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the author and any addressee of the document or the original

source of the information.
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Disclosure of “ATTORNEYS’ EYES ONLY” Information or Items.

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Unless otherwise ordered by the court or permitted in writing by the Designating

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Party, a Receiving Party may disclose any information or item designated

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“ATTORNEYS’ EYES ONLY” only to:
(a)

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the Receiving Party’s Outside Counsel of record in this Action,

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as well as employees of said Counsel to whom it is reasonably necessary to

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disclose the information for this litigation;
(b)

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Experts (as defined in this Order) (1) to whom disclosure is

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reasonably necessary for this litigation, (2) who have signed the “Agreement to Be

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Bound by Protective Order” (Exhibit A);

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(c)

the Court and its personnel;

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(d)

court reporters, their staffs, and professional vendors to whom

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disclosure is reasonably necessary for this litigation; and
(e)

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the author and any addressee of the document or the original

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source of the information.

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8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

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IN OTHER LITIGATION

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If a Receiving Party is served with a subpoena or an order issued in other

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litigation that would compel disclosure of any information or items designated in

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this Action as “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY,” the

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Receiving Party must so notify the Designating Party, in writing (by fax, if

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possible) immediately and in no event more than seven court days after receiving

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the subpoena or order. Such notification must include a copy of the subpoena or

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court order.
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The Receiving Party also must immediately inform in writing the Party who

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caused the subpoena or order to issue in the other litigation that some or all the

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material covered by the subpoena or order is the subject of this Protective Order. In

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addition, the Receiving Party must deliver a copy of this Stipulated Protective

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Order promptly to the Party in the other action that caused the subpoena or order to

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issue.

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The purpose of imposing these duties is to alert the interested parties to the

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existence of this Protective Order and to afford the Designating Party in this case

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an opportunity to try to protect its confidentiality interests in the court from which

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the subpoena or order issued. The Designating Party shall bear the burdens and the

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expenses of seeking protection in that court of its confidential material – and

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nothing in these provisions should be construed as authorizing or encouraging a

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Receiving Party in this Action to disobey a lawful directive from another court.

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9.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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If a Receiving Party learns that, by inadvertence or otherwise, it has

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disclosed Protected Material to any person or in any circumstance not authorized

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under this Stipulated Protective Order, the Receiving Party must immediately (a)

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notify in writing the Designating Party of the unauthorized disclosures, (b) use its

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best efforts to retrieve all copies of the Protected Material, (c) inform the person or

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persons to whom unauthorized disclosures were made of all the terms of this

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Order, and (d) request such person or persons to execute the “Acknowledgment

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and Agreement to Be Bound” that is attached hereto as Exhibit A.

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10.

FILING PROTECTED MATERIAL

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Without written permission from the Designating Party or a court order

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secured after appropriate notice to all interested persons, a Party may not file in the

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public record in this Action any Protected Material. A Party that seeks to file under

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seal any Protected Material must comply with Civil Local Rule 79-5.

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11.

FINAL DISPOSITION
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Unless otherwise ordered or agreed in writing by the Producing Party, within

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sixty days after the final termination of this Action, each Receiving Party must

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return or destroy all Protected Material to the Producing Party. As used in this

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subdivision, “all Protected Material” includes all copies, abstracts, compilations,

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summaries or any other form of reproducing or capturing any of the Protected

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Material. Whether the Protected Material is returned or destroyed, the Receiving

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Party must submit a written certification to the Producing Party (and, if not the

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same person or entity, to the Designating Party) by the sixty day deadline that

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identifies (by category, where appropriate) all the Protected Material that was

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returned or destroyed and that affirms that the Receiving Party has not retained any

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copies, abstracts, compilations, summaries or other forms of reproducing or

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capturing any of the Protected Material. Notwithstanding this provision, Counsel

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are entitled to retain an archival copy of all pleadings, motion papers, transcripts,

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legal memoranda, correspondence or attorney work product, even if such materials

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contain Protected Material. Any such archival copies that contain or constitute

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Protected Material remain subject to this Protective Order as set forth in Section 4

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(DURATION), above.

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12.

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MISCELLANEOUS
12.1 Right to Further Relief. Nothing in this Order abridges the right of any

person to seek its modification by the Court in the future.

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12.2 Right to Assert Other Objections. By stipulating to the entry of this

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Protective Order no Party waives any right it otherwise would have to object to

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disclosing or producing any information or item on any ground not addressed in

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this Stipulated Protective Order. Similarly, no Party waives any right to object on

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any ground to use in evidence of any of the material covered by this Protective

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Order.

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12.3 Violations of Protective Order. In the event that any person or Party
violates or threatens to violate the terms of this Order, the aggrieved Party may
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immediately apply to obtain injunctive relief against such person or party violating

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or threatening to violate this Order.

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the terms of this Order agree that this Court shall retain jurisdiction over it and

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them for the purpose of enforcing this Order.

The parties and any other person subject to

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PURSUANT TO STIPULATION, IT IS SO ORDERED.

DATED: July 26, 2011

/S/ FREDERICK F. MUMM
HON. FREDERICK F. MUMM
United States Magistrate Judge

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EXHIBIT “A”

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, ______________________________________________________ , of
___________________________________________________, declare under
penalty of perjury that I have read in its entirety and understand the Stipulated
Protective Order that was issued by the United States District Court for the Central
District of California on _____________ in the case of Bravado International
Group Merchandising, Inc. v. Spin Media, et al , United District Court, Northern
District of California, San Jose Division, Case No. CV 10-02701 JAK (FFM). I
agree to comply with and to be bound by all the terms of this Stipulated Protective
Order and I understand and acknowledge that failure to so comply could expose
me to sanctions and punishment in the nature of contempt. I solemnly promise that
I will not disclose in any manner any information or item that is subject to this
Stipulated Protective Order to any person or entity except in strict compliance with
the provisions of this Order.
I further agree to submit to the jurisdiction of the United States District
Court for the Central District of California for the purpose of enforcing the terms
of this Stipulated Protective Order, even if such enforcement proceedings occur
after termination of this action.
Date:
City and State where signed:
Printed name:
Signature:

__________________________________
__________________________________
__________________________________
__________________________________

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