His and Her Corp v. Shake-N-Go Fashion Inc

Filing 154

PROTECTIVE ORDER by Magistrate Judge Victor B. Kenton. In re: Joint STIPULATION for Protective Order 147 . IT IS SO ORDERED this protective order be issued and will remain in effect unless the Court orders otherwise or issues a protective order to replace it in ruling on the pending Protective Order Motion 140 currently scheduled to be heard December 16, 2014. See document for further details. (mkr)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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HIS & HER CORP. d/b/a HIS & HER
HAIR GOODS CO.,

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Civil Action No. 11-05323
(GAF)(VBK)

Plaintiff,
vs.

PROTECTIVE ORDER

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SHAKE-N-GO FASHION, INC.;
MODEL MODEL HAIR FASHION,
INC.; C&J BEAUTY SUPPLY; TIGI
BEAUTY SUPPLY; PINK BEAUTY
SUPPLY & SALON, INC.; SAM’S
BEAUTY; EBONY WIG & BEAUTY
SUPPLY; WOW BEAUTY SUPPLY;
and BASKET BEAUTY SUPPLY,

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Defendants.

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SHAKE-N-GO FASHION, INC. and
MODEL MODEL HAIR FASHION,
INC.,

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Counterclaimants
v.

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HIS & HER CORP. d/b/a HIS & HER
HAIR GOODS CO.,

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Counterdefendant.

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PROTECTIVE ORDER

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GOOD CAUSE HAVING BEEN FOUND, including based on the

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stipulation of the parties, to issue this protective order (which will remain in effect

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unless the Court orders otherwise or issues a protective order to replace it in ruling

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on the pending protective order motion currently scheduled to be heard December

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16, 2014) as follows:

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A.

Certain discovery and initial disclosure materials to be exchanged in

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this case, including documents, interrogatory answers, deposition testimony and

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other discovery, are expected to contain information claimed by one or more of the

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parties to be confidential non-public information of a personal, financial, and/or

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commercial nature which may constitute a trade secret or proprietary information,

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including: price lists, sales information, customer information (including but not

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limited to lists), and supplier and/or manufacturer information, costs information,

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profit information (including but not limited to invoices and reports (e.g., sales

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reports) and other documents reflecting such information), and personal or private

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information (e.g., home addresses, credit card information) (collectively,

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“Information”).

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B.

The parties do not wish unreasonably to impede or burden the

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discovery process but, at the same time, recognize an obligation to take reasonable

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steps to safeguard legitimate confidentiality and privacy concerns. The parties

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wish to avoid the expense and delay of motions to compel discovery or for a

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protective order to obtain a determination of whether the matter is protected by

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confidentiality, privacy or other similar privilege. Thus, an order thereon will

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conserve the resources of the Court and the parties.

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C.

Further, the parties assert that materials designated as “Confidential

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Information” and “Confidential – Attorneys Eyes Only Information” pursuant to

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the procedures below should be protected by a Court order rather than by a private

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agreement because the entry of a protective order would carry the weight of the

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Court’s imprimatur and authorize the exercise of its contempt power over any

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PROTECTIVE ORDER

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potential violations of this protective order. A private agreement between the

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parties would not serve to fully protect the confidential nature of the materials

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containing Confidential Information from unwarranted disclosure or use, as it

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would not provide sufficient remedies in the event of misappropriation and would

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therefore not be as strong of a deterrent against such misappropriation. The parties

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intend this Stipulation and Order to address these concerns.

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D.

Definitions:

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“Confidential Information” is defined as: non-public Information (as defined

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above), which the disclosing party has treated as confidential (i) to avoid harm to

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the competitive position of the disclosing party (e.g., sales information [e.g., gross

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annual revenues and gross annual numbers of pieces] and costs information), (ii) to

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avoid harm to the privacy rights of individuals (e.g., home addresses, credit card

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information), (iii) to protect a person’s or entity’s business operations, processes,

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and technical and developmental information within the scope of Rule 26(c)(1)(G),

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the disclosure of which is likely to harm that person’s or entity’s competitive

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position, or (iv) because disclosure of such information would contravene an

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obligation of confidentiality to a third party or to a Court (e.g., agreements with

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third-parties, non-public marketing and advertising information, personal

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information of third-parties).

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“Confidential – Attorneys Eyes Only Information ” is defined as:

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Confidential Information (as defined above), which the disclosing party has treated

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as highly sensitive and more sensitive than Confidential Information whose review

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by another party or non-party (other than its or her counsel of record) would result

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in specific prejudice or harm that could not be avoided by less restrictive means,

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such as the identities of a party’s customers, revenue and sales information as

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connected to specific customers, profit margins, non-public price lists, and supplier

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and/or manufacturer information.

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PROTECTIVE ORDER

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Any items listed above as examples of a type of confidentiality designation

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are intended merely as illustrative examples and should not be treated as an

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admission by either party that any particular document or information in that

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category necessarily warrants that designation or any designation. The proper

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designation (if any) of any document or information should be based on the

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particular facts and circumstances surrounding that document or information, in

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light of the definitions above.

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IT IS THEREFORE ORDERED:
1.

This Protective Order shall govern the disclosure and use by receiving

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parties of any documents, testimony or other information the producing party

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(including third party witnesses) considers in good faith to be, or to reflect or

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reveal a trade secret, as that term is defined by California Civil Code § 3426.1, or

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other proprietary information that is not publicly available designated as

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“CONFIDENTIAL” or “CONFIDENTIAL - ATTORNEYS EYES ONLY”

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(hereafter, collectively, “Confidential Information”) pursuant to paragraph 7.

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2.

In the event this case proceeds to trial, all information designated as

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Confidential Information becomes public unless sufficient cause is shown. The

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parties will address in connection with the final pre-trial conference, procedures for

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such showing to be made to the Court. The parties will cooperate in establishing

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procedures acceptable to the Court to protect Confidential Information pursuant to

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this Protective Order both at trial and upon any appeal of this case.

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3.

For purposes of this Protective Order, “Discovery Materials” shall

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include documents produced pursuant to the voluntary disclosure requirements of

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Rule 26 of the Federal Rules of Civil Procedure, documents produced pursuant to

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Rule 34 of the Federal Rules of Civil Procedure, interrogatory answers, deposition

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testimony, and all other information that may be disclosed in the course of

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discovery in this action, as well as compilations or excerpts of such materials.

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PROTECTIVE ORDER

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4.

This Protective Order shall not abrogate or diminish any privilege or

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any contractual, statutory or other legal obligation or right of any party with

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respect to Discovery Materials. Each party shall retain the right to oppose

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disclosure or production of any information sought in discovery on any additional

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grounds outside the provisions of this stipulated Order. This Order is entered

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solely for the purpose of facilitating the exchange of documents and information

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between the parties to this action without involving the Court unnecessarily in the

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process. Nothing in this Order shall affect or prejudice or enhance the rights any

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party has to seek discovery from another party, a party’s right to object to requests

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for discovery (including on the ground that the request seeks information that is

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confidential) or a party’s right to seek to compel the production of information by

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way of a court order under the Federal Rules of Civil Procedure. Nothing in this

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Order, or the production of any information or document under the terms of this

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Order, or any proceedings pursuant to this Order shall be deemed to have the effect

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of an admission or waiver by any party or of altering the confidential nature or

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non-confidential nature of any such document or information.

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5.

Each party shall keep confidential and not use or disclose any

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Confidential Information of another party (or third party witness) except as

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provided in paragraph 7 below.

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6.

Any party (including third parties) may designate any Discovery

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Materials it deems to be confidential by designating such Discovery Materials as

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Confidential Information.

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7.

Except as provided in paragraph 11, access to Discovery Materials

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designated Confidential Information shall be restricted in accordance with the

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following provisions:

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a)

Discovery Materials, and any information extracted from them,

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which have been designated Confidential Information shall be used solely for the

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purposes of prosecuting or defending this action, and for no other purposes;

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PROTECTIVE ORDER

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b)

“CONFIDENTIAL” designated Discovery Materials shall only

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be disseminated to or shown to: (1) attorneys who are members or associates of the

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law firms listed on the pleadings in this action, and who have appeared or filed a

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motion or application to appear pro hac vice (“Counsel of Record”), and to

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supporting personnel employed by Counsel of Record, such as other attorneys at

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the firm, paralegals, legal secretaries, data entry clerks, legal clerks and/or private

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data entry, document management and photocopying services; (2) named parties,

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which includes employees of any company, assisting in the defense of the action;

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(3) consultants and experts who have signed an undertaking in the form attached as

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Exhibit 1, (4) any professional vendors or other persons or entities that provide

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

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exhibits or demonstrations; organizing, storing, retrieving data in any form or

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medium and their employees and subcontractors); (5) any private mediator or other

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ADR professional retained or selected by the parties to assist in the resolution of

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the matter; (6) the court and court personnel, in accordance with the terms

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specified below in paragraphs (d)-(e), and (7) as agreed to by the producing party

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in writing. There shall be no other permissible dissemination of CONFIDENTIAL

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Discovery Materials.

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c)

“CONFIDENTIAL - ATTORNEYS EYES ONLY” designated

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Discovery Materials shall only be disseminated to or shown to: (1) attorneys who

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are members or associates of the law firms listed on the pleadings in this action,

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and who have appeared or filed a motion or application to appear pro hac vice

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(“Counsel of Record”), and to supporting personnel employed by Counsel of

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Record, such as other attorneys at the firm, paralegals, legal secretaries, data entry

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clerks, legal clerks and/or private data entry, document management and

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photocopying services; (2) the court and court personnel, in accordance with the

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terms specified below in paragraphs (d)-(e), (3) any professional vendors or other

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persons or entities that provide litigation support services (e.g., photocopying;

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PROTECTIVE ORDER

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videotaping; translating; preparing exhibits or demonstrations; organizing, storing,

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retrieving data in any form or medium and their employees and subcontractors);

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(4) outside experts and consultants, who are not officers, directors, employees, or

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shareholders of a party or competitors, who have been retained in connection with

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this action, and who have signed an undertaking in the form attached as Exhibit 1,

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and (5) as agreed to by the producing party in writing.

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d)

No copies, extracts or summaries of any document designated

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Confidential Information shall be made except by or on behalf of Counsel of

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Record; and such copies, extracts or summaries shall also be designated and given

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the same confidentiality designation as the original and shall not be delivered or

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exhibited to any persons except as provided in this Protective Order.

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e)

Counsel of Record may allow access to Discovery Material

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designated Confidential Information to their retained outside consultants, provided

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that any such outside consultant who is to receive such material shall be provided

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with a copy of this Protective Order and shall execute an undertaking in the form

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annexed hereto as Exhibit 1. Consultants shall be specifically advised that the

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portion of their written work product, which contains or discloses the substance of

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Discovery Material designated as Confidential Information is subject to all the

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provisions of this Protective Order. Counsel of Record disclosing such material to

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consultants shall be responsible for obtaining the executed undertakings in advance

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of such disclosure and also shall retain the original executed copy of said

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undertakings. No Discovery Material designated as Confidential Information may

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be disclosed to an outside consultant prior to execution of the form attached as

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Exhibit 1.

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f)

During depositions, Counsel of Record may question any

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witness about any Discovery Material designated Confidential Information to the

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extent the witness has already had access to such Confidential Information.

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However, where the witness or deponent testifies about such designated Discovery

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PROTECTIVE ORDER

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Material, the party who marked the material as Confidential Information may

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instruct the Court Reporter to mark and seal such testimony as separate from the

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public record transcript and then shall be treated as Confidential Information of the

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designating party. Portions of deposition transcripts designated

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“CONFIDENTIAL” or “CONFIDENTIAL - ATTORNEYS EYES ONLY” shall

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be so marked and the designated portions, including exhibits consisting of

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Confidential Information Discovery Material (i.e., Discovery Material designated

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as Confidential Information), shall be bound separately by the Court Reporter, kept

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under seal, and maintained separately by the Court Reporter and the parties from

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the non-confidential portions of the transcript, including exhibits, except as

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otherwise stipulated by the Parties or ordered by the Court.

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g)

Filings Under Seal. In the event that any Confidential

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Information Discovery Materials are attached to, or quoted or summarized in, any

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pleadings, motion papers or other papers are filed with this Court, the portions of

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pleadings or papers that contain the Confidential Information Discovery Materials

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shall be filed under seal pursuant to this Order. Pursuant to Local Rule 79-5: (i)

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the original and judge’s copy of the document shall be sealed in separate envelopes

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with a copy of the title page attached to the front of each envelope; (ii) conformed

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copies need not be placed in sealed envelopes; and (iii) the materials to be sealed,

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shall not be electronically filed but shall be filed manually and a Notice of Manual

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Filing shall first be electronically filed identifying the materials being manually

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filed. All papers filed under seal that refer to or rely upon such Confidential

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Information shall designate the particular aspects that are confidential so that the

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Court, in drafting orders, can determine whether there is material which the Court

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should attempt not to disclose. Absent such advance notification, the Court will be

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free to incorporate all such evidence in its written and oral rulings. Copies of such

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documents containing information subject to this Protective Order that are served

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on counsel for the parties shall be identified as containing Confidential

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PROTECTIVE ORDER

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Information and shall be maintained as Confidential Information as described

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herein.

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8.

Nothing herein shall impose any restrictions on the use or disclosure

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by a party of its own Confidential Information or information it received outside of

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discovery from another party in this litigation.

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9.

The disclosure of any Discovery Materials pursuant to the terms of

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this Protective Order is not intended to be and shall not be construed as a waiver of

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any right or a relinquishment of any confidentiality claim as to said Discovery

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Materials or as a waiver of any claim that the information disclosed is a trade

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secret or is proprietary. In the event that any Confidential Information is used in

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any Court proceeding in this action, it shall not lose its confidential status through

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such use, and the party using such shall take reasonable steps to maintain its

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confidentiality during such use.

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10.

This Order shall be without prejudice to the right of a party (i) to bring

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before the Court at any time the question of whether any particular document or

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information is private or whether its use should be restricted or (ii) to present a

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motion to the Court under FRCP 26(c) for a separate protective order as to any

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particular document or information, including restrictions differing from those as

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specified herein.

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If any dispute arises concerning whether information designated as

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Confidential Information should in fact be considered as Confidential Information

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or whether it should be considered as a lower level of Confidential Information for

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purposes of this Protective Order, the party who objects to the designation of the

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information as Confidential Information shall give written notice of the objection.

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The parties shall then attempt to resolve the dispute informally and in good faith

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within five (five5) business days. If the parties do not resolve the dispute

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informally, the party who designated the information as Confidential Information

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shall have fifteen (15) business days from the date the written notice of objection is

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PROTECTIVE ORDER

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given to file a motion seeking resolution of the objection (unless the parties to the

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dispute agree in writing to a different period or the Court orders a different period).

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If the motion is not filed within this time, then the Confidential Information

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designation shall be deemed waived. If such a motion is timely filed, the party

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asserting confidentiality shall have the burden of proving that the Confidential

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Information is protected by (a) a right to privacy or (b) trade secret or other

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confidential research, development, or commercial information within the meaning

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of Rule 26(c) of the Federal Rules of Civil Procedure. Prior to the determination

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of such motion, the disputed information shall be treated by the parties as

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Confidential Information and shall be treated thereafter according to the Court’s

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ruling subject to rights of appeal (e.g., a party has 10 days to appeal the magistrate

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judge’s ruling to the Court).

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12.

Upon final resolution of this litigation, including any appellate

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proceedings or expiration of the time allowed therefore, and within 60 days

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thereof.

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a)

Unless otherwise agreed, counsel for each party shall return or

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destroy all Discovery Materials marked “CONFIDENTIAL” or “CONFIDENTIAL

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- ATTORNEYS EYES ONLY” received hereunder, including all copies thereof, to

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counsel for the party that produced said materials. Counsel for each party shall

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also destroy all extracts or summaries of Confidential Information Discovery

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Materials or documents containing such material. Certification of such

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destruction, under penalty of perjury, is to be made in writing to counsel for the

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party who produced such Confidential Information Discovery Materials within ten

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(10) business days of destruction; and

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b)

The Clerk of the Court shall, upon request of a party that

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produced any Confidential Information Discovery Materials, return to such party

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all documents and things containing or referring to such Discovery Materials that

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were filed under seal pursuant to this Protective Order. As to those documents or

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PROTECTIVE ORDER

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things containing such information which cannot be so returned, they shall

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continue to be kept under seal and shall not be examined by any person without a

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prior Court order, after due notice to Counsel of Record, or the written stipulation

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of each of Counsel of Record.

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13.

Nothing contained in this Protective Order shall result in a waiver of

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rights, nor shall any of its terms preclude a party from seeking and obtaining, upon

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an appropriate showing, additional protection with respect to personal, financial,

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commercial, confidential, trade secret or other proprietary documents, information

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or any other discovery material or trade secrets, including, but not limited to,

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restrictions on disclosure. Nothing contained herein relieves any party of its

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obligation to respond to discovery properly initiated pursuant to the Discovery

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Order.

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14.

Pursuant to Fed. R. Civ. Proc. Rule 26, the parties hereby stipulate to

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the following treatment of any privileged or work product materials inadvertently

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disclosed in this action. The parties agree that disclosure of information protected

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by any privilege in this litigation shall not constitute a waiver of any otherwise

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valid claim of privilege, and failure to assert a privilege in this litigation as to one

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document or communication shall not be deemed to constitute a waiver of the

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privilege as to any other document or communication allegedly so protected, even

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involving the same subject matter. The parties agree that any inadvertent inclusion

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of any privileged or work product material in a production in this action shall not

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result in the waiver of any associated privilege or protective doctrine nor result in a

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subject matter waiver of any kind. If any such material is inadvertently produced,

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the recipient of the document agrees that, upon request from the producing party, it

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will promptly return all copies of the document in its possession, delete any

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versions of the documents on any database it maintains, and make no use of the

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information contained in the document, provided, however, that the party returning

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such document shall thereafter have the right to apply to the Court for an order that

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PROTECTIVE ORDER

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such document was not protected (prior to the inadvertent disclosure) from

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disclosure by any privilege or doctrine and therefore the party claiming the

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protection shall maintain the returned documents should the Court order that they

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are not protected.

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15.

The Court may modify upon a showing of good cause this Protective

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Order at any time or consider any dispute which may arise hereunder upon motion

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of any of the parties, but a modification decreasing the protections afforded by this

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Protective Order will not be made without a showing of good cause since

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designating parties will be relying on the protections of this Protective Order in

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producing Confidential Information.
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Nothing in this Protective Order affects in any way, the admissibility

of any documents, testimony or other evidence at trial.
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This Protective Order shall remain in effect for the duration of the

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action unless terminated by stipulation executed by the Counsel of Record or

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pursuant to Court Order. Insofar as they restrict the communication, treatment and

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use of information subject to this Protective Order, the provisions of this Protective

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Order shall continue to be binding after the termination of this action, unless the

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Court orders otherwise.

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SO ORDERED.

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DATED: December 3, 2014

By:

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/s/
Hon. Victor B. Kenton
Magistrate Judge of the United
States District Court

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EXHIBIT 1

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AGREEMENT TO BE BOUND BY THE PROTECTIVE ORDER

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REGARDING CONFIDENTIAL INFORMATION

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The undersigned hereby acknowledges that he or she has read the Protective

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Order entered into on behalf of the Parties in His & Her Corp. v. Shake-N-

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Go Fashion, Inc. v. Model Model Hair Fashion, Inc., Case No. 2:11-cv-05323-

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GAF-VBK, pending in the United States District Court, Central District of

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California; that he or she understands the provisions prohibiting the disclosure or

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use of Confidential Information for any purpose or in any manner not connected

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with the prosecution or defense of this action; and that he or she agrees to be bound

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by all provisions of that order, and subject to the Court’s jurisdiction so that it may

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enforce this Order.

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Dated: ____________________

___________________________________
Signature
___________________________________
Printed Name
___________________________________
Address

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