Internet Brands Inc et al v. UltimateCoupons.com LLC et al

Filing 40

PROTECTIVE ORDER by Magistrate Judge Carla Woehrle. Any confidential information or documents produced by or on behalf of any party or non-party as part of discovery in this action may be designated by the producing party(ies) as "CONFIDENTIAL " or "CONFIDENTIAL ATTORNEY'S EYES ONLY." Any information that is publicly available should not be designated as "CONFIDENTIAL" or "CONFIDENTIAL ATTORNEY'S EYES ONLY." A document should be designated "CONFIDENTIAL" or "CONFIDENTIAL ATTORNEY'S EYES ONLY". [SEE ORDER FOR FURTHER DETAILS] 38 (gr)

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MICHAEL K. GRACE (SBN 126737)
[e-mail]
PAMELA D. DEITCHLE (SBN 222649)
[e-mail]
GRACE+GRACE LLP
790 E. Colorado Boulevard, Suite 797
Pasadena, CA 91101
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Defendants and Counterclaimants
JAG Ventures, LLC f/k/a Ultimatecoupons.com, LLC;
Jeffrey A. Grossman; and Andrew E. Kardon

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Intellectual Property 

790 E. Colorado Blvd., Suite 797 
Pasadena, CA  91101 

Grace+Grace LLP 

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UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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) Case No.: CV 11-5358 CAS (CWx)
)
) [PROPOSED]
) PROTECTIVE ORDER
Plaintiff,
)
)
v.
)
ULTIMATECOUPONS.COM, LLC, et )
)
al.;
)
)
Defendants.
)
)
AND RELATED COUNTERCLAIMS. )
)
INTERNET BRANDS, INC., a
Delaware corporation,

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PROPOSED PROTECTIVE ORDER

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Pursuant to Federal Rule of Civil Procedure 26(c), plaintiff and

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counterdefendant Internet Brands, Inc. and Defendants and Counterclaimants

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JAG Ventures, LLC f/k/a Ultimatecoupons.com, LLC; Jeffrey A. Grossman; and

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Andrew E. Kardon (collectively, the “parties”), through the parties’ respective

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counsel of record, have stipulated and agreed that discovery in this action (and

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any further actions among these parties) may involve requests for the production

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of information and documents that the responding parties consider to be

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confidential, proprietary or competitively sensitive. The parties believe that a

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protective order restricting the use and dissemination of confidential, proprietary,

Intellectual Property 

790 E. Colorado Blvd., Suite 797 
Pasadena, CA  91101 

and competitively sensitive information and documents is necessary and

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Grace+Grace LLP 

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appropriate to facilitate discovery and litigation in this action. The parties also

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believe that such an order is necessary and appropriate to enable the parties to

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conduct relevant discovery of non-parties that may have similar concerns

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regarding their confidential, proprietary or competitively sensitive information

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and documents.

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GOOD CAUSE EXISTS FOR THE ISSUANCE OF THIS ORDER: The

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parties have propounded discovery and it appears that many of the documents

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subject to disclosure contain confidential, proprietary or competitively sensitive

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information such that good cause exists to protect the disclosure of such

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documents. These voluminous documents include, but are not limited to,

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confidential commercial information, financial information, employee

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information, customer information, contractor and vendor information, marketing

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plans, business plans, license agreements, distribution agreements, development

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information, budgets, profit and loss information, and corporate asset information

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the disclosure of which could cause competitive harm to the producing party.

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In determining the scope of information which a party may designate as its

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confidential information, each party acknowledges the importance of client access

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to all information material to client decision making in the prosecution or defense

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PROPOSED PROTECTIVE ORDER

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of litigation, and therefore agrees that designations of information as confidential

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information and responses to requests to permit further disclosure of confidential

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information shall be made in good faith and (1) not to impose a burden or delay

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on an opposing party, or (2) not for tactical or other advantage in litigation.

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Further, each party shall avoid as much as the possible inclusion of confidential

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information in briefs and other captioned documents filed in court, in order to

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minimize sealing and designating documents as such.

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Accordingly, the IT IS ORDERED THAT:

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1.

Any confidential information or documents produced by or on behalf

Intellectual Property 

790 E. Colorado Blvd., Suite 797 
Pasadena, CA  91101 

of any party or non-party as part of discovery in this action may be designated by

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Grace+Grace LLP 

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the producing party(ies) as “CONFIDENTIAL” or “CONFIDENTIAL –

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ATTORNEY’S EYES ONLY.” Any information that is publicly available should

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not be designated as “CONFIDENTIAL” or “CONFIDENTIAL –

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ATTORNEY’S EYES ONLY.” A document should be designated

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“CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEY’S EYES ONLY”

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when it contains or reflects confidential business information, including but not

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limited to information which the disclosing party or non-party believes in good

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faith contains, constitutes or reveals confidential design, engineering or

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development information, confidential commercial information, non-public

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financial information, confidential or private information about current or former

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employees, contractor or vendors (including employee, contractor and vendor

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personnel records), or other information of a confidential, proprietary, private or

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personal nature.

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2.

Information or documents designated “CONFIDENTIAL –

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ATTORNEY’S EYES ONLY” shall be limited to trade secrets (as defined in

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California Civil Code § 3426.1) or other confidential commercial information,

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including information that the disclosing party or non-party believes in good faith

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will result in competitive disadvantage or harm if disclosed to another party or

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PROPOSED PROTECTIVE ORDER

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third party to this action and shall include marketing plans or strategies, business

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plans, strategic plans, license agreements or negotiations, distribution agreements,

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manufacturing agreements, engineering and manufacturing drawings, employee

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files, customers’ identities and personal information, merchandising, research and

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development of products not yet released or sold, correspondence and agreements

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with actual or prospective customers or vendors, financial information or

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projections, including, without limitation, budgets, revenue, profits, costs,

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liabilities, or other documents relating to revenue earned and asset information

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that is not public knowledge, and actual or prospective customer lists.

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3.

Information designated “CONFIDENTIAL” or “CONFIDENTIAL –

Intellectual Property 

790 E. Colorado Blvd., Suite 797 
Pasadena, CA  91101 

Grace+Grace LLP 

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ATTORNEY’S EYES ONLY” may be used only in connection with this

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proceeding and not for any other purpose. Such information may not be disclosed

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to anyone except as provided in this Protective Order.

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4.

Any party or non-party wishing to come within the provisions of this

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Protective Order may designate in writing the documents (as defined in Fed. R.

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Civ. P. 34 and Fed. R. Evid. 1001) or portions thereof that it considers

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confidential at the time the documents are produced. Each page of the document

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must be marked “CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEY’S

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EYES ONLY” by the producing party, and any confidential documents

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exchanged prior to this Protective Order being entered by the Court shall, within a

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reasonable time hereafter, be so marked on each such page, if such markings do

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not include every such page. It is the intent of the parties that each document

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previously designated as “CONFIDENTIAL” or “CONFIDENTIAL –

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ATTORNEY’S EYES ONLY” and transmitted to the respective other party,

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including any such documents and information exchanged for settlement

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purposes, are to be covered by this Protective Order. “CONFIDENTIAL” or

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“CONFIDENTIAL – ATTORNEY’S EYES ONLY” documents or things that

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PROPOSED PROTECTIVE ORDER

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cannot be reasonably labeled pursuant to this paragraph shall be so designated by

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the producing party by informing the receiving party in writing.

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5.

In the instance of deposition testimony, the witness under deposition

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or his counsel shall invoke the provisions of this Protective Order in a timely

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manner and designate the level of restriction. During the deposition, parties shall

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be excluded from testimony designated “CONFIDENTIAL – ATTORNEY’S

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EYES ONLY.” The witness under deposition or his counsel shall have the right,

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within thirty days of receiving a transcript of the deposition, to designate, or

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change, the confidentiality designation of the transcript or portions thereof. For

Intellectual Property 

790 E. Colorado Blvd., Suite 797 
Pasadena, CA  91101 

depositions with some confidential and some non-confidential documents or

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Grace+Grace LLP 

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testimony, a separate confidential transcript, apart from the usual transcript, shall

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be prepared by the court reporter and counsel for the party asserting that certain

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documents or testimony is confidential.

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6.

Any documents, discovery responses or deposition transcripts

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stamped “CONFIDENTIAL – ATTORNEY’S EYES ONLY,” as well as any

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copies or excerpts thereof, or analyses or reports that pertain thereto, and any

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deposition testimony or portion thereof marked as “CONFIDENTIAL” or

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“CONFIDENTIAL – ATTORNEY’S EYES ONLY” may be made available only

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to:

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a.

such attorneys on a need to know basis;

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b.

Judges, law clerks and other personnel of the Court before

which this proceeding is pending;

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Attorneys of record for the receiving party and employees of

c.

Independent experts and consultants retained by the attorneys

for purposes of the litigation that are not directly associated with a party

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d.

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Court reporters and their staff that are required to transcribe

testimony; and

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PROPOSED PROTECTIVE ORDER

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e.

Outside litigation support vendors, including commercial

photocopying vendors, scanning services vendors, coders and keyboard operators.

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Any documents, discovery responses or deposition transcripts

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stamped “CONFIDENTIAL,” as well as any copies or excerpts thereof, or

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analyses or reports that pertain thereto, and any deposition testimony or portion

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thereof marked as “CONFIDENTIAL,” may be made available only to:

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a.

A party, or any officer, director, or employee of a party

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deemed necessary by counsel to aid in the prosecution, defense, or settlement of

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this action;

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Intellectual Property 

790 E. Colorado Blvd., Suite 797 
Pasadena, CA  91101 

Grace+Grace LLP 

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b.

such attorneys on a need to know basis;

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c.

Judges, law clerks and other personnel of the Court before

which this proceeding is pending;

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Attorneys of record for the receiving party and employees of

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Independent experts and consultants retained by the attorneys

for purposes of the litigation that are not directly associated with a party;

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e.

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testimony; and

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f.

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Court reporters and their staff that are required to transcribe
Outside litigation support vendors, including commercial

photocopying vendors, scanning services vendors, coders and keyboard operators.

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8.

For purposes of this Protective Order, an expert witness shall not be

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deemed to be “independent” if he or she is (a) a party to this litigation, or an

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officer, shareholder, owner, manager, partner, agent distributor, seller,

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representative, advertiser, promoter, independent contractor, affiliate, director,

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employee, former employee or contractor, or relative of a party to this litigation,

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or a party’s parent, subsidiary, predecessor-in-interest, successor-in-interest,

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related entity or affiliate; (b) an officer, shareholder, owner, manager, partner,

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agent distributor, seller, representative, advertiser, promoter, independent

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contractor, affiliate, director, employee, former employee or contractor, or

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PROPOSED PROTECTIVE ORDER

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relative of a direct competitor to a party to this litigation, or the competitor’s

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parent, subsidiary, predecessor-in-interest, successor-in-interest, related entity or

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affiliate.

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9.

Each person permitted by the parties or their counsel to have access

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to designated information or documents under the terms of this Protective Order

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(other than the persons identified in Paragraphs 6(a), 6(b), and 6(d) and 7(b), 7(c),

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and 7(e)) shall, prior to being given such access, be provided with a copy of this

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Protective Order for review. Upon receiving this Protective Order, each person

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shall sign a statement in the form of Exhibit A hereto indicating that he or she has

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read the Protective Order and agrees to comply with its terms.

Intellectual Property 

790 E. Colorado Blvd., Suite 797 
Pasadena, CA  91101 

Grace+Grace LLP 

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10.

The restrictions set forth in this Protective Order shall not apply to

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information that is known to the receiving party or the public before the date of its

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transmission to the receiving party, or which becomes known to the public after

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the date of its transmission to the receiving party, provided that such information

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does not become publicly known by any act or omission of the receiving party, its

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employees, or its agents that would be in violation of this Protective Order.

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Any document or evidence that is designated as containing

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“CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEY’S EYES ONLY”

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information and that a party wishes to file with the Court shall be presented to the

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Court along with a written application and proposed order for filing under seal

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according to the procedures set forth in Local Civil Rule 79-5. Furthermore, any

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such document or evidence so presented to the Court shall be placed in a sealed

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envelope or other appropriate sealed container marked on the outside with the

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title of the instant action, and a statement substantially in following form:

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CONFIDENTIAL
This document is subject to a Protective Order issued by
the Court and may not be examined or copied except in
compliance with that Order.

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PROPOSED PROTECTIVE ORDER

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12.

If, at any time during the preparation for trial, any party believes that

believes that it is necessary to disclose designated information to persons other

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than those permitted by this Protective Order, and the producing party does not

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agree to change the designation or to the further disclosure, the objecting party

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may make an appropriate motion to the Court requesting that the specifically

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identified documents, information and/or deposition testimony be excluded from

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the provisions of this Protective Order or be available to specified other persons.

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Intellectual Property 

“CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEY’S EYES ONLY” or

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790 E. Colorado Blvd., Suite 797 
Pasadena, CA  91101 

any other party or non-party has improperly designated certain information as

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Grace+Grace LLP 

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It shall be the burden of the party that makes the designation to demonstrate that

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the material or information at issue was properly designated. It shall be the

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burden of the party seeking the disclosure to persons other than those designated

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in this Protective Order to show that such disclosure is necessary.

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13.

In the event that a party is served with a subpoena by any person,

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firm, corporation, or other entity that is not a party to this action, is not a

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signatory to this Protective Order or otherwise is not bound by this Protective

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Order, that seeks to compel production of “CONFIDENTIAL” or

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“CONFIDENTIAL – ATTORNEY’S EYES ONLY” information or documents,

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the party upon whom the subpoena is served shall give written notice of the

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subpoena to the party that has asserted that the information or documents subject

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to the subpoena are “CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEY’S

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EYES ONLY.” The written notice required by this paragraph shall be given no

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later than seven days after receipt of the subpoena, or before the production date

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set forth in the subpoena, whichever is earlier. The party who designated the

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subject information or documents as “CONFIDENTIAL” or “CONFIDENTIAL –

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ATTORNEY’S EYES ONLY” shall have the responsibility to obtain a court

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order quashing the subpoena, a protective order, and/or such other relief as will

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PROPOSED PROTECTIVE ORDER

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protect the confidential nature of the subject information or documents before the

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requested production date. If an order quashing the subpoena or motion for

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protective order is obtained, the party upon whom the subpoena, discovery

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request, or order is served shall comply with the order. If no motion to quash or

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motion for protective order is filed before the scheduled production date set forth

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in the subpoena, discovery request, or order, or if the motion to quash the

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subpoena or motion for protective order is denied, the party upon whom the

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subpoena, discovery request, or order is served may comply with the same

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without being deemed to have violated this Protective Order.

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Intellectual Property 

790 E. Colorado Blvd., Suite 797 
Pasadena, CA  91101 

Grace+Grace LLP 

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14.

The Protective Order may be modified only in writing by the parties

and approved by an order of the Court.

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15.

Upon termination of this proceeding, unless the attorneys of record

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otherwise agree in writing, each party shall (a) assemble and return all designated

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materials, including copies to the person(s) and entity(ies) from whom the

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material was obtained, or (b) destroy all designated materials and provide the

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other party with written certification that such destruction was made. The

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attorney of record may retain one copy of any designated materials, to be kept

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confidentially, and retain all copies of designated materials containing attorney

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work product information.

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16.

This Protective Order shall not prejudice the right of any party or

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nonparty to oppose production of any information on the ground of attorney-

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client privilege, work product immunity, or any other protection provided under

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the law.
IT IS SO ORDERED.

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DATED: October 11, 2012

__________________________________
CARLA WOEHRLE

UNITED STATES MAGISTRATE JUDGE

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PROPOSED PROTECTIVE ORDER

EXHIBIT A
ACKNOWLEDGMENT OF RECEIPT OF PROTECTIVE ORDER AND
AGREEMENT TO BE BOUND

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I, ____________________________________, state that:

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I have been asked by ____________________________ or its counsel to

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receive and review certain materials or testimony that have been designated as
“CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEY’S EYES ONLY”
within the terms of the Protective Order entered in the U.S. District Court, Central
District of California case entitled Internet Brands, Inc. v. UltimateCoupons.com,
LLC, et al., CV 11-5358 CAS (CWx).
I have received a copy of the Protective Order in this action, a copy of which

Intellectual Property 

790 E. Colorado Blvd., Suite 797 
Pasadena, CA  91101 

Grace+Grace LLP 

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is attached hereto. I have carefully read and understand the provisions of the
Protective Order.
I hereby agree to be bound by and will comply with all of the provisions of

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the Protective Order. I will hold in confidence, will not disclose to anyone not
qualified under the Protective Order, and will use only for purposes set forth in the
Protective Order any information subject to the Protective Order that is disclosed
to me. Upon termination of this action, I will return all confidential information
which came into my possession, and all documents or things which I have prepared
relating thereto, to counsel for the party by whom I am employed or retained.
I hereby submit to the jurisdiction of this Court in this action solely for the

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purpose of enforcement of this Protective Order.
I declare the foregoing is true under penalty of perjury under the laws of the

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State of California and the United States of America.
DATED:_____________________

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___________________________________
Signature
___________________________________

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PROPOSED PROTECTIVE ORDER