Hatteras Enterprises Inc v. Art Brands LLC et al

Filing 40

ORDER GOVERNING USE AND DISSEMINATION OF CONFIDENTIAL INFORMATION by Magistrate Judge Jay C. Gandhi re Stipulation for Protective Order 39 . IT IS HEREBY ORDERED THAT: The following Protective Order ("ORDER") shall govern the handling of confidential, proprietary, and trade secret information produced in discovery and/or filed with the Court in this action. (See Order for details) (bem)

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James E. Doroshow (SBN 112920)
[e-mail]
Stephanie L. Brill (SBN 231751)
[e-mail]
Samuel L. Alberstadt (SB~ 186402)
[e-mail]
Jonathan R. L!!garenne (Pro Hac Vice)
jlagarenne(g)foxrothschild.com
Joshua M. Hummel. (Pro Hac Vice)
jhummellalfoxrothschild.com
FOX ROTHSCHILD LLP
1800 Century Park Eas,t Suite 300
Los Angeles, CA 9006t-!506
Telephone: [phone]
Facs1mile: 310-556-9828

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Attorneys for Defendant and Counterclaim
Plaintiff; ART BRANDS LLC
I 0 [Additional counsellist.;d on next page]

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Ul\ITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA
Case No.: CV 11-05604-PSG-JCG
Hon. Judge PhilipS. Gutierrez
-FPRBPeSED!-ORDER GOVERNING
USE AND DISSEMINATION OF
CONFIDENTIAL INFORMATION

Plaintiff,
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v.

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ART BRANDS, LLC, an Ohio Limited
18 Liability Company; and DOES 1-10, and
ROES 1-30, inclus1ve,
19
Defendants.
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Courtroom:

Counterclaim Plaintiff,

v.

HATTERAS ENTERPRISES INC., a
25 California Corporation, d/b/a
SOLARACTIVE® INTERNATIONAL,
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Counterclaim Defendant.

271~--------------------~

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[PROPOSED] PROTECTIVE ORDER
LAI 191294vll2122/ll

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880

Date Complaint Filed: 7/7/11
None
Discovery Cutoff:
None
Trial Date:

1biAKlR'FIBJVi:NlJl).',L0::CLC,,~-----i

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[DISCOVERY MATTER]

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Law Offices of Jeremy P. Smith
JeremyP. Smith (SBN 219066)
jps(alipsfirm.com
22287'Mulholland Hwy., Suite 348
Calabasas, CA 91302
Telephone: [phone]
Facsimile: 818-332-7069
Attorneys for Plaintiff and Counterclaim
Defendant, HATTERAS ENTERPRISES, INC.

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[PROPOSED] PROTECTIVE ORDER
LAI 191294vl 12/22111

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Pursuant to the Stipulation Governing Use and Dissemination of Confidential

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Information concurrently filed by Plaintiff/Counterclaim-Defendant Hatteras

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Enterprises Inc. d/b/a Solaractive International. ("Hatteras") and

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Defendant/Counterclaim Plaintiff Art Brands, LLC ("Art Brands"), the Court hereby

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enters this Protective Order to protect confidential information and material that may

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be produced or otherwise disclosed by the parties or third-parties during the course of

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discovery in this action.

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IT IS HEREBY ORDERED THAT:

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The following Protective Order ("ORDER") shall govern the handling of

I 0 confidential, proprietary, and trade secret information produced in discovery and/or
II filed with the Court in this action.

12 I.

GOOD CAUSE STATEMENT

13

I.

Consistent with Federal Rule of Civil Procedure 26(c), good cause exists

14 for this Court to enter a Protective Order due to the highly sensitive and proprietary
15 nature ofthe information to be exchanged through discovery and trial of this action.
16 The information expected to be sought and produced will likely include "trade
17 secrets," as that term is defined in California Civil Code§ 3426.l(d). "Trade secrets"

18 may include, but are not limited, to customer lists, pricing analysis and information,
19 market surveys and competitive research, corporate financial information and
20 analysis, business strategies, and information related to product development, research

21 and releases.

2.

22

The parties agree that the disclosure to the public of such highly sensitive

23 information may cause competitive injury and damages to the parties' and/or would
24 unnecessarily invade the privacy of a party or person. Therefore, the parties have
25 agreed to this Stipulation for Entry of Protective Order on the terms set forth below.
26 II.

INTRODUCTION

27

3.

This Protective Order shall govern any document, information or other

28 thing, which is designated as containing "CONFIDENTIAL" or "HIGHLY
[PROPOSED] PROTECTIVE ORDER
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I

CONFIDENTIAL-ATTORNEYS' EYES ONLY" information, as defined herein and

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is furnished by any party or non-party in connection with the above-captioned action

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("ACTION"). Documents and other information produced in this ACTION and

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designated "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL-ATTORNEYS'

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EYES ONLY" ("DISCOVERY MATER1ALS") shall be used only for purposes of

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this ACTION. The forms of information which may be subject to this Protective

7

Order include, but is not limited to, documents and things, responses to requests to

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produce documents or other things, responses to interrogatories, responses to requests

9

for admissions, documents received pursuant to subpoena, deposition testimony and

10 exhibits, deposition transcripts, and all copies, extracts, summaries, compilations,
II designations, and portions thereof (hereinafter referred to collectively as
12 "DISCOVERY MATER1ALS").
13

4.

All DISCOVERY MATER1ALS produced in discovery in this case and

14 designated "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL-ATTORNEYS'
15 EYES ONLY" shall be used solely for the purpose of pre-trial proceedings (including,
16 but not limited to, depositions, discovery, motions and briefing), trial preparation and
17 trial, and any appeals in the ACTION. DISCOVERY MATERIALS shall not be used
18 for any business or non-litigation related purpose whatsoever.
19 III.

DEFINITIONS

20

5.

21

The following defmitions apply in this Protective Order:
(A)

Designation of DISCOVERY MATER1ALS as

22 "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL-ATTORNEYS' EYES
23 ONLY" made by a party to this ACTION shall be a certification to the Court
24 and to the other parties that such information is believed to be Confidential
25 within the meaning of this Protective Order. Information designated as
26 "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL-ATTORNEYS' EYES
27 ONLY" in accordance with these provisions shall be treated as Confidential

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[PROPOSED] PROTECTIVE ORDER
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Information pursuant to the terms hereof until it ceases to be covered by this

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ORDER.

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(B)

The designation "CONFIDENTIAL" may be applied by any

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party or third party for any DISCOVERY MATERIALS pursuant to this

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ACTION that contain material including, but not limited to: (a) information

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pertaining to a third party which the party has an express or implied obligation

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to keep confidential; (b) personnel information; and (c) all communications

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pertaining to the above named information including both physical and

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electronic correspondence.

(C)

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The designation "HIGHLY CONFIDENTIAL-

II ATTORNEYS' EYES ONLY," may be applied by a party to highly sensitive
12 forms of information, including, but not limited to: (a) past or current fmancial
13 information (including cost, pricing and sales inforroation), and business and/or
14 marketing plans, strategies and techniques; (b) customer, supplier and vendor
15 information; (c) methods of printing; (d) trade secrets as defined in Cal. Civ.
16 Code § 3426.1(d) (which provides that the term "trade secret" "means

17 information, including a fonnula, pattern, compilation, program, device,
18 method, technique, or process, that: (1) Derives independent economic value,
19 actual or potential, from not being generally known to the public or to other
20 persons who can obtain economic value from its disclosure or use; and (2) Is
21 the subject of efforts that are reasonable under the circumstances to maintain its
22 secrecy"); and (e) Extremely sensitive "CONFIDENTIAL" information or
23 items whose disclosure to another Party or non-party would create a substantial
24 risk of serious injury that could not be avoided by less restrictive means. This
25 designation shall be made as sparingly as possible and shall be a certification to
26 the Court and the other parties that such information is believed subject to this

27 more restrictive classification within the meaning of this Protective Order.

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(D)

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"CONFIDENTIAL INFORMATION" refers to all

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information which is subject to the designations "CONFIDENTIAL" or

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"HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY," as described

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above.
(E)

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"PARTY" means every party to this ACTION and every

director, officer, employee, and managing agent of every party to this ACTION.

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(F)

"ORDER'' means this Protective Order.

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(G)

The scope of this ORDER shall be understood and

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interpreted to encompass not only those items or things which encompass

10 CONFIDENTIAL INFORMATION, but also any information derived

11 therefrom, and all copies, excerpts, and summaries thereof, as well as testimony
12 and oral conversation derived therefrom or related thereto.
(H)

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"PRODUCING PARTY'' means a PARTY or non-party that

14 produces Disclosure or DISCOVERY MATERIAL in this action.

(I)

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"RECEIVING PARTY" means a PARTY that receives

16 Disclosure or DISCOVERY MATERIAL from a PRODUCING PARTY.
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(J)

"DESIGNATING PARTY" means a PARTY or non-party

18 that designates information or items produced in disclosures or in responses to
19 discovery as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL20 ATTORNEYS' EYES ONLY."
21 IV.

TERMS OF THE PROTECTIVE ORDER

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A.

Designation

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6.

The designation of CONFIDENTIAL INFORMATION shall be made in

24 the following manner:

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(A)

For documents, as set out in Paragraph 21 of this ORDER;

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(B)

For tangible objects, by placing a label or tag on the object or the

27 container therefor, or, if not practicable, as otherwise agreed;
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[PROPOSEDJ PROTECTIVE ORDER
LA! 191294vl 12/22/J 1

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(C)

in writing, in the relevant responses or on the face of any such responses;

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For written responses to interrogatories or requests for admissions,

(D)

For declarations or pleadings, in writing in the declaration or

pleading or on the face of any such declaration or pleading;

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(E)

For depositions, as set out in Paragraph 22 of this ORDER; and

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(F)

For other oral disclosures (other than deposition testimony),

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through confirmation in writing within ten (10) days of the disclosure.
7.

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It shall be the duty of the party seeking protection of CONFIDENTIAL

INFORMATION to indicate to the other party and its attorney of record which of the

I 0 materials and testimony are considered confidential.
II

B.

Inadvertent Production

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8.

Each party retains the right to subsequently re-designate docuroents and

13 to require such documents to be treated in accord with such desigoations from that
14 time forward. An inadvertent or unintentional failure to designate qualified
15 information or items as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL16 ATTORNEYS' EYES ONLY" will not be construed as a waiver, in whole or in part,
17 of (i) any PARTY'S claims of confidentiality either as to the specific information
18 inadvertently or unintentionally disclosed or as to any other confidential material
19 disclosed prior or subsequent to that date, or (ii) any Party's right to designate said
20 material as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL-ATTORNEYS'
21 EYES ONLY" pursuant to this Protective Order. In the event of ao inadvertent or
22 unintentional failure to designate qualified information or items, the DESIGNATING
23 PARTY shall promptly notify the RECEIVING PARTY that the information is
24 "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY."
25 The DESIGNATING PARTY further shall provide the RECEIVING PARTY with
26 substitute copies of the affected documents, marked with the appropriate
27 confidentiality designation, at the expense ofthe DESIGNATING PARTY.
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[PROPOSED] PROTECTIVE ORDER
LAl l91294vl 12/22/11

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9.

Upon receiving notice of the confidentiality designation of previously-

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produced materials, the RECEIVING PARTY shall take reasonable steps to retrieve

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and destroy all undesignated copies of the materials, and shall treat the designated

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materials according to their confidentiality designation under this ORDER. Prior to

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receiving notice of a change in designation by the DESIGNATING PARTY; however,

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the RECEIVING PARTY shall not be precluded from use of the information

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according to its then-existing designation, provided that the RECEIVING PARTY has

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no reasonable basis for believing the previous designation is in error or mistaken. No

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PARTY shall be deemed to be in violation of this ORDER with respect to the

10 disclosure of any DISCOVERY MATERIAL to any other persons prior to the
II designation of that material as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL12 ATTORNEYS' EYES ONLY" pursuant to this ORDER.
13

I 0.

Inadvertent or unintentional production of privileged or work product

14 information will not be construed as a waiver, in whole or in part, of the privilege or
15 the work product status of the information inadvertently or unintentionally disclosed.
16 In the event of an inadvertent or unintentional production of privileged or work
17 product information, the PRODUCING PARTY shall promptly notify the
18 RECEIVING PARTY that the information is privileged or is work product. The
19 PRODUCING PARTY further shall provide the RECEIVING PARTY with substitute
20 copies of the affected documents in which the privileged or work product information
21 has been redacted.
22

II.

Upon receiving notice of the PRODUCING PARTY's claim of privilege

23 or work product status of previously-produced information, the RECEIVING PARTY
24 shall take reasonable steps to retrieve and destroy all un-redacted copies of the
25 materials.
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12.

Nothing in this section shall affect the right of a party to challenge a

27 confidentiality designation or a claim of privilege or work product through motion
28 practice. The parties shall make a good faith effort to avoid the Court's involvement
[PROPOSEDS PROTECTIVE ORDER

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to resolve such disputes. A receiving party who objects to the designation of any

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discovery response, document, thing or testimony as "CONFIDENTIAL" or

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"HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY" shall state the objection

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by letter to counsel for the DESIGNATING PARTY. If the objection is not resolved

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within ten (10) days of the receipt of such objection, the RECEIVING PARTY may

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move the Court to detennine whether such materials qualify for treatment as

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CONFIDENTIAL INFORMATION under this ORDER. If the RECEIVING PARTY

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files such a motion: (a) the DESIGNATING PARTY shall bear the burden of

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establishing that the designated materials qualifies for treatment as

I 0 "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY"
II under this ORDER; and (b) the materials at issue shall continue to be entitled to the

12 protections accorded by this ORDER until and unless the Court rules otherwise.

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C.

Access To CONFIDENTIAL Information

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13.

Access to information marked "CONFIDENTIAL" shall be limited to,

15 and only to, the following persons:
(A)

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Outside attorneys of record to any party in connection with this

17 ACTION, and, if the attorney of record is a member of a law firm, the attorneys,
18 employees and staff of the law firm (collectively "OUTSIDE COUNSEL"), provided
19 that before any such person is permitted access to any "CONFIDENTIAL"
20 information, such person shall be informed of the existence and contents of this
21 ORDER;

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(B)

Organizations retained by OUTSIDE COUNSEL to provide

23 litigation support services in this ACTION, including but not limited to court
24 reporters, translators, third-party photocopy or imaging services contractors, third25 party contractors producing graphic or visual aids involved solely in providing
26 litigation support services to OUTSIDE COUNSEL, and jury consultants, provided
27 that before any such person is permitted access to any "CONFIDENTIAL"

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[PROPOSEDJ PROTECTIVE ORDER
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information, such person shall be informed of the existence and contents of this

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ORDER;

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(C)

Independent outside experts and consultants retained in this

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ACTION by OUTSIDE COUNSEL or a PARTY, provided that any such actual or

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contemplated expert or consultant is not an employee of the parties hereto, and subject

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to the conditions and requirements, including Paragraphs 15 through 19, of this

7 ORDER;
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(D)

The officers, directors, and employees (including In-House

Counsel) of the RECEIVING PARTY to whom disclosure is reasonably necessary for

10 this litigation and who have signed the "Non-Disclosure Agreement" (Exhibit A),

11 subject to the conditions and requirements set forth herein;
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(E)

The Court, its personnel and any court reporters involved in taking

13 or transcribing testimony in court in this ACTION:
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(F)

Such other persons as hereafter may be designated by written

15 agreement of the PARTIES in this ACTION or by order of the Court;
(G)

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Any mediator who is engaged to assist the PARTIES in settlement

17 negotiations on a confidential basis;
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(H)

During their depositions, witnesses in the action to whom

19 disclosure is reasonably necessary and who have signed the "Non-Disclosure
20 Agreement" (Exhibit A); and

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(I)

The author of the document or the original source of the

22 infonnation, or persons to whom the document or copies thereof were addressed or
23 delivered.

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D.

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Access To "HIGHLY CONFIDENTIAL" OR "HIGHLY

CONFIDENTIAL-ATTORNEY'S EYES ONLY," Information
14.

Access to information marked "HIGHLY CONFIDENTIAL-

27 ATTORNEYS' EYES ONLY" shall be limited to the persons identified in Paragraphs
28 13 (A), (B), (C), (E), (F), (G), and (I) above. Counsel for a party may give advice and
[PROPOSEDfOROTECTIVE ORDER
LA1!91294v112122/ll

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opinions to their client based on evaluation of information designated as

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CONFIDENTIAL INFORMATION produced by the DESIGNATING PARTY. For

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information designated "HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY,"

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such rendering of advice and/or opinions shall not reveal the content of such

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information except by prior written agreement with counsel for the DESIGNATING

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PARTY.

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E.

Notification Ofldentities Of Outside Experts And Consultants

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15.

In connection with outside experts and consultants falling under

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paragraph l3(C) above, each par(y shall disclose in writing to the other party, the

l 0 identity and curriculum vitae of each outside expert or consultant. Such curriculum
II vitae shall identify all current and former employers and/or consulting engagements of
12 the independent expert or consultant within ten (10) years prior to the date of such
13 disclosure.
14

16.

If a party objects, in good faith, to an identified expert or consultant, the

15 par(y shall make its objections known in writing within five (5) business days of
16 receiving notification. The written objection shall also serve as the request for
17 conference under Central District of California L.R. 37-1. After receipt of the
18 objection, the party proposing the expert shall confer with the objecting party within
19 ten (I 0) days. If, after good faith negotiations, agreement on the independent expert
20 or consultant carmot be reached, the objecting party, as the moving party, shall have
21 ten (10) days after the conference referred to above to complete its portion of the joint
22 stipulation as described in L.R. 37-2.2 and to seek relieffrom the Court. In such a
23 case, no disclosure of CONFIDENTIAL INFORMATION of the objecting party shall
24 be made to the expert or consultant until the Court has ruled on the objecting party's
25 motion for relief, and then only in accordance with the Court's ruling. The party or
26 person wishing to disclose objecting party's "CONFIDENTIAL" or
27 "CONFIDENTIAL-ATTORNEYS' EYES ONLY" information to the outside expert
28 or consultant shall have the burden of showing the disclosure would be proper and
[PROPOSED] PROTECTIVE ORDER
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consistent with the Order. If a party fails to make its objections known or fails to seek

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relieffrom the Court as described in this section, its objection to an expert shall be

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deemed waived, and CONFIDENTIAL INFORMATION may be disclosed to the

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expert or consultant subject to the provisions of this Protective Order. However, in no

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event shall a disclosure of potential experts or consultants be deemed a waiver of any

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privilege or immunity.

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F.

Experts And Consultants

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Disclosure Of CONFIDENTIAL INFORMATION To Outside

17.

Documents designated as "CONFIDENTIAL" and "HIGHLY

10 CONFIDENTIAL- ATTORNEYS' EYES ONLY" may be shown to outside experts
II or consultants, together with their clerical personnel, who are retained by a party in
12 connection with the preparation for trial or trial in this ACTION, provided that before
13 disclosure to any such expert or consultant, the person to whom such information is to
14 be disclosed shall have signed the "Non-Disclosure Agreement" (Exhibit A). The
15 agreement of the expert or consultant to be bound by Exhibit A shall be considered to
16 apply to his or her clerical personnel, and those personnel need not separately execute
17 the non-disclosure agreement.
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18.

Drafts of any reports provided by such expert or consultant, as well as

19 communications between and among the expert or consultant, other experts or
20 consultants retained by the party, the attorneys for the party retaining the experts or
21 consultants, and/or the retaining party are not discoverable except to the extent that the
22 commnnications (l) relate to compensation for the expert or consultant's study or
23 testimony; (2) identify facts or data that the expert or consultant considered in forming
24 the opinions to be expressed; or (3) identify assumptions that the expert or consultant
25 relied upon in forming the opinions to be expressed.
26

19.

The foregoing notwithstanding, any such expert or consultant who is an

27 employee of a party or a competitor of any of the parties shall not be shown or

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1 otherwise given access to documents or information designated as
2

"CONFIDENTIAL" or "HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY."

3

G.

Request For Additional Disclosures

4

20.

If any counsel of record desires to communicate to any person apart from

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those permitted under Paragraphs 13 to 19 any information designated as

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"CONFIDENTIAL" or "HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY,"

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that counsel of record shall first obtain the written consent of the DESIGNATING

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PARTY through such party's counsel of record or obtain leave of Court to do so.

9

Each person to whom the CONFIDENTIAL INFORMATION is to be given, shown,

10 made available or communicated must execute a v,rritten confidentiality agreement, in
II the form attached hereto as Exhibit A. Only after all of the foregoing conditions have
12 been fully satisfied may the CONFIDENTIAL INFORMATION be communicated to
13 any person other than those permitted under Paragraphs 13 to 19.

14

H.

Manner Of Designating Documents

15

21.

A party shall designate documents containing Confidential Information

16 by placing a legend in plain view on each page of any document that party wishes to
17 protect against disclosure or use. This legend shall state "CONFIDENTIAL" or
18 "HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY," as appropriate. All
19 documents and things shall be marked prior to the provision of a physical copy thereof
20 to the other party.
21

I.

Manner Of Designating Documents

22

22.

In the case of a deposition, counsel for such party may, at the

23 commencement of such deposition, temporarily designate the entire deposition as
24 "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY"
25 provided, however, that where such an initial designation has been made, the
26 designating party, within fifteen (15) days after receipt of the transcript, shall mark as
27 provided in this ORDER those pages of the transcript as such party shall then deem
28 confidential, (the confidential designation of all remaining pages being rescinded after
[PROPOSEDf3ROTECTIVEORDER

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such period), and shall notifY the other party in writing which pages are deemed

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CONFIDENTIAL INFORMATION. In the event that such notice is not sent within

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said fifteen (15) days of the receipt of the transcript, no portion of the deposition shall

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thereafter be confidential unless the designating party thereafter notifies the other

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party that the failure to timely designate occurred by oversight.

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J.

Filing Documents With Tbe Court

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23.

All information designated as CONFIDENTIAL INFORMATION which

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is filed or lodged with the court, or any pleading or memorandum purporting to

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reproduce or paraphrase such information shall be accompanied by an application to

I 0 file the information, pleading or memorandum or the portion thereof constituting or
II containing the CONFIDENTIAL INFORMATION material under seal in accordance
12 with Local Rule 79-5.1 and directed to the Judge or to whom the papers are directed.
13 The CONFIDENTIAL INFORMATION shall be filed or lodged in sealed containers
14 on which shall be recorded the title to this action, the general nature of the contents,
15 the words "CONFIDENTIAL" or "CONFIDENTIAL-ATTORNEYS' EYES ONLY"
16 and a statement substantially in the following form:
17

CONFIDENTIAL. This sealed container filed in this case

18

contains confidential materials generally identified as

19

["CONFIDENTIAL" and/or "HIGHLY CONFIDENTIAL-

20

ATTORNEYS' EYES ONLY"], and is being filed under

21

seal pursuant to the order of the Court. Pursuant to this

22

Protective Order, this container shall not be opened nor shall

23

the contents thereof be revealed except to the Court,

24

including court personnel as necessary for handling of the

25

matter.

26 Material found by the Court to meet the requirements for CONFIDENTIAL
27 INFORMATION (as defined in this ORDER) shall be maintained under seal and shall
28 not be made available for public review pursuant to Local Rule 79-5.
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K.

Redaction

2

24.

Documents and things produced may be subject to redaction, in good

3

faith by the producing party, of sensitive material that is neither relevant to the subject

4

of this litigation nor reasonably calculated to lead to the discovery of admissible

5

evidence, or is subject to the attorney-client privilege or to work-product immunity.

6

Each such redaction, regardless of size, will be clearly labeled. This paragraph shall

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not be construed as a waiver of any party's right to seek disclosure of redacted

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information.

9

L.

Addresses

10
II

No Effect On Party's Own Use Or Disclosure To Author Or

25.

Nothing contained in this Order shall affect the right of a party to

12 disclose or to use any of its own CONFIDENTIAL INFORMATION as it desires.
13

26.

Nothing contained in this Order shall affect the right of a party to

14 disclose any CONFIDENTIAL INFORMATION to the author or addressees of any
15' document containing such information.
16

M.

No Applicability To Public Information

17

27.

The restrictions on dissemination of CONFIDENTIAL INFORMATION

18 shall not apply to (i) persons in possession or knowledge of such information prior to
19 disclosure hereunder who, absent this order, are under no restriction regarding its
20 dissemination, but only with respect to the CONFIDENTIAL INFORMATION
21 already in his or her possession or knowledge, or (ii) information which is public
22 knowledge or which after disclosure, becomes public knowledge other than through
23 an act or omission of a party receiving the CONFIDENTIAL INFORMATION.
24

N.

Legal Effect Of Designations

25

28.

The designation by a party of any document, material or information as

26 "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY"
27 is intended solely to facilitate discovery in this ACTION. This Order shall not
28 prejudice the right of any party to bring before the Court a motion in compliance with
[PROPOSED] PROTECTIVE ORDER
LA119l294vl 12/22/11

15

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Local Rules 37-1 aod 37-2 seeking a declaration that information produced by the

2

other party has been wrongfully designated as CONFIDENTIAL INFORMATION

3

and should not be subject to the terms of this ORDER. A party bringing such motion

4

shall have the burden of proving that the information designated as CONFIDENTIAL

5

INFORMATION is in the public domain or was in possession of the receiving party

6 prior to its disclosure through discovery in this action, or is otherwise not
7

appropriately designated as CONFIDENTIAL INFORMATION.

8

0.

Unauthorized Disclosure Of CONFIDENTIAL INFORMATION

9

29.

If a RECEIVING PARTY learns that, by inadvertence or otherwise, it

I 0 has disclosed CONFIDENTIAL INFORMATIOJ\ to any person or in any
II circumstaoce not authorized uoder this Stipulated Protective Order, the RECEIVING
12 PARTY must immediately (a) notifY in writing the DESIGNATING PARTY of the
13 unauthorized disclosures, (b) use its best efforts to retrieve all copies of the
14 CONFIDENTIAL INFORMATION, (c) inform the person or persons to whom
15 uoauthorized disclosures were made of all the terms of this Order, aod (d) request
16 such person or persons to execute the "Non-Disclosure Agreement" (Exhibit A).
17

P.

Final Disposition Of Action

18

30.

Within sixty (60) days after the final disposition of this ACTION,

19 including appeals, each counsel of record shall: (a) promptly return to couosel of
20 record for the DESIGNATING PARTY all CONFIDENTIAL INFORMATION and
21 all copies made thereof which are not in custody of the Court; or (b) promptly destroy
22 or see to the destruction of all writings related thereto, and certifY to the designating
23 party that such destruction has been done. As au exception to the above, counsel of
24 record may retain a single file copy of any pleading, document filed with the Court,
25 written discovery response, expert report, transcript of any deposition or trial

26 testimony, together with all exhibits thereto, legal memorandum, correspondence, or
27 attorney work product, even if such material contains CONFIDENTIAL
28 INFORMATION. The copy of these retained documents shall be treated as
[PROPOSED] PROTECTIVE ORDER

LAI191294vll2/22/ll

16

I

"HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY" and counsel of record

2

shall immediately notify opposing counsel of record of any attempt by third parties to

3

inspect and/or copy said documents.

4

Q.

Survival Of Terms

5

31.

Absent written modification hereof by the PARTIES hereto or further

6

order of the Court, the provisions of this Order that restrict the disclosure and use of

7

CONFIDENTIAL INFORMATION shall survive the fmal disposition of this

8

ACTION and continue to be binding on all persons subject to the terms of this

9

ORDER.

I0

R.

Violation Of Order

II

32.

In the event anyone shall violate or threaten to violate any term of this

12 ORDER, the parties agree that the aggrieved party may immediately apply to obtain
13 injunctive relief against any such person violating or threatening to violate any of the
14 terms of this ORDER and, in the event the aggrieved party shall do so, the respondent
15 person subject to the provisions of this ORDER shall not employ as a defense thereto
!6 the claim that the aggrieved party possesses an adequate remedy oflaw. The parties
17 and any other person subject to the terms of this ORDER agree that this Court has
18 jurisdiction over such person or party for the purpose of enforcing this ORDER. In
19 the event that any CONFIDENTIAL INFORMATION is disclosed by a receiving
20 party in violation of this order, the CONFIDENTIAL INFORMATION shall not lose
21 its status through such disclosure, and the parties shall take all steps reasonably

22 required to assure its continued confidentiality.
23

S.

Subpoena In Another Action

24

33.

Nothing in this order shall be construed as authorizing a party to disobey

25 a lawful subpoena issued in another action. Any PARTY, having received
26 CONFIDENTIAL INFORMATION that receives a subpoena or other compulsory
27 process seeking the production of all or some of those materials, shall promptly, and
28 before producing such materials, notify in writing:
[PROPOSEDf7ROTECTIVE ORDER
LAI l91294vl 12/22/11

I
2

(A)

The requesting party, court or administrative agency of this

ORDER; and

3

(B)

Counsel for the DESIGNATING PARTY of the receipt of such

4

compulsory process and provide counsel for the DESIGNATING PARTY with copies

5

of that process.

6

T.

Right To Assert Other Objections

7

34.

By stipulating to the entry of this ORDER no PARTY waives any right it

8

otherwise would have to object to disclosing or producing any information or item on

9

any ground not addressed in this ORDER. Similarly, no PARTY waives any right to

I 0 object on any ground to use in evidence of any of the material covered by this
II ORDER. Nothing herein affects, in any way, the admissibility of any docwnent,

12 testimony, or other evidence at trial or restricts the use of information obtained from

13 investigations, interviews or other sources other than via the discovery process,
14 motion practice or voluntary disclosure of information by any PARTY conducted
15 under the terms of this ORDER.
16

35.

The Court will determine, in its sole discretion, how documents

17 designated as "CONFIDENTIAL" and/or "HIGHLY CONFIDENTIALIS ATTORNEYS' EYES ONLY" will be treated during the trial of this action. The
19 PARTIES agree to request, prior to trial, that the Court make an appropriate order to
20 maintain the confidentiality of CONFIDENTIAL INFORMATION to the extent
21 practicable.
22

Good cause having been found, IT IS SO ORDERED.

23

WI/

[PROPOSED] PROTECTIVE ORDER

LA1191294vll2/22/ll

18