Brando Enterprises LP v. Ashley Furniture Industries Inc et al

Filing 19

PROTECTIVE ORDER RE THE TREATMENT OF CONFIDENTIAL INFORMATION PRODUCED IN DISCOVERY by Magistrate Judge Frederick F. Mumm : NOTE CHANGES MADE BY COURT : (see attached) (jm)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA – WESTERN DIVISION

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BRANDO ENTERPRISES, L.P., a
Delaware limited partnership,

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Plaintiff,
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vs.
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ASHLEY FURNITURE INDUSTRIES,
INC., a Wisconsin corporation;
ASHLEY HOMESTORES LTD., a
Wisconsin corporation d/b/a Ashley
Furniture Homestore; and DOES 1-20,
inclusive,

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Case No.: CV 11-5997 DMG (FFMx)
[PROPOSED]
PROTECTIVE ORDER
RE THE TREATMENT OF
CONFIDENTIAL INFORMATION
PRODUCED IN DISCOVERY

Defendants.

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NOTE CHANGES MADE BY COURT

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PROTECTIVE ORDER

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1.

The parties each possess, control, or have in their custody certain

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nonpublic information that constitutes trade secret or other confidential, proprietary,

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or private information for which special protection from public disclosure is

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warranted. This Protective Order does not confer blanket protections on all

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disclosures or responses to discovery; the protection that this Protective Order affords

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extends only to the limited information or items that are entitled under the applicable

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legal principles to confidential treatment. This Protective Order creates no entitlement
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to file any material under seal; Local Rule 79-5 reflects the standards that will be

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applied when any party seeks permission to file material under seal and must be

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followed.

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2.

The restrictions set forth in this Protective Order shall apply to all

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information produced during discovery or submitted in proceedings in this action that

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shall be designated by the party or person producing it as “Confidential” or

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“Confidential – Attorneys’ Eyes Only” (collectively, “Confidential Information”).

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

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before disclosure, is properly in the possession or knowledge of the party to whom

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such disclosure is made, is public knowledge, has been disclosed to the public or

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otherwise is publicly available, or which has not been kept confidential by the

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disclosing party prior to this litigation. The restrictions set forth in this Protective

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Order shall not apply to information that is, or after disclosure becomes, public

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knowledge other than by an act or omission of the party to whom such disclosure is

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made, or that is legitimately acquired from a source not subject to this Protective

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Order or other obligation of confidentiality.

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3.

If any exhibit, pleading, response to disclosures and/or discovery,

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deposition transcript, hearing transcript, or other transcript of testimony, declaration or

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affidavit (collectively “testimony”), or any document, electronically stored

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information, or thing produced in discovery in this action contains information

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considered confidential by a party or third party witness, deponent, or subpoena

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recipient, such discovery response, testimony, or document, electronically stored

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information, or thing shall be designated “Confidential” or “Confidential – Attorneys’

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Eyes Only” by the party contending there is confidential information therein (the

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“Designating Party”). Designation shall be made by affixing the legend

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“Confidential” or “Confidential – Attorneys’ Eyes Only” to the confidential material

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in a conspicuous manner (without interfering with the legibility of the material) before

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the production or service of such material.
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4.

As a general guideline, a document should be designated “Confidential”

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only when it contains trade secrets; competitively sensitive technical, marketing,

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financial, sales, or other proprietary or confidential business information; private or

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confidential personal information; or information received in confidence from a third

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party that may be reviewed by the party receiving it (the “Receiving Party”), and the

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Receiving Parties’ experts and other representatives, but should be protected against

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disclosure to third parties.

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5.

As a general guideline, a document should be designated “Confidential –

Attorneys’ Eyes Only” only when it contains the Designating Party’s most highly

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sensitive financial information; cost information; pricing information; sales

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information; customer, license, supplier, and vendor information; software and

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firmware for a party’s products; technical and development information about a

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party’s products; comparative product test results; business plans; marketing

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strategies; new product plans and competitive strategies; or any other information that

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would put the producing party at a competitive disadvantage if the information

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became known to employees of the receiving party or third parties.

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6.

A Designating Party shall in good faith take care to designate as

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“Confidential” or “Confidential – Attorneys’ Eyes Only” only those portions of

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disclosures that qualify so that other portions of the disclosures for which protection is

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not warranted are not swept unjustifiably within the ambit of this Protective Order. If

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after designating a disclosure as “Confidential” or “Confidential – Attorneys’ Eyes

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Only” the Designating Party believes that such disclosure does not qualify for the

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level of protection asserted, the Designating Party shall promptly notify all other

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parties and correct the mistaken designation.

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7.

Confidential Information that has been obtained during the course of this

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action may not be disclosed by any Receiving Party except as provided in this

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Protective Order. Counsel for a party may give advice and opinions to their client

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based on evaluation of Confidential Information. For information designated
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“Confidential – Attorneys’ Eyes Only,” such rendering of advice and opinions shall

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not reveal the content of such information except by prior agreement with opposing

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counsel documented in writing (email confirmation shall suffice).

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8.

Deposition Testimony may be designated as “Confidential” or

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“Confidential – Attorneys’ Eyes Only” at the time of the testimony, or within thirty

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(30) days following receipt of the transcript of the testimony, and shall be subject to

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the provisions of this Order. Additional information disclosed during a deposition or

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hearing may be designated as “Confidential” or “Confidential – Attorneys’ Eyes

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Only” by notifying the other party, in writing, within thirty (30) days after receipt of

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the transcript, of the specific pages of the transcript that should also be so designated.

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Unless otherwise agreed on the record, all deposition transcripts shall be treated as

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“Confidential – Attorneys’ Eyes Only” for a period of thirty-one (31) days after their

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receipt, and the transcript shall not be disclosed by a non-Designating Party to persons

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other than those persons permitted by this Protective Order to review documents or

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materials designated “Confidential – Attorneys’ Eyes Only” on behalf of that non-

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Designating Party, provided, however, that it is expected that the parties shall seek to

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agree on the record during and/or at the end of a deposition when the testimony

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clearly was not Confidential Information. (FFM)

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9.

Without written permission from the Designating Party or Court order

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

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public record in this action any material designated “Confidential” or “Confidential –

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Attorneys’ Eyes Only.” A party that seeks to file such material under seal must

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comply with Local Rule 79-5. The application must demonstrate good cause for the

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under seal filing.

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10.

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following:

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As used in this Protective Order, “Trial Counsel” refers exclusively to the

a.

For Plaintiffs/Counter-defendants: The attorneys, paralegals,

agents, and support staff of Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP.
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b.

For Defendants/ Counterclaimants: The attorneys, paralegals,

agents, and support staff of Mitchell, Silberberg & Knupp, LLP.

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c.

Others: Such additional attorneys (and their paralegals, agents and

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support staff) as enter an appearance in this matter for any existing or additional party,

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as may be ordered by the Court or subsequently as may be agreed upon by the parties.

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11.

Material designated as “Confidential” that has been obtained during the

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course of this proceeding may be disclosed or made available only to the Court, to

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Trial Counsel, and to the persons designated below and only in accordance with the

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terms of this Protective Order:

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a.

A party, or an officer, director, or designated employee of a party

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

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this action;

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b.

Independent experts or consultants (together with their clerical

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staff) retained by such Trial Counsel to assist in the prosecution, defense, or

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settlement of this action. For the purpose of this Protective Order, an independent

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expert or consultant shall be defined as a person, who has not been and is not an

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employee of a party or scheduled to become an employee in the near future, and who

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is retained or employed as a consultant or expert for purposes of this litigation, either

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full or part-time, by or at the direction of counsel of a party;

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c.

Court reporter(s) employed in this action;

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d.

Agents of Trial Counsel needed to perform various services such

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as copying, creating demonstrative exhibits, and litigation support and management

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services, including vendors retained by the parties, or by counsel for parties, for the

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purpose of copying, encoding, loading into a computer and/or storing and maintaining

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documents, electronically stored information and things, transcripts, pleadings, or

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attorney work product;

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e.

Witnesses at trial and any other in-Court proceeding of this action;

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f.

Authors of the material bearing a “Confidential” or “Confidential –

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Attorneys’ Eyes Only” legend;

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g.

Persons who were recipients of the material bearing a

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“Confidential” or “Confidential – Attorneys’ Eyes Only” legend, provided that such

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person did not receive such material in breach of this Protective Order;

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h.

Witnesses in any deposition or other proceeding, provided that

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counsel questioning the witness has a good faith and reasonable basis to believe that

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the witness either has seen the document before or has knowledge of the contents

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contained within the document. If the witness testifies that he or she has never seen

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the document before and does not have knowledge of its contents, then counsel

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questioning the witness shall promptly withdraw the document from the witness.

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i.

The Mediator or Settlement Officer in this action.

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j.

Any other persons as to whom the parties in writing agree.

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12.

Material designated as “Confidential – Attorneys’ Eyes Only” that has

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been obtained from a party during the course of this proceeding may be disclosed or

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made available only to the Court, to Trial Counsel, to the persons designated in

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sections 11 (b) through (j) above, and to the following designated representatives of

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the parties (and the assistants and paralegals of these persons):

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For Plaintiffs: Larry J. Dressler, Mike Medavoy, and Avra Douglas, each of

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whom is an officer of Plaintiff’s general partner and a trustee of Plaintiff’s limited

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partners; and David J. Seeley, Esq. of Livengood, Fitzgerald & Alskog in Kirkland,

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Washington.

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For Defendants: Daniel Aiman, William Koslo, and Bryan Tillman, each of

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whom is an attorney of Defendant, as well as Todd Wanek, President & CEO and

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Ronald Wanek, Chairman of the Board.

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13.

Individuals to whom disclosure is made under paragraphs 11(a) and 11(b)

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shall be given a copy of this order before being shown any Confidential Information,

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and its provisions shall be explained to such persons by an attorney. Each such

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person, before having access to the Confidential Information, shall agree not to
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disclose or make use of any such material other than solely for purpose of this

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litigation, and shall acknowledge those obligations and that he/she understands the

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terms of this Protective Order and agrees to comply with it and be bound by it in

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writing by signing a document in the form of Exhibit “A” attached hereto. Witnesses

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shown Confidential Information at a deposition or hearing shall not be allowed to

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retain copies of the material. However, a witness who was shown such material

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during a deposition may review the material while reviewing his transcript, provided

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that any such material is not retained by the witness after he/she has completed his/her

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review of the transcript for accuracy.

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If any party desires at a hearing to offer into evidence material designated

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“Confidential” or “Confidential – Attorneys’ Eyes Only,” or to use such material in

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such a way as to reveal its nature or contents, such offers or use shall be made only

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upon the taking of all steps reasonably available to preserve the confidentiality of such

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material and in accordance with the instructions of the Court, which may include the

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offering of material outside the presence of persons other than court personnel and

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counsel.

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15.

Any Confidential Information may be used in any deposition taken of the

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party producing such material or its employees without consent, and in any other

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deposition subject to the provisions in Sections 11 and 12, above. Whenever any

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Confidential Information is to be discussed or disclosed in a deposition, any party

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claiming such confidentiality may exclude from the room any person not entitled to

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receive such material pursuant to the terms of this Protective Order.

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16.

A Receiving Party who objects to the designation of any material as

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“Confidential” or “Confidential – Attorneys’ Eyes Only” shall state the objection in a

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letter to counsel for the Designating Party. Parties shall make a good faith effort to

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avoid the Court’s involvement to resolve disputes. If the objection cannot be resolved

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within ten (10) days following receipt of the objection, the Receiving Party may move

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the Court to determine whether the material qualifies for treatment as “Confidential”
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or “Confidential – Attorneys’ Eyes Only.” If the Receiving Party files such a motion,

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the material will continue to be treated in accordance with its designation and this

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Protective Order until and unless the Court rules. The Designating Party shall bear the

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burden of establishing that the material qualifies for treatment as “Confidential” or

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“Confidential – Attorneys’ Eyes Only.” Any such motion must comply with Local

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Rule 37. (FFM)

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A Receiving Party shall not be obligated to challenge the propriety of the

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designation of any material at the time such designation is made; and failure to do so

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shall not preclude a subsequent challenge for any purpose.

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18.

If a party, through inadvertence or mistake, produces Confidential

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Information without marking it with the legend “Confidential” or “Confidential –

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Attorneys’ Eyes Only,” or by designating it with an incorrect level of confidentiality,

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the party may give written notice to the Receiving Party that the material contains

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“Confidential” or “Confidential – Attorneys’ Eyes Only” material and should be

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treated as such in accordance with the provisions of this Protective Order. Upon

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receipt of such notice, and upon receipt of properly marked materials, the Receiving

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Party shall return all unmarked materials (and not retain any copies thereof) and must

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treat such material in accordance with its designation and cooperate in restoring the

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confidentiality of such material. The inadvertent or unintentional disclosure by a

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party of Confidential Information, regardless of whether the information was so

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designated at the time of disclosure, shall not be deemed a waiver in whole or in part

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of a party’s claim of confidentiality either as to the specific information disclosed or

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as to any other information relating thereto or on the same or related subject matter,

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provided that the Receiving Party is notified and properly marked documents are

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supplied as provided herein. The Receiving Party shall not be responsible for the

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disclosure or other distribution of belatedly designated material before the receipt of

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such notification of a claim of confidentiality and such disclosure or distribution shall

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not be deemed to be a violation of this Protective Order.
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19.

If a Receiving Party discloses Confidential Information through

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inadvertence or otherwise to any person or party not authorized under this Protective

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Order, the Receiving Party shall immediately notify the Disclosing Party of the

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disclosure, and the Receiving Party shall use its best efforts to promptly retrieve all

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copies of any such Confidential Information and to bind such person to the terms of

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this Protective Order, including cooperating in obtaining an order of the Court to

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remedy the inadvertent disclosure, if necessary. The Receiving Party also shall: (a)

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promptly inform such unauthorized person of all the provisions of this Protective

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Order, including providing such person with a copy of this Order; (b) identify such

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person immediately to the Disclosing Party and inform the Disclosing Party of all

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pertinent facts relating to the inadvertent disclosure; and (c) request that such

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unauthorized person sign the “Agreement to Be Bound by Protective Order” (Exhibit

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“A”).

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20.

Neither the taking of, or the failure to take any action to enforce the

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provisions of this Protective Order, nor the failure to object to any designation or any

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such action or omission, shall constitute a waiver of any party’s right to seek and

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obtain protection or relief with respect to any claim or defense in this action or any

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other action including, but not limited to, the claim or defense that any information is

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or is not proprietary to any party, is or is not entitled to particular protection or that

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such information does or does not embody trade secret or other confidential

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information of any party. The procedures set forth herein shall not affect the rights of

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the parties to object to discovery on grounds other than confidentiality, nor shall it

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relieve a party of the necessity of proper responses to discovery requests.

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21.

This Order shall not abrogate or diminish any contractual, statutory, or

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other legal obligation or right of any party to this Protective Order, as to any third

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party, with respect to any Confidential Information. The fact that information is

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designated “Confidential” or “Confidential – Attorneys’ Eyes Only” under this

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Protective Order shall not be deemed to be determinative of what a trier of fact may
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determine to be confidential or proprietary. This Order shall be without prejudice to

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the right of any party to seek adjudication of, or the Court to determine sua sponte:

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a.

“Confidential – Attorneys’ Eyes Only” material;

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Whether any particular information is or is not “Confidential” or

b.

Whether any particular information is or is not entitled to a greater

or lesser degree of protection than provided hereunder; or

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c.

Whether any particular information is or is not relevant to any

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issue in this case; provided that in doing so the party complies with the foregoing

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procedures.

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22.

The terms of this Protective Order apply to material produced in this

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litigation by non-parties, and confidential information produced by a non-party in

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connection with this litigation shall be treated in accordance with this Protective

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Order. To protect its own confidential information, a party may ask a non-party to

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execute a document in the form of Exhibit “A” attached hereto.

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23.

If Confidential Information is requested from any Receiving Party by any

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court, government entity, or third party pursuant to a valid subpoena or other court

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order, the Receiving Party shall immediately notify the other parties to this action in

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writing and make a good faith effort to provide the Disclosing Party a reasonable time

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in which to object or take steps to protect its interests before any confidential

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information is produced.

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24.

In the event that any person or party violates or threatens to violate the

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terms of this Protective Order, the aggrieved Disclosing Party may immediately seek

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injunctive relief against such person or party.

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25.

Nothing contained in this Protective Order shall affect or waive any

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party’s right to object to the admissibility, discoverability, or privileged or exempted

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nature of any disclosure, all such objections and exemptions being specifically

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preserved.

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26.
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The parties may agree in writing to reasonable modifications of or
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exceptions to this Protective Order; however, no modification or exception by the

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parties shall have the force or effect of a Court Order unless the Court endorses such

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modification or exception.

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This Protective Order shall survive the final termination of this action

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and the Court shall retain jurisdiction to resolve any dispute concerning the use of

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Confidential Information disclosed hereunder. Within sixty (60) days following the

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conclusion of this litigation, including all appeals or settlement, all Confidential

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Information, except such documents or information which incorporate or are

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incorporated into attorney work product (a single copy of which may be retained in

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counsel’s file), shall, upon request, be returned to the producing party, destroyed or

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disposed of pursuant to the instructions of the producing party.

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28.

Nothing contained herein shall limit any party in the presentation of

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evidence at trial, however, all parties reserve the right to request that the Court enter

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an appropriate order to protect from public disclosure information that such party

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contends is confidential and would be detrimental to that party if disclosed in a public

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trial.

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29.

This Protective Order is without prejudice to the right of a party hereto to

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seek relief from the Court from any of the provisions or restrictions provided herein,

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including seeking modifications to the Protective Order that may broaden or restrict

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the rights of access to and use of protected materials.

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30.

Nothing in this Order shall prevent any Designating Party from

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disclosing or using, in any manner or for any purpose, information or documents that

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the designating party itself has designated as “Confidential” or “Confidential –

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Attorneys’ Eyes Only.”

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IT IS SO ORDERED.
Dated: August 24, 2011
/S/ FREDERICK F. MUMM
The Honorable Frederick F. Mumm
United States Magistrate Judge

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EXHIBIT “A”

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ACKNOWLEDGMENT AND NONDISCLOSURE AGREEMENT

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I, __________________________, affirm that I have read and am familiar with

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the terms of the Protective Order entered in the matter of Brando Enterprises, L.P. v.

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Ashley Furniture Industries, Inc., et al., Case No. CV 11-5997 DMG (FFMx). I agree

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that I will not disclose any information received by me pursuant to the Protective

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Order, and I will comply with and be bound by the terms and conditions of said Order

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unless and until modified by further order of the Court.

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Dated: _________________

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By: _____________________________
Print Name: _____________________________

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Address:

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_____________________________
_____________________________

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Tel. _____________________________

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