Mavrix Photo Inc v. Intermedia Vibe Holdings LLC et al

Filing 31

STIPULATED PROTECTIVE ORDER by Magistrate Judge Jean P Rosenbluth. (See Order for details.) (wr)

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*Note changes made by the
Court to page 7*

John E. Lord (Bar No. 216111)
[e-mail]
ONE LLP
301 Arizona Avenue, Suite 250
Santa Monica, CA 90401
Phone: [phone]
Peter R. Afrasiabi, Esq. (Bar No. 193336)
[e-mail]
ONE LLP
4000 MacArthur Blvd.
West Tower, Suite 1100
Newport Beach, CA 92660
Phone: [phone]
Attorneys for Plaintiff, Mavrix Photo, Inc.
Rita M. Haeusler
Alex E. Spjute
Hughes Hubbard & Reed LLP
350 South Grand Avenue, 36th Floor
Los Angeles, CA 90071

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Attorney for Defendants,
Intermedia Vibe Holdings, LLC

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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Mavrix Photo, Inc.,

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Case No. CV12-02643 JST (JPRx)
STIPULATED PROTECTIVE ORDER

Plaintiff,
v.

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Intermedia Vibe Holdings, LLC; and DOES
1-10 INCLUSIVE,

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Defendants.

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STIPULATED PROTECTIVE ORDER

STIPULATION REGARDING CONFIDENTIAL INFORMATION

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1.

PURPOSES AND LIMITATIONS

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Disclosure and discovery activity in this action are likely to involve production of

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confidential, proprietary, or private information for which special protection from public

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disclosure and from use for any purpose other than prosecuting this litigation may be

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warranted. Accordingly, the parties hereby stipulate to and petition the court to enter the

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following Stipulated Protective Order. The parties acknowledge that this Order does not

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confer blanket protections on all disclosures or responses to discovery and that the

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protection it affords from public disclosure and use extends only to the limited information

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or items that are entitled to confidential treatment under the applicable legal principles. The

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parties further acknowledge, as set forth in Section 12.3, below, that this Stipulated

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Protective Order does not entitle them to file confidential information under seal; Civil

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Local Rule 79-5 and General Order 62 set forth the procedures that must be followed and

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the standards that will be applied when a party seeks permission from the court to file

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material under seal.

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2.

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DEFINITIONS
2.1

Challenging Party: a Party or Non-Party that challenges the designation of

information or items under this Order.
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“CONFIDENTIAL” Information or Items: information (regardless of how it

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

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Federal Rule of Civil Procedure 26(c).

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2.3

Counsel (without qualifier): Outside Counsel of Record and House Counsel

(as well as their support staff).
2.4

Designating Party: a Party or Non-Party that designates information or items

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that it produces in disclosures or in responses to discovery as “CONFIDENTIAL” and/or

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“ATTORNEYS EYES ONLY.”

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2.5

Disclosure or Discovery Material: all items or information, regardless of the

medium or manner in which it is generated, stored, or maintained (including, among other
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STIPULATED PROTECTIVE ORDER

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

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disclosures or responses to discovery in this matter.

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2.6

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

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

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expert witness or as a consultant in this action.

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2.7

House Counsel: attorneys who are employees of a party to this action. House

Counsel does not include Outside Counsel of Record or any other outside counsel.
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Non-Party: any natural person, partnership, corporation, association, or other

legal entity not named as a Party to this action.
2.9

Outside Counsel of Record: attorneys who are not employees of a party to this

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action but are retained to represent or advise a party to this action and have appeared in this

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action on behalf of that party or are affiliated with a law firm which has appeared on behalf

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of that party.

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

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employees, consultants, retained experts, and Outside Counsel of Record (and their support

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staffs).

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2.11 Producing Party: a Party or Non-Party that produces Disclosure or Discovery
Material in this action.

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2.12 Professional Vendors: persons or entities that provide litigation support

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

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and organizing, storing, or retrieving data in any form or medium) and their employees and

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subcontractors.

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2.13 Protected Material: any Disclosure or Discovery Material that is designated as
“CONFIDENTIAL” and/or “ATTORNEYS EYES ONLY.”
2.14 Receiving Party: a Party that receives Disclosure or Discovery Material from
a Producing Party.
2.15 Attorneys’ Eyes Only: extremely sensitive CONFIDENTIAL information,
disclosure of which to another Party or Non-Party would create substantial risk of harm that
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STIPULATED PROTECTIVE ORDER

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could not be avoided by less restrictive means. Relevant examples of such “Attorneys Eyes

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Only” information may include, without limitation, currently competitive trade secrets,

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minutes of Board meetings, pricing data, financial data, sales information, customer-

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confidential information, agreements or relationships with non-parties, market projections

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or forecasts, strategic business plans, selling or marketing strategies, or information about

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employees.

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3.

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

Material (as defined above), but also (1) any information copied or extracted from

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Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected

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Material; and (3) any testimony, conversations, or presentations by Parties or their Counsel

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that might reveal Protected Material. However, the protections conferred by this Stipulation

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and Order do not cover the following information: (a) any information that is in the public

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domain at the time of disclosure to a Receiving Party or becomes part of the public domain

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after its disclosure to a Receiving Party as a result of publication not involving a violation

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of this Order, including becoming part of the public record through trial or otherwise; and

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(b) any information known to the Receiving Party prior to the disclosure or obtained by the

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Receiving Party after the disclosure from a source who obtained the information lawfully

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and under no obligation of confidentiality to the Designating Party. Any use of Protected

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Material at trial shall be governed by a separate agreement or order.

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4.

DURATION

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Even after final disposition of this litigation, the confidentiality obligations imposed

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

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a court order otherwise directs. Final disposition shall be deemed to be the later of (1)

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dismissal of all claims and defenses in this action, with or without prejudice; and (2) final

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judgment herein after the completion and exhaustion of all appeals, rehearings, remands,

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STIPULATED PROTECTIVE ORDER

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trials, or reviews of this action, including the time limits for filing any motions or

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applications for extension of time pursuant to applicable law.

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5.

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DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection. Each

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Party or Non-Party that designates information or items for protection under this Order

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must take care to limit any such designation to specific material that qualifies under the

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appropriate standards. The Designating Party must designate for protection only those parts

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of material, documents, items, or oral or written communications that qualify – so that

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other portions of the material, documents, items, or communications for which protection is

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not warranted are not swept unjustifiably within the ambit of this Order.
Mass, indiscriminate, or routinized designations are prohibited. Designations that are

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shown to be clearly unjustified or that have been made for an improper purpose (e.g., to

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unnecessarily encumber or retard the case development process or to impose unnecessary

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expenses and burdens on other parties) expose the Designating Party to sanctions.

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If it comes to a Designating Party’s attention that information or items that it

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designated for protection do not qualify for protection, that Designating Party must

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

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5.2

Manner and Timing of Designations. Except as otherwise provided in this

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

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ordered, Disclosure or Discovery Material that qualifies for protection under this Order

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must be clearly so designated before the material is disclosed or produced.

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Designation in conformity with this Order requires:

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(a) for information in documentary form (e.g., paper or electronic documents, but

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excluding transcripts of depositions or other pretrial or trial proceedings), that the

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Producing Party affix the legend “CONFIDENTIAL” and/or “ATTORNEYS EYES

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ONLY” to each page that contains protected material. If only a portion or portions of the

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material on a page qualifies for protection, the Producing Party also must clearly identify

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the protected portion(s) (e.g., by making appropriate markings in the margins).
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STIPULATED PROTECTIVE ORDER

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A Party or Non-Party that makes original documents or materials available for

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

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

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before the designation, all of the material made available for inspection shall be deemed

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“CONFIDENTIAL.” After the inspecting Party has identified the documents it wants

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copied and produced, the Producing Party must determine which documents, or portions

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thereof, qualify for protection under this Order. Then, before producing the specified

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documents, the Producing Party must affix the “CONFIDENTIAL” and/or “ATTORNEYS

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EYES ONLY” legend to each page that contains Protected Material. If only a portion or

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portions of the material on a page qualifies for protection, the Producing Party also must

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clearly identify the protected portion(s) (e.g., by making appropriate markings in the

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margins).

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(b) for testimony given in deposition or in other pretrial or trial proceedings, that the

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Designating Party identifies on the record, before the close of the deposition, hearing, or

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other proceeding, all protected testimony. This provision does not apply to any court

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proceedings. At the time of any such proceeding, the parties must seek guidance from the

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judicial officer assigned to this case on how the use of protected material in such

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proceedings will be handled.

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(c) for information produced in some form other than documentary and for any other

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tangible items, that the Producing Party affix in a prominent place on the exterior of the

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container or containers in which the information or item is stored the legend

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“CONFIDENTIAL” and/or “ATTORNEYS EYES ONLY.” If only a portion or portions

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of the information or item warrant protection, the Producing Party, to the extent practicable,

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shall identify the protected portion(s).

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5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to

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designate qualified information or items does not, standing alone, waive the Designating

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Party’s right to secure protection under this Order for such material. Upon timely correction

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of a designation, the Receiving Party must make reasonable efforts to assure that the
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STIPULATED PROTECTIVE ORDER

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material is treated in accordance with the provisions of this Order.

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6.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges. Any Party or Non-Party may challenge a designation

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of confidentiality at any time. Unless a prompt challenge to a Designating Party’s

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confidentiality designation is necessary to avoid foreseeable, substantial unfairness,

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unnecessary economic burdens, or a significant disruption or delay of the litigation, a Party

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does not waive its right to challenge a confidentiality designation by electing not to mount

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a challenge promptly after the original designation is disclosed.

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6.2

Meet and Confer. The Challenging Party shall initiate the dispute resolution

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process by providing written notice of each designation it is challenging and describing the

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basis for each challenge. To avoid ambiguity as to whether a challenge has been made, the

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written notice must recite that the challenge to confidentiality is being made in accordance

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with this specific paragraph of the Protective Order. The parties shall attempt to resolve

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each challenge in good faith and must begin the process by conferring directly (in voice to

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voice dialogue; other forms of communication are not sufficient) within 10 days of the date

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of service of notice, as required by Local Rule 37-1. In conferring, the Challenging Party

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must explain the basis for its belief that the confidentiality designation was not proper and

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must give the Designating Party an opportunity to review the designated material, to

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reconsider the circumstances, and, if no change in designation is offered, to explain the

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basis for the chosen designation. A Challenging Party may proceed to the next stage of the

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challenge process only if it has engaged in this meet and confer process first or establishes

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that the Designating Party is unwilling to participate in the meet and confer process in a

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timely manner.

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If the parties cannot resolve a challenge without court intervention, the Designating

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Party shall file and serve a motion to retain confidentiality under Civil Local Rule 7 or 37

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(and in compliance with Civil Local Rule 79-5, if applicable) within 21 days of the initial

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notice of challenge or within 14 days of the parties agreeing that the meet and confer

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process will not resolve their dispute, whichever is later.
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STIPULATED PROTECTIVE ORDER

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7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

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

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disclosed or produced by another Party or by a Non-Party in connection with this case only

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for prosecuting, defending, or attempting to settle this litigation. Such Protected Material

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may be disclosed only to the categories of persons and under the conditions described in

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this Order. When the litigation has been terminated, a Receiving Party must comply with

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the provisions of section 13 below (FINAL DISPOSITION).

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Protected Material must be stored and maintained by a Receiving Party at a location
and in a secure manner that ensures that access is limited to the persons authorized under
this Order.
7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

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

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may disclose any information or item designated “CONFIDENTIAL” only to:

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(a) the Receiving Party’s Outside Counsel of Record in this action, as well as

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employees of said Outside Counsel of Record to whom it is reasonably necessary to

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disclose the information for this litigation;

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(b) the officers, directors, and employees (including House Counsel) of the

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Receiving Party to whom disclosure is reasonably necessary for this litigation and who

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have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is

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reasonably necessary for this litigation and who have signed the “Acknowledgment and

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Agreement to Be Bound” (Exhibit A);

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(d) the court and its personnel;

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(e) court reporters and their staff, professional jury or trial consultants, mock jurors,

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and Professional Vendors to whom disclosure is reasonably necessary for this litigation and

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who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(f) during their depositions, witnesses in the action to whom disclosure is reasonably

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STIPULATED PROTECTIVE ORDER

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necessary and who have signed the “Acknowledgment and Agreement to Be Bound”

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(Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court.

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Pages of transcribed deposition testimony or exhibits to depositions that reveal Protected

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Material must be separately bound by the court reporter and may not be disclosed to

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anyone except as permitted under this Stipulated Protective Order.
(g) the author or recipient of a document containing the information or a custodian

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or other person who otherwise possessed or knew the information.
7.3

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Disclosure of “ATTORNEYS EYES ONLY” Information or Items. Unless

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

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Receiving Party may disclose any information or item designated “ATTORNEYS EYES

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ONLY” only to the categories of persons identified in subparagraphs (a) and (c) –(g).

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8.

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PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
OTHER LITIGATION
If a Party is served with a subpoena or a court order issued in other litigation that

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compels disclosure of any information or items designated in this action as

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“CONFIDENTIAL,” that Party must:

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(a) promptly notify in writing the Designating Party. Such notification shall include
a copy of the subpoena or court order;
(b) promptly notify in writing the party who caused the subpoena or order to issue in

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the other litigation that some or all of the material covered by the subpoena or order is

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subject to this Protective Order. Such notification shall include a copy of this Stipulated

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Protective Order; and

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(c) cooperate with respect to all reasonable procedures sought to be pursued by the
Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served with the

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subpoena or court order shall not produce any information designated in this action as

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“CONFIDENTIAL” and/or “ATTORNEYS EYES ONLY” before a determination by the

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court from which the subpoena or order issued, unless the Party has obtained the
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Designating Party’s permission. The Designating Party shall bear the burden and expense

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of seeking protection in that court of its confidential material – and nothing in these

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provisions should be construed as authorizing or encouraging a Receiving Party in this

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action to disobey a lawful directive from another court.

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9.

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A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED
IN THIS LITIGATION
(a)

The terms of this Order are applicable to information produced by a Non-Party

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in this action and designated as “CONFIDENTIAL.” Such information produced by Non-

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Parties in connection with this litigation is protected by the remedies and relief provided by

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this Order. Nothing in these provisions should be construed as prohibiting a Non-Party

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from seeking additional protections.

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(b)

In the event that a Party is required, by a valid discovery request, to produce a

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Non-Party’s confidential information in its possession, and the Party is subject to an

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agreement with the Non-Party not to produce the Non-Party’s confidential information,

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then the Party shall:

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(1)

promptly notify in writing the Requesting Party and the Non-

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Party that some or all of the information requested is subject to a confidentiality agreement

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with a Non-Party;

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(2)

promptly provide the Non-Party with a copy of the Stipulated

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Protective Order in this litigation, the relevant discovery request(s), and a reasonably

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specific description of the information requested; and

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(3)

make the information requested available for inspection by the

Non-Party.
(c)

If the Non-Party fails to object or seek a protective order from this court

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within 14 days of receiving the notice and accompanying information, the Receiving Party

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may produce the Non-Party’s confidential information responsive to the discovery request.

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If the Non-Party timely seeks a protective order, the Receiving Party shall not produce any

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STIPULATED PROTECTIVE ORDER

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information in its possession or control that is subject to the confidentiality agreement with

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the Non-Party before a determination by the court.1 Absent a court order to the contrary,

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the Non-Party shall bear the burden and expense of seeking protection in this court of its

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Protected Material.

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10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

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Protected Material to any person or in any circumstance not authorized under this

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Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing the

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Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve all

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unauthorized copies of the Protected Material, (c) inform the person or persons to whom

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unauthorized disclosures were made of all the terms of this Order, and (d) request such

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person or persons to execute the “Acknowledgment and Agreement to Be Bound” that is

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attached hereto as Exhibit A.

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11.

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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
PROTECTED MATERIAL
When a Producing Party gives notice to Receiving Parties that certain inadvertently

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produced material is subject to a claim of privilege or other protection, the obligations of

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the Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B).

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This provision is not intended to modify whatever procedure may be established in an e-

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discovery order that provides for production without prior privilege review. Pursuant to

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Federal Rule of Evidence 502(d) and (e), insofar as the parties reach an agreement on the

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effect of disclosure of a communication or information covered by the attorney-client

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privilege or work product protection, the parties may incorporate their agreement in the

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stipulated protective order submitted to the court. No modification of the Protective Order,

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however, will have the force or effect of a court order unless the Court approves the

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The purpose of this provision is to alert the interested parties to the existence of confidentiality
rights of a Non-Party and to afford the Non-Party an opportunity to protect its confidentiality
interests in this court.
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STIPULATED PROTECTIVE ORDER

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modification.

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12.

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

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MISCELLANEOUS

to seek its modification by the court in the future.
12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective

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

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producing any information or item on any ground not addressed in this Stipulated

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Protective Order. Similarly, no Party waives any right to object on any ground to use in

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evidence of any of the material covered by this Protective Order.
12.3 Filing Protected Material. Without written permission from the Designating

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Party or a court order secured after appropriate notice to all interested persons, a Party may

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not file in the public record in this action any Protected Material. A Party that seeks to file

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under seal any Protected Material must comply with Civil Local Rule 79-5 and General

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Order 62. Protected Material may only be filed under seal pursuant to a court order

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authorizing the sealing of the specific Protected Material at issue. Pursuant to Civil Local

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Rule 79-5 and General Order 62, a sealing order will issue only upon a request establishing

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that the Protected Material at issue is privileged, protectable as a trade secret, or otherwise

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entitled to protection under the law. If a Receiving Party's request to file Protected Material

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under seal pursuant to Civil Local Rule 79-5 and General Order 62 is denied by the court,

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then the Receiving Party may file the information in the public record pursuant to Civil

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Local Rule 79-5 unless otherwise instructed by the court.

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13.

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FINAL DISPOSITION
Within 60 days after the final disposition of this action, as defined in paragraph 4,

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each Receiving Party must return all Protected Material to the Producing Party or destroy

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such material. As used in this subdivision, “all Protected Material” includes all copies,

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abstracts, compilations, summaries, and any other format reproducing or capturing any of

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

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Receiving Party must submit a written certification to the Producing Party (and, if not the
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same person or entity, to the Designating Party) by the 60 day deadline that (1) identifies

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(by category, where appropriate) all the Protected Material that was returned or destroyed

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and (2)affirms that the Receiving Party has not retained any copies, abstracts, compilations,

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summaries or any other format reproducing or capturing any of the Protected Material.

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Notwithstanding this provision, Counsel are entitled to retain an archival copy of all

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pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda,

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correspondence, deposition and trial exhibits, expert reports, attorney work product, and

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consultant and expert work product, even if such materials contain Protected Material. Any

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such archival copies that contain or constitute Protected Material remain subject to this

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Protective Order as set forth in Section 4 (DURATION).

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IT IS SO STIPULATED.

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DATED: October 5, 2012

/s/ John E. Lord
John E. Lord
Attorneys for Plaintiff,
Mavrix Photo, Inc.

DATED: October 5, 2012

/s/ Alex E. Spjute_
Alex E. Spjute
Attorneys for Defendant,
Intermedia Vibe Holdings, LLC

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PURSUANT TO THE PARTIES’ STIPULATION, IT IS SO ORDERED.

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DATED: October 15, 2012
Hon. Jean P. Rosenbluth
United States Magistrate Judge

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STIPULATED PROTECTIVE ORDER

EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, _____________________________ [print or type full name], of ______________

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_________________ [enter full address], declare under penalty of perjury that I have read

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in its entirety and understand the Stipulated Protective Order that was issued by the United

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States District Court for the Central District of California on ____________ in the case of

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Mavrix Photo, Inc. v. Intermedia Vibe Holdings, LLC, Case No. CV12-02643 JST (JPRx).

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I agree to comply with and to be bound by all the terms of this Stipulated Protective Order

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and I understand and acknowledge that failure to so comply could expose me to sanctions

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and punishment in the nature of contempt. I solemnly promise that I will not disclose in any

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manner any information or item that is subject to this Stipulated Protective Order to any

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person or entity except in strict compliance with the provisions of this Order.

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I further agree to submit to the jurisdiction of the United States District Court for the

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Central District of California for the purpose of enforcing the terms of this Stipulated

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Protective Order, even if such enforcement proceedings occur after termination of this

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action.

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I hereby appoint __________________________ [print or type full name] of

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_______________________________________ [print or type full address and telephone

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number] as my California agent for service of process in connection with this action or any

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proceedings related to enforcement of this Stipulated Protective Order.

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Date: _________________________________

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City and State where sworn and signed: _________________________________

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Printed name: ______________________________
Signature: __________________________________

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STIPULATED PROTECTIVE ORDER