Andrew Zuckerman v. Lenny USA et al

Filing 18

STIPULATED PROTECTIVE ORDER by Magistrate Judge Carla Woehrle re Notice (Other) 17 . **SEE ORDER FOR FURTHER DETAILS** (dt)

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Lynda J. Zadra-Symes (SBN 156,511)
[e-mail]
Daniel J. Fischer (SBN 280,715)
[e-mail]
KNOBBE, MARTENS, OLSON & BEAR, LLP
2040 Main Street
Fourteenth Floor
Irvine, CA 92614
Phone: [phone]
Facsimile: [phone]
Attorneys for Defendant
LENNY USA, LLC
David Alden Erikson (SBN 189838)
[e-mail]
S. Ryan Patterson (SBN 279,474)
[e-mail]
LAW OFFICES OF DAVID ALDEN ERIKSON
200 North Larchmont Boulevard
Los Angeles, CA 90004
Phone: [phone]
Facsimile: [phone]
Attorneys for Plaintiff
ANDREW ZUCKERMAN

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IN THE UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION
ANDREW ZUCKERMAN, an individual,

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Plaintiff,
v.
LENNY USA, LLC, a New York limited
liability company ; LENNY
SWIMWEAR, a business entity of form
unknown; LENNY NIEMEYER, an
individual; and DOES 1-10 inclusive,
Defendant.

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Civil Action No.
CV12-3249-PSG (CWx)
STIPULATED PROTECTIVE
ORDER

Magistrate Judge Carla Woehrle

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Plaintiff Andrew Zuckerman (“Zuckerman”) and Defendant Lenny USA,

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LLC (“Lenny USA”), recognizing that each may have materials containing trade

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secret or other confidential research, technical, cost, price, marketing or other

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commercial information, as is contemplated by Federal Rule of Civil Procedure

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26(c), have agreed to the terms of the Protective Order (“Order”) as set forth

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below. The purpose of this Order is to protect the confidentiality of such

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materials as much as practical during the litigation. THEREFORE IT IS

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HEREBY ORDERED:

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1.

This Order shall apply to all information produced during

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discovery in this action that shall be designated by the party or person producing

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it as “Confidential” or “Confidential-Attorneys Eyes Only” (collectively

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“Confidential Information”). This Order shall not apply to information that,

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

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whom such disclosure is made, or is public knowledge.

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contained in this Order shall not apply to information that is, or after disclosure

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becomes, public knowledge other than by an act or omission of the party to

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whom such disclosure is made, or that is legitimately acquired from a source not

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subject to this Order.

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2.

The restrictions

If a document or thing produced in response to a document request

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or in connection with a deposition, interrogatory answer, or admission

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(collectively “discovery response”), or a deposition transcript, contains

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information considered confidential by a party, such discovery response, or

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deposition transcript shall be designated “Confidential” or “Confidential-

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Attorneys Eyes Only” by the party contending there is confidential information

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therein.

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3.

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In connection with a discovery response or deposition transcript,

the legend “Confidential” or “Confidential-Attorneys Eyes Only” (in such a

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manner as will not interfere with the legibility thereof) shall be affixed before

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the production or service upon a party.

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4.

As a general guideline, a document should be designated

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“Confidential” when it contains confidential business, technical or other

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information that may be reviewed by the receiving party, the parties’ experts,

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and other representatives, but must be protected against disclosure to third

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parties. A document may be designated “Confidential-Attorneys Eyes Only”

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only when it contains the following highly sensitive information: financial

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information; cost information; pricing information; sales information; customer,

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license, supplier, and vendor information; software and firmware for a party’s

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

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comparative product test results; business plans; marketing strategies; new

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

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

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known to employees of the receiving party or third parties.

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5.

All Confidential Information (i.e., “Confidential” or “Confidential-

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Attorneys Eyes Only” information) that has been obtained from a party during

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the course of this proceeding shall be used only for the purpose of this litigation

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and not for any other business, proceeding, litigation, or other purpose

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whatsoever. Further, such information may not be disclosed to anyone except

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as provided in this Order. Counsel for a party may give advice and opinions to

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their client based on evaluation of information designated as Confidential

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Information produced by the other party.

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“Confidential-Attorneys Eyes Only,” such rendering of advice and opinions

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

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opposing counsel.

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6.

For information designated

All documents, or any portion thereof, produced for inspection only

(i.e., copies have not yet been provided to the receiving party) shall be deemed
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“Confidential-Attorneys Eyes Only.”

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requested after inspection, the document shall be deemed “Confidential” or

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“Confidential-Attorneys Eyes Only” only if labeled or marked in conformity

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with paragraph 2, with access and dissemination limited as set forth in

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paragraphs 10-13.

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7.

If a copy of any such document is

Information disclosed at a deposition may be designated as

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“Confidential” or “Confidential-Attorneys Eyes Only” at the time of the

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deposition, or within ten (10) days following receipt of the transcript, and shall

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be subject to the provisions of this Order. Additional information disclosed

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during a deposition may be designated as “Confidential” or “Confidential-

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Attorneys Eyes Only” by notifying the other party, in writing, within ten (10)

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days after receipt of the transcript, of the specific pages of the transcript that

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should also be so designated. Unless otherwise agreed on the record of the

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deposition, all transcripts shall be treated as “Confidential-Attorneys Eyes

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Only” for a period of ten (10) days after their receipt, and the transcript shall not

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be disclosed by a non-designating party to persons other than those persons

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named or approved according to paragraphs 11-13 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.

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8.

In accordance with Local Rule 79-5.1, if any papers to be filed with

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the Court contain information and/or documents that have been designated as

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“Confidential” or “Confidential – Attorneys’ Eyes Only,” the proposed filing

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shall be accompanied by an application to file the papers or the portion thereof

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containing the designated information or documents (if such portion is

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segregable) under seal; and the application shall be directed to the judge to

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whom the papers are directed. For motions, the parties shall file a redacted

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version of the motion and supporting papers.

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9.

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

following:
(a)

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For Lenny USA: The attorneys, paralegals, agents, and

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support staff of Knobbe, Martens, Olson & Bear, LLP, but shall not under any

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circumstances include any current or former officer, director, or employee of

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Lenny USA.
(b)

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For Zuckerman: The attorneys, paralegals, agents, and

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support staff of the Law Offices of David Alden Erikson, but shall not under

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any circumstances include any current or former officer, director, or employee

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of Zuckerman.
(c)

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Others: Such additional attorneys as may be ordered by the

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Court, or subsequently may be agreed upon by the parties, such agreement not

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to be unreasonably withheld.

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10.

Material designated as “Confidential” that has been obtained from

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a party during the course of this proceeding may be disclosed or made available

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only to the Court, to Trial Counsel for either party, and to the persons

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designated below and only subject to paragraphs 12-13:

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(a)

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

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settlement of this action;

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(b)

independent experts or consultants (together with their

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

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defense, or settlement of this action;

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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

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such as, for example, copying, drafting of exhibits, and support and

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

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for parties, for the purpose of encoding, loading into a computer and storing and
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maintaining for information control and retrieval purposes, transcripts of

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depositions, hearings, trials, pleadings, exhibits marked by a party, or attorneys'

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work product, all of which may contain material designated Confidential;
(e)

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

action;

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witnesses in any deposition or other proceeding of this

(f)

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11.

Material designated as “Confidential-Attorneys Eyes Only” that

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has been obtained from Lenny USA or Zuckerman during the course of this

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proceeding may be disclosed or made available only to the Court, to Trial

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Counsel for either party, and to the persons designated below and subject to

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paragraphs 12-13:

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(a)

independent experts or consultants (together with their

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

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defense, or settlement of this action;

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(b)

authors

and

recipients

of

any

material

bearing

a

“Confidential-Attorneys Eyes Only” legend;

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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

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such as, for example, copying, drafting of exhibits, and support and

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

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for parties, for the purpose of encoding, loading into a computer and storing and

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maintaining for information control and retrieval purposes, transcripts of

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depositions, hearings, trials, pleadings, exhibits marked by a party, or attorneys'

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work product, all of which may contain material designated Confidential-

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Attorneys Eyes Only;

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(e)

witnesses in any deposition or other proceeding in this action

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who are the author or recipient of the “Confidential-Attorneys Eyes Only”

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material, or who, based on evidence, have seen the material in the past; and
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(f)

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12.

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

Any officer, director, or designated employee of a party under

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paragraph 10(a) or individuals identified under paragraphs 10(b)-10(f) and

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11(a)-11(f) having access to Confidential Information shall be given a copy of

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this Order before being shown such Confidential Information, and its provisions

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shall be explained to them by an attorney.

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paragraphs 10(a)-10(f) and 11(a)-11(f), before having access to the Confidential

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Information, shall agree not to disclose to anyone not exempted by this Order

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any Confidential Information and not to make use of any such Confidential

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Information other than solely for purpose of this litigation, and shall

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acknowledge in writing by signing a document in the form of Exhibit A

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attached hereto, that he or she is fully conversant with the terms of this Order

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and agrees to comply with it and be bound by it.

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13.

Each person identified under

For the purpose of this Order, an independent expert or consultant

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shall be defined as a person, who has not been and is not an employee of a party

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or scheduled to become an employee in the near future, and who is retained or

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

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

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14.

Any Confidential Information may be used in the course of any

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deposition taken of the party producing such Confidential Information or its

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employees without consent, or otherwise used in any deposition with the

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consent of the party producing such Confidential Information, subject to the

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condition that when such Confidential Information is so used, the party who

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made the designation may notify the reporter that the portion of the deposition

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in any way pertaining to such Confidential Information or any portion of the

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deposition relevant thereto is being taken pursuant to this Order.

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whenever any Confidential Information is to be discussed or disclosed in a

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deposition, any party claiming such confidentiality may exclude from the room
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Further,

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any person not entitled to receive such confidential information pursuant to the

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terms of this Order.

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15.

A Receiving Party who objects to the designation of any discovery

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response, or deposition testimony as “Confidential” or “Confidential-Attorneys

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Eyes Only” shall state the objection by letter which complies with the

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requirements of Local Rule 37-1 to counsel for the Producing Party. Pursuant to

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Local Rule 37-1, counsel for the parties shall confer within ten (10) days

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following receipt of the letter stating the objection. If the objection is not

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resolved through the parties’ meeting pursuant to Local Rule 37-1, the

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Receiving Party may move the Court to determine whether the discovery

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response or deposition testimony at issue qualifies for treatment as

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“Confidential” or “Confidential-Attorneys Eyes Only.” The Receiving Party’s

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motion must be accompanied by a written stipulation of the parties as required

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by Local Rule 37-2. If the Receiving Party files such a motion, the discovery

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response, or deposition testimony at issue will continue to be entitled to the

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protections accorded by this Order until and unless the Court rules otherwise. If

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the Receiving Party files such a motion, the Producing Party shall bear the

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burden of establishing that the discovery response or deposition testimony at

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issue qualifies for treatment as “Confidential” or “Confidential-Attorneys Eyes

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Only.” Nothing herein shall operate as an admission by any Party that any

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particular discovery response, or deposition testimony contains “Confidential”

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or “Confidential-Attorneys Eyes Only.”

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determining the merits of the claims in this litigation. A party shall not be

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obligated to challenge the propriety of the designation of any discovery response

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or deposition testimony at the time such designation is made; failure to do so

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shall not preclude a subsequent challenge within a reasonable time. Further, a

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Party’s failure to challenge a designation during pretrial discovery shall not

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preclude a subsequent challenge of such designation at trial or in connection
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Information for purposes of

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with the submission of any discovery response or deposition testimony to the

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Court for any purpose.

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16.

Notwithstanding anything contrary herein, if a party through

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inadvertence or mistake produces discovery of any Confidential Information

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without marking it with the legend “Confidential” or “Confidential-Attorneys

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

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producing party may give written notice to the receiving party that the discovery

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response, or deposition testimony contains Confidential Information and should

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

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

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party shall return said unmarked materials and not retain copies thereof, and

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must treat such discovery responses, or deposition testimony as Confidential

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Information and shall cooperate in restoring the confidentiality of such

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Confidential Information. The inadvertent or unintentional disclosure by a party

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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

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part of a party's claim of confidentiality either as to the specific information

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disclosed or as to any other information relating thereto or on the same or

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related subject matter, provided that the non-producing party is notified and

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properly marked documents are supplied as provided herein. The receiving

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party shall not be responsible for the disclosure or other distribution of belatedly

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designated Confidential Information as to such disclosure or distribution that

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may occur before the receipt of such notification of a claim of confidentiality

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and such disclosure or distribution shall not be deemed to be a violation of this

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Order.

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17.

Documents and things produced or made available for inspection

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may be subject to redaction, in good faith by the producing party, of sensitive

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material that is subject to the attorney-client privilege or to work-product
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immunity. Each such redaction, regardless of size, will be clearly labeled. This

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paragraph shall not be construed as a waiver of any party's right to seek

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disclosure of redacted information.
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Neither the taking or the failure to take any action to enforce the

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

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action or omission, shall constitute a waiver of any signatory's right to seek and

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

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

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information is or is not proprietary to any party, is or is not entitled to particular

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protection or that such information embodies trade secret or other confidential

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

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rights of the parties to object to discovery on grounds other than those related to

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trade secrets or other confidential information claims, nor shall it relieve a party

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of the necessity of proper responses to discovery requests.
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This Order shall not abrogate or diminish any contractual,

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

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third party, with respect to any Confidential Information.

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Information is designated “Confidential” or “Confidential-Attorneys Eyes

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Only” under this Order shall not be deemed to be determinative of what a trier

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of fact may determine to be confidential or proprietary. This Order shall be

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without prejudice to the right of any party to bring before the Court the question

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of:
(a)

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whether any particular information is or is not Confidential

(b)

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The fact that

whether any particular information is or is not entitled to a

Information;

greater or lesser degree of protection than provided hereunder; or

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(c)

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whether any particular information is or is not relevant to

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

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foregoing procedures.

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20.

The terms of the Order are applicable to Confidential Information

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produced by a non-party, and Confidential Information produced by a non-party

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

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provided by the Order. To protect its own Confidential Information, a party

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may ask a non-party to execute a document in the form of Exhibit A.

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21.

Within thirty (30) days following the conclusion of this litigation,

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all information designated as Confidential Information, except such documents

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or information which incorporate or are incorporated into attorney work product

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(a single copy of which may be retained in counsel's file), shall, upon request,

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be returned to the producing party, or disposed of pursuant to the instructions of

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the producing party.

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22.

The restrictions provided for above shall not terminate upon the

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conclusion of this lawsuit. This Order is without prejudice to the right of a party

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hereto to seek relief from the Court, upon good cause shown, from any of the

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provisions or restrictions provided herein.

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23.

Nothing in this Order is intended or should be construed as

authorizing a party to disobey a lawful subpoena issued in another action.

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GOOD CAUSE EXISTS TO ENTER INTO THE STIPULATED

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PROTECTIVE ORDER

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1.

Good cause exists for this Court to enter the Stipulated Protective

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Order, because disclosure of any Confidential Information would harm the

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parties financially and allow competitors to gain unfair advantage. Competitors

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will gain an unfair advantage over the parties if they learn the parties’

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Confidential Information, such as their financial information, accounting

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information, customer lists, vendor lists, costs or profit structure, sales
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information and sources, vendor sources, retail channels, product lines, business

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and marketing strategy, or information concerning distribution or operations.

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The Confidential Information should be protected, because it reveals the parties’

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current

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opportunities and efforts, the quality of the products, the manufacturing times

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and sources, and retail prices and costs. This information will give others an

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unfair price and time advantage and allow them to unfairly compete in the

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market and usurp the parties’ business opportunities, to the detriment of the

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parties.

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2.

financial

status,

business

strategy,

business

structure,

future

Good cause further exists in that this Stipulation would allow for

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both parties to disclose documents required for the litigation of this matter

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without suffering from both an economic and business detriment that would

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result from the disclosure of Confidential Information to their competitors

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and/or to the public.

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IT IS SO ORDERED.
Dated:

December 13, 2012
Hon. Carla Woehrle
United States Magistrate Judge

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SO STIPULATED BY:

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KNOBBE, MARTENS, OLSON & BEAR, LLP

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By: /s/ Lynda J. Zadra-Symes
Lynda J. Zadra-Symes
Daniel J. Fischer

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Attorneys for Defendant
LENNY USA, LLC

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Dated: 12/11/2012

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LAW OFFICES OF DAVID ALDEN ERIKSON

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Dated: 12/11/2012

By: /s/ S. Ryan Patterson
David Alden Erikson
S. Ryan Patterson
Attorneys for Plaintiff
ANDREW ZUCKERMAN

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EXHIBIT A

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ACKNOWLEDGEMENT AND AGREEMENT TO BE BOUND

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I,

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1.

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, declare and say that:
I am employed as ________________________________ by

_____________________________________________________________.
2.

I have read the Stipulated Protective Order in Zuckerman v. Lenny

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USA, LLC, et al., Case No. CV12-3249-PSG (CWx), pending in the United

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States District Court for the Central District of California, and have received a

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copy of the Stipulated Protective Order (“Protective Order”). I hereby agree to

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comply with and be bound by the terms and conditions of that Order unless and

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until modified by court order.

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3.

I promise that I will use any and all “Confidential” or “Confidential

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– Attorneys Eyes Only” information, as defined in the Protective Order, given to

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me only in a manner authorized by the Protective Order, and only to assist

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counsel in the litigation of this matter.

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4.

I promise that I will not disclose or discuss such “Confidential” or

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“Confidential – Attorneys Eyes Only” information with anyone other than the

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persons authorized in accordance with Paragraphs 9-11 of the Protective Order.

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5.

When I have completed my assigned or legal duties relating to this

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litigation, I will return all confidential documents and things that come into my

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possession, or that I have prepared relating to such documents and things, to

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counsel for the party by whom I am employed or retained. I acknowledge that

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such return or the subsequent destruction of such materials shall not relieve me

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from any of the continuing obligations imposed on me by the Confidentiality

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Agreement.

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6.

I understand that any disclosure or use of “Confidential” or

“Confidential – Attorneys Eyes Only” information in any manner contrary to

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the provisions of the Protective Order may subject me to sanctions for contempt

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of court.

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I declare under penalty of perjury that the foregoing is true and correct.

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Executed this

day of

, 2012 at

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