Disorderly Kids LLC v. Family Dollar et al

Filing 30

PROTECTIVE ORDER by Magistrate Judge Jay C. Gandhi re Stipulation for Protective Order 29 . (See Order for details) (bem)

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MATTHEW L. SEROR (SBN: 235043)
[e-mail]
OREN BITAN (SBN: 251056)
[e-mail]
BUCHALTER NEMER
A Professional Corporation
1000 Wilshire Boulevard, Suite 1500
Los Angeles, CA 90017-2457
Telephone: [phone]
Fax: [phone]
Attorneys for Plaintiff
DISORDERLY KIDS, LLC

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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DISORDERLY KIDS, LLC, a
California limited liability company,

Case No. 2:12-cv-05073-FMO-JCG

Plaintiff,

[PROPOSED] PROTECTIVE
ORDER

vs.

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FAMILY DOLLAR, a North Carolina
company, DOES 1-10, inclusive,

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Defendant.

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DEFINITIONS

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1.

a.

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b.

“Discovering Counsel” means counsel of record for a

Discovering Party.
c.

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“Designating Party” means any Person who designates Material

as Confidential Material.

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As used in this Protective Order,

“Discovering Party” means the Party to whom Material is being

Provided by a Producing Party.
d.

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“Confidential Material” refers to those materials designated as

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“CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” as defined in Paragraph 2

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below.

B UCHALTER N EMER

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A PROFESSIONAL CORPORATION

LOS ANGELES

STIPULATION FOR ISSUANCE OF PROTECTIVE ORDER

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e.

“Material” means any document, testimony or information in

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any form or medium whatsoever, including, without limitation, any written or

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printed matter, Provided in this action by a Party before or after the date of this

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Protective Order.

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f.

“Party” means the Parties to this action, their attorneys of record

and their agents.

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g.

“Person” means any individual, corporation, partnership,

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unincorporated association, governmental agency, or other business or

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governmental entity whether a Party or not.

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h.

during the course of this action.

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i.

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“Provide” means to produce any Material, whether voluntarily

or involuntarily, whether pursuant to request or process.

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“Producing Party” means any Person who Provides Material

CONFIDENTIAL DESIGNATION
2.

A Producing Party may designate as “CONFIDENTIAL” any material

provided to a Party which contains or discloses any of the following:

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a.

Non-public insider information, personnel files, financial

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information, trade secrets, confidential commercial information, proprietary

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information, or other confidential or sensitive information which the Producing

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Party determines in good faith should be kept confidential; and

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b.

Information that the Party is under a duty to preserve as

confidential under an agreement with or other obligation to another Person.

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c.

The Producing Party may designate as “ATTORNEYS’ EYES

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ONLY,” documents Parties contend contain or disclose materials which they in

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good faith believe to be of an extremely high degree of current commercial

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sensitivity and/or would provide a competitive advantage to the Parties in this case

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if disclosed.

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A PROFESSIONAL CORPORATION

LOS ANGELES

PROTECTIVE ORDER

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3.

A Producing Party shall stamp as CONFIDENTIAL or ATTORNEYS’

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EYES ONLY Materials which the Producing Party in good faith believes are

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entitled to protection pursuant to the standards set forth in Paragraph 2 of this

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Order. A Producing Party may designate Confidential Material for Protection under

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this order by either of the following methods:

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a.

By physically marking it with the following inscription prior to

Providing it to a Party:

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CONFIDENTIAL or

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ATTORNEYS’ EYES ONLY

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b.

By identifying with specificity in writing to the Discovering

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Party any previously Provided Material which was not designated as Confidential

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Material prior to its having been Provided. For purposes of this method of

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designation, it will be a sufficiently specific identification to refer to the bates

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numbers or deposition page numbers of previously Provided Material. Where a

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Producing Party designates previously Provided Material as Confidential Material

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pursuant to this subparagraph, the Producing Party will follow the procedures set

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forth in the previous subparagraph for designating Confidential Material, and

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Provide to the Discovering Party additional copies of the previously Provided

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Material marked with the inscription described in the previous subparagraph. Upon

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receipt of the additional copies which comply with the procedures set forth in the

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previous subparagraph, the Discovering Party will immediately return to the

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Producing Party the previously Provided Material, or alternatively, will destroy all

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the previously Provided Material, at the option of the Producing Party. For

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previously Provided Material which was not designated as Confidential Material at

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the time of its being Provided, this Protective Order shall apply to such materials

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beginning on the date that the Producing Party makes such designation.

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All costs associated with the designations of materials as
“Confidential” or “Attorneys’ Eyes Only” involving, for example, the cost of
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A PROFESSIONAL CORPORATION

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PROTECTIVE ORDER

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binding confidential portions of deposition transcripts, shall be initially borne by

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the Party making the designation with no prejudice regarding the Designating

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Party’s ability to recover its costs upon completion of the litigation.

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The designation of documents as “Confidential” or “Attorneys’ Eyes Only”

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does not entitle the parties to have those documents filed under seal. An

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application, including a stipulated application to filed documents under seal must

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comply with Local Rule 79-5.

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RESTRICTION ON USE OF CONFIDENTIAL MATERIAL
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Confidential Material designated as CONFIDENTIAL shall not be

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disclosed, nor shall its contents be disclosed, to any person other than those

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described in Paragraph 7 of this Protective Order and other than in accordance with

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the terms, conditions and restrictions of this Protective Order. Confidential Material

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designated as ATTORNEYS’ EYES ONLY shall not be disclosed, nor shall its

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contents be disclosed to any person other than those described in Paragraph 8 of

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this Protective Order.

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5.

Confidential Material Provided by a Producing Party to a Discovering

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Party shall not be used by the Discovering Party or anyone other than the Producing

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Party, specifically including the persons identified in Paragraphs 7 or 8 as

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appropriate, for any purpose, including, without limitation any personal, business,

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governmental, commercial, publicity, public-relations, or litigation (administrative

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or judicial) purpose, other than the prosecution or defense of this action.

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6.

All Confidential Material shall be kept secure by Discovering Counsel

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and access to Confidential Material shall be limited to persons authorized pursuant

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to Paragraphs 7 or 8 of this Protective Order.

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7.

For purposes of the preparation of this action, and subject to the terms,

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conditions, and restrictions of this Protective Order, Discovering Counsel may

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disclose Material designated as CONFIDENTIAL and the contents of Material

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designated as CONFIDENTIAL only to the following persons:

B UCHALTER N EMER

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A PROFESSIONAL CORPORATION

LOS ANGELES

PROTECTIVE ORDER

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a.

Counsel of record working on this action on behalf of any party

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and counsel’s employees who are directly participating in this action, including

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counsel’s partners, associates, paralegals, assistants, secretaries, and clerical staff.

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b.

In-house counsel and such in-house counsel’s employees who

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are directly participating in this action, including counsel’s paralegals, assistants,

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secretaries, and clerical staff.

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c.

Court and deposition reporters and their staff.

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d.

The Court and any Person employed by the Court whose duties

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require access to Material designated as CONFIDENTIAL.

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e.

Witnesses at depositions or pre-trial proceedings, in accordance

with procedures set forth in Paragraphs 11-13.

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f.

Non-party experts and consultants assisting counsel with respect

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to this action and their secretarial, technical and clerical employees who are actively

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assisting in the preparation of this action, in accordance with the procedures set

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forth in Paragraphs 11-13.

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g.

Officers, directors and employees of the Parties hereto who have

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a need to review Material designated as CONFIDENTIAL to assist in connection

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with this litigation, subject to the limitations set forth herein;

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h.

photocopying or delivering of documents in this litigation;

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Photocopy service personnel who photocopied or assisted in the

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Any Person identified on the face of any such Material

designated as CONFIDENTIAL as an author or recipient thereof;

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j.

Any Person who is determined to have been an author and/or

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previous recipient of the Material designated as CONFIDENTIAL, but is not

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identified on the face thereof, provided there is prior testimony of actual authorship

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or receipt of the Material designated as CONFIDENTIAL by such Person; and

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B UCHALTER N EMER

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A PROFESSIONAL CORPORATION

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k.

Any Person who the Parties agree in writing may receive

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Material designated as CONFIDENTIAL.

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The Parties shall make a good faith effort to limit dissemination of Material

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designated as CONFIDENTIAL within these categories to Persons who have a

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reasonable need for access thereto.

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8.

For purposes of the preparation of this action, and subject to the terms,

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conditions, and restrictions of this Protective Order, the Discovering Counsel may

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disclose confidential financial Material designated as ATTORNEYS’ EYES

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ONLY, and the contents of Material so designated, only to the following persons:

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a.

Counsel of record for the Parties to this action and counsel’s

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employees who are directly participating in this action, including counsel’s

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partners, associates, paralegals, assistants, secretarial, and clerical staff.

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b.

Court and deposition reporters and their staff.

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c.

The Court and any person employed by the Court whose duties

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require access to Material designated as ATTORNEYS’ EYES ONLY.

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d.

Witnesses at depositions or pre-trial proceedings, in accordance

with procedures set forth in paragraphs 11-13.

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e.

Experts and consultants assisting counsel with respect to this

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action and their secretarial, technical and clerical employees who are actively

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assisting in the preparation of this action, in accordance with the procedures set

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forth in paragraphs 11-13.

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f.

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Any Person identified on the face of any such Material

designated as ATTORNEYS’ EYES ONLY as an author or recipient thereof; and

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g.

Any Person who is determined to have been an author and/or

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previous recipient of the Material designated as ATTORNEYS’ EYES ONLY, but

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is not identified on the face thereof, provided there is prior testimony of actual

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authorship or receipt of the Material designated as ATTORNEYS’ EYES ONLY by

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B UCHALTER N EMER

such Person; and
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A PROFESSIONAL CORPORATION

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PROTECTIVE ORDER

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h.

Any Person who the Parties agree in writing may receive

Material designated as ATTORNEYS’ EYES ONLY.

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UNDERTAKING TO BE BOUND BY PROTECTIVE ORDER

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9.

Before Discovering Counsel may disclose Confidential Material to any

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Person described in subparagraphs 7(f), 7(g), or 8(e) above, the Person to whom

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disclosure is to be made shall receive a copy of this Protective Order, shall read

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Paragraphs 1, 4, 5, 6, 7, 8, 9 and 10 (including the subparagraphs where applicable)

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of the Protective Order, shall evidence his or her agreement to be bound by the

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terms, conditions, and restrictions of the Protective Order by signing an undertaking

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in the form attached hereto as Exhibit A (the “Undertaking”), and shall retain the

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copy of this Protective Order, with a copy of his or her signed Undertaking

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attached. Discovering Counsel shall keep a copy of the signed Undertaking for each

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person described in subparagraphs 7(f), 7(g), or 8(e) to whom Discovering Counsel

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discloses Confidential Material.

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10.

The individuals designated in subparagraph 8(a) above, are specifically

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prohibited from publishing, releasing, or otherwise disclosing Material designated

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as ATTORNEYS’ EYES ONLY, or the contents thereof, to any directors, officers,

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or employees of the company for which the individual is employed, or to any other

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persons not authorized under this Protective Order to receive such information. The

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designated individuals in subparagraph 8(a) shall retain all ATTORNEYS’ EYES

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ONLY material in a secure manner under separate and confidential file, so as to

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avoid inadvertent access by, or disclosure to, unauthorized persons.

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DEPOSITIONS
11.

Those portions of depositions taken by any Party at which any

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Material designated as CONFIDENTIAL is used or inquired into, may not be

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conducted in the presence of any Person(s) other than (a) the deposition witness,

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(b) his or her counsel, and (c) Persons authorized under Paragraph 7 of this

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B UCHALTER N EMER

Protective Order to view such Confidential Material. During those portions of
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depositions in which Material designated ATTORNEYS’ EYES ONLY is used or

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inquired into, only those persons authorized under Paragraph 8 to view such

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Materials may be present.

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12.

Counsel for any deponent may designate testimony or exhibits as

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Confidential Material by indicating on the record at the deposition that the

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testimony of the deponent or any exhibits to his or her testimony are to be treated as

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Confidential Material. Counsel for any Party may designate exhibits in which that

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Party has a cognizable interest as Confidential Material by indicating on the record

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at the deposition that such exhibit(s) are to be treated as Confidential Material.

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Failure of counsel to designate testimony or exhibits as confidential at deposition,

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however, shall not constitute a waiver of the protected status of the testimony or

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exhibits. Within thirty calendar days of receipt of the transcript of the deposition, or

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thirty days of the date on which this Protective Order becomes effective, whichever

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occurs last, counsel shall be entitled to designate specific testimony or exhibits as

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Confidential Material. If counsel for the deponent or Party fails to designate the

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transcript or exhibits as Confidential within the above-described thirty day period,

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any other Party shall be entitled to treat the transcript or exhibits as non-confidential

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material. For purposes of this Paragraph 12, this Protective Order shall be deemed

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“effective” on the date on which it has been executed by all counsel for the Parties.

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13.

When Material disclosed during a deposition is designated

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Confidential Material at the time testimony is given, the reporter shall separately

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transcribe those portions of the testimony so designated, shall mark the face of the

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transcript in accordance with Paragraph 3 above, and shall maintain that portion of

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the transcript or exhibits in separate files marked to designate the confidentiality of

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their contents. The reporter shall not file or lodge with the Court any Confidential

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Material without obtaining written consent from the Party who designated the

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Material as Confidential Material. For convenience, if a deposition transcript or

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exhibit contains repeated references to Confidential Material which cannot
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conveniently be segregated from non-confidential material, any Party may request

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that the entire transcript or exhibit be maintained by the reporter as Confidential

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Material.

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USE OF CONFIDENTIAL MATERIAL IN PLEADINGS AND OTHER

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COURT PAPERS

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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 “Attorneys’ Eyes Only,” the proposed filing shall be

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accompanied by an application to file the papers or the portion thereof containing

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the designated information or documents (if such portion is segregable) under seal;

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and the application shall be directed to the judge to whom the papers are directed.

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For motions, the parties shall publicly file a redacted version of the motion and

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supporting papers.

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OBJECTIONS TO DESIGNATION
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Any Party may at any time notify the Designating Party in writing of

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its contention that specified Material designated as Confidential Material is not

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properly so designated because such Material does not warrant protection under

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applicable law. The Discovering Party shall within five court days, meet and confer

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in good faith with the Designating Party in an attempt to resolve such dispute. The

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Discovering Party shall have ten (10) calendar days from the initial meet and confer

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to file a motion to uphold the designation of the material in question. Any such

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motion shall be set for hearing on the first available calendar date. If no motion is

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filed within 10 days, or any mutually agreed to extension of time, all Parties may

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treat the Material as non-confidential. To maintain the designation as Confidential

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Material and to prevail on such a motion, the Discovering Party must show by a

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preponderance of the evidence that there is good cause for removing or modifying

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the original designation. Pending resolution of any motion filed pursuant to this

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Paragraph, all Persons bound by this Protective Order shall continue to treat the

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Material which is the subject of the motion as Confidential Material.

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Any discovery disputes concerning the designation of materials or

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disclosure of documents or information under this Protective Order shall be brought

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in compliance with Local Rule 37 and a proposed stipulated protective order should

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so provide.

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RETURN OF MATERIAL
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Within ninety (90) calendar days after the final settlement or

termination of this action, Discovering Counsel shall return or destroy (at the option

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and expense of Discovering Counsel) all Materials provided by a Producing Party

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and all copies thereof except to the extent that any of the foregoing includes or

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reflects Discovering Counsel’s work product, and except to the extent that such

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Material has been filed with a court in which proceedings related to this action are

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being conducted. In addition, with respect to any such retained work product and

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unless otherwise agreed to, at the conclusion of this action, counsel for each Party

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shall store in a secure area all work product which embodies Confidential Material

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together with all of the signed undertakings they are required to preserve pursuant

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to Paragraph 9 above, and shall not make use of such Material except in connection

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with any action arising directly out of these actions, or pursuant to a court order for

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good cause shown. The obligation of this Protective Order shall survive the

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termination of this action. To the extent that Confidential Materials are or become

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known to the public through no fault of the Discovering Party, such Confidential

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Materials shall no longer be subject to the terms of this Protective Order. Upon

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request, counsel for each Party shall verify in writing that they have complied with

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the provisions of this paragraph.

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SCOPE OF THIS ORDER
18.

Except for the provisions regarding post-trial or post-settlement return

and destruction of Material, or segregation of work product which embodies
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Confidential Material, this order is strictly a pretrial order; it does not govern the

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trial in this action.

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19.

Not later than seven days before trial in the action, Counsel agree to

meet and confer concerning the use at trial of Confidential Material.

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20.

Nothing in this Protective Order shall be deemed to limit, prejudice, or

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waive any right of any Party or Person (a) to resist or compel discovery with respect

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to, or to seek to obtain additional or different protection for, Material claimed to be

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protected work product or privileged under California or federal law, Material as to

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which the Producing Party claims a legal obligation not to disclose, or Material not

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required to be provided pursuant to California law; (b) to seek to modify or obtain

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relief from any aspect of this Protective Order; (c) to object to the use, relevance, or

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admissibility at trial or otherwise of any Material, whether or not designated in

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whole or in part as Confidential Material governed by this Protective Order; or (d)

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otherwise to require that discovery be conducted according to governing laws and

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rules.

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21.

Designation of Material as Confidential Material on the face of such

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Material shall have no effect on the authenticity or admissibility of such Material at

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trial.

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22.

This Protective Order shall not preclude any Person from waiving the

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applicability of this Protective Order with respect to any Confidential Material

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Provided by that Person or using any Confidential Material Provided by that Person

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or using any Confidential Material owned by that Person in any manner that Person

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deems appropriate.

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23.

This Protective Order shall not affect any contractual, statutory or

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other legal obligation or the rights of any Party or Person with respect to

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Confidential Material designated by that Party.

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24.

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Material which:

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The restrictions set out in the Protective Order shall not apply to any
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a.

At the time it is Provided is available to the public;

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b.

After it is Provided, becomes available to the public through no

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act, or failure to act, of the Discovering Party; or

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c.

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The Discovering Party can show
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Was already known to the Discovering Party

independently of receipt of the Confidential Material in this or prior litigation; or

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ii.

Was received by the Discovering Party, after the time it

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was designated as Confidential Material hereunder, from a third party having the

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right to make such disclosure.

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25.

If at any time any Material protected by this Protective Order is

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subpoenaed from the Discovering Party by any Court, administrative or legislative

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body, or is requested by any other Person or entity purporting to have authority to

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require the production of such material, the Party to whom the subpoena or other

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request is directed shall immediately give written notice thereof to the Producing

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Party with respect to Confidential Material sought to afford the Producing Party the

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ability to take appropriate legal action to prevent disclosure of the Confidential

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Material. The Discovery Party will comply with any subpoena unless and until the

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Producing Party has taken appropriate legal action to prevent disclosure of the

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Confidential Material. The Discovering Party’s compliance with any subpoena

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shall in no way violate this Protective Order unless and until the Producing Party

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has taken appropriate legal action to prevent disclosure of the Confidential

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Material. Nothing contained in this paragraph is intended to be construed as

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authorizing or encouraging a Party in this action to disobey a lawful subpoena

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issued in another action or a lawful order issued by another court or by an

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administrative or legislative body.

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26.

The Parties agree to submit this Protective Order to the Court for

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adoption as an order of the Court. The Parties reserve the right to seek, upon good

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cause, modification of this Protective Order by the Court.

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IT IS SO ORDERED.

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Date: February 20, 2013
__________________________________________________________
Honorable Jay C. Gandhi
United States Magistrate Judge

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EXHIBIT A

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UNDERTAKING TO BE BOUND BY THE

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PRETRIAL PROTECTIVE ORDER

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REGARDING CONFIDENTIALITY OF DOCUMENTS

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I, ______________________ [print or type full name], of _______________

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[print or type full address], declare under penalty of perjury that I have read in its

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entirety and understand the Protective Order that was issued by the United States

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District Court for the Central District of California in the case of Disorderly Kids,

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LLC v. Family Dollar, No. CV12-05073 FMO (JCGx). I agree to comply with and

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to be bound by all the terms of this Protective Order and I understand and

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

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

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any manner any information or item that is subject to this 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

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

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Stipulated Protective Order, even if such enforcement proceedings occur after

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termination of this action.

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Date:

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City and State where sworn and signed:

_______________________

Signed:

_________________

_______________________

[Print Name]

[Signature]

________________, 2013

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