Rolex Watch USA Inc v. Krishan Agarwal et al

Filing 32

STIPULATED CONFIDENTIALITY ORDER by Magistrate Judge Michael R. Wilner. NOTE: CHANGES MADE BY THE COURT. (See Order for further details) re Notice (Other) 31 (vm)

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Craig S. Summers (SBN 108688)
[e-mail]
Matthew S. Bellinger (SBN 222228)
[e-mail]
KNOBBE, MARTENS, OLSON & BEAR, LLP
2040 Main Street
Fourteenth Floor
NOTE: CHANGES MADE BY THE COURT
Irvine, CA 92614
Telephone: [phone]
Facsimile: [phone]
Brian W. Brokate (Pro Hac Vice)
[e-mail]
Beth M. Frenchman (Pro Hac Vice)
[e-mail]
Christina L. Winsor (Pro Hac Vice)
[e-mail]
GIBNEY ANTHONY & FLAHERTY, LLP
665 Fifth Avenue
New York, New York 10022
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Plaintiff
ROLEX WATCH U.S.A., INC.

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(continued on next page)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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ROLEX WATCH U.S.A., INC.,

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Plaintiff,
v.
KRISHAN AGARWAL, individually
and d/b/a MELROSE JEWELERS, a
fictitious business in Los Angeles
County; MELROSE.COM, LLC, a
Nevada limited liability company; and
each d/b/a
MELROSEJEWELERS.COM,
Defendants.

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Case No. CV12-6400 MMM (MRWx)
STIPULATED [PROPOSED]
CONFIDENTIALITY ORDER

Honorable Michael R. Wilner

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Mitchell N. Reinis (SBN 36131)
[e-mail]
FREEDMAN WEISZ LLP th
2029 Century Park East, 19 Floor
Los Angeles, CA 90067
Telephone: [phone]
Facsimile: [phone]
Jason H. Fisher (SBN 222982)
[e-mail]
FISHER LAW GROUP
1015 Gayley Ave., Suite 1100
Los Angeles, CA 90024
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendants
KRISHAN AGARWAL & MELROSE.COM, LLC

[PROPOSED] CONFIDENTIALITY ORDER

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The parties expect that this case will require the parties to produce or

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disclose confidential information during the course of discovery which may

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include, for example, documents and information such as described in

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Paragraphs 3 and 4 below. To expedite the flow of discovery material, to

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facilitate the prompt resolution of disputes over confidentiality of discovery

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materials, to adequately protect information the parties are entitled to keep

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confidential, to ensure that only materials the parties are entitled to keep

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confidential are subject to such treatment, and to ensure that the parties are

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permitted reasonably necessary uses of such materials in preparation for and in

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the conduct of trial in the above-captioned case, it is hereby ORDERED THAT:

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Scope of the Order

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1.

This Order shall apply to all materials and information produced or

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provided in this litigation by, and all testimony given in any deposition on

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behalf of, plaintiff Rolex Watch U.S.A., Inc. or defendants Krishan Agarwal and

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Melrose.com, LLC (each of which is individually referred to herein as a “Party”

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or collectively as the “Parties”), or by or on behalf of any person or entity that is

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not a party hereto (a “Non-Party”).

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testimony is hereinafter referred to as “Litigation Materials.”
2.

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All such materials, information, and

Litigation Materials and the information therefrom shall be used

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solely for the purpose of preparing for and conducting this litigation and shall

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not be disclosed except as under such restrictions as provided for in this Order.

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Designation of Litigation Materials by Parties and Non-Parties

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3.

Litigation Materials may be classified and maintained as

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CONFIDENTIAL if they contain or constitute information that: (i) has not been

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made public by the producing or originating person or entity; and (ii) cannot be

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obtained from public sources.

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4.

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Litigation Materials may be classified and maintained as

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ATTORNEYS’ EYES ONLY if they contain or constitute information that: (i)

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has not been made public by the producing or originating person or entity, (ii)

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cannot be obtained from public sources, and (iii) disclosure of the Litigation

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Materials poses a significant risk of competitive or other harm to the producing,

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supplying, or originating person or entity; and (iv) the Litigation Materials relate

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to:
(a)

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contacts and communications relating to prospective or

actual agreements or contractual arrangements, and the financial terms thereof,
with distributors, customers, or similar entities;
(b)

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financial

information,

including

pricing

information,

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financial data, cost information, sales information, units and values of sales,

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sales analyses by region or customer, and performance metrics and reports;
(c)

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party’s products;
(d)

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technical, operational, and development information about a

business plans, marketing strategies, new product plans and

competitive analysis or strategies;

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(e)

information that is protected as a trade secret by the

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producing person or entity;

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(f)

documents or information as to which the producing Party

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has a pre-existing and continuing duty of confidentiality to a Non-Party,

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provided that the Non-Party in good faith required the producing Party to

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designate the documents or information ATTORNEYS’ EYES ONLY as a

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condition of production or disclosure;
(g)

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documents or information as to which the producing person

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or entity has a pre-existing and continuing duty of confidentiality to another

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person or entity; or

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(h)

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other highly sensitive documents or information that are

similar in nature to the categories listed above in sections (a) through (g).
The provisions of this paragraph do not preclude a person or entity from
asserting that such designated Litigation Materials are not discoverable at all.
5.

Litigation Materials (including portions of deposition transcripts)

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designated as CONFIDENTIAL, or information derived therefrom, may be

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disclosed or made available only to the following persons:
(a)

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reporters (through filing under seal, or at any trial or hearing);
(b)

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to the Court and its officers and staff, including court

to outside counsel of record for the Parties (including legal

and clerical staff employed or engaged by such counsel);
(c)

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no more than two (2) other persons such as officers,

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directors, or employees of the Parties to this action when such disclosure is

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deemed necessary to aid trial counsel in the prosecution, defense, or settlement

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of this action;
(d)

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to outside experts, consultants, advisors and/or translators

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retained to furnish technical or expert services and/or to give testimony with

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respect to the subject matter thereof for trial of this action; and
(e)

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to individuals and organizations that provide photocopying,

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document

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stenographic, and court reporting services.

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6.

processing,

imaging,

translation,

graphics,

jury

consulting,

Litigation Materials (including portions of deposition transcripts)

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designated as ATTORNEYS’ EYES ONLY, or information derived therefrom,

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may be disclosed or made available only to the following persons:

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(a)

to the Court and its officers, including court reporters

(through filing under seal, or at any trial or hearing);
(b)

to outside counsel of record for the Parties (including legal

and clerical staff employed or engaged by such counsel);
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(c)

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to outside experts, consultants, advisors and/or translators

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retained to furnish technical or expert services and/or to give testimony with

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respect to the subject matter thereof for trial of this action; and
(d)

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to individuals and organizations that provide photocopying,

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document

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stenographic, and court reporting services.

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processing,

imaging,

translation,

graphics,

jury

consulting,

Any classification of Litigation Materials (or parts thereof) as

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CONFIDENTIAL or ATTORNEYS’ EYES ONLY will be done by the

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producing person or entity applying in good faith the criteria outlined in

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Paragraphs 3 and 4 above. Litigation Materials may be produced for inspection

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by counsel prior to such designation without waiving any right to so designate

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materials before providing copies to the requesting Party.

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(a)

The inadvertent delivery of Litigation Materials that could

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properly be designated as CONFIDENTIAL pursuant to Paragraph 3 above, or

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ATTORNEYS’ EYES ONLY pursuant to Paragraph 4 above, shall be without

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prejudice to the producing person or entity.

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Materials, the producing person or entity determines that the produced

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Litigation Materials should have been designated as CONFIDENTIAL or

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ATTORNEYS’ EYES ONLY, the producing person or entity shall promptly

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provide written notice to the receiving Party and shall provide the receiving

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Party with a replacement copy of the Litigation Materials bearing a

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CONFIDENTIAL or ATTORNEYS’ EYES ONLY designation within five (5)

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court days after giving such written notice. The receiving Party shall either

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promptly return the undesignated Litigation Materials to the producing person

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or entity, or promptly provide the producing person or entity with notice that all

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such undesignated Litigation Materials have been destroyed. During the five (5)

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court day period following written notification that Litigation Materials should

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have been designated as CONFIDENTIAL or ATTORNEYS’ EYES ONLY,
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If, after producing Litigation

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the receiving Party shall treat the undesignated Litigation Materials as though

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they have been so designated and shall retrieve all copies of the undesignated

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Litigation Materials for either return to the producing person or entity or to be

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destroyed.
(b)

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If, after producing Litigation Materials, a producing person

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or entity discovers that the Litigation Materials were properly subject to

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protection under the attorney-client privilege or the attorney work product

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doctrine, the producing person or entity shall promptly provide written notice to

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the receiving Party that such Litigation Materials were inadvertently produced

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and properly subject to protection under the attorney-client privilege or the

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attorney work product doctrine. Upon receiving such written notice from the

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producing person or entity that privileged information or attorney work product

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material has been inadvertently produced, all such information, and all copies

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thereof, either shall be promptly returned to the producing person or entity, or

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shall be destroyed and the receiving Party shall promptly provide the producing

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person or entity with notice that all such documents have been destroyed. If the

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receiving Party disagrees with the designation of any such Litigation Materials

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as privileged or otherwise protected after conferring with the producing person

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or entity in good faith, the receiving Party shall nonetheless return such

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Litigation Materials to the producing person or entity as specified above, but

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may move the Court for production of the returned Litigation Materials. The

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producing person or entity shall retain all returned Litigation Materials for

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further disposition.
8.

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A producing person or entity may designate Litigation Materials as

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confidential pursuant to Paragraphs 3 and 5 above by marking each page of such

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materials with a stamp identifying this civil action and using the word

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CONFIDENTIAL, or by one of the following ways:

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(a)

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If the Litigation Materials are not in paper form, the

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producing person or entity shall use other such reasonable means as necessary to

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identify clearly the Litigation Materials as CONFIDENTIAL.
(b)

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If information disclosed during the course of a deposition is

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deemed CONFIDENTIAL by a person or entity, the designation thereof as

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CONFIDENTIAL shall be made either (i) by a statement on the record at the

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deposition identifying the testimony to be designated as CONFIDENTIAL or

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(ii) by providing written notice to the other Parties of the specific pages of the

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transcript that should also be so designated within thirty (30) days after receipt

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by counsel of an official copy of the deposition transcript. Such designation as

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CONFIDENTIAL will be applied to only those portions of the deposition

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transcript that include a specific question and response or series of questions and

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responses containing CONFIDENTIAL information.

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9.

A producing person or entity may designate its most confidential

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Litigation Materials pursuant to Paragraphs 4 and 6 above by marking each page

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of such materials with a stamp identifying this civil action and using the words

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ATTORNEYS’ EYES ONLY, or by one of the following ways:

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(a)

If the Litigation Materials are not in paper form, the

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producing person or entity shall use other such reasonable means as necessary to

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identify clearly the Litigation Materials as ATTORNEYS’ EYES ONLY.

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(b)

If information disclosed during the course of a deposition is

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deemed ATTORNEYS’ EYES ONLY by a person or entity, the designation

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thereof as ATTORNEYS’ EYES ONLY shall be made either (i) by a statement

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on the record at the deposition identifying the testimony to be designated as

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ATTORNEYS’ EYES ONLY or (ii) by providing written notice to the other

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Parties of the specific pages of the transcript that should also be so designated

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within thirty (30) days after receipt by counsel of an official copy of the

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deposition transcript. Such designation as ATTORNEYS’ EYES ONLY will be
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applied to only those portions of the deposition transcript that include a specific

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question and response or series of questions and responses containing

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ATTORNEYS’ EYES ONLY information.

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designated, all depositions transcripts shall be treated as ATTORNEYS’ EYES

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ONLY in their entirety prior to the end of such thirty (30) day period.

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10.

Unless otherwise previously

If counsel for a Party receiving Litigation Materials designated as

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CONFIDENTIAL or ATTORNEYS’ EYES ONLY hereunder objects to such

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designation of any or all of such Litigation Materials, the following procedure

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shall apply:

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(a)

Counsel for the objecting Party shall serve on the designating

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person or entity a written objection to such designation, which shall describe

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with particularity the Litigation Materials in question and shall state the grounds

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for objection. Counsel for the designating person or entity shall respond in

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writing to such objection within five (5) court days, and shall state with

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particularity the grounds for asserting that the Litigation Materials are

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CONFIDENTIAL or ATTORNEYS’ EYES ONLY. If no written response is

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made to the objection, the challenged Litigation Materials shall no longer be

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considered as designated under this Confidentiality Order, and the objecting

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Party shall treat such challenged Litigation Materials as if they had originally

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been produced without any designation of confidentiality. If the designating

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person or entity makes a timely response to such objection asserting the

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propriety of the designation, counsel shall then confer in good faith in an effort

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to resolve the dispute.

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(b)

If a dispute as to a CONFIDENTIAL or ATTORNEYS’

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EYES ONLY designation of Litigation Materials cannot be resolved by

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agreement, the Party objecting to the designation may move the Court for an

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order removing the challenged designation. The Litigation Materials that are

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the subject of the filing shall be treated as originally designated pending
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resolution of the dispute.

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documents will comply with the joint filing procedure for discovery disputes

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pursuant to Local Rule 37.

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11.

Any motion regarding confidential treatment of

This Order shall not limit a Party’s use of designated Litigation

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Materials in examining a witness at a deposition, hearing, or trial, even though

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such witness may not otherwise be entitled to view designated Litigation

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Materials under the terms of this Order, so long as the examination concerns

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designated Litigation Materials that the witness authored or previously had

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access to or knowledge of, as demonstrated by the designated Litigation

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Materials themselves or by foundation testimony during a deposition, hearing,

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or trial. This Order shall not prevent counsel from examining a witness in a

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good faith effort to determine whether the witness authored or previously had

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access to or knowledge of designated Litigation Materials.

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12.

Prior to disclosing any Litigation Materials designated by a Party

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as CONFIDENTIAL or ATTORNEYS’ EYES ONLY to outside experts,

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consultants and/or advisors referred to in Paragraphs 5(d) and/or 6(c) above,

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counsel for the receiving Party making such disclosure shall:

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(a)

provide a copy of this Confidentiality Order to each such

outside expert, consultant or advisor;
(b)

obtain from the outside expert, consultant or advisor a fully

executed undertaking in the form attached hereto as Exhibit A; and
(c)

identify each such outside expert, consultant or advisor to

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whom disclosure is proposed to be made by providing to counsel for the

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producing Party, via overnight courier or same day hand delivery, same day

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facsimile or same day e-mail, a copy of each such expert’s, consultant’s or

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advisor’s executed undertaking along with a current resume for each such

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expert, consultant or advisor. The expert’s, consultant’s or advisor’s resume

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must identify all employers and clients for whom the consultant or expert has
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worked in the last four (4) years, as well as any litigation matters in which the

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expert, consultant or advisor has testified, either by way of expert report,

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deposition, or testimony at a hearing or trial, over the last four (4) years.

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13.

Counsel for the receiving Party making the disclosure shall not

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disclose materials designated CONFIDENTIAL or ATTORNEYS’ EYES

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ONLY to any outside expert, consultant or advisor for a period of ten (10) court

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days from the date on which it provides to counsel for the producing Party the

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items specified in Paragraph 12(c) above. If within this ten (10) court day

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period counsel for the producing Party does not object, in writing, to the

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proposed disclosure to the expert, consultant or advisor identified pursuant to

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Paragraph 12(c) above, then counsel for the receiving Party shall be permitted to

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disclose the CONFIDENTIAL or ATTORNEYS’ EYES ONLY materials to

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such identified expert, consultant or advisor. If, within this ten (10) court day

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period, counsel for the producing Party objects in writing to the proposed

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disclosure to the expert, consultant or advisor identified pursuant to Paragraph

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12(c) above, then counsel for the receiving Party shall not be permitted to

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disclose CONFIDENTIAL or ATTORNEYS’ EYES ONLY materials to that

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expert, consultant or advisor, absent further order from the Court.

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producing Party shall have the burden of filing a motion for protective order

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with the Court within five (5) court days of objecting to the outside expert,

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consultant or advisor prohibiting the disclosure of CONFIDENTIAL or

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ATTORNEYS’ EYES ONLY materials to the independent expert, consultant or

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advisor to whom counsel for the producing Party has objected. If the five (5)

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court days elapse without the counsel for the producing Party seeking relief

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from the Court, the requested information may be shared with the identified

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outside expert, consultant or advisor in accordance with the terms of this

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Confidentiality Order.

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14.

The

If disclosure of CONFIDENTIAL documents or information is
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made to any person under Paragraph 5(c) above, counsel for the Party making

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the disclosure shall deliver a copy of this Order as entered to such person,

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explain its terms to such person, and secure the signature of such person on a

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written undertaking in the form attached hereto as Exhibit A. Each Party shall

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maintain a file of all such signed copies of Exhibit A. Further, it shall be the

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obligation of counsel for the disclosing Party, upon learning of any breach or

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threatened breach of this Order, promptly to take all reasonable action to prevent

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the threatened breach or remedy an actual breach.
15.

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Litigation

Materials

designated

as

CONFIDENTIAL

or

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ATTORNEYS’ EYES ONLY shall be used by the persons receiving them

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solely for the purposes of preparing for and conducting this action and for no

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other action or proceeding. Persons receiving such Litigation Materials shall

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not use them for any business or other purpose, and shall not disclose them to

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any person not expressly permitted by the terms of this Confidentiality Order to

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have such access. All Litigation Materials designated as CONFIDENTIAL or

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ATTORNEYS’ EYES ONLY shall be maintained by the receiving Party so as

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to preclude access by unauthorized persons.

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ATTORNEYS’ EYES ONLY Litigation Materials provided to an outside

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expert, consultant or advisor shall be kept at such person’s offices in a manner

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designed to ensure against disclosures not authorized by this Confidentiality

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Order.
16.

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Counsel for the receiving Party may give advice and opinions to

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their

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CONFIDENTIAL or ATTORNEYS’ EYES ONLY by the producing Party. For

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information designated as ATTORNEYS’ EYES ONLY, such rendering of

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advice and opinions shall not reveal the content of such information except by

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prior agreement with counsel for the producing Party.

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client

CONFIDENTIAL or

17.

based

on

an

evaluation

of

information

designated

as

Nothing herein shall impose any restrictions on the use or
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disclosure by a Party or witness of its own Litigation Materials, or of documents

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or information obtained by such Party or witness independent of the discovery

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proceedings, inclusive of any discovery received from a Non-Party in this

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action, whether or not such documents or information are also obtained through

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discovery proceedings in this action.

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18.

Without written permission from the producing Party or a Court

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Order secured after appropriate notice to all interested persons, a Party may not

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file in the public record in this action any CONFIDENTIAL or ATTORNEYS’

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EYES ONLY material of the opposing Party, but must apply for leave to file

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such CONFIDENTIAL or ATTORNEYS’ EYES ONLY material under seal in

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conformance with the Court’s rules and procedures, including Local Rule 79-5.

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CONFIDENTIAL or ATTORNEYS’ EYES ONLY material filed under seal

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shall bear the title of this action, an indication of the contents of such sealed

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envelope or container, the words “CONFIDENTIAL INFORMATION AS

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DESIGNATED

PURSUANT

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ORDER”

“ATTORNEYS’

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DESIGNATED

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ORDER,” as appropriate, and a statement substantially in the following form:

or

PURSUANT

TO

STIPULATED

EYES

TO

ONLY

STIPULATED

CONFIDENTIALITY
INFORMATION

AS

CONFIDENTIALITY

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This envelope contains confidential information filed in

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this case by [name of party] and is not to be opened nor the

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contents thereof to be displayed or revealed except by order of

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the Court presiding over this matter.

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19.

On termination of this action, including all appeals, the receiving

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Party shall, at the election and instruction of the producing Party, either: (1)

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return to counsel for each producing Party or entity all Litigation Materials

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designated by the producing person or entity as CONFIDENTIAL or

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ATTORNEYS’ EYES ONLY and all copies of such Litigation Materials and

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shall destroy all abstracts, digests and analyses thereof, however stored or
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reproduced; or (2) destroy and provide certification to the producing person or

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entity disclosing such Litigation Materials that the CONFIDENTIAL or

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ATTORNEYS’ EYES ONLY Litigation Materials, including all abstracts,

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digests and analyses thereof, however stored or reproduced, have been

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destroyed. On termination of this action, counsel for each Party may maintain

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in its files one copy of CONFIDENTIAL or ATTORNEYS’ EYES ONLY

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Litigation Materials as filed with or otherwise presented to the Court.

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20.

The Parties’ obligations under this Confidentiality Order shall

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survive the termination of the above captioned litigation, including subsequent

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appeals or later proceedings, for any retained Litigation Materials or

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information, extracts, summaries, notes, or compilations derived therefrom, and

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the Court shall retain jurisdiction to enforce the performance of said obligations.

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SO ORDERED AND SIGNED. December 12, 2012.

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/s/ Judge Wilner

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Honorable Michael R. Wilner
United States Magistrate Judge

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Respectfully submitted,
KNOBBE, MARTENS, OLSON & BEAR, LLP

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Dated: December 11, 2012

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By: /s/ Matthew S. Bellinger
Craig S. Summers
Matthew S. Bellinger
GIBNEY ANTHONY & FLAHERTY, LLP
Brian W. Brokate
Beth M. Frenchman
Christina L. Winsor

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Attorneys for Plaintiff
ROLEX WATCH U.S.A., INC.

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FREEDMAN WEISZ LLP

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Dated: December 11, 2012

By: /s/ Mitchell N. Reinis (with permission)
Mitchell N. Reinis
FISHER LAW GROUP
Jason H. Fisher
Attorneys for Defendants
KRISHAN AGARWAL
MELROSE.COM, LLC

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UNDERTAKING

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1.

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I, ______________________________________________, have

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read the foregoing Confidentiality Order (the “Order”) and agree to be bound by

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its terms with respect to any Litigation Materials marked CONFIDENTIAL or

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ATTORNEYS’ EYES ONLY that are furnished to me as set forth in the Order.
2.

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I further agree (i) not to disclose to anyone any Litigation Materials

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marked CONFIDENTIAL or ATTORNEYS’ EYES ONLY other than as set

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forth in the Order, and (ii) not to make any copies of any Litigation Materials

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marked CONFIDENTIAL or ATTORNEYS’ EYES ONLY furnished to me

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except in accordance with the Order.
3.

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I hereby consent to the jurisdiction of the United States District

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Court for the Central District of California, Western Division, with regard to

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any proceedings to enforce the terms of the Order.
4.

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I

hereby

agree

that

any

Litigation

Materials

marked

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CONFIDENTIAL or ATTORNEYS’ EYES ONLY furnished to me will be

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used by me only for the purposes of this litigation and for no other purpose, and

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will not be used by me in any business affairs of my employer or of my own or

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be imparted by me to any other person.

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Signature: _______________________

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Date: ___________________________

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14237778

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