Mercado Latino Inc v. Indio Products Inc et al

Filing 108

ORDER APPROVING AND ENTERING JOINT STIPULATED PROTECTIVE ORDER by Judge Dean D. Pregerson, re Stipulation for Protective Order 106 . See document for details. (smo)

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LUAN K. PHAN (SBN 185985)
JODY M. BORRELLI (SBN 196550)
PB LAW GROUP, LLP
444 S. Flower St., Suite 1850
Los Angeles, California 90071
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiff
MERCADO LATINO, INC.
dba CONTINENTAL CANDLE COMPANY

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Linda D. Mettes
BROOKS KUSHMAN P.C.
1000 Town Center
Twenty-Second Floor
Southfield, Michigan 48075
Telephone: [phone]
[e-mail]

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Attorneys for Defendant INDIO PRODUCTS, INC.

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

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MERCADO LATINO, INC. dba
Case No. 2:13-cv-01027-DDP-RNB
CONTINENTAL CANDLE COMPANY,
ORDER APPROVING AND
Plaintiff,
ENTERING JOINT STIPULATED
PROTECTIVE ORDER
vs.

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INDIO PRODUCTS, INC., a California
Corporation, and DOES 1 through 10,
Inclusive,

[106]

Defendants.

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[PROPOSED] ORDER
APPROVING AND ENTERING JOINT STIPULATED PROTECTIVE ORDER

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Plaintiff Mercado Latino, Inc. dba Continental Candle Co. and Defendant Indio

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Products, Inc., hereafter referred to as “the Parties,” believe that certain information

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that is or will be encompassed by discovery demands by the Parties involves the

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production or disclosure of trade secrets, confidential business information, or other

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proprietary information. The Parties accordingly sought a protective order limiting

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disclosure thereof in accordance with Federal Rule of Civil Procedure 26(c), and

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entered into a stipulation regarding the same, previously submitted to the Court.

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[Docket Item No. 106]. The Court finds that good cause exists for entry of this

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stipulated Protective Order, and hereby orders that it be entered in the following form.

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Therefore upon stipulation of all parties for a Protective Order pursuant to Rule

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26(c) of the Federal Rules of Civil Procedure, it is hereby ORDERED as follows:
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This Protective Order shall apply to all information, documents and

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things subject to discovery in this Action produced either by a party or a non-party in

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discovery in this Action and shall include without limitation this litigation and any

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adjunct subpoena proceedings incident hereto before any tribunal including, without

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limitation, testimony adduced at deposition upon oral examination or upon written

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questions, answers to interrogatories, documents and things produced, information

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obtained from inspection of premises or things, and answers to requests for admission,

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or information disclosed pursuant to subpoena under Fed. R. Civ. P. 45.

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2.

Each Party may designate as confidential for protection under this Order,

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in whole or in part, any document, information or material that constitutes or includes,

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in whole or in part, confidential or proprietary information or trade secrets of the Party

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or a Third Party to whom the Party reasonably believes it owes an obligation of

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confidentiality with respect to such document, information or material (“Protected

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Material”). Protected Material shall be designated by the Party producing it by

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affixing a legend or stamp on such document, information or material as follows:

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“CONFIDENTIAL.” The word “CONFIDENTIAL” shall be placed clearly on each

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page of the Protected Material (except deposition and hearing transcripts) for which
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such protection is sought. For deposition and hearing transcripts, the word

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“CONFIDENTIAL” shall be placed on the cover page of the transcript (if not already

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present on the cover page of the transcript when received from the court reporter) by

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each attorney receiving a copy of the transcript after that attorney receives notice of

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the designation of some or all of that transcript as “CONFIDENTIAL.”

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3.

With respect to documents, information or material designated

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“CONFIDENTIAL” or “RESTRICTED - ATTORNEYS’ EYES ONLY,”

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(“DESIGNATED MATERIAL”), subject to the provisions herein and unless

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otherwise stated, this Order governs, without limitation: (a) all documents,

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electronically stored information, and/or things as defined by the Federal Rules of

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Civil Procedure; (b) all pretrial, hearing or deposition testimony, or documents

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marked as exhibits or for identification in depositions and hearings; (c) pretrial

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pleadings, exhibits to pleadings and other court filings; (d) affidavits; and (e)

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stipulations. All copies, reproductions, extracts, digests and complete or partial

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summaries prepared from any DESIGNATED MATERIALS shall also be considered

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DESIGNATED MATERIAL and treated as such under this Order.

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4.

A designation of Protected Material (i.e., “CONFIDENTIAL” or

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“RESTRICTED - ATTORNEYS’ EYES ONLY”) may be made at any time.

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Inadvertent or unintentional production of documents, information or material that has

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not been designated as DESIGNATED MATERIAL shall not be deemed a waiver in

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whole or in part of a claim for confidential treatment. Any party that inadvertently or

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unintentionally produces Protected Material without designating it as DESIGNATED

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MATERIAL may request destruction of that Protected Material by notifying the

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recipient(s), as soon as reasonably possible after the producing Party becomes aware

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of the inadvertent or unintentional disclosure, and providing replacement Protected

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Material that is properly designated. The recipient(s) shall then destroy all copies of

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the inadvertently or unintentionally produced Protected Materials and any documents,

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information or material derived from or based thereon.
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5.

“CONFIDENTIAL” documents, information and material may be

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disclosed only to the following persons, except upon receipt of the prior written

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consent of the designating party, upon order of the Court, or as set forth in paragraph

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12 herein:

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(a)

the Parties and employees of the Parties if reasonably necessary to assist

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outside counsel in the litigation of this Action and provided that each such person has

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completed the Undertaking attached as Exhibit A hereto and the same is served upon

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the producing Party at least ten (10) days before access to the Protected Material is to

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be given to permit any written objection concerning the disclosure of Protected

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Material;

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(b)

outside counsel of record in this Action for the Parties;

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(c)

employees of such outside counsel assigned to and reasonably necessary

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to assist such counsel in the litigation of this Action;
(d)

in-house counsel for the Parties who exercise no competitive decision-

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making authority on behalf of the client and who have responsibility for making

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decisions dealing directly with the litigation of this Action;

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(e)

outside consultants or experts (i.e., not existing employees or affiliates of

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a Party or an affiliate of a Party) retained for the purpose of this litigation, provided

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that: (1) such consultants or experts are not presently employed by the Parties hereto,

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nor employed by member companies of the association plaintiff, for purposes other

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than this Action; (2) before access is given, the consultant or expert has completed the

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Undertaking attached as Exhibit A hereto, provided a current curriculum vitae

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identifying (by name and number of the case, filing date, and location of court) any

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litigation in connection with which the consultant or expert has offered expert

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testimony by declaration, report, or testimony at a deposition or trial, during the

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preceding five years, and the same is served upon the producing Party at least ten (10)

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days before access to the Protected Material is to be given to permit any written

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objection concerning the disclosure of Protected Material to the consultant or expert.
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The Parties agree to promptly confer and use good faith to resolve any such objection.

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If the Parties are unable to resolve any objection, the objecting Party may file a motion

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with the Court within fifteen (15) days of the notice, or within such other time as the

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Parties may agree, seeking a protective order with respect to the proposed disclosure.

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The objecting Party shall have the burden of proving the need for a protective order.

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No disclosure shall occur until all such objections are resolved by agreement or Court

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order;

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(f)

independent litigation support services, including persons working for or

as court reporters, graphics or design services, jury or trial consulting services,

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translators and photocopy, document imaging, information technology, and database

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services retained by counsel and reasonably necessary to assist counsel with the

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litigation of this Action; and

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(g)

the Court and its personnel.

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6.

A Party shall designate documents, information or material as

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“CONFIDENTIAL” or “RESTRICTED - ATTORNEYS’ EYES ONLY” only upon a

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good faith belief that the documents, information or material contains confidential or

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proprietary information or trade secrets of the Party or a Third Party to whom the

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Party reasonably believes it owes an obligation of confidentiality with respect to such

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documents, information or material. The parties shall avoid mass, indiscriminate, or

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routinized designations.

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7.

Documents, information or material produced in this Action, including

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but not limited to Protected Material designated as DESIGNATED MATERIAL, shall

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be used for no purpose other than the present litigation. Any person or entity who

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obtains access to DESIGNATED MATERIAL or the contents thereof pursuant to this

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Order shall not make any copies, duplicates, extracts, summaries or descriptions of

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such DESIGNATED MATERIAL or any portion thereof except as may be reasonably

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necessary. Any person or entity who obtains access to DESIGNATED MATERIAL or

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the contents thereof pursuant to this Order shall not make any copies, duplicates,
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extracts, summaries or descriptions of such DESIGNATED MATERIAL or any

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portion thereof except as may be reasonably necessary. Any such copies, duplicates,

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extracts, summaries or descriptions shall be classified DESIGNATED MATERIALS

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and subject to all of the terms and conditions of this Order.

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To the extent a producing Party believes that certain Protected Material

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qualifying to be designated CONFIDENTIAL is so sensitive that its dissemination

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deserves even further limitation, the producing Party may designate such Protected

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Material “RESTRICTED -- ATTORNEYS’ EYES ONLY.”

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For Protected Material designated RESTRICTED -- ATTORNEYS’

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EYES ONLY, access to, and disclosure of, such Protected Material shall be limited to

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individuals listed in paragraphs 5 (b, c, e, f, and g); access by the parties, party

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employees and in-house counsel is not permitted.

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10.

Nothing in this Order shall require production of documents, information

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or other material that a Party contends is protected from disclosure by the attorney-

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client privilege, the work product doctrine, or other privilege, doctrine, or immunity.

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If documents, information or other material subject to a claim of attorney-client

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privilege, work product doctrine, or other privilege, doctrine, or immunity is

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inadvertently or unintentionally produced, such production shall in no way prejudice

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or otherwise constitute a waiver of, or estoppel as to, any such privilege, doctrine, or

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immunity. Any Party that inadvertently or unintentionally produces documents,

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information or other material it reasonably believes are protected under the attorney-

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client privilege, work product doctrine, or other privilege, doctrine, or immunity may

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obtain the return of such documents, information or other material by promptly

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notifying the recipient(s) and providing a privilege log for the inadvertently or

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unintentionally produced documents, information or other material. The recipient(s)

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shall gather and return all copies of such documents, information or other material to

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the producing Party, except for any pages containing privileged or otherwise protected

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markings by the recipient(s), which pages shall instead be destroyed and certified as
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such to the producing Party.
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There shall be no disclosure of any DESIGNATED MATERIAL by any

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person authorized to have access thereto to any person who is not authorized for such

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access under this Order. The Parties are hereby ORDERED to safeguard all such

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documents, information and material to protect against disclosure to any unauthorized

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persons or entities. Information DESIGNATED MATERIAL shall not be made

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available, directly or indirectly or through paraphrasing, by the persons receiving it to

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any unauthorized persons. Information DESIGNATED MATERIAL shall be used by

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authorized persons solely for purposes of this litigation. The party or parties receiving

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DESIGNATED MATERIAL shall not under any circumstances sell, offer for sale,

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advertise, or publicize DESIGNATED MATERIAL or any information contained

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therein.

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Nothing contained herein shall be construed to prejudice any Party’s right

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to use any DESIGNATED MATERIAL in taking testimony at any deposition or

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hearing provided that the DESIGNATED MATERIAL is only disclosed to a person(s)

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who is: (i) eligible to have access to the DESIGNATED MATERIAL by virtue of his

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or her employment with the designating party, (ii) identified in the DESIGNATED

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MATERIAL as an author, addressee, or copy recipient of such information, (iii)

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although not identified as an author, addressee, or copy recipient of such

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DESIGNATED MATERIAL, has, in the ordinary course of business, seen such

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DESIGNATED MATERIAL, (iv) a current or former officer, director or employee of

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the producing Party or a current or former officer, director or employee of a company

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affiliated with the producing Party; (v) counsel for a Party, including outside counsel

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and in-house counsel (subject to paragraph 9 of this Order); (vi) an independent

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contractor, consultant, and/or expert retained for the purpose of this litigation; (vii)

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court reporters and videographers; (viii) the Court; or (ix) other persons entitled

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hereunder to access to DESIGNATED MATERIAL. DESIGNATED MATERIAL

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shall not be disclosed to any other persons unless prior authorization is obtained from
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counsel representing the producing Party or from the Court.
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Parties may, at the deposition or hearing or within thirty (30) days after

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receipt of a deposition or hearing transcript, designate the deposition or hearing

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transcript or any portion thereof as “CONFIDENTIAL” or “RESTRICTED -

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ATTORNEY’ EYES ONLY” pursuant to this Order. Access to the deposition or

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hearing transcript so designated shall be limited in accordance with the terms of this

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Order. Until expiration of the 30-day period, the entire deposition or hearing transcript

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shall be treated as RESTRICTED - ATTORNEY’ EYES ONLY.

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14.

This Order authorizes the filing of any material under seal in the Central

District of California.
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At any time after the delivery of DESIGNATED MATERIAL, counsel

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for the party or parties receiving the DESIGNATED MATERIAL may challenge the

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Confidential designation of all or any portion thereof by providing written notice

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thereof to counsel for the party disclosing or producing the DESIGNATED

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MATERIAL. If the parties are unable to agree as to whether the confidential

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designation of DESIGNATED MATERIAL is appropriate, the party or parties

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receiving the DESIGNATED MATERIAL shall certify to the Court that the parties

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cannot reach an agreement as to the confidential nature of all or a portion of the

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DESIGNATED MATERIAL Thereafter, the party or parties disclosing or producing

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the DESIGNATED MATERIAL shall have ten (10) days from the date of certification

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to file a motion for protective order with regard to any DESIGNATED MATERIAL

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in dispute. The party or parties producing the DESIGNATED MATERIAL shall have

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the burden of establishing that the disputed DESIGNATED MATERIAL are entitled

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to confidential treatment. If the party or parties producing the DESIGNATED

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MATERIAL do not timely file a motion for protective order, then the DESIGNATED

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MATERIAL in dispute shall no longer be subject to confidential treatment as

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provided in this Order. All DESIGNATED MATERIAL is entitled to confidential

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treatment pursuant to the terms of this Order until and unless the parties formally
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[PROPOSED] ORDER
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agree in writing to the contrary, a party fails to timely move for a protective order, or a

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contrary determination is made by the Court as to whether all or a portion of

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DESIGNATED MATERIAL is entitled to confidential treatment.

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16.

To the extent that any discovery is taken of persons who are not Parties to

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this Action (“Third Parties”) and in the event that such Third Parties contended the

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discovery sought involves trade secrets, confidential business information, or other

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proprietary information, then such Third Parties may agree to be bound by this Order.

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To the extent that discovery or testimony is taken of Third Parties, the

Third Parties may designate as “CONFIDENTIAL” or “RESTRICTED --

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ATTORNEYS’ EYES ONLY” any documents, information or other material, in

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whole or in part, produced or give by such Third Parties. The Third Parties shall have

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ten (10) days after production of such documents, information or other materials to

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make such a designation. Until that time period lapses or until such a designation has

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been made, whichever occurs sooner, all documents, information or other material so

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produced or given shall be treated as “RESTRICTED -- ATTORNEYS’ EYES

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ONLY” in accordance with this Order.

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Within thirty (30) days of final termination of this Action, including any

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appeals, all DESIGNATED MATERIAL, including all copies, duplicates, abstracts,

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indexes, summaries, descriptions, and excerpts or extracts thereof (excluding excerpts

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or extracts incorporated into any privileged memoranda of the Parties, materials which

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have been admitted into evidence in this Action, and briefing and other materials

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submitted to the Court), shall at the producing Party’s election either be returned to

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the producing Party or be destroyed. The receiving Party shall verify the return or

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destruction by affidavit furnished to the producing Party, upon the producing Party’s

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request.

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The failure to designate documents, information or material in

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accordance with this Order and the failure to object to a designation at a given time

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shall not preclude the filing of a motion at a later date seeking to impose such
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designation or challenging the propriety thereof. The entry of this Order and/or the

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production of documents, information and material hereunder shall in no way

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constitute a waiver of any objection to the furnishing thereof, all such objections being

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hereby preserved.

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20.

Any Party knowing or believing that any other party is in violation of or

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intends to violate this Order and has raised the question of violation or potential

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violation with the opposing party and has been unable to resolve the matter by

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agreement may move the Court for such relief as may be appropriate in the

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circumstances. Pending disposition of the motion by the Court, the Party alleged to be

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in violation of or intending to violate this Order shall discontinue the performance of

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and/or shall not undertake the further performance of any action alleged to constitute a

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violation of this Order.

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Production of DESIGNATED MATERIAL by each of the Parties shall

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not be deemed a publication of the documents, information and material (or the

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contents thereof) produced so as to void or make voidable whatever claim the Parties

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may have as to the proprietary and confidential nature of the documents, information

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or other material or its contents.

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22.

Nothing in this Order shall be construed to effect an abrogation, waiver

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or limitation of any kind on the rights of each of the Parties to assert any applicable

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discovery or trial privilege. Production of DESIGNATED MATERIAL by each of

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the Parties shall not be deemed an admission or agreement as to the relevance and/or

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admissibility of any material.

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Each of the Parties shall also retain the right to file a motion with the

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Court (a) to modify this Order to allow disclosure of DESIGNATED MATERIAL to

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additional persons or entities and (b) to apply for additional protection of

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DESIGNATED MATERIAL.

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24.

The parties agree that where a document production request seeks

production of an attorney-client privileged communication between the responding
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party and its litigation counsel, or materials subject to protection as work product

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under Fed.R.Civ.P. 26(b)(3), dated on or after the date the original complaint was filed

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in this action, the party responding to the request need not list such documents on its

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privilege log.

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25.

This Protective Order shall not bar any attorney of record in the course of

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rendering advice to his client with respect to this litigation from conveying to any

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party client his evaluation in a general way of Designated Material produced or

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exchanged in this action where such information is material to the scope of the

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attorney’s representation of his or her client. However, in rendering such advice and

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otherwise communicating with his client, the attorney shall not disclose the substance

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of the contents of any “RESTRICTED -- ATTORNEYS’ EYES ONLY” information

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produced by another party.

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26.

In the event any person or party that has possession, custody, or control

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of any information designated as “CONFIDENTIAL” or “RESTRICTED --

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ATTORNEYS’ EYES ONLY” that is covered by this Protective Order receives a

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subpoena or other process or order to produce such information, such person or party

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shall notify promptly, in writing, counsel for the party designating as confidential the

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documents sought by such subpoena or other process or order, shall furnish a copy of

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said subpoena or other process or order, and shall cooperate in any procedure sought

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to be pursued by the party whose interests may be affected. The party asserting the

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confidential treatment shall have the burden of defending against such subpoena,

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process or order. The person or party receiving the subpoena or process or order shall

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be entitled to comply with it except: (a) to the extent the party asserting the

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confidential treatment is successful in obtaining an order modifying or quashing it;

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and (b) in complying with the process or order shall, at a minimum, seek to obtain

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confidential treatment of the “CONFIDENTIAL” or “RESTRICTED --

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ATTORNEYS’ EYES ONLY” information before producing it pursuant to the

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subpoena, process or order.
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27.

The provisions of this Protective Order that restrict the disclosure and use

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of Designated Material shall survive the final disposition of this action and continue to

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be binding on all persons subject to its terms, except that (a) there shall be no

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restriction on documents that are used as exhibits in Court unless such exhibits were

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filed under seal, and (b) a party may seek the written permission of the producing

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party or order of the Court with respect to dissolution or modification of such

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protective orders. This Court retains and shall have continuing jurisdiction over the

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parties and recipients of the Protected Documents for enforcement of the provisions of

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this Order following termination of this litigation.

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28.

This Order shall be binding upon the parties and their attorneys,

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successors, executors, personal representatives, administrators, heirs, legal

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representatives, assigns, subsidiaries, divisions, employees, agents, independent

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contractors, or other persons or organizations over which they have control.

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IT IS SO ORDERED.

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Dated:

August 17, 2017

____________________________________
HON. DEAN D. PREGERSON

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EXHIBIT A
UNDERTAKING OF EXPERTS OR CONSULTANTS REGARDING
PROTECTIVE ORDER

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I, ____________________________________________, declare that:

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1.

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My address is _____________

_________________________________.
2.

My current employer is

_________________________________________.
3.

My current occupation and job title is

________________________________________.
4.

I have received a copy of the Protective Order in this action. I have

carefully read and understand the provisions of the Protective Order.
5.

I will comply with all of the provisions of the Protective Order. I will

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hold in confidence, will not disclose to anyone not qualified under the Protective

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Order, and will use only for purposes of this action any information designated as

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“CONFIDENTIAL” or “RESTRICTED -- ATTORNEYS’ EYES ONLY” that is

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disclosed to me.

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6.

Promptly upon termination of these actions, I will return all documents

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and things designated as “CONFIDENTIAL” or “RESTRICTED -- ATTORNEYS’

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EYES ONLY” that came into my possession, and all documents and things that I have

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prepared relating thereto, to the outside counsel for the party by whom I am employed.

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7.

I hereby submit to the jurisdiction of this Court for the purpose of

enforcement of the Protective Order in this action.
I declare under penalty of perjury that the foregoing is true and correct.

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Signature ________________________________________

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Date ______________

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