United Fabrics International Inc v. Delias Inc et al

Filing 18

PROTECTIVE ORDER by Judge Manuel L. Real. (bp)

2:13-cv-02858-R

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Stephen M. Doniger (SBN 179314)
stephendonigerlawfirm.com
Scott A. Burroughs (SBN 235718)
scottdonigerlawfirm.com
Annie Aboulian (SBN 280693)
anniedonigerlawfirm.com
Trevor W. Barrett (SBN 287174)
tbarrettdonigerlawfirm.com
DONIGER / BURROUGHS APC
300 Corporate Pointe, Suite 355
Culver City, California 90230
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiff

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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UNITED FABRICS INTERNATIONAL, Case No.: CV13-2858 R (PLAx)
INC., a California Corporation,
Honorable Manuel L. Real Presiding

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Plaintiff,

[P1
SED7 1)ROTECTI YE
ORDER

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by

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DELIA*S, INC., a New York Corporation;
ENTRY, INC., a California Corporation;
A’GACI, LLC, a Texas Corporation;
DOES 1-10,

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Defendants.

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1. PURPOSES AND LIMITATIONS

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

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

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public disclosure and from use for any purpose other than prosecuting this matter
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would be warranted. Accordingly, the parties hereby stipulate to and petition this

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Court to enter the following Stipulated Protective Order. The parties acknowledge

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that this Order does not confer blanket protections on all disclosures or responses to

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discovery and that the protection it affords extends only to the limited information or

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items that are entitled under the applicable legal principles to treatment as

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confidential. The parties have agreed that the terms of this Protective Order shall

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also apply to any future voluntary disclosures of confidential, proprietary, or private

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information. The parties reserve their rights to object to or withhold any information,

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including confidential, proprietary, or private information, on any other applicable

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grounds permitted by law, including third-party rights and relevancy.

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2.

DEFINITIONS
2.1

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

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directors, employees, consultants, retained experts, and outside counsel (and their

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support staff).

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2.2 Disclosure or Discovery Material: all items or information,

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regardless of the medium or manner generated, stored, or maintained (including,

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among other things, testimony, transcripts, or tangible things), that are produced or

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generated in disclosures or responses to discovery in this matter.

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2.3 "Confidential" Information or Items: information (regardless of

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

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under standards developed under F.R.Civ.P. 26(c).

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2.4 "Attorneys’ Eyes Only": Discovery Material or such portion of
such material as consists of:
a) any commercially sensitive and/or confidential business or
financial information (including without limitation confidential nonpublic contracts,

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profitability reports or estimates, sales reports, and sales margins) which could
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reasonably create a competitive disadvantage if disclosed to the parties in this action;

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b) any business or financial information that is confidential,

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proprietary, or commercially sensitive to third parties who have had business dealings

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with parties to this action; or

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c) any other category of material or information hereinafter given

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Confidential status by the Court, to the extent said material could reasonably create a

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competitive disadvantage if disclosed to the parties in this action.

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2.5

Receiving Party: a Party that receives Disclosure or Discovery

Material from a Producing Party.
2.6 Producing Party: a Party or non-party that produces Disclosure or
Discovery Material in this action.
2.7 Designating Party:

a Party or non-party that designates

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information or items that it produces in disclosures or in responses to discovery as

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"CONFIDENTIAL" or "ATTORNEYS’ EYES ONLY."

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2.8 Protected Material: any Disclosure or Discovery Material that is
designated as "CONFIDENTIAL" or "ATTORNEYS’ EYES ONLY."
2.9 Expert: a person with specialized knowledge or experience in a

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matter pertinent to the litigation who has been retained by a Party or its counsel to

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serve as an expert witness or as a consultant in this action. This definition includes a

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professional jury or trial consultant retained in connection with this litigation. The

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expert witness or consultant may not be a past or a current employee of the Party

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(including any affiliates or related entities) adverse to the Party engaging the expert

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witness or consultant, or someone who at the time of retention is anticipated to

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become an employee of the Party (including any affiliates or related entities) adverse

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to the Party engaging the expert witness or consultant. Moreover, the expert witness

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or consultant may not be a current employee or anticipated to become an employee of

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any entity who is a competitor of the Party adverse to the Party engaging the expert
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witness or consultant.
2.10 Professional Vendors: persons or entities that provide litigation

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

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demonstrations; organizing, storing, or retrieving data in any form or medium; etc.)

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and their employees and subcontractors.

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3.

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The protections conferred by this Stipulation and Order cover not only

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

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therefrom, as well as all copies, excerpts, summaries, or compilations thereof, plus

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testimony, conversations, or presentations by parties or counsel to or in litigation or

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in other settings that might reveal Protected Material.

SCOPE

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4. DURATION

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Even after the termination of this action, the confidentiality obligations

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imposed by this Order shall remain in effect until a Designating Party agrees

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otherwise in writing or a court order otherwise directs.

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5.

DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for

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Protection. Each Party or non-party that designates information or items for

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protection under this Order must take care to limit any such designation to specific

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material that qualifies under the appropriate standards. A Designating Party must take

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care to designate for protection only those parts of material, documents, items, or oral

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or written communications that qualify - so that other portions of the material,

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documents, items, or communications for which protection is not warranted are not

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swept unjustifiably within the ambit of this Order.

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Mass, indiscriminate, or routinized designations are prohibited.

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Designations that are shown to be clearly unjustified, or that have been made for an

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improper purpose (e.g., to unnecessarily encumber or retard the case development

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process, or to impose unnecessary expenses and burdens on other parties), expose the

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Designating Party to sanctions.

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If it comes to a Party’s or a non-party’s attention that information or

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items that it designated for protection do not qualify for protection at all, or do not

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qualify for the level of protection initially asserted, that Party or non-party must

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

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5.2

Manner and Timing of Designations. Except as otherwise

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provided in this Order (see, e.g., second paragraph of section 5.2(a), below), or as

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otherwise stipulated or ordered, material that qualifies for protection under this Order

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

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Designation in conformity with this Order requires:
(a) for information in documentary form (apart from transcripts

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of depositions or other pretrial or trial proceedings), that the Producing Party affix the

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legend "CONFIDENTIAL" or "ATTORNEYS’ EYES ONLY" at the top or bottom

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of each page that contains protected material.

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A Party or non-party that makes originals or copies of documents

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or materials available for inspection need not designate them for protection until after

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the inspecting Party has indicated which material it intends to copy. During the

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inspection and before the designation, all of the material made available for

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inspection shall be deemed "ATTORNEYS’ EYES ONLY." After the inspecting

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Party has identified the documents it wants copied and produced, the Producing Party

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must designate, either in writing or on the record (at a deposition), which documents,

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or portions thereof, qualify for protection under this Order. Then the Receiving Party
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must affix the "CONFIDENTIAL" or "ATTORNEYS’ EYES ONLY" legend at the

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top of each copied page that contains Protected Material. If only a portion or portions

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

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

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margins) and must specify, for each portion, the level of protection being asserted

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(either "CONFIDENTIAL" or "ATTORNEYS’ EYES ONLY").

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(b)

for testimony given in deposition or in other pretrial or trial

proceedings, that the Party or non-party offering or sponsoring the testimony identify

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on the record, before the close of the deposition, hearing, or other proceeding, all

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protected testimony, and further specify any portions of the testimony that qualify as

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"CONFIDENTIAL" or "ATTORNEYS’ EYES ONLY." When it is impractical to

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identify separately each portion of testimony that is entitled to protection, and when it

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appears that substantial portions of the testimony may qualify for protection, the

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Party or non-party that sponsors, offers, or gives the testimony may invoke on the

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record (before the deposition or proceeding is concluded) a right to have up to 20

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days to identify the specific portions of the testimony as to which protection is sought

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and to specify the level of protection being asserted ("CONFIDENTIAL" or

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"ATTORNEYS’ EYES ONLY"). Only those portions of the testimony that are

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appropriately designated for protection within the 20 days shall be covered by the

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provisions of this Stipulated Protective Order.

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Transcript pages containing Protected Material must be separately

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bound by the court reporter, who must affix to the top of each such page the legend

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"CONFIDENTIAL" or "ATTORNEYS’ EYES ONLY," as instructed by the Party or

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non-party offering or sponsoring the witness or presenting the testimony.

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(c) for information produced in some form other than
documentary, and for any other tangible items, that the Producing Party affix in a
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prominent place on the exterior of the container or containers in which the
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information or item is stored the legend "CONFIDENTIAL" or "ATTORNEYS’

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EYES ONLY." If only portions of the information or item warrant protection, the

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Producing Party, to the extent practicable, shall identify the protected portions,

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specifying whether they qualify as "CONFIDENTIAL" or as "ATTORNEYS’ EYES

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ONLY."

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5.3

Inadvertent Failures to Designate.

If timely corrected, an

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inadvertent failure to designate qualified information or items as "CONFIDENTIAL"

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or "ATTORNEYS’ EYES ONLY" does not, standing alone, waive the Designating

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Party’s right to secure protection under this Order for such material. If material is

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appropriately designated as "CONFIDENTIAL" or "ATTORNEYS’ EYES ONLY"

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after the material was initially produced, the Receiving Party, on timely notification

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of the designation, must make reasonable efforts to assure that the material is treated

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in accordance with the provisions of this Order.

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6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1 Timing of Challenges.

Unless a prompt challenge to a

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Designating Party’s confidentiality designation is necessary to avoid foreseeable

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substantial unfairness, unnecessary economic burdens, or a later significant

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disruption or delay of the litigation, a Party does not waive its right to challenge a

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confidentiality designation by electing not to mount a challenge promptly after the

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original designation is disclosed.

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6.2 Meet and Confer. A Party that elects to initiate a challenge to a

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Designating Party’s confidentiality designation must do so in good faith and must

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begin the process by conferring with counsel for the Designating Party in writing. In

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conferring, the challenging Party must explain the basis for its belief that the

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confidentiality designation was not proper and must give the Designating Party an

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opportunity to review the designated material, to reconsider the circumstances, and, if

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no change in designation is offered, to explain the basis for the chosen designation.

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A challenging Party may proceed to the next stage of the challenge process only if it

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has engaged in this meet-and-confer process first.

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6.3 Court Intervention. A Party that elects to press a challenge to a

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confidentiality designation after considering the justification offered by the

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Designating Party may file and serve a motion that identifies the challenged material

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I and sets forth in detail the basis for the challenge. Each such motion must be

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accompanied by a competent declaration that affirms that the movant has complied

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with the meet-and-confer requirements imposed in the preceding paragraph and that

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sets forth with specificity the justification for the confidentiality designation that was

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given by the Designating Party in the meet-and-confer dialogue. The parties agree

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that a confidentiality designation shall not create a presumption in favor of such

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confidentiality designation, and that the Court shall decide the issue as such.

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Until the Court rules on the challenge, all parties shall continue to afford

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the material in question the level of protection to which it is entitled under the

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Producing Party’s designation.

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7. ACCESS TO AND USE OF PROTECTED MATERIAL
7.1 Basic Principles. A Receiving Party may use Protected Material

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that is disclosed or produced by another Party or by a non-party in connection with

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this case only for prosecuting, defending, or attempting to settle this litigation. Such

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Protected Material may be disclosed only to the categories of persons and under the

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conditions described in this Order. When the litigation has been terminated, a

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Receiving Party must comply with the provisions of section 11, below (FINAL

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DISPOSITION).

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

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authorized under this Order.
7.2 Disclosure of "CONFIDENTIAL" Information or Items. Unless

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

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Receiving Party may disclose any information or item designated

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"CONFIDENTIAL" only to:
(a) the Receiving Party’s outside counsel, as well as employees

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of said outside counsel to whom it is reasonably necessary to disclose the information
for this litigation;
(b) Board members, officers and directors of the Receiving

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Party;
(c) Other employees of the Receiving Party to whom disclosure

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is reasonably necessary for this litigation and who are bound by internal

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confidentiality obligations as part of their employment or who have signed the

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"Acknowledgment and Agreement to Be Bound" (Exhibit A);

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(d) Experts (as defined in this Order) of the Receiving Party to

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whom disclosure is reasonably necessary for this litigation and who have signed the

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"Acknowledgment and Agreement to Be Bound" (Exhibit A);

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(e)

the Court personnel assigned to this litigation;

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(f)

court reporters, their staffs, and professional vendors to

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whom disclosure is reasonably necessary for this litigation and who have signed the

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"Acknowledgment and Agreement to Be Bound" (Exhibit A);

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(g) during their depositions, witnesses in the action to whom

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disclosure is reasonably necessary and who have signed the "Acknowledgment and

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Agreement to Be Bound" (Exhibit A). Pages of transcribed deposition testimony or

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exhibits to depositions that reveal Protected Material must be separately bound by the

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court reporter and may not be disclosed to anyone except as permitted under this

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Stipulated Protective Order; and
(h) the author and recipients of the document or the original

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source of the information.
7.3 Disclosure of "ATTORNEYS’ EYES ONLY" Information or

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Items. Unless otherwise ordered by the Court or permitted in writing by the

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Designating Party, a Receiving Party may disclose any information or item

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designated "ATTORNEYS’ EYES ONLY" only to:
(a) the Receiving Party’s outside counsel, as well as employees

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of said outside counsel to whom it is reasonably necessary to disclose the information

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for this litigation;

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(b) Experts (as defined in this Order) of the Receiving Party to

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whom disclosure is reasonably necessary for this litigation and who have signed the

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"Acknowledgment and Agreement to Be Bound" (Exhibit A);

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(c)

the Court personnel assigned to this litigation;

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(d)

court reporters, their staffs, and professional vendors to

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whom disclosure is reasonably necessary for this litigation and who have signed the

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"Acknowledgment and Agreement to Be Bound" (Exhibit A); and

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(e) the author and recipients of the document or the original
source of the information.
7.4 Nothing in this Order shall be read to prohibit the use of otherwise

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Protected Material to prosecute claims against additional potential defendants

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identified in said materials.

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8. PROTECTED MATERIAL SUBPOENAED OR ORDERED
PRODUCED IN OTHER LITIGATION

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If a Receiving Party is served with a subpoena or an order issued in other
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litigation that would compel disclosure of any Discovery Material, the Receiving

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Party must so notify the Designating Party, in writing immediately and in no event

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more than five business days after receiving the subpoena or order. Such notification

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must include a copy of the subpoena or court order. The Receiving Party also must

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immediately inform in writing the Party who caused the subpoena or order to issue in

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

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is the subject of this Protective Order. In addition, the Receiving Party must deliver a

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copy of this Stipulated Protective Order promptly to the Party in the other action that

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caused the subpoena or order to issue.
The purpose of imposing these duties is to alert the interested parties to the

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existence of this Protective Order and to afford the Designating Party in this case an

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opportunity to try to protect its confidentiality interests in the court from which the

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subpoena or order issued. The Designating Party shall bear the burdens and the

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expenses of seeking protection in that court of its confidential material - and nothing

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in these provisions should be construed as authorizing or encouraging a Receiving

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Party in this action to disobey a lawful directive from another court.

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9. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

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

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

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writing the Designating Party of the unauthorized disclosures, (b) use its best efforts

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to retrieve all copies of the Protected Material, (c) inform the person or persons to

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

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request such person or persons to execute the "Acknowledgment and Agreement to

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Be Bound" that is attached hereto as Exhibit A.

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10. FILING PROTECTED MATERIAL

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Without written permission from the Designating Party, or a court order

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secured after appropriate notice to all interested persons and after following the

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procedures provided for in Local Rule 79-5.1, a Party may not file in the public

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I record in this action any Protected Material.

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11. FINAL DISPOSITION

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Unless otherwise ordered or agreed to in writing by the Producing Party,

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within 60 days after the final termination of this action, each Receiving Party must

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either return all Protected Material to the Producing Party or certify the destruction of

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said material. As used in this subdivision, "all Protected Material" includes all copies,

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abstracts, compilations, summaries or any other form of reproducing or capturing any

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

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the Receiving Party must submit a written certification to the Producing Party (and, if

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not the same person or entity, to the Designating Party) by the 60-day deadline that

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identifies (by category, where appropriate) all the Protected Material that was

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returned or destroyed and that affirms that the Receiving Party has not retained any

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copies, abstracts, compilations, summaries or other forms of reproducing or capturing

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any of the Protected Material.

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Notwithstanding this provision, counsel are entitled to retain an archival copy

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of all pleadings, motion papers, transcripts, legal memoranda, correspondence or

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attorney work product, even if such materials contain Protected Material. Any such

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

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

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12. MISCELLANEOUS
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12.1 Right to Further Relief. Nothing in this Order abridges the right

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of any person to seek its modification in the future.

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12.2 Right to Assert Other Objections. By stipulating to the entry of

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this Protective Order no Party waives any right it otherwise would have to object to

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

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Stipulated Protective Order. Similarly, no Party waives any right to object on any

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ground to use in evidence of any of the material covered by this Protective Order.
12.3 Inadvertent Production of Privileged Documents. If a Party,

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through inadvertence, produces any document or information that it believes is

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immune from discovery pursuant to an attorney-client privilege, the work product

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privilege, or any other privilege, such production shall not be deemed a waiver of any

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privilege, and the Producing Party may give written notice to the Receiving Party that

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the document or information produced is deemed privileged and that return of the

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document or information is requested. Upon receipt of such notice, the Receiving

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Party shall immediately gather the original and all copies of the document or

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information of which the Receiving Party is aware, in addition to any abstracts,

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summaries, or descriptions thereof, and shall immediately return the original and all

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such copies to the Producing Party. Nothing stated herein shall preclude a Party from

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challenging an assertion by the other Party of privilege or confidentiality.

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Dated:
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A//

HON. MI(NbEL L. REAL
UNITED STATES DISTRICT COURT

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EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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[print full

I,

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[print full

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name], of

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address], declare under penalty of perjury that I have read in its entirety and

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understand the Stipulated 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

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Inc. v. DELIA*S, Inc., et al., Case No. CV13-2858 R (PLAx). I agree to comply with

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

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

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

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

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

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Order.

United Fabrics Intl,

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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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I hereby appoint

[print full
[print full

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name] of

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address and telephone number] as my California agent for service of process in

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connection with this action or any proceedings related to enforcement of this

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Stipulated Protective Order.

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Date:

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City and State where sworn and signed:

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Printed name:

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Signature:

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