Star Fabrics Inc v. Pacific Sunwear of California Inc et al

Filing 60

PROTECTIVE ORDER by Magistrate Judge Margaret A. Nagle re Stipulation for Protective Order 51 (ec)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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STAR FABRICS, INC., a California
Corporation,

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Plaintiff,

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v.

Case No. CV13-04299 MAN
PROTECTIVE ORDER ENTERED
PURSUANT TO THE PARTIES’
STIPULATION

PACIFIC SUNWEAR OF
CALIFORNIA, INC., a California
Corporation; MADISON BRANDS,
INC., a New York Corporation d/b/a/
“Ali & Kris”; ROSS STORES, INC., a
Delaware Corporation; and DOES 110,

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Defendants.

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PACIFIC SUNWEAR OF
CALIFORNIA, INC., a California
Corporation;
Third Party Plaintiff,

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v.

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MADISON BRANDS, INC., a
corporation; ALI & KRIS, a business
entity, form unknown; and ROES 1-10,
Third Party Defendants.

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Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure and based on the

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parties’ Joint Stipulation for Protective Order (“Stipulation”) filed on May 6, 2014,

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the terms of the protective order to which the parties have agreed are adopted as a

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protective order of this Court (which generally shall govern the pretrial phase of this

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action) except to the extent, as set forth below, that those terms have been

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substantively modified by the Court’s deletion of paragraph 1 and amendment of

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paragraphs 4, 5.2(b), and 6.2 of the Stipulation.

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The parties are expressly cautioned that the designation of any information,
document, or thing as Confidential, Highly Confidential – Attorneys’ Eyes Only, or

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other designation(s) used by the parties, does not, in and of itself, create any

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entitlement to file such information, document, or thing, in whole or in part, under

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seal. Accordingly, reference to this Protective Order or to the parties’ designation of

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any information, document, or thing as Confidential, Highly Confidential – Attorneys’

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Eyes Only, or other designation(s) used by the parties, is wholly insufficient to

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warrant a filing under seal.

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There is a strong presumption that the public has a right of access to judicial

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proceedings and records in civil cases. In connection with non-dispositive motions,

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good cause must be shown to support a filing under seal. The Court has stricken their

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good cause statement, because a specific showing of good cause or compelling

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reasons (see below) for filing under seal, with proper evidentiary support and legal

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justification, must be made with respect to each document or item designated as

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Confidential, Highly Confidential – Attorneys’ Eyes Only, or other designation(s)

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used by the parties, which a party seeks to have filed under seal. The parties’ mere

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designation of any information, document, or thing as Confidential, Highly

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Confidential – Attorneys’ Eyes Only, or other designation(s) used by parties, does not

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-- without the submission of competent evidence, in the form of a declaration or

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declarations, establishing that the material sought to be filed under seal qualifies

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as confidential, privileged, or otherwise protectable -- constitute good cause.
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Further, if sealing is requested in connection with a dispositive motion or trial,

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then compelling reasons, as opposed to good cause, for the sealing must be shown,

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and the relief sought shall be narrowly tailored to serve the specific interest to be

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protected. See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir.

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2010). For each item or type of information, document, or thing sought to be filed or

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introduced under seal in connection with a dispositive motion or trial, the party

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seeking protection must articulate compelling reasons, supported by specific facts and

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legal justification, for the requested sealing order. Again, competent evidence

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supporting the application to file documents under seal must be provided by

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declaration.
Any document that is not confidential, privileged, or otherwise protectable in its

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entirety will not be filed under seal if the confidential portions can be redacted. If

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documents can be redacted, then a redacted version for public viewing, omitting only

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the confidential, privileged, or otherwise protectable portions of the document, shall

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be filed. Any application that seeks to file documents under seal in their entirety

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should include an explanation of why redaction is not feasible.
Notwithstanding any other provision of this Protective Order, in the event that

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this case proceeds to trial, all information, documents, and things discussed or

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introduced into evidence at trial will become public and available to all members of

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the public, including the press, unless sufficient cause is shown in advance of trial to

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proceed otherwise.

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AGREED TERMS OF THE PROTECIVE ORDER AS ADOPTED AND

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MODIFIED BY THE COURT1

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1.

GOOD CAUSE STATEMENT [DELETED]

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2.

DEFINITIONS

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The Court’s substantive modifications of the agreed terms of the Protective
Order are generally indicated in bold typeface.

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2.1.

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

employees, consultants, retained experts, and outside counsel (and their support staff).
2.2.

Disclosure or Discovery Material: all items or information, regardless of

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the medium or manner generated, stored, or maintained (including, among other

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things, testimony, transcripts, or tangible things) that are produced or generated in

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disclosures or responses to discovery in this matter.

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2.3.

Trade Secret: information, including a formula, pattern, compilation,

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program, device, method, technique, or process that: (i) derives independent

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economic value, actual or potential, from not being generally known to the public or

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to other persons who can obtain economic value from its disclosure or use; and (ii) is

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the subject of efforts that are reasonable under the circumstances to maintain its

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secrecy, as set forth in California Civil Code §3426.

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2.4

“Confidential” Information or Items: information (regardless of how

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

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standards developed under Fed. R. Civ. P. 26(c) which shall only be disclosed to the

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parties to this litigation and their respective house and outside counsels, as set forth in

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section 7.2 below. Such information should fall into one or more of the following

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categories: (i) sales, marketing, or product or service development strategies, tactics

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or plans; (ii) financial data; (iii) costs of doing business; (iv) customer lists; (v)

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business agreements and contracts; (vi) licensing negotiations and agreements; and

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(viI) third-party documents covered by an obligation of confidentiality.

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2.5.

“Highly Confidential - Attorneys’ Eyes Only” Information or Items:

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information (regardless of how generated, stored, or maintained) or tangible things

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that are extremely sensitive -- such as trade secrets or highly sensitive business or

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product expansion plans or developments -- and the disclosure of which to any Party

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in this action would create a substantial risk of serious injury that could not be avoided

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by less restrictive means.

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2.6.

Receiving Party: a Party that receives Disclosure or Discovery Material
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from a Producing Party.
2.7.

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Producing Party: a Party or non-party that produces Disclosure or

Discovery Material in this action.
2.8.

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Designating Party: a Party or non-party that designates information or

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items that it produces in disclosures or in responses to discovery as “Confidential” or

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“Highly Confidential — Attorneys’ Eyes Only.”
2.9.

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designated as “Confidential” or “Highly Confidential - Attorneys’ Eyes Only.”
2.10. Outside Counsel: attorneys who are not employees of a Party but who

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are retained to represent or advise a Party in this action.
2.11. In-House Counsel: attorneys who are employees of a Party and who

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regularly provide legal advice as part of their job duties.
2.12. Counsel (without qualifier): Outside Counsel and In-House Counsel (as

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Protected Material: any Disclosure or Discovery Material that is

well as their support staffs).

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2.13. Expert: a person with specialized knowledge or experience in a matter

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pertinent to the litigation who has been retained by a Party or its Counsel to serve as

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an expert witness or as a consultant in this action and who is not a past or a current

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employee of a Party. This definition includes a professional jury or trial consultant

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retained in connection with this litigation.
2.14. Professional Vendors: persons or entities that provide litigation support

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

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demonstrations; organizing, storing, and/or retrieving data in any form or medium;

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etc.) and their employees and subcontractors.

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3.

SCOPE

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Any Protected Material (as defined above) may not be disseminated or

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disclosed outside the parameters of the Protective Order, whether that disclosure

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embodies the entirety of a designated document or any portion or segment thereof.

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4.

DURATION

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Even after the termination of this litigation, the confidentiality obligations

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

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agrees otherwise in writing or a court order otherwise directs. Nothing contained

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herein, however, is intended to limit or prevent parties from introducing evidence at

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trial to prove its case. The use of any Protected Material at trial, however, is not

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addressed at this time, but may be the subject of a future application as the need may

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arise. Unless otherwise ordered or agreed in writing by the Producing Party, within

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sixty (60) days after the final termination of this action, each Receiving Party shall

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return all Protected Material to the Producing Party or, alternatively, destroy it. If the

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documents were originally produced without charge, they shall be returned without

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charge. If they were produced at a charge, they shall be returned for the same cost.

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As used in this subdivision, “all Protected Material” includes all copies, abstracts,

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

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Protected Material. With permission in writing from the Designating Party, the

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Receiving Party may destroy some or all of the Protected Material instead of returning

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it. Whether the Protected Material is returned or destroyed, the Receiving Party must

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submit a written certification to the Producing Party (and, if not the same person or

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entity, to the Designating Party) by the sixty day deadline that identifies (by category,

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where appropriate) all the Protected Material that was returned or destroyed and that

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affirms that the Receiving Party has not retained any copies, abstracts, compilations,

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summaries, or other forms of reproducing or capturing any of the Protected Material.

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Notwithstanding this provision, Counsel are entitled to retain an archival copy of all

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pleadings, motion papers, transcripts, legal memoranda, correspondence, or attorney

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work product, even if such materials contain Protected Material.

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5.

DESIGNATING PROTECTED MATERIAL

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5.1.

Exercise of Restraint and Reasonable 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 Protective Order must take reasonable care to limit any such

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designation to specific material that qualifies under the appropriate standards. A

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Designating Party must take reasonable care to designate for protection only those

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parts of material, documents, items, or oral or written communications that qualify --

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so that other portions of the material, documents, items, or communications for which

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protection is not warranted are not swept unjustifiably within the ambit of this

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Protective Order.

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Designations that are shown to be clearly unjustified, or that have been made
for an improper purpose (e.g., to unnecessarily encumber or retard the case

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development process, or to impose unnecessary expenses and burdens on other

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parties), expose the Designating Party to sanctions as provided for in the Federal

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Rules of Civil Procedure.

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

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it designated for protection do not qualify for protection at all, or do not qualify for the

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level of protection initially asserted, that Party or non-party must promptly notify all

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other parties that it is withdrawing the mistaken designation.

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5.2.

Manner and Timing of Designations. Except as otherwise provided in

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this Protective 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

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Protective Order must be clearly so designated before the material is disclosed or

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produced.

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Designation in conformity with this Protective Order requires:
(a)

for information in documentary form (apart from transcripts of

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

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legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY” conspicuously on each page that contains protected material. If only a

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portion or portions of the material on a page qualifies for protection, the Producing

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Party also must clearly identify the protected portion(s) (e.g., by making appropriate
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markings in the margins) and must specify, for each portion, the level of protection

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being asserted (either “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL -

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ATTORNEYS’ EYES ONLY”).

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A Party or non-party that makes original documents or materials available for

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inspection need not designate them for protection until after the inspecting Party has

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indicated which material it would like copied and produced. During the inspection

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

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the inspecting Party’s outside attorney(s), shall be deemed “HIGHLY

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CONFIDENTIAL - ATTORNEYS’ EYES ONLY.” After the inspecting Party’s

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outside attorney(s) have identified the documents it wants copied and produced, the

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Producing Party must determine which documents, or portions thereof, qualify for

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protection under this Protective Order, then, before producing the specified

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documents, the Producing Party must affix the appropriate legend

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(“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES

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ONLY”) conspicuously on each page that contains Protected Material. If only a

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portion or portions of the material on a page qualifies for protection, the Producing

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Party also must clearly identify the protected portion(s) (e.g., by making appropriate

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markings in the margins) and must specify, for each portion, the level of protection

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being asserted (either “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL -

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ATTORNEYS’ EYES ONLY”).

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(b)

for testimony given in deposition, that the Party or non-party

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offering or sponsoring the deposition testimony identify on the record, before the

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close of the deposition, all protected testimony, and further specify any portions of the

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testimony that qualify as “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES

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ONLY.” When it is impractical to identify separately each portion of deposition

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testimony that is entitled to protection, and when it appears that substantial portions of

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the deposition testimony may qualify for protection, the Party or non-party that

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sponsors, offers, or gives the deposition testimony may invoke on the record (before
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the deposition is concluded) a right to have up to thirty (30) days after the date of

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mailing of the final transcript to identify the specific portions of the deposition

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testimony as to which protection is sought and to specify the level of protection being

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asserted (“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS’

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EYES ONLY”). Only those portions of the deposition testimony that are

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appropriately designated for protection within the thirty (30) day period shall be

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covered by the provisions of this Protective Order.

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Where, in good faith, it is anticipated by counsel for the Party or non-party who
is testifying that the response to a question or series of questions could qualify as

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“HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY” protection, then, on the

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record, counsel for the testifying Party or non-party shall ask all Party representatives

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or non-parties to leave the deposition room during such testimony. Upon the

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completion of the questioning that is believed to qualify for “HIGHLY

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CONFIDENTIAL - ATTORNEYS’ EYES ONLY” protection, all Party

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representatives or non-parties shall be allowed to reenter the deposition room.

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Deposition transcript pages containing Protected Material shall be separately

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bound by the court reporter, who shall affix to conspicuously on each such page the

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legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES

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ONLY,” as instructed by the Party or nonparty offering or sponsoring the witness or

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presenting the deposition testimony.

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(c)

for information produced in some form other than documentary,

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and for any other tangible items, that the Producing Party affix in a prominent place

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on the exterior of the container or containers in which the information or item is stored

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the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - 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 “Highly Confidential -

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Attorneys’ Eyes Only.”
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(d)

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Inadvertent Failures to Designate. If corrected within thirty (30)

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days of disclosure, an inadvertent failure to designate qualified information or items as

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“Confidential” or “Highly Confidential - Attorneys’ Eyes Only” does not, standing

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alone, waive the Designating Party’s right to secure protection under this Protective

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Order for such material. If material is appropriately designated as “Confidential” or

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“Highly Confidential — Attorneys’ Eyes Only” after the material was initially

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produced, the Receiving Party, on timely notification of the designation -- thirty (30

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days) -- must make reasonable efforts to assure that the material is treated in

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accordance with the provisions of this Protective Order, subject to the provisions

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below.

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6.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1.

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 directly with counsel for the Designating Party. 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. A

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

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engaged, or in the event of non-cooperation attempted to engage, in this meet and

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confer process first.

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6.2.

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

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stipulated and filed pursuant to Local Rule 37, unless the circumstances justify the

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filing of an ex parte application. Until the Court rules on the challenge, all parties

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shall continue to afford the material in question the level of protection to which it is
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entitled under the Producing Party’s designation. The Designating Party shall bear

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the burden of establishing the propriety of the challenged designation.

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7.

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ACCESS TO AND USE OF PROTECTED MATERIAL
7.1.

Basic Principles. A Receiving Party may use Protected Material that is

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disclosed or produced by another Party or by a non-party in connection with this case

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

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

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described in this Protective Order. Following final resolution of the litigation, a

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

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DISPOSITION). Protected Material shall be stored and maintained by a Receiving

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Party at a location and in a secure manner that reasonably ensures that access is

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limited to the persons authorized under this Order.

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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 CONFIDENTIAL

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only to:

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(a)

the Receiving Party’s Outside Counsel of record in this action and

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other outside counsel who have signed the “Agreement to Be Bound by Protective

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Order” (Exhibit A);

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(b)

the officers, directors, and employees (including In-house Counsel)

of the Receiving Party to whom disclosure is reasonably necessary for this litigation;
(c)

experts (as defined in this Protective Order) of the Receiving Party

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

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“Agreement to Be Bound by Protective Order” (Exhibit A);

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(d)

the Court and its personnel;

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(e)

court reporters, their staffs, and professional vendors to whom

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disclosure is reasonably necessary for this litigation;
(f)

during their depositions, witnesses in the action to whom
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disclosure is reasonably necessary. Pages of transcribed deposition testimony or

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exhibits to depositions that reveal Protected Material shall 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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Protective Order. Any party seeking to use CONFIDENTIAL information during a

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deposition shall obtain a statement on the record that the deponent and any other

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persons in attendance have agreed to abide by the terms of this Protective Order. If

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the deponent refuses to agree, disclosure of such information to the witness during the

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deposition shall not constitute a waiver of confidentiality, provided that, under such

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circumstances, the witness shall be asked to read and sign the original deposition

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transcript in the presence of the court reporter, and no copy of the transcript or related

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exhibits shall be given to the deponent. The terms of this Protective Order shall apply

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to those persons in attendance at depositions and shall require the exclusion of persons

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not subject to the terms of the Stipulated Protective Order from attending that portion

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of the deposition at which Confidential or Attorneys’ Eyes Only information is

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discussed. And, as set forth in Section 5.2(b) above, prior to the disclosure of

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Attorneys’ Eyes Only information or testimony in the deposition, counsel for the

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testifying Party or non-party shall ask all Party representatives or non-parties to leave

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the deposition room during such testimony.
(g)

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the author and named recipients of the document, persons who

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have previously had access to the documents or Confidential Information other than

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through discovery or disclosures in the litigation, and the original source of the

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information.
7.3.

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Disclosure of “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES

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ONLY” Information or Items. Unless otherwise ordered by the Court or permitted in

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writing by the Designating Party, a Receiving Party may disclose any information or

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item designated “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY” only

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to:

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(a)

the Receiving Party’s Outside Counsel of record in this action;
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(b)

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Experts (as defined in this Protective Order) to whom disclosure is

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reasonably necessary for this litigation and who have signed the “Agreement to Be

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Bound by Protective Order” (Exhibit A),

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(c)

the Court and its personnel;

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(d)

court reporters, their staffs, and professional vendors to whom

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disclosure is reasonably necessary for this litigation; and
(e)

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the author of the document or the original source of the

information.
Nothing herein, however, is intended to prohibit or proscribe the ability of

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outside counsel to provide to its client informed and meaningful advice, or to prevent

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counsel from aggregating and generally summarizing counsel’s interpretation of the

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implications of such information as it relates to the litigation, so long as it will not

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reveal or disclose the specific contents of any document or information designated as

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“Attorneys’ Eyes Only”.

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8.

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IN OTHER LITIGATION

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PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

If a Receiving Party is served with a subpoena or an order issued in other

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litigation or court proceedings that require disclosure of any information or items

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designated in this action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL -

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ATTORNEYS’ EYES ONLY,” the Receiving Party shall notify the Designating

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Party, in writing (by fax, if possible) promptly and in no event more than four (4)

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court days after receiving the subpoena or order but before the scheduled date for

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production. Such notification shall include a copy of the subpoena or court order.

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The Receiving Party shall also immediately inform in writing the Party who

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caused the subpoena or order to issue in the other litigation or proceeding that some or

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all the material covered by the subpoena or order is subject to this Protective Order.

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In addition, the Receiving Party must deliver a copy of this Protective Order promptly

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to the Party in the other action that caused the subpoena or order to issue.
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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
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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Protective Order, the Receiving Party must immediately: (a) notify in writing the

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Designating Party of the unauthorized disclosures; (b) use its best efforts to retrieve

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all copies of the Protected Material; (c) inform the person or persons to whom

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unauthorized disclosures were made of all the terms of this Protective Order; and (d)

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request such person or persons to execute the “Acknowledgment and Agreement to Be

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Bound” that is attached hereto as Exhibit A.

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10.

FILING PROTECTED MATERIAL.
In the event that counsel for any party decides to file with or submit to the

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Court any Protected Material, counsel shall provide written notice to the other party

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and shall take appropriate steps to ensure the continuing confidentiality of the

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Protected Material. Counsel for the party seeking to file or submit the Protected

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Material to the Court shall request that the portion(s) of the document(s) containing

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the Protected Materials be filed under seal by way of a written application and

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proposed order, along with the portion(s) of the document(s) submitted for filing

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under seal, in accordance with the Local Rules. Pending the ruling on the application,

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the papers or portions thereof subject to the sealing application shall be lodged under

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seal.

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11.

MISCELLANEOUS.
11.1. Right to Further Relief. Nothing in this Protective Order abridges the

right of any person to seek its modification by the Court in the future.

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11.2. Right to Assert Other Objections. By having stipulated 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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Protective Order. Similarly, no Party, waives any right to object on any ground to use

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in evidence of any of the material covered by this Protective Order.

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11.3. Effect of Designation on Authenticity and Admissibility. The placing of

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any confidentiality designation or a production identification label on the face of any

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document shall not affect the document’s authenticity or admissibility in this action.

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11.4. Continuing Jurisdiction. All provisions of this Protective Order shall

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continue to be binding after the conclusion of this action in its entirety, unless

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subsequently modified by agreement between the parties or order of the Court, and the

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Court shall retain jurisdiction of this matter for the purpose of enforcing this

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Protective Order.

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IT IS SO ORDERED.

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Dated: June 10, 2014

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___________________________________
MARGARET A. NAGLE
UNITED STATES MAGISTRATE JUDGE

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, _______________________________________ [print or type full name], of

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_______________________________________ [print or type full company name and

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

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understand the Protective Order that was issued by the United States District Court for

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the Central District of California on June 10, 2014, in the case of Star Fabrics, Inc. v.

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Pacific Sunwear of California, Inc., etc., et al., Case No. CV13-04299 MAN. I agree

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to comply with and to be bound by all the terms of this 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 Protective Order to any

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person or entity except in strict compliance with the provisions of this Protective

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Order.

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I further agree to submit to the jurisdiction of the United States District Court

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

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Protective Order, even if such enforcement proceedings occur after termination of this

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action.

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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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