The North Face Apparel Corp. et al v. Eyal Allen Dahan et al

Filing 60

PROTECTIVE ORDER by Magistrate Judge Margaret A. Nagle re Stipulation for Protective Order 56 (ec)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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THE NORTH FACE APPAREL CORP., and

)
)
)
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Plaintiffs,
)
v.
)
EYAL ALLEN DAHAN, Individually and d/b/a )
) Case No: CV 13-4821 MMM (MANx)
CAVALIER, CAVALIER SPORTSWEAR,
)
CAVALIER APPAREL, CAVALIER
)
)
CLOSEOUTS, and LE CAVALIER JEANS &
PROTECTIVE ORDER ENTERED
SPORTSWEAR; CAVALIER SPORTSWEAR, )
)
PURSUANT TO STIPULATION
INC., a California corporation; CAVALIER
)
OF THE PARTIES
CLOSEOUTS, INC., a California corporation,
)
d/b/a CAVALIER, INC., CAVALIER SPORTS, )
)
INC., and CAVALIER APPAREL, INC.;
)
FACTORY CONNECTION, LLC, a Delaware
)
)
company; YOUR CALL APPAREL &
)
DISTRIBUTION COMPANY, LLC, a
)
Wisconsin company; CHRISTOPHER J.
)
DELAO, Individually; and DOES 3-10, inclusive, )
)
Defendants.
)
)
)
VF OUTDOOR, INC.

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

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the parties’ Proposed Order for Stipulated Protective Order (“Stipulation”) filed on

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August 29, 2014, the terms of the protective order to which the parties have agreed

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are adopted as a protective order of this Court (which generally shall govern the

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pretrial phase of this action) except to the extent, as set forth below, that those

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terms have been substantively modified by the Court’s amendment of paragraphs

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1, 4, 6(c), 7, 8, 8(c), 9, 11, 12, 13, and 25.

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The parties are expressly cautioned that the designation of any information,

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document, or thing as Confidential or other designation(s) used by the parties, does

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not, in and of itself, create any entitlement to file such information, document, or

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thing, in whole or in part, under seal. Accordingly, reference to this Protective

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Order or to the parties’ designation of any information, document, or thing as

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Confidential, 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

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motions, good cause must be shown to support a filing under seal. The parties’

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mere designation of any information, document, or thing as Confidential or other

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designation(s) used by parties, does not -- without the submission of competent

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evidence, in the form of a declaration or declarations, establishing that the

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material sought to be filed under seal qualifies as confidential, privileged, or

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otherwise protectable -- constitute good cause.

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Further, if sealing is requested in connection with a dispositive motion or

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

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

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

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

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

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party seeking protection must articulate compelling reasons, supported by specific

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facts and legal justification, for the requested sealing order. Again, competent

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evidence supporting the application to file documents under seal must be

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provided by declaration.
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Any document that is not confidential, privileged, or otherwise protectable

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in its entirety will not be filed under seal if the confidential portions can be

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redacted.

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viewing, omitting only the confidential, privileged, or otherwise protectable

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portions of the document, shall be filed.

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documents under seal in their entirety should include an explanation of why

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redaction is not feasible.

If documents can be redacted, then a redacted version for public
Any application that seeks to file

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Notwithstanding any other provision of this Protective Order, in the event

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that 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

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

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trial to proceed otherwise.

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THE PARTIES ARE DIRECTED TO REVIEW CAREFULLY AND

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ACT IN COMPLIANCE WITH ALL ORDERS ISSUED BY THE

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HONORABLE MARGARET M. MORROW, UNITED STATES DISTRICT

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JUDGE, INCLUDING THOSE APPLICABLE TO FILINGS UNDER SEAL.

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AGREED TERMS OF THE PROTECTIVE ORDER AS ADOPTED AND

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MODIFIED BY THE COURT 1

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DEFINITIONS

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1.

The term “Confidential Information” will mean and include

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information contained or disclosed in any materials, including documents, portions

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of documents, answers to interrogatories, responses to requests for admissions,

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deposition testimony, and transcripts of depositions, including data, summaries,

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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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and compilations derived therefrom that is deemed to be Confidential Information

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by any party to which it belongs.

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2.

The term “materials” will include, but is not be limited to:

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documents; correspondence; memoranda; bulletins; blueprints; specifications;

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customer lists or other material that identify customers or potential customers;

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price lists or schedules or other matter identifying pricing; minutes; telegrams;

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letters; statements; cancelled checks; contracts; invoices; drafts; books of account;

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worksheets; notes of conversations; desk diaries; appointment books; expense

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accounts; recordings; photographs; motion pictures; compilations from which

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information can be obtained and translated into reasonably usable form through

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detection devices; sketches; drawings; notes (including laboratory notebooks and

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records); reports; instructions; disclosures; other writings; models and prototypes

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and other physical objects.

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3.

The term “counsel” will mean outside counsel of record, and other

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attorneys, paralegals, secretaries, and other support staff working for or with

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outside counsel of record, the parties’ in-house attorneys and paralegal support

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staff, other outside attorneys cooperating with counsel of record in this matter, and

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outside consultants engaged by or on behalf of counsel.
GENERAL RULES

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4.

Each party to this litigation that produces or discloses any materials,

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answers to interrogatories, responses to requests for admission, deposition

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testimony, and transcripts of depositions, or information that the producing party

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believes should otherwise be subject to this Protective Order may designate the

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same as “CONFIDENTIAL” if, in the good faith belief of such party and its

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counsel, the unrestricted disclosure of such information could be potentially

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prejudicial to such party.

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5.

In the event the producing party elects to produce tangible things or

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other materials for inspection, no marking need be made by the producing party in

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advance of the initial inspection.

For purposes of the initial inspection, all
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materials produced will be considered as “CONFIDENTIAL” and must be treated

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as such pursuant to the terms of this Protective Order. Thereafter, upon selection

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of specified materials for copying by the inspecting party, the producing party

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must, within a reasonable time prior to producing those materials to the inspecting

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party, mark the copies of those materials that contain Confidential Information

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with the appropriate confidentiality marking.

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6.

Whenever a deposition taken on behalf of any party involves a

disclosure of Confidential Information of any party:

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(a)

portions of a deposition must be designated as containing

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Confidential Information subject to the provisions of this Protective Order;

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such designation must be made on the record whenever possible, but a party

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may designate portions of depositions as containing Confidential

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Information after transcription of the proceedings; all portions of any

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deposition transcript will be treated as “CONFIDENTIAL” by the parties

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during the fourteen (14) day period following receipt of the deposition

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transcript; and a party will have until fourteen (14) days after receipt of the

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deposition transcript to inform the other party or parties to the action of the

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portions of the transcript to be designated “CONFIDENTIAL.”

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(b)

the disclosing party will have the right to exclude from

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attendance at the deposition, during such time as the Confidential

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Information is to be disclosed, any person other than the deponent, counsel

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(including their staff and associates), the court reporter, and the person(s)

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agreed upon pursuant to paragraph 8 below; and

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(c)

the originals of the deposition transcripts and all copies of the

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deposition must bear the legend “CONFIDENTIAL.”

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7.

All Confidential Information designated as “CONFIDENTIAL” must

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not be disclosed by the receiving party to anyone other than those persons

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designated within this Protective Order and must be handled, absent further court

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order, in the manner set forth below and must not be used for any purpose other
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than in connection with this litigation, unless and until such designation is removed

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either by agreement of the parties or order of the Court or a subsequent court

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order dictates otherwise.

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construed as authorizing a receiving party in this action a disobey a lawful

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directive from another court.

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8.

Nothing in this Protective Order should be

Information designated “CONFIDENTIAL” must be viewed only by

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counsel (as defined in paragraph 3) of the receiving party, by the Court and its

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personnel, by independent experts, and by the additional individuals listed below,

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provided each such individual listed in subparagraphs (a), (b), and (c) below,

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has read this Protective Order in advance of disclosure and has agreed in writing to

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be bound by its terms:

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(a)

Business executives of the parties who are required to

participate in policy decisions with reference to this action;

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(b)

Technical personnel of the parties with whom Counsel for the

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parties find it necessary to consult, in the discretion of such counsel, in

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preparation for trial or other adjudication of this action; and

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(c)

Stenographic, administrative and clerical employees associated

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with the individuals identified in subparagraphs (a) and (b) above.

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9.

With respect to material designated “CONFIDENTIAL,” any person

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may be shown the material if that person is indicated on the face of the document

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to be its originator, author or a recipient of a copy of the document.

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10.

All information which has been designated as “CONFIDENTIAL” by

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the producing or disclosing party, and any and all reproductions of that

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information, must be retained in the custody of the counsel for the receiving party

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identified in paragraph 3, except that independent experts may retain custody of

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copies such as are necessary for their participation in this litigation.

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11.

Before

any

materials

produced

in

discovery,

answers

to

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interrogatories, responses to requests for admissions, deposition transcripts, or

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other documents, which are designated as “CONFIDENTIAL,” are filed with the
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Court for any purpose, the party seeking to file such material must file an

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application, in accordance with the requirements of Local Rule 79-5, and

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provide the requisite showing based on competent evidence of “good cause” or

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“compelling reasons,” for a Court order allowing such to be filed under seal

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pursuant to Federal Rule of Civil Procedure Rule 5.2(d).

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At any stage of these proceedings, any party may object to a

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designation of the materials as Confidential Information. The party objecting to

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confidentiality must notify, in writing, counsel for the designating party of the

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objected-to materials and the grounds for the objection. If the dispute is not

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resolved consensually between the parties within seven (7) days of receipt of such

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a notice of objections, the objecting party may move the Court for a ruling on the

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objection. The materials at issue must be treated as Confidential Information, as

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designated by the designating party, until the Court has ruled on the objection or

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the matter has been otherwise resolved.

The burden of establishing that

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documents

been

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“CONFIDENTIAL” shall be upon the designating party at all times.

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13.

and/or

materials

have

properly

designated

as

All Confidential Information must be held in confidence by those

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inspecting or receiving it, and must be used only for purposes of this action.

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Counsel for each party, and each person receiving Confidential Information must

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take reasonable precautions to prevent the unauthorized or inadvertent disclosure

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of such information. If Confidential Information is disclosed to any person other

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than a person authorized by this Order, the party responsible for the unauthorized

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or inadvertent disclosure must immediately bring all pertinent facts relating to the

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unauthorized or inadvertent disclosure to the attention of the other parties and,

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without prejudice to any rights and remedies of the other parties, make every effort

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to prevent further disclosure by the party and by the person(s) receiving the

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unauthorized or inadvertent disclosure. This paragraph imposes no burden on

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the Court and its personnel to take any action with respect to Confidential

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Information other than those dictated by normal Court practices and

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procedures.

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14.

No party will be responsible to another party for disclosure of

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Confidential Information under this Protective Order if the information in question

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is not labeled or otherwise identified as such in accordance with this Protective

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Order.

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15.

If a party, through inadvertence, produces any Confidential

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Information without labeling or marking or otherwise designating it as such in

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accordance with this Protective Order, the designating party may give written

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notice to the receiving party that the document or thing produced is deemed

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Confidential Information, and that the document or thing produced should be

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treated as such in accordance with that designation under this Protective Order.

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The receiving party must treat the materials as confidential, once the designating

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party so notifies the receiving party. If the receiving party has disclosed the

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materials before receiving the designation, the receiving party must notify the

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designating party in writing of each such disclosure. Counsel for the parties will

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agree on a mutually acceptable manner of labeling or marking the inadvertently

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produced materials as “CONFIDENTIAL - SUBJECT TO PROTECTIVE

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ORDER.”

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16.

Nothing within this Protective Order will prejudice the right of any

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party to object to the production of any discovery material on the grounds that the

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material is protected as privileged or as attorney work product.

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17.

Nothing in this Protective Order will bar counsel from rendering

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advice to their clients with respect to this litigation and, in the course thereof,

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relying upon any information designated as Confidential Information, provided

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that the contents of the information must not be disclosed.

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18.

This Protective Order will be without prejudice to the right of any

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party to oppose production of any information for lack of relevance or any other

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ground other than the mere presence of Confidential Information. The existence of
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this Protective Order must not be used by either party as a basis for discovery that

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is otherwise improper under the Federal Rules of Civil Procedure.

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Nothing within this Protective Order will be construed to prevent

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disclosure of Confidential Information if such disclosure is required by law or by

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order of the Court.

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Upon final termination of this action, including any and all appeals,

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counsel for each party must, upon request of the producing party, return all

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Confidential Information to the party that produced the information, including any

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copies, excerpts, and summaries of that information, or must destroy same at the

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option of the receiving party, and must purge all such information from all

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machine-readable media on which it resides.

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counsel for each party may retain all pleadings, briefs, memoranda, motions, and

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other documents filed with the Court that refer to or incorporate Confidential

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Information, and will continue to be bound by this Order with respect to all such

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retained information.

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Confidential Information need not be destroyed, but, if they are not destroyed, the

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person in possession of the attorney work product will continue to be bound by this

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Order with respect to all such retained information.

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Notwithstanding the foregoing,

Further, attorney work product materials that contain

The restrictions and obligations set forth herein shall not apply to any

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information that: (a) the parties agree should not be designated as Confidential

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Information; (b) the parties agree, or the Court rules, is already public knowledge;

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(c) the parties agree, or the Court rules, has become public knowledge other than as

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a result of disclosure by the receiving party, its employees, or its agents in

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violation of this Order; or (d) has come or shall come into the receiving party's

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legitimate knowledge independently of the production by the designating party.

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Prior knowledge must be established by preproduction documentation.

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The restrictions and obligations herein shall not be deemed to prohibit

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discussions of any Confidential Information with anyone if that person already has

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or obtains legitimate possession thereof.
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23.

Transmission by facsimile or electronic mail is acceptable for all

notification purposes herein.
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This Protective Order may be modified by agreement of the parties,

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but any modification by agreement of the parties shall have no force or effect with

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respect to the Court or its personnel until the Court’s approval of such modification

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is granted.

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25.

The Court may modify the terms and conditions of this Protective

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Order for good cause, or in the interest of justice, or on its own order at any time in

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these proceedings.

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of justice.

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27.

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The Court may modify this Protective Order sua sponte in the interest
This Protective Order is subject to further Court orders based upon

public policy and other considerations.

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IT IS SO ORDERED this 5th day of September, 2014.

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DATED: September 5, 2014

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_________________________________
Margaret A. Nagle

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United States Magistrate Judge

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