Unicolors Inc v. Jump Apparel Co Inc et al

Filing 44

PROTECTIVE ORDER by Magistrate Judge Margaret A. Nagle re Stipulation for Protective Order 39 (ec)

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1 2 3 4 5 6 7 8 9 10 11 UNITED STATES DISTRICT COURT 12 CENTRAL DISTRICT OF CALIFORNIA 13 14 UNICOLORS, INC., a California Corporation, Case No.: CV 13-05436-DDP (MANx) Plaintiff, PROTECTIVE ORDER ENTERED PURSUANT TO THE PARTIES’ STIPULATION 15 16 17 18 19 20 21 v. JUMP APPAREL CO., INC., individually and doing business as “TIANA B,” a New York Corporation; BHFO, INC., an Iowa Corporation; LG TEXTILE, a California Corporation; MYLETEX INTERNATIONAL, INC., a New Jersey Corporation; and DOES 3 through 10. Defendants. 22 23 24 25 26 27 28 Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure and based on the parties’ [Proposed] Stipulated Protective Order (“Stipulation”) filed on June 13, 2014, the terms of the protective order to which the parties have agreed are adopted as a protective order of this Court (which generally shall govern the pretrial phase of this action) except to the extent, as set forth below, that those terms have been 1 substantively modified by the Court’s amendments of paragraphs 1 (stricken and 2 subsequent paragraphs renumbered), 4.2(a) and (b), and 5.3 of the Stipulation. 3 The parties are expressly cautioned that the designation of any information, 4 document, or thing as Confidential, Attorney’s Eye Only, or any other designation(s) 5 used by the parties does not, in and of itself, create any entitlement to file such 6 information, document, or thing, in whole or in part, under seal. 7 reference to this Protective Order or to the parties’ designation of any information, 8 document, or thing as Confidential, Attorney’s Eyes Only, or other designation(s) 9 used by the parties is wholly insufficient to warrant a filing under seal. Accordingly, 10 There is a strong presumption that the public has a right of access to judicial 11 proceedings and records in civil cases. In connection with non-dispositive motions, 12 good cause must be shown to support a filing under seal. 13 designation of any information, document, or thing as Confidential, Attorney’s Eyes 14 Only, or other designation(s) used by the parties does not -- without the submission 15 of competent evidence in the form of a declaration or declarations, establishing 16 that the material sought to be filed under seal qualifies as confidential, privileges, 17 or otherwise protectable -- constitute good cause. The parties’ mere 18 Further, if sealing is requested in connection with a dispositive motion or trial, 19 then compelling reasons, as opposed to good cause, for the sealing must be shown, 20 and the relief sought shall be narrowly tailored to serve the specific interest to be 21 protected. See Pinto v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). 22 For each item or type if information, document, or thing sought to be filed or 23 introduced under seal in connection with a dispositive motion or trial, the party 24 seeking protection must articulate compelling reasons, supported by specific facts and 25 legal justification, for the requested sealing order. 26 supporting the application to file documents under seal must be provided by 27 declaration. 28 Again, competent evidence Any document that is not confidential, privileged, or otherwise protectable in its 1 entirety will not be filed under seal if the confidential portions can be redacted. If 2 documents can be redacted, then a redacted version for public viewing, omitting only 3 the confidential, privileged, or otherwise protectable portions of the document, shall 4 be filed. Any application that seeks to file documents under seal in their entirety 5 should include an explanation of why redaction is not feasible. 6 Notwithstanding any other provision of this Protective Order, in the event that 7 this case proceeds to trial, all information, documents, and things discussed or 8 introduced into evidence at trial will become public and available to all members of 9 the public, including the press, unless sufficient cause is shown in advance of trial to 10 proceed otherwise. 11 12 AGREED TERMS OF THE PROTECTIVE ORDER AS ADOPTED 13 AND MODIFIED BY THE COURT1 14 15 1. 16 17 18 19 DEFINITIONS 1.1 Party: any party to this action, including all of its officers, directors, employees, consultants, retained experts, and outside counsel (and their support staff). 1.2 20 Disclosure or Discovery Material: all items or information, 21 regardless of the medium or manner generated, stored, or maintained (including, 22 among other things, testimony, transcripts, or tangible things), that are produced or 23 generated in disclosures or responses to discovery in this matter. 24 1.3 “Confidential” Information or Items: information (regardless of 25 how generated, stored, or maintained) or tangible things that qualify for protection 26 under standards developed under F.R.Civ.P. 26(c). 27 28 1 The Court’s substantive modifications of the agreed terms of the Protective Order are generally indicated in bold typeface. 1 1.4 “Attorneys’ Eyes Only”: Discovery Material or such portion of 2 such material as consists of: 3 a) any commercially sensitive and/or confidential business or 4 financial information (including, without limitation, confidential nonpublic contracts, 5 profitability reports or estimates, sales reports, and sales margins); 6 7 8 9 b) any business or financial information that is confidential, proprietary, or commercially sensitive to third parties who have had business dealings with parties to this action; or c) any other category of material or information hereinafter given 10 11 12 13 14 15 16 17 18 19 20 21 22 Confidential status by the Court. 1.5 Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing Party. 1.6 Producing Party: a Party or non-party that produces Disclosure or Discovery Material in this action. 1.7 Designating Party: a Party or non-party that designates information or items that it produces in disclosures or in responses to discovery as “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY.” 1.8 Protected Material: any Disclosure or Discovery Material that is designated as “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY.” 1.9 Expert: a person with specialized knowledge or experience in a 23 matter pertinent to the litigation who has been retained by a Party or its counsel to 24 serve as an expert witness or as a consultant in this action. This definition includes a 25 professional jury or trial consultant retained in connection with this litigation. The 26 expert witness or consultant may not be a past or a current employee of the Party 27 (including any affiliates or related entities) adverse to the Party engaging the expert 28 witness or consultant, or someone who at the time of retention is anticipated to 1 become an employee of the Party (including any affiliates or related entities) adverse 2 to the Party engaging the expert witness or consultant. Moreover, the expert witness 3 or consultant may not be a current employee or anticipated to become an employee of 4 any entity who is a competitor of the Party adverse to the Party engaging the expert 5 witness or consultant. 6 1.10 Professional Vendors: persons or entities that provide litigation 7 support services (e.g., photocopying; videotaping; translating; preparing exhibits or 8 demonstrations; and organizing, storing, or retrieving data in any form or medium; 9 etc.) and their employees and subcontractors. 10 11 2. SCOPE 12 The protections conferred by this Protective Order cover not only Protected 13 Material (as defined above), but also any information copied or extracted therefrom, 14 as well as all copies, excerpts, summaries, or compilations thereof, plus testimony, 15 conversations, or presentations by parties or counsel to or in litigation or in other 16 settings that might reveal Protected Material. 17 3. 18 Even after the termination of this action, the confidentiality obligations imposed 19 by this Protective Order shall remain in effect until a Designating Party agrees 20 otherwise in writing or a court order otherwise directs. 21 22 4. DURATION DESIGNATING PROTECTED MATERIAL 4.1 23 Exercise of Restraint and Care in Designating Material for 24 Protection. Each Party or non-party that designates information or items for 25 protection under this Protective Order must take care to limit any such designation to 26 specific material that qualifies under the appropriate standards. A Designating Party 27 must take care to designate for protection only those parts of material, documents, 28 items, or oral or written communications that qualify -- so that other portions of the 1 material, documents, items, or communications for which protection is not warranted 2 are not swept unjustifiably within the ambit of this Protective Order. 3 Mass, indiscriminate, or routinized designations are prohibited. 4 Designations that are shown to be clearly unjustified, or that have been made for an 5 improper purpose (e.g., to unnecessarily encumber or retard the case development 6 process, or to impose unnecessary expenses and burdens on other parties), expose the 7 Designating Party to sanctions. 8 9 10 11 12 13 If it comes to a Party’s or a non-party’s attention that information or items that it designated for protection do not qualify for protection at all, or do not qualify for the level of protection initially asserted, that Party or non-party must promptly notify all other parties that it is withdrawing the mistaken designation. 4.2 Manner and Timing of Designations. Except as otherwise 14 provided in this Protective Order (see, e.g., second paragraph of section 4.2(a), 15 below), or as otherwise stipulated or ordered, material that qualifies for protection 16 under this Protective Order must be clearly so designated before the material is 17 disclosed or produced. 18 Designation in conformity with this Protective Order requires: 19 (a) for information in documentary form (apart from transcripts 20 of depositions), that the Producing Party affix the legend “CONFIDENTIAL” or 21 “ATTORNEYS’ EYES ONLY” at the top or bottom of each page that contains 22 protected material. 23 24 25 26 27 28 A Party or non-party that makes originals or copies of documents or materials available for inspection need not designate them for protection until after the inspecting Party has indicated which material it intends to copy. During the inspection and before the designation, all of the material made available for inspection shall be deemed “ATTORNEYS’ EYES ONLY.” After the inspecting Party has identified the documents it wants copied and produced, the Producing Party must 1 designate, either in writing or on the record (at a deposition), which documents, or 2 portions thereof, qualify for protection under this Protective Order. 3 Receiving Party must affix the “CONFIDENTIAL” or “ATTORNEYS’ EYES 4 ONLY” legend at the top of each copied page that contains Protected Material. If only 5 a portion or portions of the material on a page qualifies for protection, the Producing 6 Party also must clearly identify the protected portion(s) (e.g., by making appropriate 7 markings in the margins) and must specify, for each portion, the level of protection 8 being asserted (either “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY”). 9 (b) Then the for testimony given in deposition, that the Party or non-party 10 offering or sponsoring the deposition testimony identify on the record, before the 11 close of the deposition, all protected testimony, and further specify any portions of the 12 testimony that qualify as “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY.” 13 When it is impractical to identify separately each portion of deposition testimony that 14 is entitled to protection, and when it appears that substantial portions of the 15 deposition testimony may qualify for protection, the Party or non-party that sponsors, 16 offers, or gives the deposition testimony may invoke on the record (before the 17 deposition is concluded) a right to have up to twenty (20) days to identify the specific 18 portions of the deposition testimony as to which protection is sought and to specify 19 the level of protection being asserted (“CONFIDENTIAL” or “ATTORNEYS’ EYES 20 ONLY”). Only those portions of the deposition testimony that are appropriately 21 designated for protection within the twenty (20) days shall be covered by the 22 provisions of this Protective Order. 23 24 25 26 27 28 Transcript pages containing Protected Material must be separately bound by the court reporter, who must affix to the top of each such page the legend “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY,” as instructed by the Party or non-party offering or sponsoring the witness or presenting the deposition testimony. (c) for information produced in some form other than 1 documentary, and for any other tangible items, that the Producing Party affix in a 2 prominent place on the exterior of the container or containers in which the information 3 or item is stored the legend “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY.” 4 If only portions of the information or item warrant protection, the Producing Party, to 5 the extent practicable, shall identify the protected portions, specifying whether they 6 qualify as “CONFIDENTIAL” or as “ATTORNEYS’ EYES ONLY.” 7 4.3 Inadvertent Failures to Designate. If timely corrected, an 8 inadvertent failure to designate qualified information or items as “CONFIDENTIAL” 9 or “ATTORNEYS’ EYES ONLY” does not, standing alone, waive the Designating 10 Party’s right to secure protection under this Protective Order for such material. If 11 material is appropriately designated as “CONFIDENTIAL” or “ATTORNEYS’ EYES 12 ONLY” after the material was initially produced, the Receiving Party, on timely 13 notification of the designation, must make reasonable efforts to assure that the 14 material is treated in accordance with the provisions of this Protective Order. 15 16 5. CHALLENGING CONFIDENTIALITY DESIGNATIONS 5.1 17 Timing of Challenges. Unless a prompt challenge to a Designating 18 Party’s confidentiality designation is necessary to avoid foreseeable substantial 19 unfairness, unnecessary economic burdens, or a later significant disruption or delay of 20 the litigation, a Party does not waive its right to challenge a confidentiality designation 21 by electing not to mount a challenge promptly after the original designation is 22 disclosed. 23 5.2 Meet and Confer. A Party that elects to initiate a challenge to a 24 Designating Party’s confidentiality designation must do so in good faith and must 25 begin the process by conferring with counsel for the Designating Party in writing. In 26 conferring, the challenging Party must explain the basis for its belief that the 27 confidentiality designation was not proper and must give the Designating Party an 28 opportunity to review the designated material, to reconsider the circumstances, and, if 1 no change in designation is offered, to explain the basis for the chosen designation. A 2 challenging Party may proceed to the next stage of the challenge process only if it has 3 engaged in this meet-and-confer process first. 4 5.3 Court Intervention. A Party that elects to press a challenge to a 5 confidentiality designation after considering the justification offered by the 6 Designating Party may file and serve a motion that identifies the challenged material 7 and sets forth in detail the basis for the challenge. 8 accompanied by a competent declaration that affirms that the movant has complied 9 with the meet-and-confer requirements imposed in the preceding paragraph and that 10 sets forth with specificity the justification for the confidentiality designation that was 11 given by the Designating Party in the meet-and-confer dialogue. The parties agree 12 that a confidentiality designation shall not create a presumption in favor of such 13 confidentiality designation, and that the Court shall decide the issue as such. 14 15 16 17 18 19 20 Each such motion must be Until the Court rules on the challenge, all parties shall continue to afford the material in question the level of protection to which it is entitled under the Designating Party’s designation. The Designating Party shall bear the burden of establishing the propriety of the challenged designation. 6. ACCESS TO AND USE OF PROTECTED MATERIAL 6.1 Basic Principles. A Receiving Party may use Protected Material 21 that is disclosed or produced by another Party or by a non-party in connection with 22 this case only for prosecuting, defending, or attempting to settle this litigation. Such 23 Protected Material may be disclosed only to the categories of persons and under the 24 conditions described in this Protective Order. 25 terminated, a Receiving Party must comply with the provisions of section 10, below 26 (FINAL DISPOSITION). When the litigation has been 27 Protected Material must be stored and maintained by a Receiving Party at 28 a location and in a secure manner that ensures that access is limited to the persons 1 authorized under this Protective Order. 2 6.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 3 otherwise ordered by the Court or permitted in writing by the Designating Party, a 4 Receiving Party may disclose any information or item designated “CONFIDENTIAL” 5 only to: 6 7 8 9 (a) of said outside counsel to whom it is reasonably necessary to disclose the information for this litigation; (b) 12 Board members, officers and directors of the Receiving (c) 10 11 the Receiving Party’s outside counsel, as well as employees Other employees of the Receiving Party to whom disclosure Party; 13 is reasonably necessary for this litigation and who are bound by internal 14 confidentiality obligations as part of their employment or who have signed the 15 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 16 (d) Experts (as defined in this Protective Order) of the 17 Receiving Party to whom disclosure is reasonably necessary for this litigation and 18 who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 19 20 21 (e) the Court and its personnel; (f) court reporters, their staffs, and professional vendors to 22 whom disclosure is reasonably necessary for this litigation and who have signed the 23 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 24 (g) during their depositions, witnesses in the action to whom 25 disclosure is reasonably necessary and who have signed the “Acknowledgment and 26 Agreement to Be Bound” (Exhibit A). Pages of transcribed deposition testimony or 27 exhibits to depositions that reveal Protected Material must be separately bound by the 28 court reporter and may not be disclosed to anyone except as permitted under this 1 Protective Order; and 2 (h) 3 source of the information. 4 5 6 7 8 the author and recipients of the document or the original 6.3 Items. Disclosure of “ATTORNEYS’ EYES ONLY” Information or Unless otherwise ordered by the Court or permitted in writing by the Designating Party, a Receiving Party may disclose any information or item designated “ATTORNEYS’ EYES ONLY” only to: (a) 9 the Receiving Party’s outside counsel, as well as employees 10 of said outside counsel to whom it is reasonably necessary to disclose the information 11 for this litigation; 12 (b) Experts (as defined in this Protective Order) of the 13 Receiving Party to whom disclosure is reasonably necessary for this litigation and 14 who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 15 (c) (d) 16 17 18 19 22 23 court reporters, their staffs, and professional vendors to whom disclosure is reasonably necessary for this litigation and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); and (e) 20 21 the Court and its personnel; the author and recipients of the document or the original source of the information. 7. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION 24 If a Receiving Party is served with a subpoena or an order issued in other 25 litigation that would compel disclosure of any Discovery Material, the Receiving 26 Party must so notify the Designating Party, in writing immediately and in no event 27 more than five (5) business days after receiving the subpoena or order. 28 notification must include a copy of the subpoena or court order. The Receiving Party Such 1 also must immediately inform in writing the Party who caused the subpoena or order 2 to issue in the other litigation that some or all of the material covered by the subpoena 3 or order is the subject of this Protective Order. In addition, the Receiving Party must 4 deliver a copy of this Protective Order promptly to the Party in the other action that 5 caused the subpoena or order to issue. 6 The purpose of imposing these duties is to alert the interested parties to the 7 existence of this Protective Order and to afford the Designating Party in this case an 8 opportunity to try to protect its confidentiality interests in the court from which the 9 subpoena or order issued. The Designating Party shall bear the burdens and the 10 expenses of seeking protection in that court of its confidential material -- and nothing 11 in these provisions should be construed as authorizing or encouraging a Receiving 12 Party in this action to disobey a lawful directive from another court. 13 14 8. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 15 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 16 Protected Material to any person or in any circumstance not authorized under this 17 Protective Order, the Receiving Party must immediately: (a) notify in writing the 18 Designating Party of the unauthorized disclosures; (b) use its best efforts to retrieve all 19 copies of the Protected Material; (c) inform the person or persons to whom 20 unauthorized disclosures were made of all the terms of this Protective Order; and (d) 21 request such person or persons to execute the “Acknowledgment and Agreement to Be 22 Bound” that is attached hereto as Exhibit A. 23 9. 24 Without written permission from the Designating Party, or a court order secured 25 after appropriate notice to all interested persons and after following the procedures 26 provided for in Local Rule 79-5.1, a Party may not file in the public record in this 27 action any Protected Material. 28 10. FILING PROTECTED MATERIAL FINAL DISPOSITION 1 Unless otherwise ordered or agreed to in writing by the Producing Party, within 2 sixty (60) days after the final termination of this action, each Receiving Party must 3 return all Protected Material to the Producing Party. As used in this subdivision, “all 4 Protected Material” includes all copies, abstracts, compilations, summaries, or any 5 other form of reproducing or capturing any of the Protected Material. 6 permission in writing from the Designating Party, the Receiving Party may destroy 7 some or all of the Protected Material instead of returning it. Whether the Protected 8 Material is returned or destroyed, the Receiving Party must submit a written 9 certification to the Producing Party (and, if not the same person or entity, to the 10 Designating Party) by the 60-day deadline that identifies (by category, where 11 appropriate) all the Protected Material that was returned or destroyed and that affirms 12 that the Receiving Party has not retained any copies, abstracts, compilations, 13 summaries, or other forms of reproducing or capturing any of the Protected Material. With 14 Notwithstanding this provision, counsel are entitled to retain an archival copy 15 of all pleadings, motion papers, transcripts, legal memoranda, correspondence, or 16 attorney work product, even if such materials contain Protected Material. Any such 17 archival copies that contain or constitute Protected Material remain subject to this 18 Protective Order as set forth in Section 4 (DURATION), above. 19 20 21 22 11. MISCELLANEOUS 11.1 Right to Further Relief. Nothing in this Protective Order abridges the right of any person or party to seek its modification in the future. 23 11.2 Right to Assert Other Objections. By having stipulated to the entry 24 of this Protective Order, no Party waives any right it otherwise would have to object 25 to disclosing or producing any information or item on any ground not addressed in 26 this Protective Order. Similarly, no Party waives any right to object on any ground to 27 use in evidence of any of the material covered by this Protective Order. 28 11.3 Inadvertent Production of Privileged Documents. If a Party, through 1 inadvertence, produces any document or information that it believes is immune from 2 discovery pursuant to an attorney-client privilege, the work product privilege, or any 3 other privilege, such production shall not be deemed a waiver of any privilege, and the 4 Producing Party may give written notice to the Receiving Party that the document or 5 information produced is deemed privileged and that return of the document or 6 information is requested. Upon receipt of such notice, the Receiving Party shall 7 immediately gather the original and all copies of the document or information of 8 which the Receiving Party is aware, in addition to any abstracts, summaries, or 9 descriptions thereof, and shall immediately return the original and all such copies to 10 the Producing Party. Nothing stated herein shall preclude a Party from challenging an 11 assertion by the other Party of privilege or confidentiality. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 IT IS SO ORDERED. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DATED: July 8, 2014 ___________________________________ MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _______________________________ [print full name], of 4 ____________________________________________________ [print full address], 5 declare under penalty of perjury that I have read in its entirety and understand the 6 Protective Order that was issued by the United States District Court for the Central 7 District of California in the case of Unicolors, Inc. v. Jump Apparel Co., Inc., Case 8 No. CV13-05436 DDP (MANx). I agree to comply with and to be bound by all of the 9 terms of this Protective Order and I understand and acknowledge that failure to so 10 comply could expose me to sanctions and punishment in the nature of contempt. I 11 solemnly promise that I will not disclose in any manner any information or item that is 12 subject to this Protective Order to any person or entity except in strict compliance with 13 the provisions of this Protective Order. 14 15 16 17 18 I further agree to submit to the jurisdiction of the United States District Court for the Central District of California for the purpose of enforcing the terms of this Protective Order, even if such enforcement proceedings occur after termination of this action. 19 I hereby appoint _____________________________________ [print full 20 name] of __________________________________________________ [print full 21 address and telephone number] as my California agent for service of process in 22 connection with this action or any proceedings related to enforcement of this 23 Protective Order. 24 Date: _________________________________ 25 City and State where sworn and signed: _________________________________ 26 27 28 Printed name: ______________________________ Signature: _________________________________

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