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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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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UNICOLORS, INC., a California
Corporation,

Case No.: CV 13-05436-DDP (MANx)

Plaintiff,

PROTECTIVE ORDER ENTERED
PURSUANT TO THE PARTIES’
STIPULATION

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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.

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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

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substantively modified by the Court’s amendments of paragraphs 1 (stricken and

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subsequent paragraphs renumbered), 4.2(a) and (b), and 5.3 of the Stipulation.

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

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document, or thing as Confidential, Attorney’s Eye Only, or any other designation(s)

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used by the parties does not, in and of itself, create any entitlement to file such

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information, document, or thing, in whole or in part, under seal.

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reference to this Protective Order or to the parties’ designation of any information,

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document, or thing as Confidential, Attorney’s Eyes Only, or other designation(s)

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used by the parties is wholly insufficient to warrant a filing under seal.

Accordingly,

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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.

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designation of any information, document, or thing as Confidential, Attorney’s Eyes

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Only, or other designation(s) used by the parties does not -- without the submission

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

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that the material sought to be filed under seal qualifies as confidential, privileges,

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or otherwise protectable -- constitute good cause.

The parties’ mere

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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 Pinto v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010).

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For each item or type if 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.

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

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declaration.

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Again, competent evidence

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.

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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 PROTECTIVE ORDER AS ADOPTED

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AND MODIFIED BY THE COURT1

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1.

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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

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Disclosure or Discovery Material:

all items or information,

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

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

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generated in disclosures or responses to discovery in this matter.

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1.3

“Confidential” Information or Items: information (regardless of

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

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

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

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1.4

“Attorneys’ Eyes Only”: Discovery Material or such portion of

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such material as consists of:

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a) any commercially sensitive and/or confidential business or

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financial information (including, without limitation, confidential nonpublic contracts,

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profitability reports or estimates, sales reports, and sales margins);

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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

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Confidential status by the Court.
1.5

Receiving Party: a Party that receives Disclosure or Discovery

Material from a Producing Party.
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Producing Party: a Party or non-party that produces Disclosure or

Discovery Material in this action.
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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.”
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Protected Material: any Disclosure or Discovery Material that is

designated as “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY.”
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Expert: a person with specialized knowledge or experience in a

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

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

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

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

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

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

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

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

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

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any entity who is a competitor of the Party adverse to the Party engaging the expert

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witness or consultant.

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1.10 Professional Vendors: persons or entities that provide litigation

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

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

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etc.) and their employees and subcontractors.

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2.

SCOPE

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The protections conferred by this Protective Order cover not only Protected

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

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

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

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settings that might reveal Protected Material.

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3.

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Even after the termination of this action, the confidentiality obligations imposed

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

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otherwise in writing or a court order otherwise directs.

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4.

DURATION

DESIGNATING PROTECTED MATERIAL
4.1

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Exercise of Restraint and Care in Designating Material for

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Protection.

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

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

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specific material that qualifies under the appropriate standards. A Designating Party

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must take care to designate for protection only those parts of material, documents,

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

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

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are not swept unjustifiably within the ambit of this Protective Order.

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Mass, indiscriminate, or routinized designations are prohibited.

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

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

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

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Designating Party to sanctions.

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

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provided in this Protective Order (see, e.g., second paragraph of section 4.2(a),

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below), or as otherwise stipulated or ordered, material that qualifies for protection

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under this Protective Order must be clearly so designated before the material is

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disclosed or produced.

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Designation in conformity with this Protective Order requires:

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(a)

for information in documentary form (apart from transcripts

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of depositions), that the Producing Party affix the legend “CONFIDENTIAL” or

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“ATTORNEYS’ EYES ONLY” at the top or bottom of each page that contains

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protected material.

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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

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

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portions thereof, qualify for protection under this Protective Order.

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Receiving Party must affix the “CONFIDENTIAL” or “ATTORNEYS’ EYES

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ONLY” legend at the top of each copied page that contains Protected Material. If only

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a 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 “ATTORNEYS’ EYES ONLY”).

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(b)

Then the

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 “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY.”

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When it is impractical to identify separately each portion of deposition testimony that

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

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

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offers, or gives the deposition testimony may invoke on the record (before the

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deposition is concluded) a right to have up to twenty (20) days to identify the specific

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portions of the deposition testimony as to which protection is sought and to specify

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the level of protection being asserted (“CONFIDENTIAL” or “ATTORNEYS’ EYES

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

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designated for protection within the twenty (20) days shall be covered by the

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provisions of this Protective Order.

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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

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

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prominent place on the exterior of the container or containers in which the information

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or item is stored the legend “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY.”

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If only portions of the information or item warrant protection, the Producing Party, to

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the extent practicable, shall identify the protected portions, specifying whether they

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qualify as “CONFIDENTIAL” or as “ATTORNEYS’ EYES ONLY.”

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4.3

Inadvertent Failures to Designate.

If timely corrected, an

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inadvertent failure to designate qualified information or items as “CONFIDENTIAL”

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

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

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material is appropriately designated as “CONFIDENTIAL” or “ATTORNEYS’ EYES

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ONLY” after the material was initially produced, the Receiving Party, on timely

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notification of the designation, must make reasonable efforts to assure that the

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material is treated in accordance with the provisions of this Protective Order.

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5.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
5.1

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Timing of Challenges. Unless a prompt challenge to a Designating

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Party’s confidentiality designation is necessary to avoid foreseeable substantial

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unfairness, unnecessary economic burdens, or a later significant disruption or delay of

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the litigation, a Party does not waive its right to challenge a confidentiality designation

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by electing not to mount a challenge promptly after the original designation is

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disclosed.

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5.2

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

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

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

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

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

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

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no change in designation is offered, to explain the basis for the chosen designation. 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 in this meet-and-confer process first.

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5.3

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

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confidentiality designation after considering the justification offered by the

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

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and sets forth in detail the basis for the challenge.

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

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

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

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

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

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

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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.
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ACCESS TO AND USE OF PROTECTED MATERIAL
6.1

Basic Principles. A Receiving Party may use Protected Material

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

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

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

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conditions described in this Protective Order.

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terminated, a Receiving Party must comply with the provisions of section 10, below

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(FINAL DISPOSITION).

When the litigation has been

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Protected Material must be stored and maintained by a Receiving Party at

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a location and in a secure manner that ensures that access is limited to the persons

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authorized under this Protective Order.

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6.2

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)

of said outside counsel to whom it is reasonably necessary to disclose the information
for this litigation;
(b)

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Board members, officers and directors of the Receiving

(c)

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the Receiving Party’s outside counsel, as well as employees

Other employees of the Receiving Party to whom disclosure

Party;

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

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

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“Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(d)

Experts (as defined in this Protective Order) of the

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Receiving Party to whom disclosure is reasonably necessary for this litigation and

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who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(e)

the Court and its personnel;

(f)

court reporters, their staffs, and professional vendors to

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

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“Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(g)

during their depositions, witnesses in the action to whom

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

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

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

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

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Protective Order; and

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(h)

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source of the information.

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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)

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the Receiving Party’s outside counsel, as well as employees

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

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for this litigation;

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(b)

Experts (as defined in this Protective Order) of the

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Receiving Party to whom disclosure is reasonably necessary for this litigation and

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who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(c)
(d)

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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)

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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

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

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litigation that would compel disclosure of any Discovery Material, the Receiving

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

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more than five (5) business days after receiving the subpoena or order.

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

Such

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also must immediately inform in writing the Party who caused the subpoena or order

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to issue in the other litigation that some or all of the material covered by the subpoena

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or order is the subject of this Protective Order. In addition, the Receiving Party must

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

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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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UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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

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

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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 all

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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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9.

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

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

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

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action any Protected Material.

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10.

FILING PROTECTED MATERIAL

FINAL DISPOSITION

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

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

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return all Protected Material to the Producing Party. As used in this subdivision, “all

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Protected Material” includes all copies, abstracts, compilations, summaries, or any

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other form of reproducing or capturing any of the Protected Material.

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permission in writing from the Designating Party, the Receiving Party may destroy

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some or all of the Protected Material instead of returning it. Whether the Protected

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Material is returned or destroyed, the Receiving Party must submit a written

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certification to the Producing Party (and, if not the same person or entity, to the

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Designating Party) by the 60-day deadline that identifies (by category, where

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

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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.

With

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

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

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

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

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

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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.

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11.2 Right to Assert Other Objections. By having stipulated to the entry

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

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

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

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

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11.3 Inadvertent Production of Privileged Documents. If a Party, through

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inadvertence, produces any document or information that it believes is immune from

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discovery pursuant to an attorney-client privilege, the work product privilege, or any

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

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Producing Party may give written notice to the Receiving Party that the document or

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

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information is requested. Upon receipt of such notice, the Receiving Party shall

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immediately gather the original and all copies of the document or information of

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which the Receiving Party is aware, in addition to any abstracts, summaries, or

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descriptions thereof, and shall immediately return the original and all such copies to

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the Producing Party. Nothing stated herein shall preclude a Party from challenging an

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assertion by the other Party of privilege or confidentiality.

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IT IS SO ORDERED.

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DATED: July 8, 2014
___________________________________
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

full

name],

of

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____________________________________________________ [print full address],

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declare under penalty of perjury that I have read in its entirety and understand the

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

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District of California in the case of Unicolors, Inc. v. Jump Apparel Co., Inc., Case

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No. CV13-05436 DDP (MANx). I agree to comply with and to be bound by all of the

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terms of this Protective Order and I understand and acknowledge that failure to so

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comply could expose me to sanctions and punishment in the nature of contempt. I

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solemnly promise that I will not disclose in any manner any information or item that is

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subject to this Protective Order to any person or entity except in strict compliance with

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the provisions of this Protective Order.

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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.

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I hereby appoint _____________________________________ [print full

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name] of __________________________________________________ [print full

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

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

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Protective Order.

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Date: _________________________________

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City and State where sworn and signed: _________________________________

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Printed name: ______________________________
Signature: _________________________________