Malibu Textiles Inc v. Jump Apparel Co Inc et al

Filing 45

PROTECTIVE ORDER by Magistrate Judge John E. McDermott re Stipulation for Protective Order 42 . (san)

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1 MARK D. BRUTZKUS - Bar No. 128102 JEFFREY A. KOBULNICK - Bar No. 228299 2 EZRA BRUTZKUS GUBNER LLP 21650 Oxnard Street, Suite 500 3 Woodland Hills, CA 91367 Telephone: (818) 827-9000 4 Facsimile: (818) 827-9099 Email: 5 6 Attorneys for Defendants, JUMP APPAREL CO., INC., MARINA, INC., DILLARD’S, INC., 7 THE BON-TON DEPARTMENT STORES, INC. and MACY’S RETAIL HOLDINGS, INC. 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 Case No. CV13-5760 ABC (JEMx) 11 MALIBU TEXTILES, INC., a New York corporation, 12 Plaintiff, STIPULATED PROTECTIVE ORDER 13 v. 14 JUMP APPAREL CO., INC., a New 15 York corporation; MARINA, INC., a New York corporation; DILLARD’S, 16 INC., a Delaware corporation; LADIES OUTFITTERS, a business 17 entity of form unknown; THE BONTON DEPARTMENT STORES, INC., 18 a Pennsylvania corporation; MACY’S RETAIL HOLDINGS, INC., a 19 Delaware corporation; ROMEX TEXTILES, INC.; and DOES 2 20 through 10, 21 Defendants. 22 23 24 25 26 27 28 Pursuant to Fed.R.Civ.P. 26(c), Plaintiff Malibu Textiles, Inc. and Defendants Jump Apparel Co., Inc., Marina, Inc., Dillard’s, Inc., The Bon-Ton Department Stores, Inc., Macy’s Retail Holdings, Inc. and Romex Textiles, Inc., through undersigned counsel, jointly submit this Stipulated Protective Order to govern the handling of information and materials produced in the course of discovery or filed with the Court in this action; 1 STIPULATED PROTECTIVE ORDER 1 2 GOOD CAUSE STATEMENT It is the intent of the parties and the Court that information will not be 3 designated as confidential for tactical reasons in this case and that nothing be so 4 designated without a good faith belief that there is good cause why it should not be 5 part of the public record of this case. Examples of confidential information that the 6 parties may seek to protect from unrestricted or unprotected disclosure include: 7 (a) confidentiality agreement or obligation; 8 9 (b) The names, or other information tending to reveal the identity of a party’s supplier, designer, distributor, or customer; 10 11 Information that is the subject of a non-disclosure or (c) Agreements with third-parties, including license agreements, 12 distributor agreements, manufacturing agreements, design 13 agreements, development agreements, supply agreements, sales 14 agreements, or service agreements; 15 (d) Research and development information; 16 (e) Proprietary engineering or technical information, including 17 product design, manufacturing techniques, processing 18 information, drawings, memoranda and reports; 19 (f) Information related to budgets, sales, profits, costs, margins, 20 licensing of technology or designs, product pricing, or other 21 internal financial/accounting information, including non-public 22 information related to financial condition or performance and 23 income or other non-public tax information; 24 (g) information; 25 26 27 Information related to internal operations including personnel (h) Information related to past, current and future product development; 28 2 STIPULATED PROTECTIVE ORDER 1 (i) 2 Information related to past, current and future market analyses 3 and business and marketing development, including plans, 4 strategies, forecasts and competition; and (j) 5 information is located). 6 7 Trade secrets (as defined by the jurisdiction in which the Unrestricted or unprotected disclosure of such confidential technical, 8 commercial or personal information would result in prejudice or harm to the 9 producing party by revealing the producing party’s competitive confidential 10 information, which has been developed at the expense of the producing party and 11 which represents valuable tangible and intangible assets of that party. Additionally, 12 privacy interests must be safeguarded. Accordingly, the parties respectfully submit 13 that there is good cause for the entry of this Protective Order. 14 The parties agree, subject to the Court’s approval, that the following terms and 15 conditions shall apply to this civil action. 16 1 Designated Material. 17 1.1 Information or material may be designated for confidential treatment 18 pursuant to this Protective Order by any party, person or entity producing or 19 lodging it in this action (the “Designating Party”), if: (a) produced or served, 20 formally or informally, pursuant to the Federal Rules of Civil Procedure or in 21 response to any other formal or informal discovery request in this action; and/or (b) 22 filed or lodged with the Court. All such information and material and all 23 information or material derived from it constitutes “Designated Material” under 24 this Protective Order. 25 1.2 Unless and until otherwise ordered by the Court or agreed to in writing 26 by the parties, all Designated Materials designated under this Protective Order shall 27 be used by the parties and persons receiving such Designated Materials solely for 28 conducting the above-captioned litigation and any appellate proceeding relating 3 STIPULATED PROTECTIVE ORDER 1 thereto. Designated Material shall not be used by any party or person receiving 2 them for any business or any other purpose. No party or person shall disclose 3 Designated Material to any other party or person not entitled to receive such 4 Designated Material under the terms of this Protective Order. For purposes of this 5 Protective Order, “disclose” or “disclosed” means to show, furnish, reveal or 6 provide, indirectly or directly, any portion of the Designated Material or its 7 contents, orally or in writing, including the original or any copy of the Designated 8 Material. 9 2. Access to Designated Materials. 10 2.1 Materials Designated “CONFIDENTIAL”: Subject to the limitations 11 set forth herein this Protective Order, Designated Material may be marked 12 “CONFIDENTIAL” for the purpose of preventing the disclosure of information or 13 materials that the designating party in good faith believes is confidential. Before 14 designating any specific information or material “CONFIDENTIAL”, the 15 Designating Party’s counsel shall make a good faith determination that the 16 information warrants protection under Rule 26(c) of the Federal Rules of Civil 17 Procedure. Such information may include, but is not limited to: 18 (a) The financial performance or results of the Designating Party, 19 including without limitation income statements, balance sheets, cash flow analyses, 20 budget projections, and present value calculations; 21 (b) Corporate and strategic planning by the Designating Party, including 22 without limitation marketing plans, competitive intelligence reports, sales 23 projections and competitive strategy documents; 24 (c) Names, addresses, and other information that would identify customers 25 or prospective customers, or the distributors or prospective distributors of the 26 Designating Party; 27 /// 28 /// 4 STIPULATED PROTECTIVE ORDER 1 (d) Technical data, research and development data, and any other 2 confidential commercial information, including but not limited to trade secrets of 3 the Designating Party; 4 (e) Information used by the Designating Party in or pertaining to its trade 5 or business, which information the Designating Party believes in good faith has 6 competitive value, which is not generally known to others and which the 7 Designating Party would not normally reveal to third parties except in confidence, 8 or has undertaken with others to maintain in confidence; 9 (f) Information which the Designating Party believes in good faith falls 10 within the right to privacy guaranteed by the laws of the United States or 11 California; and 12 (g) Information which the Designating Party believes in good faith to 13 constitute, contain, reveal or reflect proprietary, financial, business, technical, or 14 other confidential information. 15 (h) The fact that an item or category is listed as an example in this or other 16 sections of this Protective Order does not, by itself, render the item or category 17 discoverable. 18 2.1.0 Materials designated “CONFIDENTIAL” may be disclosed only to the 19 following Designees: 20 2.1.1 Persons who appear on the face of Designated Materials marked 21 “CONFIDENTIAL” as an author, addressee, or recipient thereof; 22 2.1.2 Counsel retained as outside litigation attorneys of record in this action, 23 and their respective associates, clerks, legal assistants, stenographic, videographic 24 and support personnel, and other employees of such outside litigation attorneys, 25 and organizations retained by such attorneys to provide litigation support services 26 in this action and the employees of said organizations. “Counsel” explicitly 27 excludes any in-house counsel whether or not they are attorneys of record in this 28 action. 5 STIPULATED PROTECTIVE ORDER 1 2.1.3 Consultants, including non-party experts and consultants retained or 2 employed by Counsel to assist in the preparation of the case, to the extent they are 3 reasonably necessary to render professional services in this action, and subject to 4 the disclosure requirements of section 2.3. Each consultant must sign a 5 certification that he or she has read this Stipulated Protective Order, will abide by 6 its provisions, and will submit to the jurisdiction of this Court regarding the 7 enforcement of this Order’s provisions. 8 2.1.4 No more than two (2) designated officers and/or employees of each 9 party, who are reasonably necessary for the prosecution or defense of this action. A 10 party’s designated officers and/or employees may include in-house counsel. Each 11 designated officer or employee must sign a certification that he or she has read this 12 Stipulated Protective Order, will abide by its provisions, and will submit to the 13 jurisdiction of this Court regarding the enforcement of this Order’s provisions. 14 2.1.5 The Court, its clerks and secretaries, and any court reporter retained to 15 record proceedings before the Court; 16 2.2 Materials Designated “HIGHLY CONFIDENTIAL – OUTSIDE 17 ATTORNEYS’ EYES ONLY”: Subject to the limitations in this Protective Order, 18 Designated Materials may be marked “HIGHLY CONFIDENTIAL – OUTSIDE 19 ATTORNEYS’ EYES ONLY” for the purpose of preventing the disclosure of 20 information or materials which, if disclosed to the receiving party, might cause 21 competitive harm to the Designating Party. Information and material that may be 22 subject to this protection includes, but is not limited to, technical and/or research 23 and development data, intellectual property, financial, marketing and other sales 24 data, and/or information having strategic commercial value pertaining to the 25 Designating Party’s trade or business. Nothing in paragraph 2.1 shall limit the 26 information or material that can be designated “HIGHLY CONFIDENTIAL – 27 OUTSIDE ATTORNEYS’ EYES ONLY” under this paragraph. Before 28 6 STIPULATED PROTECTIVE ORDER 1 designating any specific information “HIGHLY CONFIDENTIAL – OUTSIDE 2 ATTORNEYS’ EYES ONLY,” the Designating Party’s counsel shall make a good 3 faith determination that the information warrants such protection. 4 2.2.0 Materials designated “HIGHLY CONFIDENTIAL – OUTSIDE 5 ATTORNEYS’ EYES ONLY” materials may be disclosed only to the following 6 Designees: 7 2.2.1 Persons who appear on the face of Designated Materials marked 8 “HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY” as an 9 author, addressee, or recipient thereof; 10 2.2.2 Counsel for the parties to this action, as defined in section 2.1.2; 11 2.2.3 Consultants for the parties to this action, as defined in section 2.1.3; 12 and 13 2.2.4 The Court, its clerks and secretaries, and any court reporter retained to 14 record proceedings before the Court. 15 2.3 If any party wishes to disclose information or materials designated 16 under this Protective Order as “HIGHLY CONFIDENTIAL,” “CONFIDENTIAL – 17 OUTSIDE ATTORNEYS’ EYES ONLY” to any Consultant, it must first identify 18 that individual to the Counsel for the Designating Party and submit a Certification 19 of Consultant pursuant to Section 3. Such identification shall include at least the 20 full name and professional address and/or affiliation of the individual, his or her 21 prior employment, consultancies or matters for the previous five (5) years, and all 22 of the person’s present employment or consultancies. The Designating Party shall 23 have fifteen (15) business days from receipt of such initial identification and signed 24 certification to object in writing to disclosure to any individual so identified. The 25 parties shall confer in an attempt to resolve any objections informally, and approval 26 by the Designating Party shall not be unreasonably withheld. If the objections 27 cannot be resolved, the objecting party may move within ten (10) business days 28 7 STIPULATED PROTECTIVE ORDER 1 following its objection for a protective order to prevent disclosure of “HIGHLY 2 CONFIDENTIAL,” “CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES 3 ONLY” materials to the individual under Local Rule 37. In the event that such a 4 motion is made, the party seeking to prohibit disclosure shall bear the burden of 5 establishing good cause why the disclosure should not be made pursuant to Rule 26 6 of the Federal Rules of Civil Procedure. Such Consultant(s) cannot have access to 7 Designated Material until these relevant time periods expire, including for final 8 resolution of any timely motion. 9 2.4 Legal Effect of Designation. The designation of any information or 10 materials as “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – OUTSIDE 11 ATTORNEYS’ EYES ONLY” is intended solely to facilitate the conduct of this 12 litigation. Neither such designation nor treatment in conformity with such 13 designation shall be construed in any way as an admission or agreement by any 14 party that the Designated Materials constitute or contain any trade secret or 15 confidential information. Except as provided in this Protective Order, no party to 16 this action shall be obligated to challenge the propriety of any designation, and a 17 failure to do so shall not preclude a subsequent attack on the propriety of such 18 designation. 19 2.5 Nothing herein in any way restricts the ability of the receiving party to 20 use “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – OUTSIDE 21 ATTORNEYS’ EYES ONLY” material produced to it in examining or cross22 examining any employee or consultant of the Designating Party. 23 3. Certificates Concerning Designated Materials. Each Consultant as 24 defined in section 2.1.3, to whom any Designated Materials will be disclosed shall, 25 prior to disclosure of such material, execute the Acknowledgement of Stipulated 26 Protective Order in the form attached hereto as Exhibit A. Counsel who makes any 27 disclosure of Designated Materials shall retain each original executed 28 8 STIPULATED PROTECTIVE ORDER 1 Acknowledgement of Stipulated Protective Order and shall circulate copies to all 2 Counsel for the opposing party concurrently with the identification of the 3 Consultant to the attorneys for the Designating Party pursuant to Section 2.3. 4 4. Use of Designated Materials by Designating Party. Nothing in this 5 Protective Order shall limit a Designating Party’s use of its own information or 6 materials, or prevent a Designating Party from disclosing its own information or 7 materials to any person. Such disclosure shall not affect any designations made 8 pursuant to the terms of this Protective Order, so long as the disclosure is made in a 9 manner that is reasonably calculated to maintain the confidentiality of the 10 information. 11 5. Manner of Designating Written Materials. 12 5.1 Documents, discovery responses and other written materials shall be 13 designated as “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – OUTSIDE 14 ATTORNEYS’ EYES ONLY” whether in whole or in part, as follows. 15 5.2 The producing party shall designate materials by placing the legend 16 “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ 17 EYES ONLY” on each page so designated prior to production. If the first or cover 18 page of a multi-page document bears the legend “CONFIDENTIAL,” “HIGHLY 19 CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY” the entire document 20 shall be deemed so designated, and the absence of marking each page shall not 21 constitute a waiver of the terms of this Order. If the label affixed to a computer 22 disk containing multiple files bears the legend “CONFIDENTIAL,” 23 “CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY” the entire disk 24 shall be deemed so protected, and the absence of marking of each file shall not 25 constitute a waiver of the terms of this Order. 26 5.3 A designation of ““CONFIDENTIAL,” or “HIGHLY 27 CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY” as to any item, 28 thing or object that cannot otherwise be categorized as a document, shall be made: 9 STIPULATED PROTECTIVE ORDER 1 (1) by placing the legend “CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL – 2 OUTSIDE ATTORNEYS’ EYES ONLY” on the thing, object or container within 3 which it is stored; or (2) by specifically identifying, in writing, the item and the 4 level of confidentiality designation, where such labeling is not feasible. 5 5.4 When a party wishes to designate as “CONFIDENTIAL,” or 6 “HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY” 7 materials produced by someone other than the Designating Party (a “Producing 8 Party”), such designation shall be made: 9 5.4.1 Within fifteen (15) business days from the date that the Designating 10 Party receives copies of the materials from the producing or disclosing entity; and 11 5.4.2 By notice to all parties to this action and to the Producing Party, if 12 such party is not a party to this action, identifying the materials to be designated 13 with particularity (either by production numbers or by providing other adequate 14 identification of the specific material). Such notice shall be sent by facsimile and 15 regular mail. 16 5.4.3. A party shall be permitted to designate as “CONFIDENTIAL,” or 17 “HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY” material 18 produced by a Producing Party only where: 19 a. The material being produced was provided to or developed by such 20 Producing Party: (i) under a written confidentiality agreement with the Designating 21 Party; or (ii) within a relationship with the Designating Party (or a party operating 22 under the control thereof) in which confidentiality is imposed by law (including, but 23 not limited, to the employment relationship and the vendor-customer relationship); 24 and 25 b. The material being produced would be considered confidential material of 26 the Designating Party under Section 2.1 of this Agreement if it were in the 27 possession of the Designating Party. 28 10 STIPULATED PROTECTIVE ORDER 1 5.5 Upon notice of designation, all persons receiving notice of the 2 requested designation of materials shall: 3 5.5.1 Make no further disclosure of such Designated Material or information 4 contained therein, except as allowed in this Protective Order; 5 5.5.2 Take reasonable steps to notify any persons known to have possession 6 of or access to such Designated Materials of the effect of such designation under 7 this Protective Order; and 8 5.5.3 If “CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL – OUTSIDE 9 ATTORNEYS’ EYES ONLY” material or information contained therein is 10 disclosed to any person other than those entitled to disclosure in the manner 11 authorized by this Protective Order, the party responsible for the disclosure shall, 12 immediately upon learning of such disclosure, inform the Designating Party in 13 writing of all pertinent facts relating to such disclosure, and shall make every effort 14 to prevent further disclosure by the unauthorized person(s). 15 6. Manner of Designating Deposition Testimony. 16 6.1 Deposition transcripts and portions thereof taken in this action may be 17 designated as “CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL – OUTSIDE 18 ATTORNEYS’ EYES ONLY” during the deposition or after, in which case the 19 portion of the transcript containing Designated Material shall be identified in the 20 transcript by the Court Reporter as “CONFIDENTIAL,” or “HIGHLY 21 CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY.” The designated 22 testimony shall be bound in a separate volume and marked by the reporter 23 accordingly. 24 6.2 Where testimony is designated during the deposition, the Designating 25 Party shall have the right to exclude, at those portions of the deposition, all persons 26 not authorized by the terms of this Protective Order to receive such Designated 27 Material. 28 11 STIPULATED PROTECTIVE ORDER 1 6.3 Within thirty (30) days after a deposition transcript is certified by the 2 court reporter, any party may designate pages of the transcript and/or its exhibits as 3 Designated Material. During such thirty (30) day period, the transcript in its 4 entirety shall be treated as “CONFIDENTIAL” (except for those portions identified 5 earlier as “HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES 6 ONLY” which shall be treated accordingly from the date of designation). If any 7 party so designates such material, the parties shall provide written notice of such 8 designation to all parties within the thirty (30) day period. Designated Material 9 within the deposition transcript or the exhibits thereto may be identified in writing 10 by page and line, or by underlining and marking such portions “CONFIDENTIAL,” 11 “HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY” and 12 providing such marked-up portions to all counsel. 13 7. Copies. All complete or partial copies of a document that disclose 14 Designated Materials shall be subject to the terms of this Protective Order. 15 8. Court Procedures. 16 8.1 Disclosure of Designated Material to Court Officials. Subject to the 17 provisions of this section, Designated Material may be disclosed to the Court, 18 Court officials or employees involved in this action (including court reporters, 19 persons operating video recording equipment at depositions, and any special 20 master, referee, expert, technical advisor or Third-Party Consultant appointed by 21 the Court), and to the jury in this action, and any interpreters interpreting on behalf 22 of any party or deponent. 23 8.2 Filing Designated Materials with the Court. Nothing in this Order shall 24 vary the requirements for filing under Seal imposed by the Federal Rules of Civil 25 Procedure or the Local Rules of this Court. If a party wishes to file with the Court 26 any document, transcript or thing containing information which has been designated 27 “CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ 28 12 STIPULATED PROTECTIVE ORDER 1 EYES ONLY” the Party shall designate the material as set forth herein and file it 2 with the Court in an application for filing under seal under the Local Rules of this 3 Court, with the material bearing the legend: 4 “[CONFIDENTIAL, or HIGHLY CONFIDENTIAL – OUTSIDE 5 ATTORNEYS’ EYES ONLY] INFORMATION SUBJECT TO PROTECTIVE ORDER.” 6 7 The Application for Filing under Seal must show good cause for the under seal 8 filing. Filing the document under seal shall not bar any party from unrestricted use or 9 dissemination of those portions of the document that do not contain material 10 designated “CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL – OUTSIDE 11 ATTORNEYS’ EYES ONLY.” If a filing party fails to designate information as 12 “CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ 13 EYES ONLY,” any party who in good faith believes that designation and filing 14 under seal is required by this Protective Order may move the Court to file said 15 information under seal within five (5) days of learning of the defective filing. Notice 16 of such designation shall be given to all parties. Nothing in this provision relieves a 17 party of liability for damages caused by failure to properly file Designated Material 18 under seal. 19 8.3 Retrieval of Designated Materials. The party responsible for lodging or 20 filing the Designated Materials shall be responsible for retrieving such Designated 21 Materials from the Court following the final termination of the action (including 22 after any appeals). 23 9. Objections 24 9.1 A party may challenge any designation under this Protective Order at 25 any time, on the grounds that the information or material does not meet the 26 standards of Sections 1 and 2, by following the procedure of Local Rule 37 of this 27 Court. 28 13 STIPULATED PROTECTIVE ORDER 1 9.2 The parties shall meet and confer in good faith prior to the filing of 2 any motion under this section. 3 10. Client Communication. Nothing in this Protective Order shall prevent 4 or otherwise restrict counsel from rendering advice to their clients and, in the 5 course of rendering such advice, relying upon the examination of Designated 6 Material. In rendering such advice and otherwise communicating with the client, 7 however, counsel shall not disclose any Designated Material, except as otherwise 8 permitted by this Protective Order. 9 10 11. No Prejudice. 11.1 This Protective Order shall not diminish any existing obligation or 11 right with respect to Designated Material, nor shall it prevent a disclosure to which 12 the Designating Party consented in writing before the disclosure takes place. 13 11.2 Unless the parties stipulate otherwise, evidence of the existence or 14 nonexistence of a designation under this Protective Order shall not be admissible 15 for any purpose during any proceeding on the merits of this action. 16 11.3 If any party required to produce documents contends that it 17 inadvertently produced any Designated Material without marking it with the 18 appropriate legend, or inadvertently produced any Designated Material with an 19 incorrect legend, the producing party may give written notice to the receiving party 20 or parties, including appropriately stamped substitute copies of the Designated 21 Material. If the parties collectively agree to replacement of the Designated 22 Material, then the documents will be so designated. Within five (5) business days 23 of receipt of the substitute copies, the receiving party shall return the previously 24 unmarked or mismarked items and all copies thereof. If the parties do not 25 collectively agree to replacement of the Designated Material, the producing party 26 shall comply with the procedure of Local Rule 37 in seeking protection for the 27 inadvertently produced material. 28 14 STIPULATED PROTECTIVE ORDER 1 11.4 Neither the provisions of this Protective Order, nor the filing of any 2 material under seal, shall prevent the use in open court, in deposition, at any 3 hearing, or at trial of this case of any material that is subject to this Protective 4 Order or filed under seal pursuant to its provisions. At deposition, the party using 5 Designated Material must request that the portion of the proceeding where use is 6 made be conducted so as to exclude persons not qualified to receive such 7 Designated Material. At trial, the party using Designated Material must request 8 that the portion of the proceeding where use is made be conducted so as to exclude 9 persons not qualified to receive such Designated Material. All confidentiality 10 designations or legends placed pursuant to this Stipulated Protective Order shall be 11 removed from any document or thing used as a trial exhibit in this case. The 12 removal of such confidentiality designations or legends under the preceding 13 sentence shall not affect the treatment of such documents and things as Designated 14 Material under this Stipulated Protective Order. Upon request of a party, the 15 parties shall meet and confer concerning the use and protection of Designated 16 Material in open court at any hearing. Prior to the pretrial conference, the parties 17 shall meet and confer concerning appropriate methods for dealing with Designated 18 Material at trial. 19 11.5 Any inadvertent production of documents containing privileged 20 information shall not be deemed to be a waiver of the attorney-client privilege, 21 work product doctrine, or any other applicable privilege or doctrines. All parties 22 specifically reserve the right to demand the return of any privileged documents that 23 it may produce inadvertently during discovery if the producing party determines 24 that such documents contain privileged information. After receiving notice of such 25 inadvertent production by the producing party, the receiving party agrees to make 26 reasonable and good faith efforts to locate and return to the producing party all 27 such inadvertently produced documents. 28 15 STIPULATED PROTECTIVE ORDER 1 12. Modification and Survival. 2 12.1 Modification. The parties reserve the right to seek modification of this 3 Protective Order at any time for good cause. The parties agree to meet and confer 4 prior to seeking to modify this Protective Order for any reason. The restrictions 5 imposed by this Protective Order may only be modified or terminated by written 6 stipulation of all parties or by order of this Court. Parties entering into this 7 Protective Order will not be deemed to have waived any of their rights to seek 8 later amendment to this Protective Order. 9 12.2 Trial. The parties understand that this Protective Order does not 10 extend to trial of this Action. Once the case proceeds to trial, all of the information 11 that was designated as confidential and/or kept and maintained pursuant to the 12 terms of this Protective Order becomes public and will be presumptively available 13 to all members of the public, including the press, unless good cause is shown to the 14 district judge in advance of the trial to proceed otherwise. 15 12.3 Survival and Return of Designated Material. This Protective Order 16 shall survive termination of this action prior to trial of this action. Upon final 17 termination of the action prior to trial of this action, and at the written request 18 of the Designating Party, all Designated Material, including deposition 19 testimony, and all copies thereof, shall be returned to counsel for the 20 Designating Party (at the expense of the Designating Party) or (at the option 21 and expense of the requesting party) shall be destroyed. Upon request for the 22 return or destruction of Designated Materials, counsel shall certify their 23 compliance with this provision and shall serve such certification to counsel for 24 the Designating Party not more than ninety (90) days after the written request 25 to return or destroy Designated Materials. Counsel who have submitted one or 26 more Certificate(s) prepared pursuant to Section 3 do not need to retain such 27 Certificate(s) past the ninety (90) day period. 28 16 STIPULATED PROTECTIVE ORDER 1 12.4 Archival Copies. Notwithstanding the provisions for return or 2 destruction of Designated Material, each counsel may retain its internal files of 3 pleadings, correspondence, work product, deposition and discovery materials, 4 etc., as well as one copy of each item of Designated Material, for archival 5 purposes. 6 13. No Contract. This Protective Order shall not be construed to create 7 a contract between the parties or between the parties and their respective 8 counsel. 9 14. Court’s Retention of Jurisdiction. The Court retains jurisdiction after 10 final termination of the action prior to trial, to enforce this Stipulation. 11 15. Exception for Public Information. Nothing in this Stipulation shall be 12 deemed in any way to restrict the use of documents or information which are 13 lawfully obtained or publicly available to a party independently of discovery in this 14 action, whether or not the same material has been obtained during the course of 15 discovery in the action and whether or not such documents or information have been 16 designated hereunder. However, in the event of a dispute regarding such 17 independent acquisition, a party wishing to use any independently acquired 18 documents or information shall bear the burden of proving independent acquisition. 19 20 21 22 IT IS SO ORDERED. 23 24 Dated: _______________ December 9, 2013 25 26 _____________________________________ Honorable Audrey B. Collins United States District Judge 27 28 17 STIPULATED PROTECTIVE ORDER STIPULATION 1 2 IT IS HEREBY STIPULATED by and among the parties, through their 3 respective counsel, this Honorable Court consenting, that the foregoing Stipulated 4 Protective Order may be entered in this action. 5 Dated: December 4, 2013 DONIGER/BURROUGHS APC 6 7 By: /s/ Stephen M. Doniger STEPHEN M. DONIGER Attorneys for Plaintiff 8 9 10 11 Dated: December 4, 2013 EZRA BRUTZKUS GUBNER LLP 12 13 By: /s/ Jeffrey A. Kobulnick MARK D. BRUTZKUS JEFFREY A. KOBULNICK Attorneys for Defendants, Jump Apparel Co., Inc., Marina, Inc., Dillard’s, Inc., The Bon-Ton Department Stores, Inc. And Macy’s Retail Holdings, Inc. 14 15 16 17 18 19 Dated: December 4, 2013 BUCHALTER NEMER APC 20 21 22 23 By: /s/ Matthew L. Seror MATTHEW L. SEROR Attorneys for Defendant, Romex Textiles, Inc. 24 25 26 27 28 18 STIPULATED PROTECTIVE ORDER 1 Exhibit A 2 3 UNITED STATES DISTRICT COURT 4 CENTRAL DISTRICT OF CALIFORNIA 5 6 MALIBU TEXTILES, INC., 7 8 Case No. 13-cv-5760 ABC(JEMx) ACKNOWLEDGEMENT OF STIPULATED PROTECTIVE ORDER Plaintiff, v. 9 [FED. R. CIV. P. 26(c)] JUMP APPAREL CO., INC.,, LLC, ET 10 AL., 11 Defendants. 12 13 The undersigned hereby acknowledges that he/she has read the STIPULATED 14 PROTECTIVE ORDER entered in the above captioned litigation, and that he/she 15 fully understands and agrees to abide by the obligations and conditions thereof. 16 17 Dated: _____________________ 18 ______________________________ (Signature) 19 ______________________________ (Print Name) 20 21 22 23 24 25 26 27 28 19 STIPULATED PROTECTIVE ORDER

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