Urban Textile Inc v. Love Culture Inc et al

Filing 32

PROTECTIVE ORDER by Magistrate Judge Andrew J. Wistrich, re: Notice of Lodging, 28 . (mz)

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C.YONG JEONG SBN: 255244
PAUL COHEN SBN: 293797
Jeong & Likens, L.C.
1055 W. 7th Street, Suite 2280
Los Angeles, CA 90017

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Attorneys for Plaintiff Urban Textile, Inc.

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JENNY J. RIM SBN: 231584
2423 E. 23rd Street
Los Angeles, CA 90058
Telephone: [phone]
[e-mail]
Attorneys for Defendant Love Culture Inc.

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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URBAN TEXTILE, INC., a California
corporation,
Plaintiff,

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v.

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Case No.: 2:13-CV-07777-DSF-AJW
PROTECTIVE ORDER
[DISCOVERY MATTER]

LOVE CULTURE INC.; et al.,
Defendants.

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Honorable Andrew J. Wistrich

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I.

PURPOSES AND LIMITATIONS

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Disclosure and discovery activity in this action are likely to involve

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production of confidential, proprietary, or private information for which special

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protection from public disclosure and from use for any purpose other than

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prosecuting this matter would be warranted. Accordingly, the parties hereby

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stipulate to and petition this Court to enter the following Stipulated Protective

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Order. The parties acknowledge that this Order does not confer blanket protections

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on all disclosures or responses to discovery and that the protection it affords

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extends only to the limited information or items that are entitled under the
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applicable legal principles to treatment as confidential. The parties have agreed that

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the terms of this Protective Order shall also apply to any future voluntary

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disclosures of confidential, proprietary, or private information. The parties reserve

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their rights to object to or withhold any information, including confidential,

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proprietary, or private information, on any other applicable grounds permitted by

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law, including third-party rights and relevancy.

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II.

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DEFINITIONS
2.1

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

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employees, consultants, retained experts, and outside counsel (and their support

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staff).

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2.2

Disclosure or Discovery Material: all items or information, regardless

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

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

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generated in disclosures or responses to discovery in this matter.

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2.3

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

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

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

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2.4

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

such material as consists of:

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a) any commercially sensitive and/or confidential business or financial

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information (including without limitation confidential nonpublic contracts,

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profitability reports or estimates, sales reports, and sales margins) which could

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reasonably create a competitive disadvantage if disclosed to the parties in this

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action;

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b) any business or financial information that is confidential,

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proprietary, or commercially sensitive to third parties who have had business

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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, to the extent said material could reasonably create

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a competitive disadvantage if disclosed to the parties in this action.

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2.5

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

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information or items that it produces in disclosures or in responses to discovery as

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“CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY.”

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2.8

Protected Material: any Disclosure or Discovery Material that is

designated as “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY.”
2.9

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

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

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an expert witness or as a consultant in this action. 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)

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

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

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employee of any entity who is a competitor of the Party adverse to the Party

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engaging the expert witness or consultant.

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2.10 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; organizing, storing, or retrieving data in any form or medium; etc.)

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and their employees and subcontractors.

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3. SCOPE

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The protections conferred by this Stipulation and Order cover not only

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

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

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

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in other settings that might reveal Protected Material.

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4. DURATION

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Even after the termination of this action, the confidentiality obligations

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imposed by this 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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5. DESIGNATING PROTECTED MATERIAL

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5.1

Exercise of Restraint and Care in Designating Material for Protection.

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

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this Order must take care to limit any such designation to specific material that

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qualifies under the appropriate standards. A Designating Party must take care to

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designate for protection only those parts of material, documents, items, or oral or

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written communications that qualify – so that other portions of the material,

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

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swept unjustifiably within the ambit of this Order. Mass, indiscriminate, or

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routinized designations are prohibited. Designations that are shown to be clearly

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unjustified, or that have been made for an improper purpose (e.g., to unnecessarily
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encumber or retard the case development process, or to impose unnecessary

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expenses and burdens on other parties), expose the 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

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

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

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notify all other parties that it is withdrawing the mistaken designation.

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5.2

Manner and Timing of Designations. Except as otherwise provided in

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this Order (see, e.g., second paragraph of section 5.2(a), below), or as otherwise

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stipulated or ordered, material that qualifies for protection under this Order must be

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clearly so designated before the material is disclosed or produced. Designation in

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conformity with this Order requires:

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(a) for information in documentary form (apart from transcripts of

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

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legend “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” at the top or bottom

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of each page that contains protected material.

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A Party or non-party that makes originals or copies of documents or

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materials available for inspection need not designate them for protection until after

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the inspecting Party has indicated which material it intends to copy. During the

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

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inspection shall be deemed “ATTORNEYS’ EYES ONLY.” After the inspecting

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Party has identified the documents it wants copied and produced, the Producing

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

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documents, or portions thereof, qualify for protection under this Order. Then the

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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

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

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

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appropriate markings in the margins) and must specify, for each portion, the level
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of protection being asserted (either “CONFIDENTIAL” or “ATTORNEYS’ EYES

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ONLY”).

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(b) for testimony given in deposition or in other pretrial or trial

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proceedings, that the Party or non-party offering or sponsoring the testimony

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identify on the record, before the close of the deposition, hearing, or other

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proceeding, 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 testimony that is

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

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may qualify for protection, the Party or non-party that sponsors, offers, or gives the

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testimony may invoke on the record (before the deposition or proceeding is

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concluded) a right to have up to 20 days to identify the specific portions of the

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

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being asserted (“CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY”). Only

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those portions of the testimony that are appropriately designated for protection

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within the 20 days shall be covered by the provisions of this Stipulated Protective

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Order. Transcript pages containing Protected Material must be separately bound by

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the court reporter, who must affix to the top of each such page the legend

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“CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY,” as instructed by the Party

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or non-party offering or sponsoring the witness or presenting the testimony.

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(c) for information produced in some form other than documentary,

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

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

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stored the legend “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY.” If only

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

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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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5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent

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

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

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

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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 Order.

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6. CHALLENGING CONFIDENTIALITY DESIGNATIONS

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6.1

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

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

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

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designation is disclosed.

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6.2

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.

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In 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,

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if no change in designation is offered, to explain the basis for the chosen

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designation. A challenging Party may proceed to the next stage of the challenge

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process only if it has engaged in this meet-and-confer process first.

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6.3

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
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material and sets forth in detail the basis for the challenge. Each such motion must

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

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complied with the meet-and-confer requirements imposed in the preceding

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paragraph and that sets forth with specificity the justification for the confidentiality

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designation that was given by the Designating Party in the meet-and-confer

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dialogue. The parties agree that a confidentiality designation shall not create a

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presumption in favor of such confidentiality designation, and that the Court shall

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decide the issue as such. Until the Court rules on the challenge, all parties shall

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continue to afford the material in question the level of protection to which it is

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entitled under the Producing Party’s designation.

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7. ACCESS TO AND USE OF PROTECTED MATERIAL

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7.1

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

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

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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 Order. When the litigation has been terminated, a

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

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

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

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persons authorized under this Order.

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7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless

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otherwise ordered by the Court or permitted in writing by the Designating Party, a

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Receiving

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“CONFIDENTIAL” only to:

Party

may

disclose

any

information

or

item

designated

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(a) the Receiving Party’s outside counsel, as well as employees of said

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outside counsel to whom it is reasonably necessary to disclose the information for

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this litigation;
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(b) Board members, officers and directors of the Receiving Party;

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(c) Other employees of the Receiving Party to whom disclosure is

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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 Order) of the Receiving Party to whom

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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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(e) the Court personnel assigned to this litigation;

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(f) court reporters, their staffs, and professional vendors to whom

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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 disclosure

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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

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

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this Stipulated Protective Order; and
(h) the author and recipients of the document or the original source of

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the information.

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7.3

Disclosure of “ATTORNEYS’ EYES ONLY” Information or Items.

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Unless otherwise ordered by the Court or permitted in writing by the Designating

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Party, a Receiving Party may disclose any information or item designated

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“ATTORNEYS’ EYES ONLY” only to:

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(a) the Receiving Party’s outside counsel, as well as employees of said

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outside counsel to whom it is reasonably necessary to disclose the information for

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this litigation;

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(b) Experts (as defined in this Order) of the Receiving Party to whom

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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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(c) the Court personnel assigned to this litigation;

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(d) court reporters, their staffs, and professional vendors to whom

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

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“Acknowledgment and Agreement to Be Bound” (Exhibit A); and
(e) the author and recipients of the document or the original source of

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the information.

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7.4

Nothing in this Order shall be read to prohibit the use of otherwise

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Protected Material to prosecute claims against additional potential defendants

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identified in said materials.

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8. PROTECTED MATERIAL SUBPOENAED OR ORDERED
PRODUCED IN OTHER LITIGATION
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 business days after receiving the subpoena or order. Such

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

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

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

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the subpoena or order is the subject of this Protective Order. In addition, the

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Receiving Party must deliver a copy of this Stipulated Protective Order promptly to

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the Party in the other action that caused the subpoena or order to issue. The purpose

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of imposing these duties is to alert the interested parties to the existence of this

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Protective Order and to afford the Designating Party in this case an opportunity to

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try to protect its confidentiality interests in the court from which the subpoena or

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order issued. The Designating Party shall bear the burdens and the expenses of

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seeking protection in that court of its confidential material – and nothing in these

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provisions should be construed as authorizing or encouraging a Receiving Party in

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this action to disobey a lawful directive from another court.

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9. 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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Stipulated Protective Order, the Receiving Party must immediately (a) notify in

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writing the Designating Party of the unauthorized disclosures, (b) use its best

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efforts to retrieve all copies of the Protected Material, (c) inform the person or

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persons to whom unauthorized disclosures were made of all the terms of this Order,

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and (d) request such person or persons to execute the “Acknowledgment and

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Agreement to Be Bound” that is attached hereto as Exhibit A.

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10. FILING PROTECTED MATERIAL

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

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

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

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record in this action any Protected Material.

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11. FINAL DISPOSITION

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

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within 60 days after the final termination of this action, each Receiving Party must

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either return all Protected Material to the Producing Party or certify the destruction

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of said material. As used in this subdivision, “all Protected Material” includes all

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copies, abstracts, compilations, summaries or any other form of reproducing or

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capturing any of the Protected Material. Whether the Protected Material is returned
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or destroyed, the Receiving Party must submit a written certification to the

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Producing Party (and, if not the same person or entity, to the Designating Party) by

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the 60-day deadline that identifies (by category, where appropriate) all the

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Protected Material that was returned or destroyed and that affirms that the

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Receiving Party has not retained any copies, abstracts, compilations, summaries or

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

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

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

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

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

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

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12. MISCELLANEOUS

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12.1 Right to Further Relief. Nothing in this Order abridges the right

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of any person to seek its modification in the future.

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12.2 Right to Assert Other Objections. By stipulating to the entry of

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

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

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

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any ground to use in evidence of any of the material covered by this Protective

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Order.

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

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

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

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

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privilege, and the Producing Party may give written notice to the Receiving Party

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

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the document or information is requested. Upon receipt of such notice, the
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Receiving Party shall immediately gather the original and all copies of the

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document or information of which the Receiving Party is aware, in addition to any

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abstracts, summaries, or descriptions thereof, and shall immediately return the

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original and all such copies to the Producing Party. Nothing stated herein shall

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preclude a Party from challenging an assertion by the other Party of privilege or

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confidentiality.

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DATED: June 12, 2014

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By: ____/s/ C. Yong Jeong_____________
C. Yong Jeong
Attorney for Plaintiff Urban Textile, Inc.

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DATE:

June 12, 2014

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By: ___/s/ Jenny J. Rim_____________
Jenny J. Rim
Attorney for Defendant Love Culture Inc.

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IT IS SO ORDERED.

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DATED: __6/18/2014__

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By: ________________________________
HON. ANDREW J. WISTRICH
U.S. DISTRICT COURT OF CALIFORNIA

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