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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3 C.YONG JEONG SBN: 255244 PAUL COHEN SBN: 293797 Jeong & Likens, L.C. 1055 W. 7th Street, Suite 2280 Los Angeles, CA 90017 4 Attorneys for Plaintiff Urban Textile, Inc. 1 2 5 6 7 8 9 JENNY J. RIM SBN: 231584 2423 E. 23rd Street Los Angeles, CA 90058 Telephone: (323) 583-9900 jennyrim@loveculture.com Attorneys for Defendant Love Culture Inc. 10 UNITED STATES DISTRICT COURT 11 CENTRAL DISTRICT OF CALIFORNIA 12 13 14 URBAN TEXTILE, INC., a California corporation, Plaintiff, 15 v. 16 17 Case No.: 2:13-CV-07777-DSF-AJW PROTECTIVE ORDER [DISCOVERY MATTER] LOVE CULTURE INC.; et al., Defendants. 18 Honorable Andrew J. Wistrich 19 20 I. PURPOSES AND LIMITATIONS 21 Disclosure and discovery activity in this action are likely to involve 22 production of confidential, proprietary, or private information for which special 23 protection from public disclosure and from use for any purpose other than 24 prosecuting this matter would be warranted. Accordingly, the parties hereby 25 stipulate to and petition this Court to enter the following Stipulated Protective 26 Order. The parties acknowledge that this Order does not confer blanket protections 27 on all disclosures or responses to discovery and that the protection it affords 28 extends only to the limited information or items that are entitled under the 1 [PROPOSED] PROTECTIVE ORDER 1 applicable legal principles to treatment as confidential. The parties have agreed that 2 the terms of this Protective Order shall also apply to any future voluntary 3 disclosures of confidential, proprietary, or private information. The parties reserve 4 their rights to object to or withhold any information, including confidential, 5 proprietary, or private information, on any other applicable grounds permitted by 6 law, including third-party rights and relevancy. 7 8 II. 9 DEFINITIONS 2.1 Party: any party to this action, including all of its officers, directors, 10 employees, consultants, retained experts, and outside counsel (and their support 11 staff). 12 2.2 Disclosure or Discovery Material: all items or information, regardless 13 of the medium or manner generated, stored, or maintained (including, among other 14 things, testimony, transcripts, or tangible things), that are produced or 15 generated in disclosures or responses to discovery in this matter. 16 2.3 “Confidential” Information or Items: information (regardless of how 17 generated, stored, or maintained) or tangible things that qualify for protection 18 under standards developed under Fed. R. Civ. P. 26(c). 19 20 2.4 “Attorneys’ Eyes Only”: Discovery Material or such portion of such material as consists of: 21 a) any commercially sensitive and/or confidential business or financial 22 information (including without limitation confidential nonpublic contracts, 23 profitability reports or estimates, sales reports, and sales margins) which could 24 reasonably create a competitive disadvantage if disclosed to the parties in this 25 action; 26 27 28 2 [PROPOSED] PROTECTIVE ORDER b) any business or financial information that is confidential, 1 2 proprietary, or commercially sensitive to third parties who have had business 3 dealings with parties to this action; or c) any other category of material or information hereinafter given 4 5 Confidential status by the Court, to the extent said material could reasonably create 6 a competitive disadvantage if disclosed to the parties in this action. 7 8 9 10 11 2.5 Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing Party. 2.6 Producing Party: a Party or non-party that produces Disclosure or Discovery Material in this action. 2.7 Designating Party: a Party or non-party that designates 12 information or items that it produces in disclosures or in responses to discovery as 13 “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY.” 14 15 16 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 17 pertinent to the litigation who has been retained by a Party or its counsel to serve as 18 an expert witness or as a consultant in this action. This definition includes a 19 professional jury or trial consultant retained in connection with this litigation. The 20 expert witness or consultant may not be a past or a current employee of the Party 21 (including any affiliates or related entities) adverse to the Party engaging the expert 22 witness or consultant, or someone who at the time of retention is anticipated to 23 become an employee of the Party (including any affiliates or related entities) 24 adverse to the Party engaging the expert witness or consultant. Moreover, the expert 25 witness or consultant may not be a current employee or anticipated to become an 26 employee of any entity who is a competitor of the Party adverse to the Party 27 engaging the expert witness or consultant. 28 3 [PROPOSED] PROTECTIVE ORDER 1 2.10 Professional Vendors: persons or entities that provide litigation 2 support services (e.g., photocopying; videotaping; translating; preparing exhibits or 3 demonstrations; organizing, storing, or retrieving data in any form or medium; etc.) 4 and their employees and subcontractors. 5 6 3. SCOPE 7 The protections conferred by this Stipulation and Order cover not only 8 Protected Material (as defined above), but also any information copied or extracted 9 therefrom, as well as all copies, excerpts, summaries, or compilations thereof, plus 10 testimony, conversations, or presentations by parties or counsel to or in litigation or 11 in other settings that might reveal Protected Material. 12 13 4. DURATION 14 Even after the termination of this action, the confidentiality obligations 15 imposed by this Order shall remain in effect until a Designating Party agrees 16 otherwise in writing or a court order otherwise directs. 17 18 5. DESIGNATING PROTECTED MATERIAL 19 5.1 Exercise of Restraint and Care in Designating Material for Protection. 20 Each Party or non-party that designates information or items for protection under 21 this Order must take care to limit any such designation to specific material that 22 qualifies under the appropriate standards. A Designating Party must take care to 23 designate for protection only those parts of material, documents, items, or oral or 24 written communications that qualify – so that other portions of the material, 25 documents, items, or communications for which protection is not warranted are not 26 swept unjustifiably within the ambit of this Order. Mass, indiscriminate, or 27 routinized designations are prohibited. Designations that are shown to be clearly 28 unjustified, or that have been made for an improper purpose (e.g., to unnecessarily 4 [PROPOSED] PROTECTIVE ORDER 1 encumber or retard the case development process, or to impose unnecessary 2 expenses and burdens on other parties), expose the Designating Party to sanctions. 3 If it comes to a Party’s or a non-party’s attention that information or items that it 4 designated for protection do not qualify for protection at all, or do not qualify for 5 the level of protection initially asserted, that Party or non-party must promptly 6 notify all other parties that it is withdrawing the mistaken designation. 7 5.2 Manner and Timing of Designations. Except as otherwise provided in 8 this Order (see, e.g., second paragraph of section 5.2(a), below), or as otherwise 9 stipulated or ordered, material that qualifies for protection under this Order must be 10 clearly so designated before the material is disclosed or produced. Designation in 11 conformity with this Order requires: 12 (a) for information in documentary form (apart from transcripts of 13 depositions or other pretrial or trial proceedings), that the Producing Party affix the 14 legend “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” at the top or bottom 15 of each page that contains protected material. 16 A Party or non-party that makes originals or copies of documents or 17 materials available for inspection need not designate them for protection until after 18 the inspecting Party has indicated which material it intends to copy. During the 19 inspection and before the designation, all of the material made available for 20 inspection shall be deemed “ATTORNEYS’ EYES ONLY.” After the inspecting 21 Party has identified the documents it wants copied and produced, the Producing 22 Party must designate, either in writing or on the record (at a deposition), which 23 documents, or portions thereof, qualify for protection under this Order. Then the 24 Receiving Party must affix the “CONFIDENTIAL” or “ATTORNEYS’ EYES 25 ONLY” legend at the top of each copied page that contains Protected Material. If 26 only a portion or portions of the material on a page qualifies for protection, the 27 Producing Party also must clearly identify the protected portion(s) (e.g., by making 28 appropriate markings in the margins) and must specify, for each portion, the level 5 [PROPOSED] PROTECTIVE ORDER 1 of protection being asserted (either “CONFIDENTIAL” or “ATTORNEYS’ EYES 2 ONLY”). 3 (b) for testimony given in deposition or in other pretrial or trial 4 proceedings, that the Party or non-party offering or sponsoring the testimony 5 identify on the record, before the close of the deposition, hearing, or other 6 proceeding, all protected testimony, and further specify any portions of the 7 testimony that qualify as “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY.” 8 When it is impractical to identify separately each portion of testimony that is 9 entitled to protection, and when it appears that substantial portions of the testimony 10 may qualify for protection, the Party or non-party that sponsors, offers, or gives the 11 testimony may invoke on the record (before the deposition or proceeding is 12 concluded) a right to have up to 20 days to identify the specific portions of the 13 testimony as to which protection is sought and to specify the level of protection 14 being asserted (“CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY”). Only 15 those portions of the testimony that are appropriately designated for protection 16 within the 20 days shall be covered by the provisions of this Stipulated Protective 17 Order. Transcript pages containing Protected Material must be separately bound by 18 the court reporter, who must affix to the top of each such page the legend 19 “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY,” as instructed by the Party 20 or non-party offering or sponsoring the witness or presenting the testimony. 21 (c) for information produced in some form other than documentary, 22 and for any other tangible items, that the Producing Party affix in a prominent place 23 on the exterior of the container or containers in which the information or item is 24 stored the legend “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY.” If only 25 portions of the information or item warrant protection, the Producing Party, to the 26 extent practicable, shall identify the protected portions, specifying whether they 27 qualify as “CONFIDENTIAL” or as “ATTORNEYS’ EYES ONLY” 28 6 [PROPOSED] PROTECTIVE ORDER 1 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 2 failure to designate qualified information or items as “CONFIDENTIAL” or 3 “ATTORNEYS’ EYES ONLY” does not, standing alone, waive the Designating 4 Party’s right to secure protection under this Order for such material. If material is 5 appropriately designated as “CONFIDENTIAL” or “ATTORNEYS’ EYES 6 ONLY” after the material was initially produced, the Receiving Party, on timely 7 notification of the designation, must make reasonable efforts to assure that the 8 material is treated in accordance with the provisions of this Order. 9 10 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 11 6.1 Timing of Challenges. Unless a prompt challenge to a Designating 12 Party’s confidentiality designation is necessary to avoid foreseeable substantial 13 unfairness, unnecessary economic burdens, or a later significant disruption or delay 14 of the litigation, a Party does not waive its right to challenge a confidentiality 15 designation by electing not to mount a challenge promptly after the original 16 designation is disclosed. 17 6.2 Meet and Confer. A Party that elects to initiate a challenge to a 18 Designating Party’s confidentiality designation must do so in good faith and must 19 begin the process by conferring with counsel for the Designating Party in writing. 20 In conferring, the challenging Party must explain the basis for its belief that the 21 confidentiality designation was not proper and must give the Designating Party an 22 opportunity to review the designated material, to reconsider the circumstances, and, 23 if no change in designation is offered, to explain the basis for the chosen 24 designation. A challenging Party may proceed to the next stage of the challenge 25 process only if it has engaged in this meet-and-confer process first. 26 6.3 Court Intervention. A Party that elects to press a challenge to a 27 confidentiality designation after considering the justification offered by the 28 Designating Party may file and serve a motion that identifies the challenged 7 [PROPOSED] PROTECTIVE ORDER 1 material and sets forth in detail the basis for the challenge. Each such motion must 2 be accompanied by a competent declaration that affirms that the movant has 3 complied with the meet-and-confer requirements imposed in the preceding 4 paragraph and that sets forth with specificity the justification for the confidentiality 5 designation that was given by the Designating Party in the meet-and-confer 6 dialogue. The parties agree that a confidentiality designation shall not create a 7 presumption in favor of such confidentiality designation, and that the Court shall 8 decide the issue as such. Until the Court rules on the challenge, all parties shall 9 continue to afford the material in question the level of protection to which it is 10 entitled under the Producing Party’s designation. 11 12 7. ACCESS TO AND USE OF PROTECTED MATERIAL 13 7.1 Basic Principles. A Receiving Party may use Protected Material that is 14 disclosed or produced by another Party or by a non-party in connection with this 15 case only for prosecuting, defending, or attempting to settle this litigation. Such 16 Protected Material may be disclosed only to the categories of persons and under the 17 conditions described in this Order. When the litigation has been terminated, a 18 Receiving Party must comply with the provisions of section 11, below (FINAL 19 DISPOSITION). Protected Material must be stored and maintained by a Receiving 20 Party at a location and in a secure manner that ensures that access is limited to the 21 persons authorized under this Order. 22 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 23 otherwise ordered by the Court or permitted in writing by the Designating Party, a 24 Receiving 25 “CONFIDENTIAL” only to: Party may disclose any information or item designated 26 (a) the Receiving Party’s outside counsel, as well as employees of said 27 outside counsel to whom it is reasonably necessary to disclose the information for 28 this litigation; 8 [PROPOSED] PROTECTIVE ORDER 1 (b) Board members, officers and directors of the Receiving Party; 2 (c) Other employees of the Receiving Party to whom disclosure is 3 reasonably necessary for this litigation and who are bound by internal 4 confidentiality obligations as part of their employment or who have signed the 5 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 6 (d) Experts (as defined in this Order) of the Receiving Party to whom 7 disclosure is reasonably necessary for this litigation and who have signed the 8 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 9 (e) the Court personnel assigned to this litigation; 10 (f) court reporters, their staffs, and professional vendors to whom 11 disclosure is reasonably necessary for this litigation and who have signed the 12 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 13 (g) during their depositions, witnesses in the action to whom disclosure 14 is reasonably necessary and who have signed the “Acknowledgment and 15 Agreement to Be Bound” (Exhibit A). Pages of transcribed deposition testimony or 16 exhibits to depositions that reveal Protected Material must be separately bound by 17 the court reporter and may not be disclosed to anyone except as permitted under 18 this Stipulated Protective Order; and (h) the author and recipients of the document or the original source of 19 20 the information. 21 7.3 Disclosure of “ATTORNEYS’ EYES ONLY” Information or Items. 22 Unless otherwise ordered by the Court or permitted in writing by the Designating 23 Party, a Receiving Party may disclose any information or item designated 24 “ATTORNEYS’ EYES ONLY” only to: 25 (a) the Receiving Party’s outside counsel, as well as employees of said 26 outside counsel to whom it is reasonably necessary to disclose the information for 27 this litigation; 28 9 [PROPOSED] PROTECTIVE ORDER 1 (b) Experts (as defined in this Order) of the Receiving Party to whom 2 disclosure is reasonably necessary for this litigation and who have signed the 3 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 4 (c) the Court personnel assigned to this litigation; 5 (d) court reporters, their staffs, and professional vendors to whom 6 disclosure is reasonably necessary for this litigation and who have signed the 7 “Acknowledgment and Agreement to Be Bound” (Exhibit A); and (e) the author and recipients of the document or the original source of 8 9 the information. 10 7.4 Nothing in this Order shall be read to prohibit the use of otherwise 11 Protected Material to prosecute claims against additional potential defendants 12 identified in said materials. 13 15 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 16 litigation that would compel disclosure of any Discovery Material, the Receiving 17 Party must so notify the Designating Party, in writing immediately and in no event 18 more than five business days after receiving the subpoena or order. Such 19 notification must include a copy of the subpoena or court order. The Receiving 20 Party also must immediately inform in writing the Party who caused the subpoena 21 or order to issue in the other litigation that some or all of the material covered by 22 the subpoena or order is the subject of this Protective Order. In addition, the 23 Receiving Party must deliver a copy of this Stipulated Protective Order promptly to 24 the Party in the other action that caused the subpoena or order to issue. The purpose 25 of imposing these duties is to alert the interested parties to the existence of this 26 Protective Order and to afford the Designating Party in this case an opportunity to 27 try to protect its confidentiality interests in the court from which the subpoena or 14 28 10 [PROPOSED] PROTECTIVE ORDER 1 order issued. The Designating Party shall bear the burdens and the expenses of 2 seeking protection in that court of its confidential material – and nothing in these 3 provisions should be construed as authorizing or encouraging a Receiving Party in 4 this action to disobey a lawful directive from another court. 5 6 9. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 7 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 8 Protected Material to any person or in any circumstance not authorized under this 9 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 10 writing the Designating Party of the unauthorized disclosures, (b) use its best 11 efforts to retrieve all copies of the Protected Material, (c) inform the person or 12 persons to whom unauthorized disclosures were made of all the terms of this Order, 13 and (d) request such person or persons to execute the “Acknowledgment and 14 Agreement to Be Bound” that is attached hereto as Exhibit A. 15 16 10. FILING PROTECTED MATERIAL 17 Without written permission from the Designating Party, or a court order 18 secured after appropriate notice to all interested persons and after following the 19 procedures provided for in Local Rule 79-5.1, a Party may not file in the public 20 record in this action any Protected Material. 21 22 11. FINAL DISPOSITION 23 Unless otherwise ordered or agreed to in writing by the Producing Party, 24 within 60 days after the final termination of this action, each Receiving Party must 25 either return all Protected Material to the Producing Party or certify the destruction 26 of said material. As used in this subdivision, “all Protected Material” includes all 27 copies, abstracts, compilations, summaries or any other form of reproducing or 28 capturing any of the Protected Material. Whether the Protected Material is returned 11 [PROPOSED] PROTECTIVE ORDER 1 or destroyed, the Receiving Party must submit a written certification to the 2 Producing Party (and, if not the same person or entity, to the Designating Party) by 3 the 60-day deadline that identifies (by category, where appropriate) all the 4 Protected Material that was returned or destroyed and that affirms that the 5 Receiving Party has not retained any copies, abstracts, compilations, summaries or 6 other forms of reproducing or capturing any of the Protected Material. 7 Notwithstanding this provision, counsel are entitled to retain an archival copy of all 8 pleadings, motion papers, transcripts, legal memoranda, correspondence or attorney 9 work product, even if such materials contain Protected Material. Any such archival 10 copies that contain or constitute Protected Material remain subject to this Protective 11 Order as set forth in Section 4 (DURATION), above. 12 13 12. MISCELLANEOUS 14 12.1 Right to Further Relief. Nothing in this Order abridges the right 15 of any person to seek its modification in the future. 16 12.2 Right to Assert Other Objections. By stipulating to the entry of 17 this Protective Order no Party waives any right it otherwise would have to object to 18 disclosing or producing any information or item on any ground not addressed in 19 this Stipulated Protective Order. Similarly, no Party waives any right to object on 20 any ground to use in evidence of any of the material covered by this Protective 21 Order. 22 12.3 Inadvertent Production of Privileged Documents. If a Party, through 23 inadvertence, produces any document or information that it believes is immune 24 from discovery pursuant to an attorney-client privilege, the work product privilege, 25 or any other privilege, such production shall not be deemed a waiver of any 26 privilege, and the Producing Party may give written notice to the Receiving Party 27 that the document or information produced is deemed privileged and that return of 28 the document or information is requested. Upon receipt of such notice, the 12 [PROPOSED] PROTECTIVE ORDER 1 Receiving Party shall immediately gather the original and all copies of the 2 document or information of which the Receiving Party is aware, in addition to any 3 abstracts, summaries, or descriptions thereof, and shall immediately return the 4 original and all such copies to the Producing Party. Nothing stated herein shall 5 preclude a Party from challenging an assertion by the other Party of privilege or 6 confidentiality. 7 8 DATED: June 12, 2014 9 By: ____/s/ C. Yong Jeong_____________ C. Yong Jeong Attorney for Plaintiff Urban Textile, Inc. 10 11 DATE: June 12, 2014 12 By: ___/s/ Jenny J. Rim_____________ Jenny J. Rim Attorney for Defendant Love Culture Inc. 13 14 15 IT IS SO ORDERED. 16 17 DATED: __6/18/2014__ 18 19 20 By: ________________________________ HON. ANDREW J. WISTRICH U.S. DISTRICT COURT OF CALIFORNIA 21 22 23 24 25 26 27 28 13 [PROPOSED] PROTECTIVE ORDER

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