Rolex Watch USA Inc v. Watch Empire LLC et al

Filing 93

PROTECTIVE ORDER by Magistrate Judge Frederick F. Mumm re Notice (Other) 91 NOTE: CHANGES MADE BY THE COURT: (see attached) (jm)

1
2
3
4

NOTE: CHANGES MADE BY THE COURT

5
6
7

IN THE UNITED STATES DISTRICT COURT

8

FOR THE CENTRAL DISTRICT OF CALIFORNIA

9
10

ROLEX WATCH U.S.A., INC.,
Plaintiff,

11
v.

12
13

WATCH EMPIRE LLC, et al.,

14

Defendants.

15
16
17

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. CV13-9221 SJO (FFMx)
STIPULATED [PROPOSED]
PROTECTIVE ORDER
Honorable Frederick F. Mumm

18
19

[PROPOSED] PROTECTIVE ORDER

20

The parties expect that this case will require the parties to produce or

21

disclose confidential information during the course of discovery which may

22

include, for example, documents and information such as described in

23

Paragraphs 3 and 4 below. To expedite the flow of discovery material, to

24

facilitate the prompt resolution of disputes over confidentiality of discovery

25

materials, to adequately protect information the parties are entitled to keep

26

confidential, to ensure that only materials the parties are entitled to keep

27

confidential are subject to such treatment, and to ensure that the parties are

28

///

1

permitted reasonably necessary uses of such materials in preparation for and in

2

the conduct of trial in the above-captioned case, it is hereby ORDERED THAT:

3

Scope of the Order

4

1.

This Order shall apply to all materials and information produced or

5

provided in this litigation by, and all testimony given in any deposition on

6

behalf of, plaintiff Rolex Watch U.S.A., Inc. or defendants (each of which is

7

individually referred to herein as a “Party” or collectively as the “Parties”), or

8

by or on behalf of any person or entity that is not a party hereto (a “Non-Party”).

9

All such materials, information, and testimony is hereinafter referred to as

10

“Litigation Materials.”
2.

11

Litigation Materials and the information therefrom shall be used

12

solely for the purpose of preparing for and conducting this litigation and shall

13

not be disclosed except as under such restrictions as provided for in this Order.

14

Designation of Litigation Materials by Parties and Non-Parties

15

3.

Litigation Materials may be classified and maintained as

16

CONFIDENTIAL if they contain or constitute information that: (i) has not been

17

made public by the producing or originating person or entity; and (ii) cannot be

18

obtained from public sources; and (iii) is confidential; and (iv) is subject to

19

protection under the Federal Rules of Civil Procedure. (FFM)
4.

20

Litigation Materials may be classified and maintained as

21

ATTORNEYS’ EYES ONLY if they contain or constitute information that: (i)

22

has not been made public by the producing or originating person or entity, (ii)

23

cannot be obtained from public sources, and (iii) disclosure of the Litigation

24

Materials poses a significant risk of competitive or other harm to the producing,

25

supplying, or originating person or entity; and (iv) the Litigation Materials relate

26

to:

27

///

28

///
-2-

(a)

1

contacts and communications relating to prospective or

2

actual agreements or contractual arrangements, and the financial terms thereof,

3

with distributors, customers, or similar entities;
(b)

4

financial

information,

including

pricing

information,

5

financial data, cost information, sales information, units and values of sales,

6

sales analyses by region or customer, and performance metrics and reports;
(c)

7
8

party’s products;
(d)

9
10

technical, operational, and development information about a

business plans, marketing strategies, new product plans and

competitive analysis or strategies;

11

(e)

information that is protected as a trade secret by the

12

producing person or entity;

13

(f)

documents or information as to which the producing Party

14

has a pre-existing and continuing duty of confidentiality to a Non-Party,

15

provided that the Non-Party in good faith required the producing Party to

16

designate the documents or information ATTORNEYS’ EYES ONLY as a

17

condition of production or disclosure;
(g)

18

documents or information as to which the producing person

19

or entity has a pre-existing and continuing duty of confidentiality to another

20

person or entity; or
(h)

21
22

similar in nature to the categories listed above in sections (a) through (g).
The provisions of this paragraph do not preclude a person or entity from

23
24

other highly sensitive documents or information that are

asserting that such designated Litigation Materials are not discoverable at all.
5.

25

Litigation Materials (including portions of deposition transcripts)

26

designated as CONFIDENTIAL, or information derived therefrom, may be

27

disclosed or made available only to the following persons:

28

///
-3-

(a)

1
2

reporters (through filing under seal, or at any trial or hearing);
(b)

3
4

to the Court and its officers and staff, including court

to outside counsel of record for the Parties (including legal

and clerical staff employed or engaged by such counsel);
(c)

5

no more than two (2) other persons such as officers,

6

directors, or employees of the Parties to this action when such disclosure is

7

deemed necessary to aid trial counsel in the prosecution, defense, or settlement

8

of this action;
(d)

9

to outside experts, consultants, advisors and/or translators

10

retained to furnish technical or expert services and/or to give testimony with

11

respect to the subject matter thereof for trial of this action; and
(e)

12

to individuals and organizations that provide photocopying,

13

document

14

stenographic, and court reporting services.
6.

15

processing,

imaging,

translation,

graphics,

jury

consulting,

Litigation Materials (including portions of deposition transcripts)

16

designated as ATTORNEYS’ EYES ONLY, or information derived therefrom,

17

may be disclosed or made available only to the following persons:
(a)

18
19

(through filing under seal, or at any trial or hearing);
(b)

20
21

to the Court and its officers, including court reporters

to outside counsel of record for the Parties (including legal

and clerical staff employed or engaged by such counsel);
(c)

22

to outside experts, consultants, advisors and/or translators

23

retained to furnish technical or expert services and/or to give testimony with

24

respect to the subject matter thereof for trial of this action; and
(d)

25

to individuals and organizations that provide photocopying,

26

document

processing,

imaging,

translation,

27

stenographic, and court reporting services.

28

///
-4-

graphics,

jury

consulting,

7.

1

Any classification of Litigation Materials (or parts thereof) as

2

CONFIDENTIAL or ATTORNEYS’ EYES ONLY will be done by the

3

producing person or entity applying in good faith the criteria outlined in

4

Paragraphs 3 and 4 above. Litigation Materials may be produced for inspection

5

by counsel prior to such designation without waiving any right to so designate

6

materials before providing copies to the requesting Party.
(a)

7

The inadvertent delivery of Litigation Materials that could

8

properly be designated as CONFIDENTIAL pursuant to Paragraph 3 above, or

9

ATTORNEYS’ EYES ONLY pursuant to Paragraph 4 above, shall be without

10

prejudice to the producing person or entity.

11

Materials, the producing person or entity determines that the produced

12

Litigation Materials should have been designated as CONFIDENTIAL or

13

ATTORNEYS’ EYES ONLY, the producing person or entity shall promptly

14

provide written notice to the receiving Party and shall provide the receiving

15

Party with a replacement copy of the Litigation Materials bearing a

16

CONFIDENTIAL or ATTORNEYS’ EYES ONLY designation within five (5)

17

court days after giving such written notice. The receiving Party shall either

18

promptly return the undesignated Litigation Materials to the producing person

19

or entity, or promptly provide the producing person or entity with notice that all

20

such undesignated Litigation Materials have been destroyed. During the five (5)

21

court day period following written notification that Litigation Materials should

22

have been designated as CONFIDENTIAL or ATTORNEYS’ EYES ONLY,

23

the receiving Party shall treat the undesignated Litigation Materials as though

24

they have been so designated and shall retrieve all copies of the undesignated

25

Litigation Materials for either return to the producing person or entity or to be

26

destroyed.

27

///

28

///
-5-

If, after producing Litigation

(b)

1

If, after producing Litigation Materials, a producing person

2

or entity discovers that the Litigation Materials were properly subject to

3

protection under the attorney-client privilege or the attorney work product

4

doctrine, the producing person or entity shall promptly provide written notice to

5

the receiving Party that such Litigation Materials were inadvertently produced

6

and properly subject to protection under the attorney-client privilege or the

7

attorney work product doctrine. Upon receiving such written notice from the

8

producing person or entity that privileged information or attorney work product

9

material has been inadvertently produced, all such information, and all copies

10

thereof, either shall be promptly returned to the producing person or entity, or

11

shall be destroyed and the receiving Party shall promptly provide the producing

12

person or entity with notice that all such documents have been destroyed. If the

13

receiving Party disagrees with the designation of any such Litigation Materials

14

as privileged or otherwise protected after conferring with the producing person

15

or entity in good faith, the receiving Party shall nonetheless return such

16

Litigation Materials to the producing person or entity as specified above, but

17

may move the Court for production of the returned Litigation Materials. The

18

producing person or entity shall retain all returned Litigation Materials for

19

further disposition.
8.

20

A producing person or entity may designate Litigation Materials as

21

confidential pursuant to Paragraphs 3 and 5 above by marking each page of such

22

materials with a stamp identifying this civil action and using the word

23

CONFIDENTIAL, or by one of the following ways:
(a)

24

If the Litigation Materials are not in paper form, the

25

producing person or entity shall use other such reasonable means as necessary to

26

identify clearly the Litigation Materials as CONFIDENTIAL.

27

///

28

///
-6-

(b)

1

If information disclosed during the course of a deposition is

2

deemed CONFIDENTIAL by a person or entity, the designation thereof as

3

CONFIDENTIAL shall be made either (i) by a statement on the record at the

4

deposition identifying the testimony to be designated as CONFIDENTIAL or

5

(ii) by providing written notice to the other Parties of the specific pages of the

6

transcript that should also be so designated within thirty (30) days after receipt

7

by counsel of an official copy of the deposition transcript. Such designation as

8

CONFIDENTIAL will be applied to only those portions of the deposition

9

transcript that include a specific question and response or series of questions and

10
11

responses containing CONFIDENTIAL information.
9.

A producing person or entity may designate its most confidential

12

Litigation Materials pursuant to Paragraphs 4 and 6 above by marking each page

13

of such materials with a stamp identifying this civil action and using the words

14

ATTORNEYS’ EYES ONLY, or by one of the following ways:

15

(a)

If the Litigation Materials are not in paper form, the

16

producing person or entity shall use other such reasonable means as necessary to

17

identify clearly the Litigation Materials as ATTORNEYS’ EYES ONLY.

18

(b)

If information disclosed during the course of a deposition is

19

deemed ATTORNEYS’ EYES ONLY by a person or entity, the designation

20

thereof as ATTORNEYS’ EYES ONLY shall be made either (i) by a statement

21

on the record at the deposition identifying the testimony to be designated as

22

ATTORNEYS’ EYES ONLY or (ii) by providing written notice to the other

23

Parties of the specific pages of the transcript that should also be so designated

24

within thirty (30) days after receipt by counsel of an official copy of the

25

deposition transcript. Such designation as ATTORNEYS’ EYES ONLY will be

26

applied to only those portions of the deposition transcript that include a specific

27

question and response or series of questions and responses containing

28

ATTORNEYS’ EYES ONLY information.
-7-

Unless otherwise previously

1

designated, all depositions transcripts shall be treated as ATTORNEYS’ EYES

2

ONLY in their entirety prior to the end of such thirty (30) day period.

3

10.

If counsel for a Party receiving Litigation Materials designated as

4

CONFIDENTIAL or ATTORNEYS’ EYES ONLY hereunder objects to such

5

designation of any or all of such Litigation Materials, the following procedure

6

shall apply:

7

(a)

Counsel for the objecting Party shall serve on the designating

8

person or entity a written objection to such designation, which shall describe

9

with particularity the Litigation Materials in question and shall state the grounds

10

for objection. Counsel for the designating person or entity shall respond in

11

writing to such objection within five (5) court days, and shall state with

12

particularity the grounds for asserting that the Litigation Materials are

13

CONFIDENTIAL or ATTORNEYS’ EYES ONLY. If no written response is

14

made to the objection, the challenged Litigation Materials shall no longer be

15

considered as designated under this Confidentiality Order, and the objecting

16

Party shall treat such challenged Litigation Materials as if they had originally

17

been produced without any designation of confidentiality. If the designating

18

person or entity makes a timely response to such objection asserting the

19

propriety of the designation, counsel shall then confer in good faith in an effort

20

to resolve the dispute.

21

(b)

If a dispute as to a CONFIDENTIAL or ATTORNEYS’

22

EYES ONLY designation of Litigation Materials cannot be resolved by

23

agreement, the Party objecting to the designation may move the Court for an

24

order removing the challenged designation. The Litigation Materials that are

25

the subject of the filing shall be treated as originally designated pending

26

resolution of the dispute.

27

documents will comply with the joint filing procedure for discovery disputes

28

pursuant to Local Rule 37.

Any motion regarding confidential treatment of

-8-

1

11.

This Order shall not limit a Party’s use of designated Litigation

2

Materials in examining a witness at a deposition, hearing, or trial, even though

3

such witness may not otherwise be entitled to view designated Litigation

4

Materials under the terms of this Order, so long as the examination concerns

5

designated Litigation Materials that the witness authored or previously had

6

access to or knowledge of, as demonstrated by the designated Litigation

7

Materials themselves or by foundation testimony during a deposition, hearing,

8

or trial. This Order shall not prevent counsel from examining a witness in a

9

good faith effort to determine whether the witness authored or previously had

10
11

access to or knowledge of designated Litigation Materials.
12.

Prior to disclosing any Litigation Materials designated by a Party

12

as CONFIDENTIAL or ATTORNEYS’ EYES ONLY to outside experts,

13

consultants and/or advisors referred to in Paragraphs 5(d) and/or 6(c) above,

14

counsel for the receiving Party making such disclosure shall:

15
16
17
18
19

(a)

provide a copy of this Confidentiality Order to each such

outside expert, consultant or advisor;
(b)

obtain from the outside expert, consultant or advisor a fully

executed undertaking in the form attached hereto as Exhibit A; and
(c)

identify each such outside expert, consultant or advisor to

20

whom disclosure is proposed to be made by providing to counsel for the

21

producing Party, via overnight courier or same day hand delivery, same day

22

facsimile or same day e-mail, a copy of each such expert’s, consultant’s or

23

advisor’s executed undertaking along with a current resume for each such

24

expert, consultant or advisor. The expert’s, consultant’s or advisor’s resume

25

must identify all employers and clients for whom the consultant or expert has

26

worked in the last four (4) years, as well as any litigation matters in which the

27

expert, consultant or advisor has testified, either by way of expert report,

28

deposition, or testimony at a hearing or trial, over the last four (4) years.
-9-

1

13.

Counsel for the receiving Party making the disclosure shall not

2

disclose materials designated CONFIDENTIAL or ATTORNEYS’ EYES

3

ONLY to any outside expert, consultant or advisor for a period of ten (10) court

4

days from the date on which it provides to counsel for the producing Party the

5

items specified in Paragraph 12(c) above. If within this ten (10) court day

6

period counsel for the producing Party does not object, in writing, to the

7

proposed disclosure to the expert, consultant or advisor identified pursuant to

8

Paragraph 12(c) above, then counsel for the receiving Party shall be permitted to

9

disclose the CONFIDENTIAL or ATTORNEYS’ EYES ONLY materials to

10

such identified expert, consultant or advisor. If, within this ten (10) court day

11

period, counsel for the producing Party objects in writing to the proposed

12

disclosure to the expert, consultant or advisor identified pursuant to Paragraph

13

12(c) above, then counsel for the receiving Party shall not be permitted to

14

disclose CONFIDENTIAL or ATTORNEYS’ EYES ONLY materials to that

15

expert, consultant or advisor, absent further order from the Court.

16

producing Party shall have the burden of filing a motion for protective order

17

with the Court within five (5) court days of objecting to the outside expert,

18

consultant or advisor prohibiting the disclosure of CONFIDENTIAL or

19

ATTORNEYS’ EYES ONLY materials to the independent expert, consultant or

20

advisor to whom counsel for the producing Party has objected. If the five (5)

21

court days elapse without the counsel for the producing Party seeking relief

22

from the Court, the requested information may be shared with the identified

23

outside expert, consultant or advisor in accordance with the terms of this

24

Confidentiality Order.

25

14.

The

If disclosure of CONFIDENTIAL documents or information is

26

made to any person under Paragraph 5(c) above, counsel for the Party making

27

the disclosure shall deliver a copy of this Order as entered to such person,

28

explain its terms to such person, and secure the signature of such person on a
- 10 -

1

written undertaking in the form attached hereto as Exhibit A. Each Party shall

2

maintain a file of all such signed copies of Exhibit A. Further, it shall be the

3

obligation of counsel for the disclosing Party, upon learning of any breach or

4

threatened breach of this Order, promptly to take all reasonable action to prevent

5

the threatened breach or remedy an actual breach.

6

15.

Litigation

Materials

designated

as

CONFIDENTIAL

or

7

ATTORNEYS’ EYES ONLY shall be used by the persons receiving them

8

solely for the purposes of preparing for and conducting this action and for no

9

other action or proceeding. Persons receiving such Litigation Materials shall

10

not use them for any business or other purpose, and shall not disclose them to

11

any person not expressly permitted by the terms of this Confidentiality Order to

12

have such access. All Litigation Materials designated as CONFIDENTIAL or

13

ATTORNEYS’ EYES ONLY shall be maintained by the receiving Party so as

14

to preclude access by unauthorized persons.

15

ATTORNEYS’ EYES ONLY Litigation Materials provided to an outside

16

expert, consultant or advisor shall be kept at such person’s offices in a manner

17

designed to ensure against disclosures not authorized by this Confidentiality

18

Order.

19

16.

CONFIDENTIAL or

Nothing herein shall impose any restrictions on the use or

20

disclosure by a Party or witness of its own Litigation Materials, or of documents

21

or information obtained by such Party or witness independent of the discovery

22

proceedings, inclusive of any discovery received from a Non-Party in this

23

action, whether or not such documents or information are also obtained through

24

discovery proceedings in this action.

25

17.

Without written permission from the producing Party or a Court

26

Order secured after appropriate notice to all interested persons, a Party may not

27

file in the public record in this action any CONFIDENTIAL or ATTORNEYS’

28

EYES ONLY material of the opposing Party, but must apply for leave to file
- 11 -

1

such CONFIDENTIAL or ATTORNEYS’ EYES ONLY material under seal in

2

conformance with the Court’s rules and procedures, including Local Rule 79-5.

3

CONFIDENTIAL or ATTORNEYS’ EYES ONLY material filed under seal

4

shall bear the title of this action, an indication of the contents of such sealed

5

envelope or container, the words “CONFIDENTIAL INFORMATION AS

6

DESIGNATED

PURSUANT

7

ORDER”

“ATTORNEYS’

8

DESIGNATED

9

ORDER,” as appropriate, and a statement substantially in the following form:

10

This envelope contains confidential information filed in this

11

case by [name of party] and is not to be opened nor the contents

12

thereof to be displayed or revealed except by order of the Court

13

presiding over this matter.

14

18.

or

PURSUANT

TO

STIPULATED

EYES

TO

ONLY

STIPULATED

CONFIDENTIALITY
INFORMATION

AS

CONFIDENTIALITY

On termination of this action, including all appeals, the receiving

15

Party shall, at the election and instruction of the producing Party, either: (1)

16

return to counsel for each producing Party or entity all Litigation Materials

17

designated by the producing person or entity as CONFIDENTIAL or

18

ATTORNEYS’ EYES ONLY and all copies of such Litigation Materials and

19

shall destroy all abstracts, digests and analyses thereof, however stored or

20

reproduced; or (2) destroy and provide certification to the producing person or

21

entity disclosing such Litigation Materials that the CONFIDENTIAL or

22

ATTORNEYS’ EYES ONLY Litigation Materials, including all abstracts,

23

digests and analyses thereof, however stored or reproduced, have been

24

destroyed. On termination of this action, counsel for each Party may maintain

25

in its files one copy of CONFIDENTIAL or ATTORNEYS’ EYES ONLY

26

Litigation Materials as filed with or otherwise presented to the Court.

27

///

28

///
- 12 -

1

19.

The Parties’ obligations under this Confidentiality Order shall

2

survive the termination of the above captioned litigation, including subsequent

3

appeals or later proceedings, for any retained Litigation Materials or

4

information, extracts, summaries, notes, or compilations derived therefrom, and

5

the Court shall retain jurisdiction to enforce the performance of said obligations.

6

20.

If a party to whom CONFIDENTIAL or ATTORNEYS’ EYES

7

ONLY material has been produced is subpoenaed or ordered by another

8

court or administrative agency to produce information that is subject to

9

this protective order, such party shall notify promptly the party who

10

produced the material of the pending subpoena or order.

11

producing party’s responsibility to take whatever action it deems

12

appropriate to challenge the subpoena or order in the issuing court or

13

agency. The party subject to the subpoena or order shall not produce any

14

CONFIDENTIAL or ATTORNEYS’ EYES ONLY materials in advance of

15

the date required by the subpoena or order.

16

construed as relieving anyone subject to this order from any obligation to

17

comply with a validly issued subpoena or order. (FFM)

18

Nothing herein shall be

SO ORDERED AND SIGNED this 17th day of November, 2014.

19
20

/S/ FREDERICK F. MUMM

21

Honorable Frederick F. Mumm
United States Magistrate Judge

22

It is the

23
24
25
26
27
28
- 13 -

1

UNDERTAKING

2
3

1.

I, ______________________________________________, have

4

read the foregoing Confidentiality Order (the “Order”) and agree to be bound by

5

its terms with respect to any Litigation Materials marked CONFIDENTIAL or

6

ATTORNEYS’ EYES ONLY that are furnished to me as set forth in the Order.

7

2.

I further agree (i) not to disclose to anyone any Litigation Materials

8

marked CONFIDENTIAL or ATTORNEYS’ EYES ONLY other than as set

9

forth in the Order, and (ii) not to make any copies of any Litigation Materials

10

marked CONFIDENTIAL or ATTORNEYS’ EYES ONLY furnished to me

11

except in accordance with the Order.

12

3.

I hereby consent to the jurisdiction of the United States District

13

Court for the Central District of California, Western Division, with regard to

14

any proceedings to enforce the terms of the Order.

15

4.

I

hereby

agree

that

any

Litigation

Materials

marked

16

CONFIDENTIAL or ATTORNEYS’ EYES ONLY furnished to me will be

17

used by me only for the purposes of this litigation and for no other purpose, and

18

will not be used by me in any business affairs of my employer or of my own or

19

be imparted by me to any other person.

20
21

Signature: _______________________

22

Date: ___________________________

23
24
25
26
27
28
- 14 -