Deckers Outdoor Corporation v. Marilyn Moda Inc., et al.

Filing 18

ORDER by Magistrate Judge Paul L. Abrams RE STIPULATION FOR JOINT APPLICATION FOR ENTRY OF PROTECTIVE ORDER RE CONFIDENTIALITY 17 . **NOTE CHANGES MADE BY THE COURT / SEE ORDER FOR DETAILS.** (ch)

NOTE: CHANGES MADE BY THE COURT
1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
A Professional Corporation
Los Angeles

Ropers Majeski Kohn & Bentley

8

11
12

DECKERS OUTDOOR
CORPORATION, a Delaware
Corporation,,

13

Plaintiff,

14

v.

15

MARILYN MODA, INC.,
a California Corporation; and
DOES 1-10, inclusive,

16
17

Defendants.

CASE NO. 14-cv-02648-MWF-PLA
Hon. Michael W. Fitzgerald – Ctrm 1600
DISCOVERY MATTER
ORDER RE STIPULATION FOR
JOINT APPLICATION FOR ENTRY
OF PROTECTIVE ORDER RE
CONFIDENTIALITY

Complaint Filed:

April 8, 2014

18
19
20
21

The Court, having read and considered the Stipulation for Protective Order
Re Confidentiality filed by the parties, finds that good cause appears for a
Protective Order.

22
23
24
25
26
27

IT IS HEREBY ORDERED THAT:
1.

GOOD CAUSE STATEMENT
Federal Rule of Civil Procedure Rule 26(c)(1)(G) permits the grant of a

protective order upon a showing of good cause, and provides that the protection of a
trade secret or other confidential commercial information is a proper basis for the
issuance of a protective order.

28
RC1/7557137.1/JC7

[PROPOSED] ORDER RE STIPULATION FOR
PROTECTIVE ORDER RE CONFIDENTIALITY

1

This is a trademark infringement case. Resolution of the issues raised in the

2

Complaint and any subsequent amended complaints or counter-complaints will

3

require the disclosure and discovery of confidential, proprietary, or private

4

information, such as, without limitation, marketing practices, sales, profit margin,

5

discrete financial information and other matter that each respective party has taken

6

reasonable steps to keep confidential. Special protection from public disclosure and

7

from use for any purpose other than prosecuting this litigation may be warranted.

9

Disclosure or public availability of such information could give competitors
of a party (whether a party in this case or a third party) an unfair advantage. If

10
A Professional Corporation
Los Angeles

Ropers Majeski Kohn & Bentley

8

information is not maintained as confidential a competitor could use it against the

11

respective party (to perhaps demean the party or its product) or could know the

12

party’s marketing strategies. Marketing and financial information warrants being

13

excluded from access by the parties themselves, limited to attorneys’ access. While

14

Deckers is a publicly traded company, the defendants are not publicly traded. In

15

any event, public financial information does not generally reveal cost and profit

16

information for a particular product.

17

The parties acknowledge that this Order does not confer blanket protections

18

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

19

public disclosure and use extends only to the limited information or items that are

20

entitled to confidential treatment under the applicable legal principles. The parties

21

further acknowledge, as set forth in Section 12.3, below, that this Stipulated

22

Protective Order does not entitle them to file confidential information under seal;

23

Civil Local Rule 79-5 sets forth the procedures that must be followed and the

24

standards that will be applied when a party seeks permission from the court to file

25

material under seal.

26
27
28

2.

DEFINITIONS
2.1

RC1/7557137.1/JC7

Challenging Party: a Party or Non-Party that challenges the
-2-

[PROPOSED] ORDER RE STIPULATION FOR
PROTECTIVE ORDER RE CONFIDENTIALITY

1
2

designation of information or items under this Order.
2.2

“CONFIDENTIAL” Information or Items: information (regardless of

3

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

4

protection under Federal Rule of Civil Procedure 26(c).

5
6
7

2.3

Counsel: Counsel of Record for a party (as well as their support staff),

but not an in-house counsel.
2.4

Designating Party: a Party or Non-Party that designates information or

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

9

“CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”

10
A Professional Corporation
Los Angeles

Ropers Majeski Kohn & Bentley

8

2.5

Material: all items or information, regardless of the medium or manner

11

in which it is generated, stored, or maintained (including, among other things,

12

testimony, transcripts, and tangible things), that are produced or generated in

13

disclosures or responses to discovery in this matter.

14

2.6

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

15

pertinent to the litigation who (1) has been retained by a Party or its counsel to

16

serve as an expert witness or as a consultant in this action, (2) is not a past or

17

current employee of a Party or of a Party’s competitor, and (3) at the time of

18

retention, is not anticipated to become an employee of a Party or of a Party’s

19

competitor.

20

2.7

“CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or

21

Items: extremely sensitive “Confidential Information or Items,” disclosure of which

22

to another Party or Non-Party would create a substantial risk of serious harm that

23

could not be avoided by less restrictive means.

24
25
26

2.8

Non-Party: any natural person, partnership, corporation, association, or

other legal entity not named as a Party to this action.
2.9

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

27

house counsel, employees, consultants, retained experts, and Counsel (and their

28

support staffs).
RC1/7557137.1/JC7

-3-

[PROPOSED] ORDER RE STIPULATION FOR
PROTECTIVE ORDER RE CONFIDENTIALITY

1
2

2.10 Producing Party: a Party or Non-Party that produces Material in this
action.

3

2.11 Professional Vendors: persons or entities that provide litigation

4

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

5

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

6

and their employees and subcontractors.

7

2.12 Protected Material: any Disclosure or Discovery Material that is
designated as “CONFIDENTIAL,” or as “CONFIDENTIAL – ATTORNEYS’

9

EYES ONLY.”

10
A Professional Corporation
Los Angeles

Ropers Majeski Kohn & Bentley

8

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

2.13 Receiving Party: a Party that receives Disclosure or Discovery
Material from a Producing Party.
3.

SCOPE
The protections conferred by this Stipulation and Order cover not only

Protected Material (as defined above), but also (1) any information copied or
extracted from Protected Material; (2) all copies, excerpts, summaries, or
compilations of Protected Material; and (3) any testimony, conversations, or
presentations by Parties or their Counsel that might reveal Protected Material.
However, the protections conferred by this Stipulation and Order do not cover the
following information: (a) any information that is in the public domain at the time
of disclosure to a Receiving Party or becomes part of the public domain after its
disclosure to a Receiving Party as a result of publication not involving a violation
of this Order, including becoming part of the public record through trial or
otherwise; and (b) any information known to the Receiving Party prior to the
disclosure or obtained by the Receiving Party after the disclosure from a source
who obtained the information lawfully and under no obligation of confidentiality to
the Designating Party. Any use of Protected Material at trial shall be governed by a
separate agreement or order.
RC1/7557137.1/JC7

-4-

[PROPOSED] ORDER RE STIPULATION FOR
PROTECTIVE ORDER RE CONFIDENTIALITY

1

4.

2

DURATION
Even after final disposition of this litigation, the confidentiality obligations

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

4

otherwise in writing or a court order otherwise directs. Final disposition shall be

5

deemed to be the later of (1) dismissal of all claims and defenses in this action, with

6

or without prejudice; and (2) final judgment herein after the completion and

7

exhaustion of all appeals, re-hearings, remands, trials, or reviews of this action,

8

including the time limits for filing any motions or applications for extension of time

9

pursuant to applicable law.

10
A Professional Corporation
Los Angeles

Ropers Majeski Kohn & Bentley

3

Notwithstanding anything to the contrary, this Order shall not prevent or

11

preclude the admission of Protected Material in open court at trial unless the Court

12

makes a separate order or excludes certain persons from the courtroom.

13
14
15

5.

DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection.

16

Each Party or Non-Party that designates information or items for protection under

17

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

18

qualifies under the appropriate standards. For example, information that was

19

previously made public shall not be designated confidential. To the extent it is

20

practical to do so, the Designating Party must designate for protection only those

21

parts of material, documents, items, or oral or written communications that qualify

22

so that other portions of the material, documents, items, or communications for

23

which protection is not warranted are not swept unjustifiably within the ambit of

24

this Order.

25

Mass, indiscriminate, or routinized designations are prohibited. Designations

26

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

27

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

28

to impose unnecessary expenses and burdens on other parties) expose the
RC1/7557137.1/JC7

-5-

[PROPOSED] ORDER RE STIPULATION FOR
PROTECTIVE ORDER RE CONFIDENTIALITY

1

Designating Party to sanctions.

2

If it comes to a Designating Party’s attention that information or items that it

3

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

4

level of protection initially asserted, that Designating Party must promptly notify all

5

other parties that it is withdrawing the mistaken designation.

6

5.2

Manner and Timing of Designations. Except as otherwise provided in

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

8

stipulated or ordered, Disclosure or Discovery

9
10
A Professional Corporation
Los Angeles

Ropers Majeski Kohn & Bentley

7

Material that qualifies for protection under this Order must be clearly so
designated before the material is disclosed or produced.

11

Designation in conformity with this Order requires:

12

(a) for information in documentary form (e.g., paper or electronic

13

documents, but excluding transcripts of depositions or other pretrial or trial

14

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

15

“CONFIDENTIAL – ATTORNEYS’ EYES ONLY” each page that contains

16

protected material. If only a portion or portions of the material on a page qualifies

17

for protection, the Producing Party also must clearly identify the protected

18

portion(s) (e.g., by making appropriate markings in the margins) and must specify,

19

for each portion, the level of protection being asserted.

20

A Party or Non-Party that makes original documents or materials available

21

for inspection need not designate them for protection until after the inspecting Party

22

has indicated which material it would like copied and produced. During the

23

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

24

inspection shall be deemed “CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”

25

After the inspecting Party has identified the documents it wants copied and

26

produced, the Producing Party must determine which documents, or portions

27

///

28

///
RC1/7557137.1/JC7

-6-

[PROPOSED] ORDER RE STIPULATION FOR
PROTECTIVE ORDER RE CONFIDENTIALITY

1

thereof, qualify for protection under this Order. Then, before producing the

2

specified documents, the Producing Party must affix the appropriate legend

3

(“CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” ) to

4

each page that contains Protected Material. If only a portion or portions of the

5

material on a page qualifies for protection, the Producing Party also must clearly

6

identify the protected portion(s) (e.g., by making appropriate markings in the

7

margins) and must specify, for each portion, the level of protection being asserted.

9

(b) for testimony given in deposition or in other pretrial or trial
proceedings, that the Designating Party identify on the record, before the close of

10
A Professional Corporation
Los Angeles

Ropers Majeski Kohn & Bentley

8

the deposition, hearing, or other proceeding, all protected testimony and specify the

11

level of protection being asserted. In addition, counsel for either party may, at the

12

commencement of , during, or upon completion of the deposition, temporarily

13

designate the entire deposition as “CONFIDENTIAL” or “CONFIDENTIAL –

14

ATTORNEYS’ EYES ONLY” provided, however, that where such an initial

15

designation has been made, the designating party, within fifteen (15) days after

16

receipt of the final transcript, shall mark as “CONFIDENTIAL” or

17

“CONFIDENTIAL - ATTORNEYS’ EYES ONLY” those pages of the transcript as

18

such party shall then deem Confidential Information (the confidential designation

19

of all remaining pages being rescinded after such period), and shall notify the other

20

party in writing which pages are deemed Confidential Information. In the event

21

that such notice is not sent within said fifteen (15) days of the receipt of the

22

transcript, no portion of the deposition shall thereafter be confidential unless the

23

designating party thereafter notifies the other party that the failure to timely

24

designate occurred by oversight, in accordance with Section 5.3.

25

Parties shall give the other parties notice if they reasonably expect a

26

deposition, hearing or other proceeding to include Protected Material so that the

27

other parties can ensure that only authorized individuals who have signed the

28

“Acknowledgment and Agreement to Be Bound” (Exhibit A) are present at those
RC1/7557137.1/JC7

-7-

[PROPOSED] ORDER RE STIPULATION FOR
PROTECTIVE ORDER RE CONFIDENTIALITY

1

proceedings. The use of a document as an exhibit at a deposition shall not in any

2

way affect its designation as “CONFIDENTIAL” or “CONFIDENTIAL –

3

ATTORNEYS’ EYES ONLY.”

4

Transcripts containing Protected Material shall have an obvious legend on

be followed by a list of all pages (including line numbers as appropriate) that have

7

been designated as Protected Material and the level of protection being asserted by

8

the Designating Party. The Designating Party shall inform the court reporter of

9

these requirements. Any transcript that is prepared before the expiration of a 21-day

10
A Professional Corporation
Los Angeles

the title page that the transcript contains Protected Material, and the title page shall

6

Ropers Majeski Kohn & Bentley

5

period for designation shall be treated during that period as if it had been designated

11

“CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its entirety unless

12

otherwise agreed. After the expiration of that period, the transcript shall be treated

13

only as actually designated.

14

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

15

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

16

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

17

the legend “CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’ EYES

18

ONLY. If only a portion or portions of the information or item warrant protection,

19

the Producing Party, to the extent practicable, shall identify the protected portion(s)

20

and specify the level of protection being asserted.

21

5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent

22

failure to designate Confidential Information or items does not, standing alone,

23

waive the Designating Party’s right to secure protection under this Order for such

24

material. Promptly upon realizing an inadvertent failure to designate, the

25

Designating Party shall give notice and correct the failure. Upon timely correction

26

of a designation, the Receiving Party must make reasonable efforts to (i) assure that

27

the material is treated in accordance with the provisions of this Order and (ii) have

28
RC1/7557137.1/JC7

-8-

[PROPOSED] ORDER RE STIPULATION FOR
PROTECTIVE ORDER RE CONFIDENTIALITY

1

any person that has received the Confidential Information not further disclose or

2

use it for any purpose.

3
4
5
6
7

9
10
A Professional Corporation
Los Angeles

Ropers Majeski Kohn & Bentley

8

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges. Any Party or Non-Party may challenge a

designation of confidentiality at any time. Unless a prompt challenge to a
Designating Party’s confidentiality designation is necessary to avoid foreseeable,
substantial unfairness, unnecessary economic burdens, or a significant disruption or
delay of the litigation, a Party does not waive its right to challenge a confidentiality
designation by electing not to mount a challenge promptly after the original
designation is disclosed.
6.2

Meet-and-Confer. The Challenging Party shall initiate the dispute

resolution process by providing written notice of each designation it is challenging
and describing the basis for each challenge. The parties shall attempt to resolve
each challenge in good faith and must begin the process by meeting and conferring
in accordance with Local Rule 37-1. In conferring, the Challenging Party must
explain the basis for its belief that the confidentiality designation was not proper
and must give the Designating Party an opportunity to review the designated
material, to reconsider the circumstances, and, if no change in designation is
offered, to explain the basis for the chosen designation. A Challenging Party may
proceed to the next stage of the challenge process only if it has engaged in this meet
and confer process first or establishes that the Designating Party is unwilling to
participate in the meet and confer process in a timely manner.
6.3

Judicial Intervention. If the Parties cannot resolve a challenge without

court intervention, the Challenging Party may proceed with a motion under Local
Rule 37 (and in compliance with Civil Local Rule 79-5, if applicable). Each such
motion must be accompanied by a competent declaration affirming that the movant
has complied with the meet and confer requirements imposed in the preceding
RC1/7557137.1/JC7

-9-

[PROPOSED] ORDER RE STIPULATION FOR
PROTECTIVE ORDER RE CONFIDENTIALITY

paragraph. Frivolous challenges and those made for an improper purpose (e.g., to

2

harass or impose unnecessary expenses and burdens on other parties) may expose

3

the Challenging Party to sanctions. All parties shall continue to afford the material

4

in question the level of protection to which it is entitled under the Producing Party’s

5

designation until the court rules on the challenge. If a motion challenging

6

designation is not filed within sixty (60) days after the parties’ Local Rule 37

7

meeting (but no later than the last date for discovery motions to be heard) the

8

material at issue will remain as designated throughout the case.

9
10
A Professional Corporation
Los Angeles

Ropers Majeski Kohn & Bentley

1

11
12
13
14
15
16
17
18
19
20
21
22
23
24

7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

disclosed or produced by another Party or by a Non-Party in connection with this
case only for prosecuting, defending, or attempting to settle this litigation, and for
no other purpose. Such Protected Material may be disclosed only to the categories
of persons and under the conditions described in this Order. When the litigation has
been terminated, a Receiving Party must comply with the provisions of section 15
below (FINAL DISPOSITION).
Protected Material must be stored and maintained by a Receiving Party at a
location and in a secure manner that ensures that access is limited to the persons
authorized under this Order.
7.2

27

Disclosure of “CONFIDENTIAL” Information or Items. Unless

otherwise ordered by the court or permitted in writing by the Designating Party, a
Receiving Party may disclose any information or item designated
“CONFIDENTIAL” only to:
(a) the Receiving Party’s Counsel in this action, as well as employees

25
26

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

of said Counsel to whom it is reasonably necessary to disclose the information for
this litigation;
(b) the officers, directors, and employees (including In-House

28
RC1/7557137.1/JC7

- 10 -

[PROPOSED] ORDER RE STIPULATION FOR
PROTECTIVE ORDER RE CONFIDENTIALITY

1

Counsel) of the Receiving Party to whom disclosure is reasonably necessary for this

2

litigation;

3

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

4

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

5

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

6

(d) the court and its personnel;

7

(e) court reporters and their staff, professional jury or trial consultants,
and Professional Vendors to whom disclosure is reasonably necessary for this

9

litigation.

10
A Professional Corporation
Los Angeles

Ropers Majeski Kohn & Bentley

8

(f) during their depositions, witnesses in the action (other than one

11

described in subparagraph 7.2(g) below) to whom disclosure is reasonably

12

necessary and who have signed the “Acknowledgment and Agreement to Be

13

Bound” (Exhibit A), unless otherwise agreed by the Designating Party or

14

ordered by the court. Pages of transcribed deposition testimony or exhibits to

15

depositions that reveal Protected Material must be separately bound by the court

16

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

17

Stipulated Protective Order.

18
19

(g) the author or recipient of a document containing the information or
a custodian or other person who otherwise possessed or knew the information.

20

7.3

Disclosure of “CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

21

Information or Items. Unless otherwise ordered by the court or permitted in writing

22

by the Designating Party, a Receiving Party may disclose any information or item

23

designated “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to:

24

(a) the Receiving Party’s Counsel in this action, as well as employees

25

of said Counsel to whom it is reasonably necessary to disclose the information for

26

this litigation;

27

///

28

///
RC1/7557137.1/JC7

- 11 -

[PROPOSED] ORDER RE STIPULATION FOR
PROTECTIVE ORDER RE CONFIDENTIALITY

1

(b) Experts of the Receiving Party (1) to whom disclosure is

2

reasonably necessary for this litigation, (2) who have signed the “Acknowledgment

3

and Agreement to Be Bound” (Exhibit A);

4

(c) the court and its personnel;

5

(d) court reporters and their staff, professional jury or trial

6

consultants,1 and Professional Vendors to whom disclosure is reasonably necessary

7

for this litigation; and

9
10
A Professional Corporation
Los Angeles

Ropers Majeski Kohn & Bentley

8

11

(e) the author or recipient of a document containing the information or
a custodian or other person who otherwise possessed or knew the information.
8.

PRODUCED IN OTHER LITIGATION

12

If a Party is served with a subpoena or a court order issued in other litigation

13
14
15
16

that compels disclosure of any information or items designated in this action as
“CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” that
Party must:
(a) promptly notify in writing the Designating Party. Such notification shall

17
18

include a copy of the subpoena or court order;
(b) promptly notify in writing the party who caused the subpoena or order to

19
20
21
22

issue in the other litigation that some or all of the material covered by the subpoena
or order is subject to this Protective Order. Such notification shall include a copy of
this Stipulated Protective Order; and
(c) cooperate with respect to all reasonable procedures sought to be pursued

23
24

by the Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served with

25
26
27
28

PROTECTED MATERIAL SUBPOENAED OR ORDERED

the subpoena or court order shall not produce any information designated in this
1

The parties may wish to allow disclosure of information not only to professional jury or trial consultants, but
also to mock jurors, to further trial preparation. In that situation, the parties may wish to draft a simplified,
precisely tailored Undertaking for mock jurors to sign.

RC1/7557137.1/JC7

- 12 -

[PROPOSED] ORDER RE STIPULATION FOR
PROTECTIVE ORDER RE CONFIDENTIALITY

action as “CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’ EYES

2

ONLY” before a determination by the court from which the subpoena or order

3

issued, unless the Party has obtained the Designating Party’s permission. The

4

Designating Party shall bear the burden and expense of seeking protection in that

5

court of its confidential material – and nothing in these provisions should be

6

construed as authorizing or encouraging a Receiving Party in this action to disobey

7

a lawful directive from another court. Nothing in this court shall be construed as

8

authorizing a party to disobey a lawful subpoena issued in another action.

9
10
A Professional Corporation
Los Angeles

Ropers Majeski Kohn & Bentley

1

11
12
13
14
15
16
17
18
19
20
21
22

9.

NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
PRODUCED IN THIS LITIGATION
(a)

Stipulation are applicable to information produced by a Non-Party in this action and
designated as “CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’ EYES
ONLY.” Such information produced by Non-Parties in connection with this
litigation is protected by the remedies and relief provided by this Order. Nothing in
these provisions should be construed as prohibiting a Non-Party from seeking
additional protections.
(b)

25

subject to an agreement with the Non-Party not to produce the Non-Party’s
confidential information, then the Party shall:
1. promptly notify in writing the Requesting Party and the NonParty that some or all of the information requested is subject to a confidentiality
agreement with a Non-Party;
2. promptly provide the Non-Party with a copy of the Stipulated

26
27
28

In the event that a Party is required, by a valid discovery request, to

produce a Non-Party’s confidential information in its possession, and the Party is

23
24

The terms of this Stipulation and any Order that issues on this

Protective Order in this litigation, the relevant discovery request(s), and a
reasonably specific description of the information requested; and
RC1/7557137.1/JC7

- 13 -

[PROPOSED] ORDER RE STIPULATION FOR
PROTECTIVE ORDER RE CONFIDENTIALITY

1
2

3. make the information requested available for inspection by the
Non-Party.

3

(c)

If the Non-Party fails to object or seek a protective order from this

court within 14 days of receiving the notice and accompanying information, the

5

Receiving Party may produce the Non-Party’s confidential information responsive

6

to the discovery request. If the Non-Party timely seeks a protective order, the

7

Receiving Party shall not produce any information in its possession or control that

8

is subject to the confidentiality agreement with the Non-Party before a

9

determination by the court. Absent a court order to the contrary, the Non-Party

10
A Professional Corporation
Los Angeles

Ropers Majeski Kohn & Bentley

4

shall bear the burden and expense of seeking protection in this court of its Protected

11

Material.

12
13

10.

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

14
15
16
17
18
19
20
21
22
23
24

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

Protected Material to any person or in any circumstance not authorized under this
Stipulated Protective Order, the Receiving Party must immediately (a) notify in
writing the Designating Party of the unauthorized disclosures, (b) use its best
efforts to retrieve all unauthorized copies of the Protected Material, (c) inform the
person or persons to whom unauthorized disclosures were made of all the terms of
this Order, and (d) request such person or persons to execute the “Acknowledgment
and Agreement to Be Bound” that is attached hereto as Exhibit A. Notwithstanding
compliance with this provision, the Producing Party apply to the Court for relief
and appropriate sanctions to the Receiving Party.
11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

25

PROTECTED MATERIAL

26

When a Producing Party gives notice to Receiving Parties that certain

27

inadvertently produced material is subject to a claim of privilege or other

28
RC1/7557137.1/JC7

- 14 -

[PROPOSED] ORDER RE STIPULATION FOR
PROTECTIVE ORDER RE CONFIDENTIALITY

protection, the obligations of the Receiving Parties are those set forth in Federal

2

Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify

3

whatever procedure may be established in an e-discovery order that provides for

4

production without prior privilege review. Pursuant to Federal Rule of Evidence

5

502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure

6

of a communication or information covered by the attorney-client privilege or work

7

product protection, the parties may incorporate their agreement in the stipulated

8

protective order submitted to the court.

9
10
A Professional Corporation
Los Angeles

Ropers Majeski Kohn & Bentley

1

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

12.

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

person to seek its modification by the court in the future.
12.2 Right to Assert Other Objections. By stipulating to the entry of this
Protective Order no Party waives any right it otherwise would have to object to
disclosing or producing any information or item on any ground not addressed in
this Stipulated Protective Order. Similarly, no Party waives any right to object on
any ground to use in evidence of any of the material covered by this Protective
Order.
12.3 Filing Protected Material. Without written permission from the
Designating Party or a court order secured after appropriate notice to all interested
persons, a Party may not file in the public record in this action any Protected
Material. A Party that seeks to file under seal any Protected Material must comply
with Civil Local Rule 79-5. Protected Material may only be filed under seal
pursuant to a court order authorizing the sealing of the specific Protected Material
at issue. Pursuant to Civil Local Rule 79-5, a sealing order will issue only upon a
request establishing that the Protected Material at issue is privileged, protectable as
a trade secret, or otherwise entitled to protection under the law. If a Receiving
Party's request to file Protected Material under seal pursuant to Civil Local Rule 79RC1/7557137.1/JC7

- 15 -

[PROPOSED] ORDER RE STIPULATION FOR
PROTECTIVE ORDER RE CONFIDENTIALITY

1

5(d) is denied by the court, then the Receiving Party may file the Protected Material

2

in the public record pursuant to Civil Local Rule 79-5(e) unless otherwise

3

instructed by the court.

4

13.

FINAL DISPOSITION
Within 60 days after the final disposition of this action, as defined in

6

paragraph 4, each Receiving Party must return all Protected Material to the

7

Producing Party or destroy such material. As used in this subdivision, “all Protected

8

Material” includes all copies, abstracts, compilations, summaries, and any other

9

format reproducing or capturing any of the Protected Material. Whether the

10
A Professional Corporation
Los Angeles

Ropers Majeski Kohn & Bentley

5

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

11

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

12

the Designating Party) by the 60-day deadline that (1) identifies (by category,

13

where appropriate) all the Protected Material that was returned or destroyed and (2)

14

affirms that the Receiving Party has not retained any copies, abstracts,

15

compilations, summaries or any other format reproducing or capturing any of the

16

Protected Material. Notwithstanding this provision, Counsel are entitled to retain an

17

archival copy of all pleadings, motion papers, trial, deposition, and hearing

18

transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert

19

reports, attorney work product, and consultant and expert work product, even if

20

such materials contain Protected Material. Any such archival copies that contain or

21

constitute Protected Material remain subject to this Protective Order as set forth in

22

Section 4 (DURATION).

23
24

IT IS SO ORDERED.

25

Dated: July 29, 2014
Hon. Paul L. Abrams
United States Magistrate Judge

26
27
28
RC1/7557137.1/JC7

- 16 -

[PROPOSED] ORDER RE STIPULATION FOR
PROTECTIVE ORDER RE CONFIDENTIALITY

1

EXHIBIT A

2
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

4

I, _______________________________________, with an address in

5

___________________________________________________________________

6

declare that I have read in its entirety and understand the Stipulated Protective

7

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

8

California on _________________in the case of Deckers Outdoor Corporation v.

9

Marilyn Moda, Inc., et al., Case No. 14-cv-02648-MWF-PLA.

10
A Professional Corporation
Los Angeles

Ropers Majeski Kohn & Bentley

3

I agree to comply with and to be bound by all the terms of this Stipulated

11

Protective Order, and I understand and acknowledge that failure to so comply could

12

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

13

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

14

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

15

compliance with the provisions of this Order.

16

I further agree to submit to the jurisdiction of the United States District Court

17

for the Central District of California for the purpose of enforcing the terms of this

18

Stipulated Protective Order, even if such enforcement proceedings occur after

19

termination of this action.

20

I declare under penalty of perjury that the forgoing is true and correct.

21

Executed ____________________ at ___________________________

22

Signature:

________________________________

23

Printed name: _______________________________

24
25
26
27
28
RC1/7557137.1/JC7

- 17 -

[PROPOSED] ORDER RE STIPULATION FOR
PROTECTIVE ORDER RE CONFIDENTIALITY

1

Submitted By:

2

ARNOLD E. SKLAR (SBN 051595)
TIM M. AGAJANIAN (SBN 130508)
ALAN J. HART (SBN 278645)
ROPERS, MAJESKI, KOHN & BENTLEY
515 South Flower Street, Suite 1100
Los Angeles, California 90071-2213
Telephone: [phone]
Facsimile: [phone]
Email:
[e-mail]
Email:
[e-mail]
Email:
[e-mail]

3
4
5
6
7

9

By: /s/ Arnold E. Sklar
ARNOLD E. SKLAR

10
A Professional Corporation
Los Angeles

Ropers Majeski Kohn & Bentley

8

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
RC1/7557137.1/JC7

- 18 -

[PROPOSED] ORDER RE STIPULATION FOR
PROTECTIVE ORDER RE CONFIDENTIALITY