Minx International, Inc v. Vivace Design, Inc. et al

Filing 63

PROTECTIVE ORDER by Magistrate Judge Paul L. Abrams re Stipulation for Protective Order 62 **SEE ORDER FOR DETAILS and NOTE CHANGES MADE BY THE COURT** (ch)

NOTE: CHANGES MADE BY THE COURT

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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MINX INTERNATIONAL, INC., a
California corporation d/b/a "Damask
Fabrics",
Plaintiff,

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vs.

Case No. CV14-02787-SJO-PLAx
PROTECTIVE ORDER
Action filed:
April 11, 2014
Judge Assigned: Hon. S. James Otero

VIVACE DESIGN, INC., a California
corporation; M&P CENTRAL, INC., a
California corporation d/b/a "Bloom;"
SOPHIA & KIMS, INC., a Texas
corporation d/b/a "Miss Mango;" 10
SPOT OF KEARNY, LLC, a New Jersey
limited liability company d/b/a "Madrag;"
CORNERSTONE APPAREL, INC., a
California corporation d/b/a "Papaya;" G
STAGE LOVE.COM, INC., a California
corporation; I JOAH, a California
business entity of form unknown;
CITIWEAR, INC., a California
corporation; AVENUE STORES, LLC, a
Delaware limited liability company d/b/a
"Fashion Avenue;" and DOES 1 through
10,
Defendants.

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1093783/3791.003

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[PROPOSED] ORDER GRANTING JOINT STIPULATION FOR PROTECTIVE ORDER

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Pursuant to the parties Joint Stipulation for a Protective Order, the Court
hereby orders as follows:

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1.

GOOD CAUSE STATEMENT

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Disclosure and discovery activity in this action are likely to involve production

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of highly sensitive personal financial or business information or proprietary

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information that has not been disseminated to the public at large, which is not readily

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discoverable by persons and has been the subject of reasonable efforts by the

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respective parties to maintain its secrecy, and for which special protection from public

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disclosure and from use for any purpose other than prosecuting this litigation would

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be warranted. Accordingly, the parties hereby stipulate to and petition the Court to

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enter the following Stipulated Protective Order. The parties acknowledge that this

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Order does not confer blanket protections on all disclosures or responses to discovery

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and that the protection it affords extends only to the limited information or items that

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are entitled under the applicable legal principles to treatment as confidential. The

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parties further acknowledge, as set forth in Section 10, below, that this Stipulated

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Protective Order creates no entitlement to file confidential information under seal.

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2.

DEFINITIONS

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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 staff).
2.2.

Disclosure or Discovery Material: all items or information, regardless of

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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 generated in

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disclosures or responses to discovery in this matter.

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2.3.

Trade Secret: information, including a formula, pattern, compilation,

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program, device, method, technique, or process that: (i) derives independent economic

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value, actual or potential, from not being generally known to the public or to other

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persons who can obtain economic value from its disclosure or use; and (ii) is the

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subject of efforts that are reasonable under the circumstances to maintain its secrecy,

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[PROPOSED] ORDER GRANTING JOINT STIPULATION FOR PROTECTIVE ORDER

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as set forth in California Civil Code §3426.
2.4

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

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

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standards developed under Fed. R. Civ. P. 26(c) which shall only be disclosed to the

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parties to this litigation and their respective house and outside counsels, as set forth in

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section 7.2 below. Such information should fall into one or more of the following

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categories: (i) sales, marketing, or product or service development strategies, tactics

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or plans; (ii) financial data; (iii) costs of doing business; (iv) customer lists; (v)

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business agreements and contracts; (vi) licensing negotiations and agreements; and

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(vi) third-party documents covered by an obligation of confidentiality.
2.5.

“Highly Confidential — Attorneys’ Eyes Only” Information or Items:

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information (regardless of how generated, stored or maintained) or tangible things that

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are extremely sensitive — such as trade secrets or highly sensitive business or product

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expansion plans or developments — and whose disclosure to any Party in this action

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would create a substantial risk of serious injury that could not be avoided by less

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restrictive means.

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2.6.

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Receiving Party: a Party that receives Disclosure or Discovery Material

from a Producing Party.
2.7.

Producing Party: a Party or non-party that produces Disclosure or

Discovery Material in this action.
2.8.

Designating Party: a Party or non-party that designates information or

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items that it produces in disclosures or in responses to discovery as “Confidential” or

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“Highly Confidential — Attorneys’ Eyes Only.”

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2.9.

Protected Material: any Disclosure or Discovery Material that is

designated as “Confidential” or as “Highly Confidential – Attorneys’ Eyes Only.”
2.10. Outside Counsel: attorneys who are not employees of a Party but who are
retained to represent or advise a Party in this action.

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1093783/3791.003

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[PROPOSED] ORDER GRANTING JOINT STIPULATION FOR PROTECTIVE ORDER

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2.11. In-House Counsel: attorneys who are employees of a Party and who
regularly provide legal advice as part of their job duties.
2.12. Counsel (without qualifier): Outside Counsel and In-House Counsel (as
well as their support staffs).
2.13. 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 an

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expert witness or as a consultant in this action and who is not a past or a current

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employee of a Party. This definition includes a professional jury or trial consultant

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retained in connection with this litigation.

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2.14. Professional Vendors: persons or entities that provide litigation support

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

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

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their employees and subcontractors.

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3.

SCOPE

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Any Protected Material (as defined above) may not be disseminated or

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disclosed outside the parameters of the Order, whether that disclosure embodies the

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entirety of a designated document or any portion or segment thereof.

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4.

DURATION

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Even after the termination of this litigation, the confidentiality obligations

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

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agrees otherwise in writing or a court order otherwise directs. Nothing contained

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herein, however, is intended to limit or prevent parties from introducing evidence at

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trial to prove its case. The use of any Protected Material at trial, however, is not

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addressed at this time, but may be the subject of future application to the District

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Court Judge assigned to this matter as the need may arise. Unless otherwise ordered

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or agreed in writing by the Producing Party, within sixty days after the final

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termination of this action, each Receiving Party shall return all Protected Material to

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the Producing Party, or alternatively, destroy it. If the documents were originally

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[PROPOSED] ORDER GRANTING JOINT STIPULATION FOR PROTECTIVE ORDER

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produced without charge, they shall be returned without charge. If they were

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produced at a charge, they shall be returned for the same cost. As used in this

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subdivision, “all Protected Material” includes all copies, abstracts, compilations,

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summaries or any other form of reproducing or capturing any of the Protected

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Material. With permission in writing from the Designating Party, the Receiving Party

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may destroy some or all of the Protected Material instead of returning it. Whether the

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

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

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Designating Party) by the sixty day deadline that identifies (by category, where

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appropriate) all the Protected Material that was returned or destroyed and that affirms

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

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summaries or 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.

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5.

DESIGNATING PROTECTED MATERIAL

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5.1.

Exercise of Restraint and Reasonable Care in Designating Material for

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Protection. Each Party or non-party that designates information or items for

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protection under this Stipulation and Order must take reasonable care to limit any such

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designation to specific material that qualifies under the appropriate standards. A

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Designating Party must take reasonable care to designate for protection only those

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

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

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

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Stipulation and Order.

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Designations that are shown to be clearly unjustified, or that have been made

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for an improper purpose (e.g., to unnecessarily encumber or retard the case

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development process, or to impose unnecessary expenses and burdens on other

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[PROPOSED] ORDER GRANTING JOINT STIPULATION FOR PROTECTIVE ORDER

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parties), expose the Designating Party to sanctions as provided for in the Federal

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Rules of Civil Procedure.

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If it comes to a Party’s or a non-party’s attention that information or items that

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

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

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

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otherwise stipulated or ordered, material that qualifies for protection under this

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Stipulation and Order must be clearly so designated before the material is disclosed or

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produced.

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Designation in 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 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY” conspicuously on each page that contains protected material. If only a

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

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

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markings in the margins) and must specify, for each portion, the level of protection

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being asserted (either “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY”).

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A Party or non-party that makes original documents or materials available for

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

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

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before the designation, all of the material made available for inspection only to the

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inspecting Party’s outside attorney(s), and shall be deemed “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” After the inspecting Party’s

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outside attorney(s) have identified the documents it wants copied and produced, the

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[PROPOSED] ORDER GRANTING JOINT STIPULATION FOR PROTECTIVE ORDER

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Producing Party must determine which documents, or portions thereof, qualify for

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protection under this Order, then, before producing the specified documents, the

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Producing Party must affix the appropriate legend (“CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY”) conspicuously on each page that

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contains Protected Material. If only a portion or portions of the material on a page

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

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

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each portion, the level of protection being asserted (either “CONFIDENTIAL” or

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”).

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(b)

for testimony given in deposition or in other proceedings, that the Party

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or non-party offering or sponsoring the testimony identify on the record, before the

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close of the deposition, hearing, or other proceeding, all protected testimony, and

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further specify any portions of the testimony that qualify as “HIGHLY

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CONFIDENTIAL — ATTORNEYS’ EYES ONLY.” When it is impractical to

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identify separately each portion of testimony that is entitled to protection, and when it

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appears that substantial portions of the testimony may qualify for protection, the Party

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or non-party that sponsors, offers, or gives the testimony may invoke on the record

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(before the deposition or proceeding is concluded) a right to have up to 30 days after

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the date of mailing of the final transcript 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 being

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asserted (“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS’

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EYES ONLY”). Only those portions of the testimony that are appropriately

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designated for protection within the 30 day period shall be covered by the provisions

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of this Stipulated Protective Order.

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Where, in good faith, it is anticipated by counsel for the Party or non-party who

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is testifying that the response to a question or series of questions could qualify as

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“HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY” protection, then, on the

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record, counsel for the testifying Party or non-party shall ask all Party representatives

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[PROPOSED] ORDER GRANTING JOINT STIPULATION FOR PROTECTIVE ORDER

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or non-parties to leave the deposition room during such testimony. Upon the

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completion of the questioning that is believed to qualify for “HIGHLY

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CONFIDENTIAL - ATTORNEYS’ EYES ONLY” protection, all Party

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representatives or non-parties shall be allowed to reenter the deposition room.

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Transcript pages containing Protected Material shall be separately bound by the

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court reporter, who shall affix to conspicuously on each such page the legend

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES

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ONLY,” as instructed by the Party or nonparty offering or sponsoring the witness or

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presenting the testimony.

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(c)

for information produced in some form other than documentary, and for

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

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

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legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES

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ONLY.” If only portions of the information or item warrant protection, the Producing

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Party, to the extent practicable, shall identify the protected portions, specifying

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whether they qualify as “Confidential” or as “Highly Confidential - Attorneys’ Eyes

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Only.”

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(d)

Inadvertent Failures to Designate. If corrected within thirty (30) days of

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disclosure, an inadvertent failure to designate qualified information or items as

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“Confidential” or “Highly Confidential - Attorneys’ Eyes Only” does not, standing

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

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such material. If material is appropriately designated as “Confidential” or “Highly

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Confidential — Attorneys’ Eyes Only” after the material was initially produced, the

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Receiving Party, on timely notification of the designation - thirty (30 days) - must

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make reasonable efforts to assure that the material is treated in accordance with the

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provisions of this Order, subject to the provisions below.

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6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

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6.1.

Meet and Confer. A Party that elects to initiate a challenge to a

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[PROPOSED] ORDER GRANTING JOINT STIPULATION FOR PROTECTIVE ORDER

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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 directly with counsel for the Designating Party. In

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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, if

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

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challenging Party may proceed to the next stage of the challenge process only if it has

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engaged, or in the event of non-cooperation attempted to engage, in this meet and

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confer process first.

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6.2.

Judicial 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 material

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

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stipulated and filed pursuant to Local Rule 37, unless the circumstances justify the

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filing of an ex parte application. Until the Court rules on the challenge, all parties

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shall 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 case

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only for prosecuting, defending, or attempting to settle this litigation. Such Protected

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Material may be disclosed only to the categories of persons and under the conditions

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described in this Order. Following final resolution of the litigation, a Receiving Party

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shall comply with the provisions of section 11, below (FINAL DISPOSITION).

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Protected Material shall be stored and maintained by a Receiving Party at a location

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and in a secure manner that reasonably ensures that access is limited to the persons

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authorized under this Order.

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1093783/3791.003

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[PROPOSED] ORDER GRANTING JOINT STIPULATION FOR PROTECTIVE 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 Party may disclose any information or item designated CONFIDENTIAL

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only to:

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(a)

the Receiving Party’s Outside Counsel of record in this action and other

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outside counsel who have signed the “Agreement to Be Bound by Protective Order”

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(Exhibit A);

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(b)

the officers, directors, and employees (including In-house Counsel) of the

Receiving Party to whom disclosure is reasonably necessary for this litigation;
(c)

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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“Agreement to Be Bound by Protective Order” (Exhibit A);

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(d)

the Court and its personnel;

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(e)

court reporters, their staffs, and professional vendors to whom disclosure

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is reasonably necessary for this litigation;
(f)

during their depositions, witnesses in the action to whom disclosure is

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reasonably necessary. Pages of transcribed deposition testimony or exhibits to

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

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

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Protective Order. Any party seeking to use CONFIDENTIAL information during a

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deposition shall obtain a statement on the record that the deponent and any other

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persons in attendance have agreed to abide by the terms of this Stipulated Protective

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Order. If the deponent refuses to agree, disclosure of such information to the witness

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during the deposition shall not constitute a waiver of confidentiality, provided that,

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under such circumstances, the witness shall be asked to read and sign the original

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deposition transcript in the presence of the court reporter, and no copy of the transcript

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or related exhibits shall be given to the deponent. The terms of this Stipulated

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Protective Order shall apply to those persons in attendance at depositions and shall

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[PROPOSED] ORDER GRANTING JOINT STIPULATION FOR PROTECTIVE ORDER

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require the exclusion of persons not subject to the terms of the Stipulated Protective

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Order from attending that portion of the deposition at which Confidential or

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Attorneys’ Eyes Only information is discussed. And, as set forth in Section 5.2(b)

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above, prior to the disclosure of Attorneys’ Eyes Only information or testimony in the

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deposition, counsel for the testifying Party or non-party shall ask all Party

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representatives or non-parties to leave the deposition room during such testimony.
(g)

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the author and named recipients of the document, persons who have

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previously had access to the documents or Confidential Information other than

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through discovery or disclosures in the litigation, and the original source of the

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information.
7.3.

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Disclosure of “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES

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ONLY” Information or Items. Unless otherwise ordered by the Court or permitted in

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

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item designated “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY” only

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to:

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(a)

the Receiving Party’s Outside Counsel of record in this action;

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(b)

Experts (as defined in this Order) to whom disclosure is reasonably

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necessary for this litigation and who have signed the “Agreement to Be Bound by

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Protective Order” (Exhibit A),

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(c)

the Court and its personnel;

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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
(e)

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the author of the document or the original source of the

information.
Nothing herein, however, is intended to prohibit or proscribe the ability of

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outside counsel to provide to its client informed and meaningful advice, or to prevent

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counsel from aggregating and generally summarizing counsel’s interpretation of the

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implications of such information as it relates to the litigation, so long as it will not

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reveal or disclose the specific contents of any document or information designated as

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“Attorneys’ Eyes Only”.

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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 or Court proceedings that require disclosure of any information or items

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designated in this action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL -

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ATTORNEYS’ EYES ONLY,” the Receiving Party shall notify the Designating

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Party, in writing (by fax, if possible) promptly and in no event more than four court

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days after receiving the subpoena or order but before the scheduled date for

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production. Such notification shall include a copy of the subpoena or court order.

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The Receiving Party shall also immediately inform in writing the Party who

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caused the subpoena or order to issue in the other litigation or proceeding that some or

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all the material covered by the subpoena or order is the subject to this Protective

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Order. In addition, the Receiving Party must deliver a copy of this Stipulated

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Protective Order promptly to the Party in the other action that caused the subpoena or

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order to issue.

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The purpose of imposing these duties is to alert the interested parties to the

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

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opportunity to try to protect its confidentiality interests in the court from which the

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subpoena or order issued. The Designating Party shall bear the burdens and the

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expenses of seeking protection in that court of its confidential material — and nothing

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

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Party in 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 efforts

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

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whom unauthorized disclosures were made of all the terms of this Order, and (d)

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request such person or persons to execute the “Acknowledgment and Agreement to Be

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Bound” that is attached hereto as Exhibit A.

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10.

FILING PROTECTED MATERIAL.

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In the event that counsel for any party decides to file with or submit to the

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Court any Protected Material, counsel shall provide written notice to the other party

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and shall take appropriate steps to ensure the continuing confidentiality of the

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Protected Material. Counsel for the party seeking to file or submit the Protected

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Material to the Court shall request that the portion(s) of the document(s) containing

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the Protected Materials be filed under seal by way of a written application and

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proposed order, along with the portion(s) of the document(s) submitted for filing

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under seal, in accordance with the Local Rules. Pending the ruling on the application,

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the papers or portions thereof subject to the sealing application shall be lodged under

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seal. Good cause for filing under seal must be shown in the application.

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11.

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

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MISCELLANEOUS.

person to seek its modification by the Court in the future.
11.2. Right to Assert Other Objections. By stipulating to the entry of this

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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 this

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

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

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11.3. Effect of Designation on Authenticity and Admissibility. The placing of

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any confidentiality designation or a production identification label on the face of any

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document shall not affect the document’s authenticity or admissibility in this action.

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11.4. Continuing Jurisdiction. All provisions of this Stipulated Protective

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Order shall continue to be binding after the conclusion of this action in its entirety,

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unless subsequently modified by agreement between the parties or order of the Court,

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and the Court shall retain jurisdiction of this matter for the purpose of enforcing this

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Stipulated Protective Order.

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IT IS SO ORDERED.

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Dated: July 24, 2014
Paul L. Abrams
U.S. MAGISTRATE JUDGE

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, _______________________________________ [print or type full

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name], of _______________________________________ [print or type full company

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name and address], declare under penalty of perjury that I have read in its entirety and

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understand the Stipulated Protective Order that was issued by the United States

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District Court for the Central District of California on ___________ [date] in the case

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of Minx International, Inc. v. Vivace Design, Inc., etc., et al., Case No. CV14-02787-

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SJO-PLA. I agree to comply with and to be bound by all the terms of this Stipulated

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

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

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that I will not disclose in any manner any information or item that is subject to this

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Stipulated Protective Order to any person or entity except in strict compliance with the

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provisions of this Order.

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

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

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Stipulated Protective Order, even if such enforcement proceedings occur after

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termination of this action.

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Date: __________________________

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City and State where sworn and signed: __________________________

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Printed name: __________________________

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Signature: __________________________

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1093783/3791.003

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[PROPOSED] ORDER GRANTING JOINT STIPULATION FOR PROTECTIVE ORDER