Cohen International, Inc. v. Fox Head, Inc. et al

Filing 26

ORDER by Magistrate Judge Paul L. Abrams RE CONFIDENTIALITY OF DISCOVERY MATERIALS 25 **SEE ORDER FOR DETAILS and NOTE: CHANGES MADE BY THE COURT** (ch)

NOTE: CHANGES MADE BY THE COURT
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JOHN R. YATES, ESQ. (State Bar No. 120344)
[e-mail]
MICHAEL J. CONWAY, ESQ. (State Bar No. 180604)
[e-mail]
GREENBERG & BASS LLP
16000 Ventura Boulevard, Suite 1000
Encino, California 91436
Tel: [phone] • Fax: [phone]

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Attorneys for Plaintiff
COHEN INTERNATIONAL, INC.
dba HYDRO CLOTHING

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UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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Cohen International, Inc. dba Hydro
Clothing, a California corporation,

CASE NO.: 2:14-cv-3318 FMO (PLAx)

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ORDER RE CONFIDENTIALITY
OF DISCOVERY MATERIALS

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Plaintiff,
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v.
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Fox Head, Inc., a California corporation;
Macy’s Retail Holdings, Inc. doing
business as Macy’s, a New York
corporation; Zumiez, Inc., a Washington
corporation; Tilly’s, Inc., a Delaware
corporation; The Buckle, Inc., a Nebraska
corporation; and Does 1 through 10,

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Defendants.
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[PROPOSED] ORDER RE CONFIDENTIALITY OF DISCOVERY MATERIALS

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GOOD CAUSE APPEARING, IT IS HEREBY ORDERED as follows:

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1.

The following procedures shall govern the production of all "Discovery

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Materials" that are designated as "CONFIDENTIAL" pursuant to paragraph 3 below,

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or “ATTORNEY EYES ONLY” pursuant to paragraph 3 below, including all copies,

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excerpts, summaries and information derived from them (collectively "Confidential

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Materials").

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2.

Definitions.
a.

Party. "Party" or "Parties" means any of the parties to this action,

their affiliates, and their respective officers, directors and employees.
b.

Documents. "Document" or "Documents" means a writing,

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recording or photograph as defined in Federal Rules of Evidence Rule 1001, whether

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original or duplicate, and includes, but is not limited to, exhibits, documents and

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things, including prototypes and samples, answers to discovery such as interrogatories

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and responses to requests for admission, motions, briefs, memoranda, deposition or

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hearing transcripts and oral answers to deposition questions, and copies of any of the

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of the foregoing.

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c.

Discovery Materials.

"Discovery Materials" means any

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information, Document or tangible thing produced during discovery in this action,

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including, but not limited to, answers to interrogatories, requests for admissions, all

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Documents produced by Parties or non-parties, in response to subpoenas duces tecum,

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deposition testimony, and information contained therein, and information provided

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during any settlement discussions.

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d.

Designating Party. "Designating Party" means a Party or third

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party in this action that designates materials produced or utilized in this litigation by

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any Party or any third party (subject to subpoena or otherwise), as

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"CONFIDENTIAL” or “ATTORNEY EYES ONLY.”

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[PROPOSED] ORDER RE CONFIDENTIALITY OF DISCOVERY MATERIALS

e.

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Receiving Party.

"Receiving Party" means a Party to this action

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and all employees, agents and directors (other than counsel) of the Party, who

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receives Discovery Materials.
f.

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Confidential Information. "CONFIDENTIAL" is defined as

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confidential or sensitive proprietary, business, commercial or personal or private

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information.
g.

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Attorney Eyes Only Information. “ATTORNEY EYES ONLY” is

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defined as particularly confidential, including information referring to or containing

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trade secrets, confidential research, development, business or financial information or

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other confidential information, that, if disclosed, could cause irreparable competitive

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or other injury.

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3.

Any Party or non-party who produces Discovery Materials or gives

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testimony in this action may designate information as "CONFIDENTIAL" or

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“ATTORNEY EYES ONLY” in the following manner; any such designation must be

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made in good faith:

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a.

Designation of Documents:
i.

Any Document produced or given by any Party during

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discovery, hearings or trial in this case which sets forth or contains any

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"CONFIDENTIAL" information (as defined above) may be designated by a Party or

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other producing party with the notation that it is "CONFIDENTIAL." The notation

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"CONFIDENTIAL" shall be placed on every page of each Document so designated.

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ii.

Any Document produced or given by any Party during

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discovery, hearings or trial in this case which sets forth or contains any "ATTORNEY

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EYES ONLY" information (as defined above) may be designated by a Party or other

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producing party with the notation that it is "ATTORNEY EYES ONLY." The

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notation "ATTORNEY EYES ONLY" shall be placed on every page of each

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Document so designated.

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[PROPOSED] ORDER RE CONFIDENTIALITY OF DISCOVERY MATERIALS

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b.

Designation of Computer Media:
i.

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Any "CONFIDENTIAL" information produced on magnetic

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disks or other computer-related media may be designated as such by labeling each

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disk "CONFIDENTIAL" prior to production. In the event a Receiving Party

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generates any "hard copy" or printout from any such disks, that Party must

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immediately stamp each page "CONFIDENTIAL" as appropriate and the hard copy

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or printout shall be treated as provided herein for such categories.
ii.

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Any "ATTORNEY EYES ONLY" information produced on

magnetic disks or other computer-related media may be designated as such by

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labeling each disk "ATTORNEY EYES ONLY" prior to production. In the event a

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Receiving Party generates any "hard copy" or printout from any such disks, that Party

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must immediately stamp each page "ATTORNEY EYES ONLY" as appropriate and

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the hard copy or printout shall be treated as provided herein for such categories.

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c.

Designation of Deposition Testimony:
i.

Deposition testimony may be designated

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"CONFIDENTIAL" by oral designation on the record, or within ten (10) days after

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the transcript of such deposition is made available to the designating party. The Party

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making the designation shall instruct the court reporter (with simultaneous notice to

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all other Parties) to separately bind the portions of the deposition transcript so

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designated, and to stamp the words "CONFIDENTIAL" on each page of the transcript

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as appropriate. Pending expiration of this ten (10) day period, all Parties shall treat

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the testimony and exhibits as if such materials had been designated as

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"CONFIDENTIAL."

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ii.

Deposition testimony may be designated "ATTORNEY

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EYES ONLY" by oral designation on the record, or within ten (10) days after the

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transcript of such deposition is made available to the designating party. The Party

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making the designation shall instruct the court reporter (with simultaneous notice to

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all other Parties) to separately bind the portions of the deposition transcript so
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[PROPOSED] ORDER RE CONFIDENTIALITY OF DISCOVERY MATERIALS

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designated, and to stamp the words "ATTORNEY EYES ONLY" on each page of the

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transcript as appropriate. Pending expiration of this ten (10) day period, all Parties

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shall treat the testimony and exhibits as if such materials had been designated as

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"ATTORNEY EYES ONLY."

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4.

"CONFIDENTIAL" information and materials may not be disclosed

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except as set forth in paragraph 5 below. Confidential Materials shall be used solely

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for the purposes of this litigation and shall not be used for any business or other

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purpose. The restrictions on use of Confidential Materials set forth in this Order shall

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survive the conclusion of this litigation, and, after conclusion of this litigation, the

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Court shall retain jurisdiction for the purpose of enforcing this Order.

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5.

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the following:

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a.

The Receiving Party;

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b.

Counsel of record for the Receiving Party;

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c.

Paralegal, stenographic, clerical, and secretarial personnel

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regularly employed by counsel listed in (b) above;
d.

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Court personnel, including stenographic reporters engaged in such

proceedings as are necessarily incident to preparation for trial and trial of this action;
e.

The individual(s) who authored, prepared or received the

f.

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"CONFIDENTIAL" information and materials may be disclosed only to

Any former officer, director or employee of a Party concerning all

information;

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"CONFIDENTIAL" information produced by that Party, disclosure to whom counsel

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believes in good faith is necessary to assist in the prosecution or defense of this

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action, provided that such person is advised of the terms of this Order and agrees to

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maintain the confidentiality of the information disclosed in accordance herewith;

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g.

Any individual who does not come within paragraphs 5(a)-(f)

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above, disclosure to whom counsel believes in good faith is necessary to assist in the

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prosecution or defense of this action, provided that such person is advised of the
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[PROPOSED] ORDER RE CONFIDENTIALITY OF DISCOVERY MATERIALS

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terms of this Order and agrees to maintain the confidentiality of the information

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disclosed in accordance herewith; and
h.

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Any consultant or expert, not including a Party to this action,

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retained in connection with this action, provided that each such person first

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acknowledges in writing, under oath, that he or she has read this Order and agrees to

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be bound by its terms. This acknowledgement shall be made by execution of the

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Undertaking attached to this Order as Exhibit A. All such written acknowledgments

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for testifying experts shall be produced by counsel making the disclosure of the

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Confidential Information at the time the expert is disclosed as a testifying expert.

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With respect to any non-testifying expert or consultant, counsel making the disclosure

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of the Confidential Information shall maintain the written acknowledgment in their

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files.

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6.

"ATTORNEY EYES ONLY" information and materials may not be

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disclosed except as set forth in paragraph 7 below. Attorney Eyes Only Materials

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shall be used solely for the purposes of this litigation and shall not be used for any

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business or other purpose. The restrictions on use of Attorney Eyes Only Materials

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set forth in this Order shall survive the conclusion of this litigation, and, after

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conclusion of this litigation, the Court shall retain jurisdiction for the purpose of

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enforcing this Order.

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7.

"ATTORNEY EYES ONLY" information and materials may be

disclosed only to the following:

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a.

Counsel of record for the Receiving Party;

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b.

Paralegal, stenographic, clerical, and secretarial personnel

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regularly employed by counsel listed in (b) above;
c.

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The individual(s) who authored, prepared or received the

d.

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Court personnel, including stenographic reporters engaged in such

information;

proceedings as are necessarily incidental to preparation for trial and trial of this
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[PROPOSED] ORDER RE CONFIDENTIALITY OF DISCOVERY MATERIALS

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action;
e.

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Any consultant or expert, not including a Party to this action,

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retained in connection with this action, provided that each such person first

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acknowledges in writing, under oath, that he or she has read this Order and agrees to

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be bound by its terms. This acknowledgement shall be made by execution of the

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Undertaking attached to this Order as Exhibit A. All such written acknowledgments

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for testifying experts shall be produced by counsel making the disclosure of the

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Confidential Information at the time the expert is disclosed as a testifying expert.

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With respect to any non-testifying expert or consultant, counsel making the disclosure

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of the Confidential Information shall maintain the written acknowledgment in their

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files.

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8.

Challenging Designations.

A Party shall not be obligated to

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challenge the propriety of a designation under this Order at the time made, and a

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failure to do so shall not preclude a subsequent challenge thereto. The designation or

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failure to designate material as "CONFIDENTIAL" or “ATTORNEY EYES ONLY”

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shall not be determinative of that material's status as a trade secret or proprietary

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information. A Party that elects to initiate a challenge to a Designating Party's

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designation must do so in good faith and must begin the process in writing by letter or

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other document identifying the specific material challenged and explaining the basis

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for its belief that the designation was not proper. A Party initiating a good faith

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challenge may take the position that the challenged information is not entitled to any

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protection in terms of confidentiality. Within seven (7) days of such a challenge, the

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Designating Party shall substantiate the basis for such designation in writing to the

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other Party, or waive the protections of this Order with respect to the challenged

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information. The Parties shall first attempt to resolve such challenges in good faith on

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an informal basis. If the dispute cannot be informally resolved, the Party seeking to

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maintain the designation may seek appropriate relief from the Court in compliance

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with Local Rule 37, which may include filing a motion for a protective order. If such
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[PROPOSED] ORDER RE CONFIDENTIALITY OF DISCOVERY MATERIALS

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relief is not sought within thirty (30) days after the letter substantiating the

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designations was sent to the Receiving Party, the challenged information shall be re-

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designated in accordance with the challenging Party's proposed designation as set

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forth in the letter referenced herein by the challenging Party. The burden of proof

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shall be on the Party claiming confidentiality. Any document designated

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"CONFIDENTIAL" or “ATTORNEY EYES ONLY” shall enjoy the protection of

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such designation until the issue relating to the propriety of the designation has been

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resolved in the manner set forth herein. If a motion is filed pursuant to this paragraph,

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the Court may impose a monetary sanction against any Party who unsuccessfully

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makes or opposes such a motion, unless the Court finds that the Party subject to the

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sanction acted with substantial justification or that other circumstances make the

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imposition of the sanction unjust.

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9.

Witness Procedures.
a.

A Party or present officer, director or employee of a Party may be

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examined and may testify concerning all "CONFIDENTIAL" or “ATTORNEY EYES

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ONLY” information produced by that Party;

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b.

A former officer, director or employee of a Party may be

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examined and may testify concerning all "CONFIDENTIAL" or “ATTORNEY EYES

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ONLY” information produced by that Party, which clearly appears on its face or from

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other Documents or testimony to have been prepared by, received by, known by or

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communicated to the former employee during the period of his or her employment

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(other than through inadvertent or wrongful disclosure);

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c.

Non-parties may be examined and may testify concerning any

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Document containing "CONFIDENTIAL" or “ATTORNEY EYES ONLY”

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information, which clearly appears on its face or from other documents or testimony

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to have been prepared by, received by, known by or communicated to the non-party

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(other than through inadvertent disclosure);

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d.

Any individual who does not come within paragraph 5(a)-(c)
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[PROPOSED] ORDER RE CONFIDENTIALITY OF DISCOVERY MATERIALS

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above may be examined and testify concerning any Document containing

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"CONFIDENTIAL" information, provided that such person is advised of the terms of

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this Order and agrees to maintain the confidentiality of the information disclosed in

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accordance herewith; and
e.

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Counsel for the Parties may expressly agree on a case-by-case

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basis, in writing or orally, or on the record at depositions, to allow persons not listed

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in paragraphs 5 and 7(a)-(d) above to review (but not retain copies of)

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"CONFIDENTIAL" Documents or “ATTORNEY EYES ONLY” documents, which

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agreement shall not be unreasonably withheld.

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10.

Any Party who files a motion with the Court that uses, refers to or

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incorporates "CONFIDENTIAL" or “ATTORNEY EYES ONLY” materials or

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information shall comply with the requirements of Local Rule 79-5 of the Local Rules

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of the United States District Court for the Central District of California. All copies of

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such papers shall be kept in confidence by the other Parties as provided in this Order.

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An application to file documents under seal must show good cause.

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11.

This Order, the fact of its adoption or entry, and any provision of this

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Order or form attached to this Order, shall not be admissible for any purpose of this

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litigation, except to the extent necessary to enforce, modify or interpret the terms of

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this Order. Nothing in this paragraph or this Order is intended to preclude the Court

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from modifying or vacating any order that might be entered in this action.

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12.

Nothing in this Order shall prevent a damages expert retained by a party

from communicating a sum/damages figure to a party.
13.

Nothing in this Order affects, in any way, the admissibility of any

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documents, testimony, or other evidence at trial, or the procedures to be used in

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connection therewith. The Parties shall confer with the Court prior to the time of trial

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regarding the use and treatment of "CONFIDENTIAL" and “ATTORNEY EYES

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ONLY” Documents at trial. Nothing in this Order affects or restricts the use of

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information obtained from third parties or from sources other than discovery, motion
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[PROPOSED] ORDER RE CONFIDENTIALITY OF DISCOVERY MATERIALS

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practice, or voluntary disclosure of information by any Party conducted under the

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terms of this Order; or prevents disclosure beyond the terms of the Order if the

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Designating Party consents to such disclosure, or if the Court, after notice to all

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affected parties, orders such disclosure.

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14.

A Party's use for any purpose of its own Documents and other things,

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which it produces or discloses in this action, shall not be considered a violation of the

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Order.

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15.

No Party shall be responsible to another Party or the Court for any use

made of information produced and not identified by the producing Party as

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Confidential Information or Attorney Eyes Only in accordance with the provisions of

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this Order.

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16.

The inadvertent or unintentional disclosure by the Designating Party of

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Confidential Materials or Attorney Eyes Only Materials without an appropriate

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designation shall not be deemed a waiver, in whole or in part, of the confidential

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nature of such material, so long as such materials are designated as

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"CONFIDENTIAL" or “ATTORNEY EYES ONLY” within a reasonable time

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following disclosure or production of such materials, which time period shall not

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exceed 45 days from the date such materials are disclosed or produced, or within such

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longer time period as may be approved by the Court on application or motion of the

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producing party. Confidential and Attorney Eyes Only Materials so designated shall

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be governed by, and subject to, the terms of this Order.

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17.

The Parties agree that all Documents produced in the above-captioned

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matter which are subject to any confidentiality agreement or non-disclosure

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agreement between the Designating Party and a third-party to this litigation shall be

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designated as “CONFIDENTIAL” and will be treated by the Receiving Party in

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accordance with this Order.

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18.

Should any person bound hereby receive a subpoena, civil investigation

demand, or other process from a third party that may be construed to require the
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[PROPOSED] ORDER RE CONFIDENTIALITY OF DISCOVERY MATERIALS

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disclosure of Confidential or Attorney Eyes Only Materials in any form, said person

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shall give notice promptly to the party who designated the information that is sought.

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19.

The procedures set forth herein shall not affect the rights of the Parties to

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object to discovery on the grounds other than those related to the confidentiality of the

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Documents, nor shall it relieve a Party of the necessity of proper responses or

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objections to discovery requests, nor shall it preclude any Party from seeking further

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relief or protective orders from the Court as may be appropriate.

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20.

Within sixty (60) days after the termination of this litigation and

expiration of the time for appeal, all originals and copies of any documents containing

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Confidential or Attorney Eyes Only Materials, and all extracts of such documents,

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shall be returned to the Party who produced such documents or destroyed (at the

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option of the Receiving Party), unless that Party otherwise agrees in writing.

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This Order may only be modified by written agreement of the Parties, subject
to the approval of the Court, or by the Court upon good cause shown.

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DATED: July 24, 2014

_______________________________________
Paul L. Abrams
UNITED STATES MAGISTRATE JUDGE

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[PROPOSED] ORDER RE CONFIDENTIALITY OF DISCOVERY MATERIALS