Cindy Bohonovsky v. Enesco LLC

Filing 47

PROTECTIVE ORDER and Confidentiality Agreement by Magistrate Judge Charles F. Eick re Stipulation for Protective Order 46 . (sp)

Casel :14-cv-05076-CBM-E Document 46 Filed

04117/15

Page 1 of 12 Page ID #:407

Brian M. Grossman (SBN 166681)
1 Sharon G. Yaacobi (SBN 280760)
TESSER RUTTENBERG & GROSSMAN LLP
2 12100 Wilshire Boulevard, Suite 220
Los Angeles, California 90025
3 Tel: (31!1) 207-4022
Fax: [phone]
4 E-Mail:
bgrossman@tr g llp.com
[e-mail]
5
Attorneys for Plaintiff
6 CYNDY BOHONOVSKY
7 Mark D. Kremer (SB# 100978)
[e-mail]
8 Michael Marchand (SB# 281080)
[e-mail]
9 CONKLE, KREMER & ENGEL
Professional Law Corporation
10 3130 Wilshire Boulevard, Suite 500
Santa Monica, California 90403-2351
11 Phone: [phone] Fax: [phone]
12 Attorneys for Defendants ENESCO LLC,
THE WALT DISNEY COMPANY,
13 WALT DISNEY PARKS AND
RESORTS U.S., INC., DISNEY STORE
14 USA, LLC, and DAVI DPACHECO.
15
UNITED STATES DISTRICT COURT

16

CENTRAL DISTRICT OF CALIFORNIA

17
18

CYNDY BOHONOVSKY, an
19 individual,
20
21

Plaintiff,
V.

22 ENESCO LLC, a Delaware limited
[iabiliy company; THE WALT
23 DISNEY COMPANY, a Delaware
orporation; WALT DISNEY PARKS
24 AND RESORTS U.S., INC., a Florida
orporation; DISNEY STORE USA,
25 LLC, a Delaware limited liability
ompany; and DAVID PACHECO, an
26 Lndividual,

CASE No. CV14-05076-CBM (E)
-fPROPO4Ji STIPULATED
PROTECTIVE ORDER AND
CONFIDENTIALITY
AGREEMENT
Assigned for all proceedings:
Honorable Consuelo B. Marshall
Referred to:
Magistrate Judge Charles F. Eick
Complaint Filed: June 30, 2014
Trial Date: None

27
28
317.016\9979

[PROPOSED] STIPULATED PROTECTIVE ORDER AND CONFIDENTIALITY AGREEMENT

14-cv-05076-CBM-E

STATEMENT OF GOOD CAUSE

1

2

Document 46 Filed 04/17/15 Page 2 of 12 Page ID #:408

This is a copyright infringement action ("Action"). Discovery and trial of this

3 Action will involve the exchange of highly sensitive information. Such information
4 I may include confidential business strategies, financial data, product design and
5 manufacturing details, customer lists, confidential research, development, or
6 commercial information, and other valuable information that is not available to the
7 public. The parties to this action (each individually a "Party" and collectively the
8 "Parties") agree that the disclosure of such highly sensitive information to the public
T

may be detrimental to their respective commercial interests and that discovery in

10 this proceeding should be conducted under a Stipulated Protective Order and
11 Confidentiality Agreement ("Protective Order") made pursuant to Rule 26(c) of the
12 Federal Rules of Civil Procedure ("Rule 26"). Through their respective attorneys of
13 record, the Parties have agreed to be bound by the terms of the Protective Order and
14 to present the same for entry as an Order of the Court. Nonparties may produce
151 information and documents that will be governed by the terms of this Protective
16 Order by agreeing in writing to be bound by the terms of this Protective Order
17 through Exhibit A and following the procedure for designating Confidential
18 I Information as set forth in this Protective Order.
19
20

INFORMATION COVERED

21
22

1.

This Protective Order shall apply to any information, documents,

23 testimony, and things deemed by a Party or nonparty to contain "Confidential
24 Information." For purposes of this Protective Order, "Confidential Information"
25 means any information, documents, testimony, and things as to which a Party or
26 nonparty deems that a reasonable basis exists for limiting dissemination of the
27
28
1317.016\9979

-1-

[PROPOSED] STIPULATED PROTECTIVE ORDER AND CONFIDENTIALITY AGREEMENT

1~

Case : 14-cv-05076-CBM-E Document 46 Filed 04/17/15 Page 3 of 12 Page ID #:409

1 material under the standards of Rule 26 and contains confidential and/or proprietary
2 commercial information that is not generally available to the public.
3

4

2.

Confidential Information may include, but is not limited to, all

5 business information of any type, such as contractual and financial arrangements;

6 business agreements, statements of income, revenue, expenses, and/or profits;
7 business plans, strategies, and valuations; and personnel and salary information.
8
9

DESIGNATION AND TREATMENT

10

OF CONFIDENTIAL INFORMATION

11
12

3.

Confidential Information shall be designated by the producing Party

13 or nonparty as either "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL

-

14 ATTORNEYS’ EYES ONLY" pursuant to the following standards:
15
16

(a) A Party or nonparty may designate material CONFIDENTIAL

17 only if it deems that a reasonable basis exists for limiting dissemination of the
18 material under the standards of Rule 26 and that the material contains confidential
19 and/or proprietary commercial information that is not generally available to the
20 public; and
21
(b) A Party or nonparty may designate material HIGHLY

22

23 CONFIDENTIAL

-

ATTORNEYS’ EYES ONLY if it deems that disclosure of

24 such material to another person or party would be injurious to the commercial
25 interests of the designating entity under the standards of Rule 26 and that the
26 material consists of or contains highly proprietary technical specifications, trade
27 secrets, and/or business information, such that the risk of improper use or disclosure
28
1317.016\9979

-2-

[PROPOSED] STIPULATED PROTECTIVE ORDER AND CONFIDENTIALITY AGREEMENT

Case I:14-cv-05076-CBM-E Document 46 Filed 04/17/15 Page 4 of 12 Page ID #:410

of the designated materials to another party outweighs the right of that party to
review such information.
4.

"CONFIDENTIAL DESIGNATION": Confidential Information

designated as CONFIDENTIAL under paragraph 3(a) maybe disclosed only to the
following persons, except upon the prior written consent of the designating Party or
nonparty or upon order of the Court:
9

(a)

Outside litigation Counsel of Record including attorneys, law

10 clerks, and staff employees (including stenographic, clerical, and paralegal
11 employees);
12
13

(b)

Party individuals, defined as follows: Parties to this action,

14 including persons regularly employed by the Parties, who reasonably require
15 knowledge of the particular Confidential Information in order to assist in the Parties’
16 I litigation or settlement activities.
17
18

(c)

Subject to the provisions of paragraph 10 below, Court personnel

19 involved in this action, which includes arbitrators and mediators who agree to be
20 bound to this Protective Order;
21
22

(d)

Court reporters, videographers, translators, and similar personnel

23 involved in recording testimony or proceedings in this action who agree in writing
24 or on the record to be bound to the terms of this Protective Order;
25
(e)

26

Consultants or experts retained by Parties to this action,

27 including persons regularly employed by such consultants or experts who
28
1317.016\9979

-3-

[PROPOSED] STIPULATED PROTECTIVE ORDER AND CONFIDENTIALITY AGREEMENT

Case IV: 14-cv-05076-CBM-E

1

Document 46 Filed

04/17115

Page 5 of 12 Page

ID #:411

reasonably require knowledge of the Confidential Information disclosed in order to

2 assist in the Parties’ litigation or settlement activities, who agree to the terms of this
3 Protective Order and sign the attached Exhibit A;
4

5

(f)

Persons appearing for deposition who agree to the terms of this

6 Protective Order and sign the attached Exhibit A, provided that such persons (1)
7 authored or received such Confidential Information, (2) are established as being
8 knowledgeable of the contents of such Confidential Information prior to the time of
9 his or her testimony, or (3) is a current employee of the Party (or non-party) that
10 produced the Confidential Information (subject to the right of the producing Party to
11 object and move for a protective order prior to the deponent being given access to
12 such Confidential Information);
13
14

(g) Persons otherwise lawfully entitled to such Confidential

15 Information, including persons who have been authors or recipients of such
16 Confidential Information (and who have not wrongfully obtained the Confidential
17 Information) outside of discovery in this Action.
18
19

5.

HIGHLY CONFIDENTIAL - ATTORNEYS EYES ONLY

20 DESIGNATION: Confidential Information designated as HIGHLY
21 CONFIDENTIAL - ATTORNEYS’ EYES ONLY under paragraph 3(b) may be
22 disclosed only to the following persons, except upon the prior written consent of the
23 designating Party or nonparty or upon order of the Court:
24

25

(a)

All persons identified in paragraphs 4(a) and (c)-(g) above to

26 whom information designated as HIGHLY CONFIDENTIAL - ATTORNEYS’
271 EYES ONLY may be disclosed.
28
1317.016\9979

-4-

[PROPOSED] STIPULATED PROTECTIVE ORDER AND CONFIDENTIALITY AGREEMENT

14-cv-05076-CBM-E

1

6.

Document 46 Filed 04/17/15 Page 6 of 12 Page ID #:412

A Party or nonparty may designate information produced by that

2 Party or nonparty which it deems to contain Confidential Information by, to the
3 extent possible, marking each page of each writing produced as "CONFIDENTIAL"
4 or "HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY" as follows:
5
6

(a)

In the case of information voluntarily disclosed in these

7 proceedings or disclosed in response to a discovery request, the producing Party or
8 nonparty may identify and mark Confidential Information at the time when an
9 affidavit, pleading, or memoranda is served, when the answer to the interrogatory or
10 request for admission is served, when a copy of a document is provided, or at the
11 time of the inspection of the premises or thing.
12
13

(b) In the case of depositions and deposition transcripts, the

14 designating Party or nonparty shall advise opposing counsel and the court reporter
15 of the specific pages and exhibits to be maintained as Confidential Information at
16 the deposition or within thirty (30) days after receipt of the transcript. For
17 convenience, if a deposition transcript contains repeated references to Confidential
18 Information that cannot conveniently be segregated from non-confidential
19 information, any Party or nonparty may request that the entire transcript be marked
20 by the reporter as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL 21 ATTORNEYS’ EYES ONLY". The Court Reporter shall conform all materials in
22 his or her possession to reflect such confidentiality designation and bind (or re-bind
23 if necessary) separately those portions of the testimony and/or exhibits designated as
24 Confidential Information and shall mark the face of the separately bound transcript
25 containing such confidential testimony and/or exhibits CONFIDENTIAL
26 PURSUANT TO COURT ORDER or HIGHLY CONFIDENTIAL PURSUANT
27 TO COURT ORDER - ATTORNEYS’ EYES ONLY, as appropriate. Until the
28
1317.016\9979

-5-

[PROPOSED] STIPULATED PROTECTIVE ORDER AND CONFIDENTIALITY AGREEMENT

Case l: 14-cv- O5O76CBME Document 46 Filed 04/17/15 Page 7 of 12 Page ID #:413

1

expiration of the 30 day period following the designating Party’s (or non-party’s)

2 receipt of the transcript, the entire transcript shall be deemed Confidential
3 Information absent an agreement by the Parties (or non-party) on the record.
4
5

7.

Inadvertent failure to designate Confidential Information as such

6 prior to disclosure, production, or response, will not prevent a subsequent
confidentiality designation by letter sent promptly after discovery of such
8 inadvertent failure. Any disclosure made by the receiving Party prior to receipt of
9 the letter shall not be a violation of this Protective Order, nor shall the receiving
10 Party incur liability for use or disclosure of the information prior to the receipt of
11 I such letter.
12
13

8.

A Party’s determination not to designate certain material as

14 Confidential Information despite designating other similar materials as Confidential
15 Information shall not be considered a waiver of any confidentiality designation as to
16 any materials so designated, and shall not prevent a subsequent confidentiality
17 designation by letter of such undesignated materials as provided for herein.
18
19 DISPUTES AND DISCLOSURE OF CONFIDENTIAL INFORMATION
20
21

9.

All Confidential Information shall be used solely for the purpose of

22 this litigation between the Parties and may not be used for any other purpose, except
23 (a) by Order of the court in this Action after a noticed motion is made in which
24 notice is given to all interested Parties and persons; and (b) for a Party’s use of its
25 own Confidential Information that it has designated.
26
27
28
1317.016\9979

-6-

[PROPOSED] STIPULATED PROTECTIVE ORDER AND CONFIDENTIALITY AGREEMENT

Case J:14-cv-O5076-CBM-E Document 46 Filed 04/17/15

1

10.

Page 8 of 12 Page ID #:414

Subject to the limitations of this Protective Order, Confidential

2 Information designated in accordance with paragraph 4 may be used during
3 discovery, in connection with any motion, at the trial and/or appeal of this action, or
4 for any other purpose as the Court may allow after notice to all interested Parties
5 and persons. To the extent Confidential Information is included in any pleading,
6 paper, or other document filed with the Court, the Party or person filing such
7 Confidential Information shall lodge such information under seal in compliance with
8 this Court’s Orders and Local Rule 79-5. Papers being submitted for filing under
9 seal shall bear on the face of the initial page of the papers the notation "Confidential
10 or Highly Confidential - Attorneys Eyes Only. Filed Under Seal."
11
12

11.

A Party may dispute the designation of any Confidential Information

13 by giving written notice of such objection to the designating Party or nonparty
14 within 30 days of the designation. The Parties will first try, in good faith, to resolve
15 such a dispute before presenting the dispute to the Court pursuant to Local Rule 37.
16 If the designating Party or nonparty does not withdraw or change the designation,
17 the objecting Party may file a motion requesting that the Court determine whether
18 the information should be treated as Confidential Information, and if so, the
19 appropriate designation. In any such motion, the designating Party or nonparty has
20 the burden of establishing that the information is Confidential Information as
21 defined in paragraph 4 above, but the information shall be treated as appropriate
22 Confidential Information unless and until determined otherwise by the Court. The
23 disputed material shall be presented to the Court under seal, pursuant to Local Rule
24 79-5 and the provisions of this Order to permit the Court to make a determination as
25 to whether the material qualifies as Confidential Information, and if so, the
26 appropriate designation for the Confidential Information. The Court may award
27
28
1317.016\9979

-7-

[PROPOSED] STIPULATED PROTECTIVE ORDER AND CONFIDENTIALITY AGREEMENT

Case I: 14- cv-05076-CBM - E Document 46 Filed 04117/15 Page 9 of 12 Page ID #:415

1 reasonable attorney’s fees and costs to the prevailing Party or nonparty if it finds
2 such motion or opposition to such motion was not substantially justified.
12.

Any Party or nonparty receiving a request to produce Confidential

Information to a third-party shall not do so without compulsion of law, but shall
provide notice and details of the request to the designating Party or nonparty as soon
as is practical under the circumstances but, in any event, no less than fourteen days
8 prior to the date by which production is required. If the designating Party or
9 nonparty objects to the production, no production of the Confidential Information
10 shall occur until a court of competent jurisdiction rules on the subject.
11
12

13.

The inadvertent disclosure of any documents or electronically stored

13 information that may be subject to attorney-privilege, the work-product doctrine, or
14 any other applicable privilege recognized under California law (collectively referred
15 to as "Privileged Information") shall not be deemed a waiver in whole or in part of
16 any such privilege, either as to the specific information disclosed or as to any other
17 information relating thereto or on the same or related subject matter.
18
19

TERMINATION

20
21

14.

Within thirty (30) days after final termination of this Action, each

22 person subject to this Protective Order shall return all copies and samples of
23 Confidential Information in its possession, custody, or control to counsel for the
24 disclosing Party or nonparty; or otherwise shall destroy all Confidential Information
25 in its possession, custody, or control, and certify the destruction thereof, except,
26 however, counsel may retain one copy of any pleading, interrogatory response,
27 deposition transcript, or other document containing such Confidential Information,
28
1317.016\9979

-8-

[PROPOSED] STIPULATED PROTECTIVE ORDER AND CONFIDENTIALITY AGREEMENT

Case

1 : 14-

cv-05076- CBM - E Document 46 Filed 04/17/15 Page 10 of 12 Page ID #:416

1 subject to paragraph 15 of this Protective Order. No counsel or Party shall be
2 required to destroy any electronically stored information contained in backup media
3 that cannot practicably be destroyed without also destroying other non-confidential
4 data; such electronically stored information shall not be accessed or restored to other
5 accessible media without the agreement of the designating Party or an order of the
6 Court after notice to the designating Party.
7
8

15.

This Protective Order shall survive the final determination of this

9 Action and shall remain in full force and effect after the conclusion of all of the
10 proceedings in this Action. This Court shall maintain jurisdiction over this
11 Protective Order to enforce its terms and to ensure the Parties’ and any relevant non12 party’s compliance herewith.
13
14

AGREEMENT TO BE BOUND

15
16

16.

The Parties and all signatories to this Protective Order, including

17 those in the attached Exhibit A, agree to be bound by all the undisputed terms of this
18 Protective Order pending its approval and entry by the Court. In the event that the
19 Court modifies this Protective Order, or in the event that the Court enters a different
20 Protective Order, the Parties agree to be bound by this Protective Order until such
21 time as the Court may enter such a different Protective Order. It is the Parties’ intent
22 to be bound by the terms of this Protective Order pending its entry so as to allow for
23 immediate production of Confidential Information under the terms

herein.

24
25
26
27
28
1317.016\9979

-9-

[PROPOSED] STIPULATED PROTECTIVE ORDER AND CONFIDENTIALITY AGREEMENT

Case :14-cv-05076-CBM-E Document 46 Filed 04/17/15 Page 11 of 12 Page ID #:417

1

I STIPULATED AND AGREED.

2 IDated: April 17, 2015
3

TESSER RUTTENBEG & GROSSMAN
LLP

4
5
By: /s/Brian M. Grossman
Brian M. Grossman
Sharon G. Yaacobi
Attorneys for Plaintiff Cyndy Bohonovsky

6
7
8
9

IDated: April 17, 2015

Mark D. Kremer
Michael Marchand, members of
CONKLE, KREMER & ENGEL
Professional Law Corporation

10
11
12
13
14

By: /s/MarkD. Kremer
Mark D. Kremer
Attorneys for Defendants ENESCO LLC,
THE WALT DISNEY COMPANY,
WALT DISNEY PARKS AND RESORTS
U.S., INC., DISNEY STORE USA, LLC,
and DAVI DPACHECO.

15
16
17
18
19

20 THE COURT, HAVING FOUND GOOD CAUSE FOR THE FOREGOING
21 STIPULATED PROTECTIVE ORDER, IT IS SO ORDERED.
22 :
23 DATED:

’Yh.7

, 2015

24
25

Honorable C-onstiek B.-Marshall d’IcJ
United States D4iet-J.ud-

26
27
28
1317.016\9979

-10-

[PROPOSED] STIPULATED PROTECTIVE ORDER AND CONFIDENTIALITY AGREEMENT

Case

1: 14- cv- 05076-CBM-E Document 46 Filed

EXHIBIT A

1

AGREEMENT TO STIPULATED PROTECTIVE ORDER

2
3
4
5
6
7
8
9
10
11
12

04/17/15 Page 12 of 12 Page ID #:418

I have reviewed the Stipulated Protective Order and Confidentiality
Agreement ("Protective Order") entered in the Central District of California court
case entitled Bohonovsky v. Enesco LLC, et al.,

Case No. 2: 14-cv-05076-CMB (E)

(the "Action"). I agree to maintain the confidentiality of all Confidential
Information, as defined by the Protective Order, and that I will not use or disclose
(to anyone other than my counsel) any Confidential Information that I learn of or
receive in the course of the Action. I have received a copy of the Protective Order,
agree to abide and be bound by its terms, and agree that I am subject to the
jurisdiction of the Court having jurisdiction over the Action for purposes of
enforcement of these obligations.

13
14

I Dated:

Signature:

15
16

Printed Name:

17
18

On behalf of:

19
20

Address:

21
22
23

Phone:

24

Email:

25
26
27
28
1317.016\9979

[PROPOSED] STIPULATED PROTECTIVE ORDER AND CONFIDENTIALITY AGREEMENT