Edmon's Unique Furniture & Stone Gallery Inc v. AFPI , Inc. et al

Filing 37

PROTECTIVE ORDER by Magistrate Judge Gail J. Standish re Stipulation for Protective Order 35 (ec)

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James J.S. Holmes (Bar No. 126779)
[e-mail]
SEDGWICK LLP
801 South Figueroa Street, 19th Floor
Los Angeles, CA 90017-5556
Telephone: [phone]
Facsimile: 213.426.6921
Jason Joyal (Bar No. 251168)
[e-mail]
SEDGWICK LLP
2900 K Street NW Harbourside, Suite 500
Washington, D.C. 20007-5127
Telephone: [phone]
Facsimile: 202.204.1001
Attorneys for Defendants
LAWRENCE STUDIOS, INC.; LARRY
BAZZARRINI

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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EDMON'S UNIQUE FURNITURE &
STONE GALLERY, INC.,

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Case No. CV 14-06163 CAS (GJSx)
Assigned to Hon. Christina A. Snyder

Plaintiff,
v.
AFPI, INC. dba ARCHITECTURAL
PRODUCTS; SOCAL FIREPLACE
MANTELS & CONSTRUCTION, INC.;
HERMAN BERGER; LAWRENCE
STUDIOS, INC.; LARRY
BAZZARRINI; DOES 1-10,
INCLUSIVE,

PROTECTIVE ORDER ENTERED
PURSUANT TO THE
STIPULATION OF THE PARTIES

Defendants.

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Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure and based on

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the parties’ Stipulation for Entry ff Protective Order (“Stipulation”) filed on May

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27, 2015, the terms of the protective order to which the parties have agreed are

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adopted as a protective order of this Court (which generally shall govern the

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pretrial phase of this action) except to the extent, as set forth below, that those
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terms have been substantively modified by the Court’s amendment of paragraph 9,
below (formerly paragraph 10 of the parties’ proposed order), to delete the last
sentence of that paragraph.
The parties are expressly cautioned that the designation of any information,
document, or thing as “CONFIDENTIAL” or any other designation used by the
parties does not, in and of itself, create any entitlement to file such information,
document, or thing, in whole or in part, under seal. Accordingly, reference to this
Protective Order or to the parties’ designation of any information, document, or
thing as “CONFIDENTIAL” or any other designation used by the parties, is
wholly insufficient to warrant a filing under seal.
There is a strong presumption that the public has a right of access to judicial
proceedings and records in civil cases. In connection with non-dispositive
motions, good cause must be shown to support a filing under seal. [The Court has
stricken the parties’ good cause statement because: the Court may only enter a
protective order upon a showing of good cause, Kamakana v. City and County of
Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors Corp., 307
F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics, Inc., 187
F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders require good
cause showing); and a specific showing of good cause or compelling reasons (see
below), with proper evidentiary support and legal justification, must be made
with respect to each document or item designated as “CONFIDENTIAL” or any
other designation used by the parties that a party seeks to have filed under seal.
The parties’ mere designation of any information, document, or thing pursuant to
this Protective Order does not -- without the submission of competent evidence,
in the form of a declaration or declarations, establishing that the material
sought to be filed under seal qualifies as confidential, privileged, or otherwise
protectable -- constitute good cause.

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PROTECTIVE ORDER

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Further, if sealing is requested in connection with a dispositive motion or
trial, then compelling reasons, as opposed to good cause, for the sealing must be
shown, and the relief sought shall be narrowly tailored to serve the specific interest
to be protected. See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th
Cir. 2010). For each item or type of information, document, or thing sought to be
filed or introduced under seal in connection with a dispositive motion or trial, the
party seeking protection must articulate compelling reasons, supported by specific
facts and legal justification, for the requested sealing order. Again, competent
evidence supporting the application to file documents under seal must be
provided by declaration.
Any document that is not confidential, privileged, or otherwise protectable
in its entirety will not be filed under seal if the confidential portions can be
redacted. If documents can be redacted, then a redacted version for public
viewing, omitting only the confidential, privileged, or otherwise protectable
portions of the document, shall be filed. Any application that seeks to file
documents under seal in their entirety should include an explanation of why
redaction is not feasible.
Notwithstanding any other provision of this Protective Order, in the event
that this case proceeds to trial, all information, documents, and things discussed or
introduced into evidence at trial will become public and available to all members
of the public, including the press, unless sufficient cause is shown in advance of
trial to proceed otherwise.
Further, notwithstanding any other provision of this Protective Order, no
obligation is imposed on the Court or its personnel beyond those imposed by the
Court’s general practices and procedures.
THE PARTIES ARE DIRECTED TO REVIEW CAREFULLY AND
ACT IN COMPLIANCE WITH ALL ORDERS ISSUED BY THE
HONORABLE CHRISTINA A. SNYER, UNITED STATES DISTRICT
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JUDGE, INCLUDING THOSE APPLICABLE TO PROTECTIVE ORDERS
AND FILINGS UNDER SEAL.

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AGREED TERMS OF THE PROTECTIVE ORDER AS ADOPTED AND

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MODIFIED BY THE COURT1

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1.

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GOOD CAUSE STATEMENT

This case involves claims of copyright infringement and unfair competition.
Discovery is likely to involve trade secrets, customer and pricing lists and other
valuable research, development, commercial, financial, technical and/or
proprietary information, including costs, labor, material and profits, and
advertising practices, for which special protection from public disclosure and from
use for any purpose other than prosecution of this action is warranted. Such
confidential and proprietary materials and information consist of, among other
things, confidential business or financial information, information regarding
confidential business practices, or other confidential research, development, or
commercial information (including information implicating privacy rights of third
parties relating to labor, materials and profits), information otherwise generally
unavailable to the public, or which may be privileged or otherwise protected from
disclosure under state or federal statutes, court rules, case decisions, or common
law. Accordingly, to expedite the flow of information, to facilitate the prompt
resolution of disputes over confidentiality of discovery materials, to adequately
protect information the parties are entitled to keep confidential, to ensure that the
parties are permitted reasonable necessary uses of such material in preparation for
and in the conduct of trial, to address their handling at the end of the litigation, and

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The Court’s substantive modifications of the agreed terms of the Protective
Order are generally indicated in bold typeface. Non-substantive deletions have not
been marked.
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serve the ends of justice, a protective order for such information is justified in this
matter. It is the intent of the parties that information will not be designated as
confidential for tactical reasons and that nothing be so designated without a good
faith belief that it has been maintained in a confidential, non-public manner, and
there is good cause why it should not be part of the public record of this case.
2. DEFINITIONS
2.1

Action: This pending Copyright infringement lawsuit, Case No. CV

14-06163 CAS (RZx). “Action” may also include the prior related lawsuit
involving the same Plaintiff, Edmon’s Unique Furniture & Stone Gallery, and
Defendant. KG Construction Solutions USA, Inc dba Elegant Fireplace Mantel,
and Eran Gurion, Case No. CV 12-8393 CAS (RZx).
2.2

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

designation of information or items under this Order.
2.3

“CONFIDENTIAL” Information or Items: information (regardless of

how it is generated, stored or maintained) or tangible things that qualify for
protection under Federal Rule of Civil Procedure 26(c), and as specified above in
the Good Cause Statement.
2.4

Counsel: Outside Counsel of Record and House Counsel (as well as

their support staff).
2.5

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

items that it produces in disclosures or in responses to discovery as
“CONFIDENTIAL.”
2.6

Disclosure or Discovery Material: all items or information, regardless

of the medium or manner in which it is generated, stored, or maintained (including,
among other things, testimony, transcripts, and tangible things), that are produced
or generated in disclosures or responses to discovery in this matter.

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2.7

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

pertinent to the litigation who has been retained by a Party or its counsel to serve
as an expert witness or as a consultant in this Action.
2.8

House Counsel: attorneys who are employees of a party to this Action.

House Counsel does not include Outside Counsel of Record or any other outside
counsel.
2.9

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

or other legal entity not named as a Party to this action.
2.10 Outside Counsel of Record: attorneys who are not employees of a
party to this Action but are retained to represent or advise a party to this Action
and have appeared in this Action on behalf of that party or are affiliated with a law
firm which has appeared on behalf of that party, and includes support staff.
2.11 Party: any party to this Action, including all of its officers, directors,
employees, consultants, retained experts, and Outside Counsel of Record (and their
support staffs).
2.12 Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this Action.
2.13 Professional Vendors: persons or entities that provide litigation
support services (e.g., photocopying, videotaping, translating, preparing exhibits or
demonstrations, and organizing, storing, or retrieving data in any form or medium)
and their employees and subcontractors.
2.14 Protected Material: any Disclosure or Discovery Material that is
designated as “CONFIDENTIAL.”
2.15 Receiving Party: a Party that receives Disclosure or Discovery
Material from a Producing Party.
3. SCOPE
The protections conferred by this Stipulation and Order cover not only
Protected Material (as defined above), but also (1) any information copied or
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extracted from Protected Material; (2) all copies, excerpts, summaries, or
compilations of Protected Material; and (3) any testimony, conversations, or
presentations by Parties or their Counsel that might reveal Protected Material.

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Any use of Protected Material at trial shall be governed by the orders of the
trial judge. This Order does not govern the use of Protected Material at trial.
4.

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Once this case proceeds, all of the information that was designated as
confidential or maintained pursuant to this protective order becomes public and
will be presumptively available to all members of the public, including the press,
unless compelling reasons supported by specific factual findings to proceed
otherwise are made to the trial judge in advance of the trial. See Kamakana v. City
and County of Honolulu, 447 F.3d 1172, 1180-81 (9th Cir. 2006) (distinguishing
“good cause” showing for sealing documents produced in discovery from
“compelling reasons” standard when merits-related documents are part of court
record). Accordingly, the terms of this protective order do not extend beyond the
commencement of the trial.

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DURATION

Furthermore, the Parties stipulate that even after final disposition of this
litigation, the confidentiality obligations imposed by this Order shall remain in
effect until a Designating Party agrees otherwise in writing or a court order
otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal
of all claims and defenses in this Action, with or without prejudice; and (2) final
judgment herein after the completion and exhaustion of all appeals, re-hearings,
remands, trials, or reviews of this Action, including the time limits for filing any
motions or applications for extension of time pursuant to applicable law.
5.

DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection.

Each Party or Non-Party that designates information or items for protection under
this Order must take care to limit any such designation to specific material that
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qualifies under the appropriate standards. The Designating Party must designate for
protection only those parts of material, documents, items, or oral or written
communications that qualify so that other portions of the material, documents,
items, or communications for which protection is not warranted are not swept
unjustifiably within the ambit of this Order.
Mass, indiscriminate, and also routine designations are prohibited.
Designations that are shown to be clearly unjustified or that have been made for an
improper purpose (e.g., to unnecessarily encumber the case development process
or to impose unnecessary expenses and burdens on other parties) may expose the
Designating Party to sanctions.
If it comes to a Designating Party’s attention that information or items or
documents that it designated for protection do not qualify for protection that
Designating Party must promptly notify all other Parties that it is withdrawing the
inapplicable designation of Confidentiality.
5.2

Manner and Timing of Confidentiality Designations. Except as

otherwise provided in this Order (see, e.g., second paragraph of section 5.2(a)
below), or as otherwise stipulated or ordered, Disclosure or Discovery Material
that qualifies for protection under this Order must be clearly so designated before
the material is disclosed or produced.
Designation in conformity with this Order requires:
(a)

that the information is in documentary form (e.g., paper or electronic

documents, but excluding transcripts of depositions or other pretrial or trial
proceedings), that the Producing Party affix at a minimum, the legend
“CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that
contains protected material. If only a portion or portions of the material on a page
qualifies for protection, the Producing Party also must clearly identify the
protected portion(s) (e.g., by making appropriate markings in the margins).

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A Party or Non-Party that makes original documents available for inspection
need not designate them for protection until after the inspecting Party has indicated
which documents it would like copied and produced. During the inspection and
before the designation, all of the material made available for inspection shall be
deemed “CONFIDENTIAL.” After the inspecting Party has identified the
documents it wants copied and produced, the Producing Party must determine
which documents, or portions thereof, qualify for protection under this Order.
Then, before producing the specified documents, the Producing Party must affix
the “CONFIDENTIAL legend” to each page that contains Protected Material. If
only a portion or portions of the material on a page qualifies for protection, the
Producing Party also must clearly identify the protected portion(s) (e.g., by making
appropriate markings in the margins).
(b)

that the testimony given in depositions that the Designating Party

identify the Disclosure or Discovery Material on the record, before the close of the
deposition all protected testimony.
(c)

that the information produced in some form other than documentary

and for any other tangible items, that the Producing Party affix in a prominent
place on the exterior of the container or containers in which the information is
stored the legend “CONFIDENTIAL.” If only a portion or portions of the
information warrants protection, the Producing Party, to the extent practicable,
shall identify the protected portion(s).
5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent

failure to designate qualified information or items does not, standing alone, waive
the Designating Party’s right to secure protection under this Order for such
material. Upon timely correction of a designation, the Receiving Party must make
reasonable efforts to assure that the material is treated in accordance with the
provisions of this Order.

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6.1

Scheduling Order.
6.2

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Meet and Confer. The Challenging Party shall initiate the dispute

resolution process under Local Rule 37.1 et seq.

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

designation of confidentiality at any time that is consistent with the Court’s

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CHALLENGING CONFIDENTIALITY DESIGNATIONS

6.3

The burden of persuasion in any such challenge proceeding shall be

on the Designating Party. Frivolous challenges, and those made for an improper
purpose (e.g., to harass or impose unnecessary expenses and burdens on other
parties) may expose the Challenging Party to sanctions. Unless the Designating
Party has waived or withdrawn the confidentiality designation, all parties shall
continue to afford the material in question the level of protection to which it is
entitled under the Producing Party’s designation until the Court rules on the
challenge.
7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

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

disclosed or produced by another Party or by a Non-Party in connection with this
Action only for prosecuting, defending, or attempting to settle this Action. Such
Protected Material may be disclosed only to the categories of persons and under
the conditions described in this Order. When the Action has been terminated, a
Receiving Party must comply with the provisions of section 13 below regarding
final disposition.
Protected Material must be stored and maintained by a Receiving Party at a
location and in a secure manner that ensures that access is limited to the persons
authorized under this Order.
7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless

otherwise ordered by the court or permitted in writing by the Designating Party, a
Receiving Party may disclose any information or item designated
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“CONFIDENTIAL” only to:
(a)

Receiving Party’s Outside Counsel of Record in this Action, as well

as employees of said Outside Counsel of Record to whom it is reasonably
necessary to disclose the information for this Action;
(b)

Officers, directors, and employees (including House Counsel) of the

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

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

disclosure is reasonably necessary for this Action and who have signed the
“Acknowledgment and Agreement to Be Bound” (Exhibit A);
(d)

this Court and its personnel;

(e)

Court reporters and their staff;

(f)

professional jury or trial consultants, mock jurors, and Professional

Vendors to whom disclosure is reasonably necessary for this Action and who have
signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(g)

the author(s) or recipient(s) of a document containing the information

or a custodian or any other person who otherwise possessed or knew the
information;
(h)

during their depositions, witnesses, and attorneys for witnesses, in the

Action to whom disclosure is reasonably necessary provided: (1) the deposing
party requests that the witness sign the form attached as Exhibit A hereto; and (2)
they will not be permitted to keep any confidential information unless they sign the
“Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise
agreed by the Designating Party or ordered by the court. Pages of transcribed
deposition testimony or exhibits to depositions that reveal Protected Material may
be separately bound by the court reporter and may not be disclosed to anyone
except as permitted under this Stipulated Protective Order; and

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(i)

supporting personnel, mutually agreed upon by any of the parties engaged in
settlement discussions.
8.

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If a Party is served with a subpoena or a court order issued in other litigation
that compels disclosure of any information or items designated in this Action as
“CONFIDENTIAL,” that Party must:

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(a) also promptly notify in writing the Designating Party. Such notification
shall include a copy of the subpoena or court order;

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(b) also promptly notify in writing the party who caused the subpoena or
order to issue in the other litigation that some or all of the material covered by the
subpoena or order is subject to this Protective Order. Such notification shall
include a copy of this Stipulated Protective Order; and

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(c)

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also cooperate with respect to all reasonable procedures sought to be

pursued by the Designating Party whose Protected Material may be affected.

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PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
IN OTHER LITIGATION

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any Mediator or Settlement Officer, Magistrate, Mediator and their

If the Designating Party timely seeks a protective order, the Party served
with the subpoena or court order shall not produce any information designated in
this action as “CONFIDENTIAL” before a determination by the court from which
the subpoena or order issued, unless the Party has obtained the Designating Party’s
permission. The Designating Party shall bear the burden and expense of seeking
protection in that court of its confidential material and nothing in these provisions
should be construed as authorizing or encouraging a Receiving Party in this Action
to disobey a lawful directive from another court.
9.

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

The terms of this Order are applicable to information produced by a

Non-Party in this Action and designated as “CONFIDENTIAL.” Such information
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produced by Non-Parties in connection with this litigation is protected by the
remedies and relief provided by this Order. Nothing in these provisions should be
construed as prohibiting a Non-Party from seeking additional protections.

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(b)

produce a Non-Party’s confidential information in its possession, and the Party is
subject to an agreement with the Non-Party not to produce the Non-Party’s
confidential information, then the Party shall:

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(1)

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confidentiality agreement with a Non-Party;
(2)

reasonably specific description of the information requested; and
(3)

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also make the information requested available for inspection by

the Non-Party, if requested.

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also promptly provide the Non-Party with a copy of the

Stipulated Protective Order in this Action, the relevant discovery request(s), and a

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also promptly notify in writing the Requesting Party and the

Non-Party that some or all of the information requested is subject to a

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

(c)

If the Non-Party fails to seek a protective order from this court within

14 days of receiving the notice and accompanying information, the Receiving
Party may produce the Non-Party’s confidential information responsive to the
discovery request. If the Non-Party timely seeks a protective order, the Receiving
Party shall not produce any information in its possession or control that is subject
to the confidentiality agreement with the Non-Party before a determination by the
court.
10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has

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

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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

When a Producing Party gives notice to Receiving Parties that certain
inadvertently produced material is subject to a claim of privilege or other
protection, the obligations of the Receiving Parties are those set forth in Federal
Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify
whatever procedure may be established in an e-discovery order that provides for
production without prior privilege review. Pursuant to Federal Rule of Evidence
502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure
of a communication or information covered by the attorney-client privilege or
work product protection, the parties may incorporate their agreement in the
stipulated protective order submitted to the court.
12.

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

person to seek its modification by the Court in the future.
12.2 Right to Assert Other Objections. By stipulating to the entry of this
Protective Order no Party waives any right it otherwise would have to object to
disclosing or producing any information or item on any ground not addressed in
this Stipulated Protective Order. Similarly, no Party waives any right to object on
any ground to use in evidence of any of the material covered by this Protective
Order.
12.3 Filing Protected Material. A Party that seeks to file under seal any
Protected Material must comply with Civil Local Rule 79-5. Protected Material
may only be filed under seal pursuant to a court order authorizing the sealing of the
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specific Protected Material at issue. If a Party's request to file Protected Material
under seal is denied by the court, then the Receiving Party may file the information
in the public record unless otherwise instructed by the court.
13.

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FINAL DISPOSITION
After the final disposition of this Action, as defined in paragraph 4, within

30 days of a written request by the Designating Party, each Receiving Party must
return all Protected Material to the Producing Party or destroy such material. As
used in this subdivision, “all Protected Material” includes all copies, abstracts,
compilations, summaries, and any other format reproducing or capturing any of the
Protected Material. Whether the Protected Material is returned or destroyed, the
Receiving Party must submit a written certification to the Producing Party (and, if
not the same person or entity, to the Designating Party) by the 30 day deadline that
(1) identifies (by category, where appropriate) all the Protected Material that was
returned or destroyed and (2) affirms that the Receiving Party has not retained any
copies, abstracts, compilations, summaries or any other format reproducing or
capturing any of the Protected Material. Notwithstanding this provision, Counsel
are entitled to retain an archival copy of all pleadings, motion papers, trial,
deposition, and hearing transcripts, legal memoranda, correspondence, deposition
and trial exhibits, expert reports, attorney work product, and consultant and expert
work product, even if such materials contain Protected Material. Any such archival
copies that contain or constitute Protected Material remain subject to this
Protective Order as set forth in Section 4 (DURATION).
///
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///
///
///

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14.

Any violation of this Order may be punished by any and all appropriate

measures including, without limitation, contempt proceedings and/or monetary
sanctions.

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IT IS SO ORDERED.

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DATED: June 1, 2015

_________________________
Gail J. Standish
United States Magistrate Judge

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16
PROTECTIVE ORDER

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EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, _____________________________ [print or type full name], of
_______________________________ [print or type full address], declare under
penalty of perjury that I have read in its entirety and understand the Stipulated
Protective Order that was issued by the United States District Court for the Central
District of California on _______[date] in the case of Edmon’s Unique Furniture
& Stone Gallery, Inc. v. AFPI, Inc., et al., Case No. CV 14-06163 CAS (GJSx). I
agree to comply with and to be bound by all the terms of this Stipulated Protective
Order and I understand and acknowledge that failure to so comply could expose
me to sanctions and punishment in the nature of contempt. I solemnly promise that
I will not disclose in any manner any information or item that is subject to this
Stipulated Protective Order to any person or entity except in strict compliance with
the provisions of this Order.
I further agree to submit to the jurisdiction of the United States District
Court for the Central District of California for the purpose of enforcing the terms
of this Stipulated Protective Order, even if such enforcement proceedings occur
after termination of this action. I hereby appoint __________________________
[print or type full name] of ____________________________________________
[print or type full address and telephone number] as my California agent for
service of process in connection with this action or any proceedings related to
enforcement of this Stipulated Protective Order.
Date: ____________________
City and State where sworn and signed: _________________________________
Printed name: _______________________________

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Signature: __________________________________
17
PROTECTIVE ORDER