Dermond Peterson Design LLC v. JLA Home Inc et al

Filing 72

PROTECTIVE ORDER APPROVED by Magistrate Judge Victor B. Kenton re Stipulation for Protective Order 69 (SEE ORDER FOR DETAILS) (rh)

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DOUGLAS LIPSTONE (SBN 141104)
[e-mail]
ROBERT TAULER (SBN 241964)
[e-mail]
WEINBERG GONSER LLP
10866 WILSHIRE BLVD., SUITE 1650
LOS ANGELES, CA 90024
Telephone: [phone]
Attorneys for Defendants E&E Co. Ltd (erroneously sued as “JLA Home, Inc.”);
Bed, Bath & Beyond, Inc.; Belk, Inc.; Amazon, Inc.; Overstock.com, Inc.; HSN,
Inc.; Wayfair, LLC; the Bon-Ton Stores, Inc.; Yankee Retail Company, LLC, &
Designer Living, Inc.

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

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DERMOND PETERSON DESIGN,
LLC, a Wisconsin Limited Liability
Company,

)
)
)
)
Plaintiff,
)
)
v.
)
)
JLA HOME, INC., a California
)
Corporation, SEARS ROEBUCK &
)
CO., an Illinois Corporation, BED
)
BATH & BEYOND, INC., a New
)
Jersey Corporation, BELK, INC., a
)
North Carolina Corporation, THE
)
BON-TON STORES, INC., a
)
Pennsylvania Corporation, AMAZON, )
INC., a Delaware Corporation,
)
OVERSTOCK.COM, INC., a Utah
)
Corporation, HSN, INC., a Delaware )
Corporation, DESIGNER LIVING,
)
INC., a California Corporation, THE )
YANKEE RETAIL COMPANY, LLC, )
a Connecticut Limited Liability
)
Company, and DOES 1-5,
)
)
Defendants.
)
)

Case No. 2:14-CV-06300
Referred to Honorable Victor B.
Kenton
[DISCOVERY MATTER]
STIPULATED PROTECTIVE
ORDER
Date:
Time:
Dept.:

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cv 14-6300 dermond protective

order_final.docx

Stipulated Protective Order

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GOOD CAUSE STATEMENT
It is the intent of the parties and the Court that information will not be
designated as confidential in this case for tactical reasons, and that nothing shall be
designated without a good faith belief that there is good cause why it should not be
part of the public record. Examples of confidential information that the parties may
seek to protect from unrestricted or unprotected disclosure include, without
limitation:
(a)

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confidentiality agreement or obligation, and/or Protective Order

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issued in another case;
(b)

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(c)

agreements, development agreements, supply agreements, sales

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agreements, or service agreements;
(d)

Research and development information;

(e)

Proprietary engineering or technical information, including

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product design, manufacturing techniques, processing

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information, drawings, memoranda and reports;
(f)

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internal financial/accounting information, including non-public

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information related to financial condition or performance and

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Information related to budgets, sales, profits, costs, margins,
licensing of technology or designs, product pricing, or other

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Agreements with third-parties, including license agreements,
distributor agreements, manufacturing agreements, design

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The names, or other information tending to reveal the identity of
a party’s supplier, distributor, or designer;

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Information that is the subject of a contractual non-disclosure or

income or other non-public tax information;
(g)

Information related to internal operations including personnel
information;

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2.
Stipulated Protective Order

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(h)

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development;

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(i)

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strategies, forecasts and competition; and

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(j)

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Information related to past, current and future market analyses
and business and marketing development, including plans,

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Information related to past, current and future product

Trade secrets (as defined by the jurisdiction in which the
information is located).

Unrestricted or unprotected disclosure of such confidential technical,
commercial or personal information could, in the producing party’s opinion, result
in prejudice or harm to the producing party by revealing the producing party’s
competitive confidential information, which has been developed at the expense of
the producing party and which represents valuable tangible and intangible assets of
that party. Additionally, legitimate privacy interests must be safeguarded.
Subject to the approval of this Court, the parties hereby stipulate to the
following protective order:
1.

In connection with discovery proceedings in this action, the parties

may designate any document, thing, material, testimony or other information
derived therefrom, as “Confidential” under the terms of this Stipulated Protective
Order (hereinafter “Order”). Confidential information is information which has not
been made public and which concerns or relates to the processes, operations, type or
work, or apparatus, or to the production, sales, shipments, purchases, transfers,
identification of customers or suppliers, inventories, amount or source of any
income, profits, losses, or expenditures of any persons, firm, partnership,
corporation, or other organization, the disclosure of which information may have the
effect of causing harm to the competitive position of the person, firm, partnership,
corporation, or to the organization from which the information was obtained.

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Stipulated Protective Order

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By designating a document, thing, material, testimony or other
information derived therefrom as “Confidential,” under the terms of this order, the
party making the designation is certifying to the court that there is a good faith basis
both in law and in fact for the designation within the meaning of Federal Rule of
Civil Procedure 26(g).
2.

Confidential documents shall be so designated by stamping copies of

the document produced to a party with the legend “CONFIDENTIAL.” Stamping
the legend “CONFIDENTIAL” on the cover of any multipage document shall
designate all pages of the document as confidential, unless otherwise indicated by
the producing party.
3.

Testimony taken at a deposition, conference, hearing or trial may be

designated as Confidential by making a statement to that effect on the record at the
deposition or other proceeding. Arrangements shall be made with the court reporter
taking and transcribing such proceeding to separately bind such portions of the
transcript containing information designated as Confidential, and to label such
portions appropriately. To the extent a party inadvertently or mistakenly fails to
identify any testimony as Confidential during the deposition, conference, hearing or
trial, it may do so within 30 days after receipt of the transcript of the deposition,
conference, hearing or trial, by providing written notice of such designation to the
parties and any other affected person.
4.

Material designated as Confidential under this Order, the information

contained therein, and any summaries, copies, abstracts, or other documents derived
in whole or in part from material designated as confidential (hereinafter
“Confidential Material”) shall be used only for the purpose of the prosecution,
defense, or settlement of this action, and for no other purpose.
5.

Confidential Material produced pursuant to this Order may be

disclosed or made available only to the Court, to counsel for a party (including the

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4.
Stipulated Protective Order

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paralegal, clerical, and secretarial staff employed by such counsel), and to the
“qualified persons” designated below:

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(a) an officer, director or employee of a party deemed necessary by

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counsel to aid in the prosecution, defense or settlement of this

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action –

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(a) experts or consultants (together with their clerical staff) retained

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by such counsel to assist in the prosecution, defense, or

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settlement of this action;

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(b) court reporters employed in this action;

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(c) a witness at any deposition or other proceeding in this action;

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and

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(d) any other person as to whom the parties in writing agree.

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Prior to receiving any Confidential Material, each “qualified person” shall
be provided with a copy of this Order and shall execute a nondisclosure agreement
in the form of Attachment A, a copy of which shall be maintained by the counsel
disclosing the Confidential Material and provided to counsel for other parties upon
request.
6.

Depositions involving the use of or seeking Confidential Material

shall be taken only in the presence of qualified persons.
7.

The parties may further designate certain discovery material or

testimony of a highly confidential and/or proprietary nature as “CONFIDENTIAL—
ATTORNEY’S EYES ONLY” (hereinafter “Attorney’s Eyes Only Material”), by
applying that legend in the manner described in paragraphs 2 and 3 above as to the
application of the “CONFIDENTIAL” legend. Attorney’s Eyes Only Material, and
the information contained therein, shall be disclosed only to the Court, to counsel
for the parties (including the paralegal, clerical, and secretarial staff employed by

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Stipulated Protective Order

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such counsel), and to the “qualified persons” listed in subparagraphs 5(b) through
(e) above, but shall not be disclosed to a party, or to an officer, director or employee
of a party, unless otherwise agreed or ordered. If disclosure of Attorney’s Eyes
Only Material is made pursuant to this paragraph, all other provisions in this order
with respect to confidentiality shall also apply.
8.

Nothing herein shall impose any restrictions on the use or disclosure

by a party of material lawfully obtained by such party independent of discovery in
this action, whether or not such material is also obtained through discovery in this
action, or from disclosing its own Confidential Material as it deems appropriate.
9.

A party that wishes to file with the Court Confidential Material that

has been produced by another party to this action in support of any motion or for
any other purpose shall comply with the requirements of L.R. 79-5.
10. In the event that any Confidential Material is used in any court
proceeding in this action other than trial, it shall not lose its confidential status
through such use, and the party using such shall take all reasonable steps to maintain
its confidentiality during such use. The parties will meet-and-confer prior to trial to
address the use of Confidential Material at trial.
11. If any documents or information as to which a party maintains
CONFIDENTIAL or CONFIDENTIAL—ATTORNEY’S EYES ONLY protection
should apply are inadvertently produced or disclosed without such
“CONFIDENTIAL” or “CONFIDENTIAL—ATTORNEY’S EYES ONLY”
designation, the designating party may, as soon as practicable after discovering the
issue, so advise all parties of the inadvertent disclosure and request that the
information and documents be treated as CONFIDENTIAL or CONFIDENTIAL—
ATTORNEY’S EYES ONLY to the extent possible after such notification, by
producing again copies of the documents or information with the legend required by
paragraphs 2 and 7 hereof. In such event, the receiving party shall take reasonable

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Stipulated Protective Order

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steps to retrieve the subject information and documents from any person to which it
or they were disclosed, them to regard the information as CONFIDENTIAL or
CONFIDENTIAL—ATTORNEY’S EYES ONLY, and not disclose it or them to
any person to which it or they could not be disclosed if the designation had been
correctly applied at the time of production.
12. This Order shall be without prejudice to the right of the parties (i) to
bring before the Court at any time the question of whether any particular document
or information is confidential or whether its use should be restricted or (ii) to present
a motion to the Court under FRCP 26(c) for a separate protective order as to any
particular document or information including restrictions differing from those as
specified herein. This Order shall not be deemed to prejudice the parties in any way
in any future application for modification of this Order.
13. This Order is entered solely for the purpose of facilitating the
exchange of documents and information between the parties to this action without
involving the Court unnecessarily in the process. Nothing in this Order nor the
production of any information or document under the terms of this Order nor any
proceedings pursuant to this Order shall be deemed to have the effect of an
admission or waiver by any party or of altering the confidentiality or
nonconfidentiality of any such document or information or altering any existing
obligation of any party or the absence thereof.
14. This Order shall survive the final termination of this action, to the
extent that the information contained in Confidential Material is not or does not
become known to the public, and the Court shall retain jurisdiction to resolve any
dispute concerning the use of information disclosed hereunder. Upon termination of
this case, counsel for the parties shall assemble and return to each other all
documents, material and deposition transcripts designated as Confidential and all
copies of same, or shall certify the destruction thereof.

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Stipulated Protective Order

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15.

The parties agree that the plaintiff may be provided by its counsel

a summary document, or oral summary, setting forth: (1) the full identities of the
entities that sold the allegedly infringing products in the United States and (2)
revenues, gross profits numbers, units produced, fabric yields, and fabrication
compositions of the allegedly infringing products notwithstanding any party’s
designation of documents showing such information as CONFIDENTIAL—
ATTORNEY’S EYES ONLY. The parties agree that the defendants may be
provided by their counsel a summary document, or oral summary, setting forth: (1)
the full identities of the entities that sold plaintiff’s products in the United States,
and (2) revenues, gross profits numbers, units produced, fabric yields, and
fabrication compositions of plaintiff’s products notwithstanding any party’s
designation of documents showing such information as CONFIDENTIAL—
ATTORNEY’S EYES ONLY. The foregoing is not intended to be an
acknowledgment or admission by any party that any specific such information will
be produced or is discoverable
16. Manner of Designating Deposition Testimony.
16.1 Deposition transcripts and portions thereof taken in this action
may be designated as “CONFIDENTIAL,” or “CONFIDENTIAL – ATTORNEYS’
EYES ONLY” during the deposition or after, in which case the portion of the
transcript containing Designated Material shall be identified in the transcript by the
Court Reporter as “CONFIDENTIAL,” or “CONFIDENTIAL – ATTORNEYS’
EYES ONLY.” The designated testimony shall be bound in a separate volume and
marked by the reporter accordingly.
16.2 Where testimony is designated during the deposition, the
designating party shall have the right to exclude, at those portions of the deposition,
all persons not authorized by the terms of this Protective Order to receive such
Confidential Material.

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Stipulated Protective Order

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17. Objections.

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17.1 A party may challenge any designation under this Protective
Order at any time, on the grounds that the information or material does not meet the
standards of Sections 1 and 2, by following the procedure of Local Rule 37 of this
Court.
17.2 The parties shall meet and confer in good faith prior to the
filing of any motion under this section.
18. The parties understand that this Protective Order does not extend to
material presented at the trial of this Action. Once the case proceeds to trial, any
information that is presented on the record during trial, whether or not designated as
confidential and/or kept and maintained pursuant to the terms of this Protective
Order, will be presumptively available to all members of the public, including the
press, unless good cause is shown to the district judge in advance of the presentation
of that material at trial to proceed otherwise. However, any documents or things
that have been designated as confidential do not lose their protected character
simply by virtue of having been presented as an exhibit at trial. The parties will
meet-and-confer prior to trial regarding the protection of Confidential Material a
party proposes to use at trial.

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SO STIPULATED.

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DATED: May 26, 2015

Douglas Lipstone
Robert Tauler
WEINBERG GONSER LLP

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By /s/ Robert Tauler
Douglas Lipstone
Attorneys for Defendants E & E CO.,
LTD. (individuallay and as erroneously
sued as “JLA HOME, INC.”), BED
BATH & BEYOND, INC., BELK,

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Stipulated Protective Order

INC., THE BON-TON STORES, INC.,
AMAZON, INC.,
OVERSTOCK.COM, INC., HSN,
INC., DESIGNER LIVING, INC.,
THE YANKEE RETAIL COMPANY,
LLC

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DATED: May 26, 2015

Stephen M. Doniger
Scott A. Burroughs
Trevor W. Barrett
DONIGER/BURROUGHS

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By /s/ Trevor W. Barrett

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Attorneys for Plaintiff

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APPROVED AND SO ORDERED

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DATED: June 1, 2015

/s/
United States Magistrate Judge

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10.

Stipulated Protective Order

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Attachment A

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NONDISCLOSURE AGREEMENT

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I, _________________________ do solemnly swear that I am fully
familiar with the terms of the Stipulated Protective Order entered on
_____________, in the United States District Court for the Central District of
California, Civil Action No. __________, and hereby agree to comply with and be
bound by the terms and conditions of said Order unless and until modified by further
Order of this Court. I hereby consent to the jurisdiction of said Court for purposes
of enforcing that Order and this agreement.
DATED:

__, 2015

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Stipulated Protective Order