Forever 21, Inc. v. In & Out Fashion, Inc. et al

Filing 23

PROTECTIVE ORDER by Magistrate Judge Michael R. Wilner. (See Order for details) re Stipulation for Protective Order 22 (vm)

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JOHNSON & PHAM, LLP
Christopher Q. Pham, SBN: 206697
E-mail: [e-mail]
Marcus F. Chaney, SBN: 245227
E-mail: [e-mail]
Jason R. Vener, SBN: 267941
E-mail: [e-mail]
6355 Topanga Canyon Boulevard, Suite 326
Woodland Hills, California 91367
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiff
FOREVER 21, INC.
CURTIS R. TINGLEY (SBN 112322)
[e-mail]
STEPHEN D. COLLINS (SBN 277482)
[e-mail]
KEVIN W. ISAACSON (SBN 281067)
[e-mail]
TINGLEY LAW GROUP, PC
10 Almaden Boulevard, Suite 430
San Jose, California 95113
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant
IN & OUT FASHION, INC.

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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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[DISCOVERY MATTER]

Plaintiff,

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Case No.: 2:14-cv-07014-CAS-MRW

FOREVER 21, INC., a Delaware
Corporation,

STIPULATION FOR
ENTRY OF [PROPOSED]
PROTECTIVE ORDER

v.

IN & OUT FASHION, INC., a California
Corporation; and DOES 1-10, inclusive, Honorable Michael R. Wilner
Defendants.

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STIPULATION FOR ENTRY OF [PROPOSED] PROTECTIVE ORDER
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The parties have stipulated to a Protective Order as follows:

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A.

LIMITED SCOPE OF ORDER
1.

In the above-captioned action (the “Action”), Plaintiff Forever 21, Inc.

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and Defendant In & Out Fashion, Inc. ( “Defendant”) anticipate the exchange of

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confidential and highly confidential information regarding garments that are the

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subject of this Action. The parties have stipulated to the entry of this protective

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order (the “Order”) governing the exchange and use of confidential and highly

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confidential documents and information in discovery. This Order does not govern

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or restrict the use of any document or information (including information

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designated as “Confidential” or “Highly Confidential” under this Order) at trial in

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any manner whatsoever. When and if the case proceeds to trial, all of the

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documents and information to be used at trial will be presumptively available to all

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members of the public, including the press, unless good cause is shown to the

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district judge in advance of the trial.

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2.

Further, this Order does not affect the burden of proof that must be

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met by a party seeking to protect confidential documents or information that is

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filed in the court records in this case. A party seeking to protect information to be

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filed in the public records must prove that the documents or information meets the

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standards set forth in Pintos v. Pacific Creditors Association, 605 F.3d 665 (9th Cir.

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2009), and other relevant authority. In meeting that burden, a party may not rely on

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its own designation of material as “Confidential” or “Highly Confidential” under

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this Order.

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3.

Nothing in this order shall impose any restrictions on the use or

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disclosure by a party of material obtained by such party independent of discovery

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in this action, whether or not such material is also obtained through discovery in

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this action, or from the use or disclosure of information that is publicly known.

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Further, nothing in this Order restricts the ability of any party to use or disclose its

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own confidential material as it deems appropriate.
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B.

GOOD CAUSE STATEMENT
4.

Because this case concerns, among other things, orders for garments,

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Plaintiff and Defendant may be required to exchange competitively sensitive

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information about each of their respective business activities to which the parties

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and third parties would not otherwise have access. Allowing the parties or third

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parties to use such competitively sensitive information would cause harm to the

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competitive position of the disclosing party. The parties seek the entry of this

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order to prevent the unauthorized use or dissemination of confidential information

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produced in discovery during this Action.

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5.

No document, information or thing shall be designated “Confidential”

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or “Highly Confidential” unless good cause exists for such designation under the

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standards set forth in Pintos v. Pacific Creditors Association, 605 F.3d 665 (9th Cir.

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2009) and other relevant authority. Good cause exists for the designation of

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information as “Highly Confidential” when the information has not been made

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public and falls into one of the following categories:

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(a)

confidential future business, planning, allocating, marketing or

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sales plans, including specific business plans, strategies and projections, future

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marketing plans and strategies, future sales plans and strategies, forward-looking

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pricing strategies; the development of new brand and product line concepts,

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extensions of existing product lines, and other similar forward-looking information

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that is kept confidential by the party.

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(b)

specific financial information at a level of detail beyond that

disclosed in sources available to the public.

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(c)

results of research, studies or other analyses that the parties

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expended money to develop or obtain and that would be useful to current or

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potential competitors.

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research studies that the parties commissioned at considerable expense from third

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parties, complex market analyses provided by third parties under contracts with

This category includes, among other things, consumer

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non-disclosure clauses, and analyses of other competitors in the market.
(d)

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terms of contracts with the parties’ vendors, suppliers or

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customers that could be used by current or potential competitors in their own

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negotiations with suppliers or customers.
(e)

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proprietary manufacturing, styling, or garment modification specifications.
(f)

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specific proprietary purchasing and pricing formulas or

brand and product line concepts in development that have not

been launched into the market.
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Good cause exists for the designation of information as “Confidential”

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when the information has not been revealed to the public and the information falls

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into one of the following categories:
(a)

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the information is contained in a document or is presented in a

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form that, when analyzed in conjunction with other information produced in the

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Action, would reveal information in categories set forth in paragraph 5(a) to (e)

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above;

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(b)

private information about any party, officer, employee or other

(c)

commercially sensitive information regarding the development,

individual;

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production, marketing, branding, sales or promotion of the parties’ products or

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finances, the disclosure of which would have the effect of causing harm to the

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competitive position of the person or entity from which the information is

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obtained.

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7.

The parties shall use reasonable efforts to minimize the amount of

material designated as “Confidential” or “Highly Confidential”.
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This Order applies to such “Confidential” and “Highly Confidential”

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information furnished in this litigation regardless of the form in which it is

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transmitted and regardless whether the information is furnished by a party or third

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party. Such information may be contained in documents, written discovery
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responses, declarations, deposition testimony, exhibits, and other materials or

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testimony provided by any party or third party during this Action. Such materials

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are collectively referred to as “Discovery Materials” in this Order.

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C.

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PROCEDURE FOR DESIGNATION
9.

“Designating

Party”

may

designate

Discovery

Materials

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“Confidential” or “Highly Confidential” meeting the standards set forth in

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paragraphs 6 and 7 by taking the following actions:
(a)

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With respect to documents, discovery responses or other written

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materials furnished by the Designating Party in paper, as .pdf images, or in any

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other form in which it is possible to add a legend to each page, the Designating

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Party may designate the material “Confidential” by stamping, inscribing or

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otherwise marking or designating on each page of a document containing

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Confidential Information the words “CONFIDENTIAL, SUBJECT TO

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PROTECTIVE ORDER.” The Designating Party may designate the material

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“Highly Confidential” by marking each page of the document with the words

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“HIGHLY CONFIDENTIAL-ATTORNEYS’ EYES ONLY, SUBJECT TO

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PROTECTIVE ORDER.” Electronic documents produced as .pdf images shall

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be marked in accordance with this paragraph 9(a).

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(b)

With respect to “Confidential” or “Highly Confidential

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Information” furnished by the Designating Party in a non-paper medium,

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including, without limitation, video or audio tape, computer discs, CD-ROMs, and

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DVDs, etc., the Designating Party may designate all information therein as

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“Confidential” or “Highly Confidential” by affixing the appropriate legend to the

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outside of the medium or container.

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10.

With respect to deposition testimony or other oral testimony to be

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recorded in a written transcript, the Designating Party may designate information

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as “Confidential” or “Highly Confidential” by making a statement on the record to

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that effect during the deposition or proceeding at issue. The court reporter shall
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separately bind the designated portion of the deposition transcript and all

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designated exhibits. The separately bound deposition material shall be marked in

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accordance with its designation, as either “CONFIDENTIAL, SUBJECT TO A

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PROTECTIVE ORDER” or “HIGHLY CONFIDENTIAL-ATTORNEYS’ EYES

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ONLY, SUBJECT TO A PROTECTIVE ORDER.” Alternatively, the Designating

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Party may, within a reasonable time not to exceed twenty-one (21) days, after the

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deposition transcript is delivered to the Designating Party, provide to all counsel

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written notice identifying the specific portion (by page and line numbers) that the

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Designating Party seeks to protect, and all parties to the litigation will mark the

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pages with the appropriate legends.

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D.

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USE AND DISCLOSURE OF DESIGNATED MATERIAL
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Discovery Materials, whether designated “Confidential” or “Highly

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Confidential” shall be used only for prosecuting or defending this Action, except

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that a party may use its own “Confidential” or “Highly Confidential Information”

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for whatever purposes it chooses. A party using, disseminating or distributing

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“Confidential” or “Highly Confidential Information” for any purpose other than for

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use in connection with this Action may be subject to sanctions (including, without

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limitation, monetary, evidentiary or terminating sanctions, in the Court’s

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discretion), as well as being potentially subject to any disciplinary or other

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applicable legal proceedings.

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12.

Information

and

materials

designated

“CONFIDENTIAL,

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SUBJECT TO A PROTECTIVE ORDER” may only be disclosed to the

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following individuals:

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(a)

The recipient party and officers, directors and/or employees of

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the recipient party who have direct responsibility for assisting such counsel in the

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preparation and trial of the action;

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(b)

Counsel representing the parties in the Action, and paralegal

and clerical staff (whether employees or independent contractors) who are assisting
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in this litigation;
(c)

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Court staff, court reporters and videographers involved in this

(d)

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Independent consultants or experts retained by any party in this

litigation;

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case who are expected to testify at trial or employed by counsel in order to assist in

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preparation for trial or for deposition, so long as they sign a statement agreeing to

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abide by the terms of this Order, in the form set forth in Exhibit A;
(e)

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Third-party witnesses during the course of their depositions and

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at trial provided that the third party or witness previously created, generated or

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received the Discovery Material. Unless the third party or witness previously

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created, generated or received the Discovery Material, a third-party witness shall

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not be shown the Discovery Material unless or until the witness signs a statement

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agreeing to abide by the terms of this order, in the form set forth in Exhibit A.

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13.

Information and materials designated “HIGHLY CONFIDENTIAL-

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ATTORNEYS’ EYES ONLY, SUBJECT TO A PROTECTIVE ORDER” may

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only be disclosed to:

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(a)

Counsel representing the parties in the Action, and paralegal

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and clerical staff (whether employees or independent contractors) who are assisting

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in this litigation;

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(b)

Paralegal or clerical staff employed directly by the parties who

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provide support to the litigation counsel described in subparagraph (a), so long as

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the staff member has not, does not, and does not anticipate having any role

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whatsoever in supporting or assisting any person with any involvement whatsoever

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in the parties’ business decision making, including but not limited to decisions

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regarding contracts, marketing, employment, pricing, product development,

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competition or other business decisions;

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(c)
litigation;

Court staff, court reporters and videographers involved in this
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(d)

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Independent consultants or experts retained by any party in this

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case who are expected to testify at trial or employed by counsel in order to assist in

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preparation for trial or for deposition, so long as they sign a statement agreeing to

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abide by the terms of this order, in the form set forth in Exhibit A. “Highly

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Confidential” information shall not be shared with an expert or consultant retained

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by the non-designating party who has provided, is providing, or is expected to

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provide any services to any business unit of the retaining party other than for

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purposes of the litigation, unless one of the three conditions set forth in

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subparagraph (e) is met.
(e)

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Party or third-party witnesses during the course of their

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depositions and otherwise provided that the third party or witness previously

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created, generated or received the Discovery Material before the Action

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commenced. Unless the third party or witness previously created, generated or

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received the Discovery Material, a third-party witness shall not be shown the

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Discovery Material unless or until the witness signs a statement agreeing to abide

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by the terms of this order, in the form set forth in Exhibit A.

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14.

No person or entity receiving “Confidential” information shall

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discuss, disseminate, or disclose the “Confidential” information to any person or

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entity not listed above in paragraph 12. No person or entity receiving “Highly

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Confidential” information shall discuss, disseminate, or disclose the “Highly

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Confidential” information to any person or entity not listed above in paragraph 13.

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Any person or entity receiving “Confidential” or “Highly Confidential”

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information shall take measures available to him or her to ensure that no

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unauthorized person or entity is able to obtain access to the “Confidential” or

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“Highly Confidential” information. The provisions of this paragraph, however, do

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not apply to the Court or to Court personnel.

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15.

Nothing in this Order affects or limits the Designating Party’s use of

its own “Confidential” or “Highly Confidential” information or “Confidential” or
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“Highly Confidential” information it has created, lawfully possessed or

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independently generated or discovered, regardless of whether the information is

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thereafter designated as “CONFIDENTIAL, SUBJECT TO A PROTECTIVE

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ORDER” or “HIGHLY CONFIDENTIAL-ATTORNEYS’ EYES ONLY,

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SUBJECT TO A PROTECTIVE ORDER.”

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E.

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FILING OF DESIGNATED MATERIAL IN PRE-TRIAL
PROCEEDINGS
16.

The parties must comply with Local Rule 79-5 for filing

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“Confidential” or “Highly Confidential” information with the Court in any pre-trial

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proceeding in this action. Such filings must be in accordance with the standards

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set forth in Kamakana v. City & County of Honolulu, 447 F.3d 1172, 1178-81

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(9th Cir. 2006). If a party files or seeks to file with the Court material that another

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party has designated “Confidential” or “Highly Confidential” under this Order, the

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filing party shall simultaneously file an application to seal the records pursuant to

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Local Rule 79-5, Local Rule 37, and any other applicable rules and orders, that

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references this Order and that specifically sets forth the terms of this paragraph. In

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doing so, the filing party shall only seek to file under seal the portion of such

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material that is “Confidential” or “Highly Confidential.” An application which

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seeks to file materials under seal in proceedings before the district judge will be

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made to the district judge.

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17.

Within five business days after service of the application to seal (or

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within such other time as may be ordered by the Court), the Designating Party

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must either: (a) inform the recipient party that it does not object to the filing of the

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information in the public record, at which point the filing party must withdraw the

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application; or (b) file papers in support of the application setting forth the factual

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and legal basis for the request to seal the records. The Designating Party bears the

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burden of proving that the materials meet the standards for sealing the records as

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set forth in Pintos v. Pacific Creditors Association, 605 F.3d 665 (9th Cir. 2009)
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and other relevant authority. In meeting that burden, a party may not rely on its

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own designation of material as “Confidential” or “Highly Confidential” under this

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Order.

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F.

CHALLENGES TO DESIGNATION
18.

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A party may challenge the designation of any material as

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“Confidential” or “Highly Confidential” under this Order under the procedures set

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forth in Local Rules 37-1 through 37-4. If the parties are unable to resolve the

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issue informally pursuant to 37-1, the challenging party may move for an order

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granting access to the information under less burdensome conditions pursuant to

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the procedures set forth in Local Rule 37-2 through 37-4. In making or opposing

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any motion relating to the designation of confidential information, the party

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seeking to maintain a document as confidential shall bear the burden of showing

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specific prejudice or harm will result if a protective order is not granted.
19.

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This Order is without waiver of or prejudice to, and specifically

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reserves the rights and remedies of any party to apply in writing to the Court for a

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determination, for good cause shown, that: (a) persons not provided for in this

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Order may or may not receive “Confidential” or “Highly Confidential”

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information; or (b) this Order be modified or vacated. Any application for relief

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pursuant to this section shall be made only after reasonable efforts to meet and

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confer in good faith have been unsuccessful, and must comply with Local Rules

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37-1 to 37-4 or other applicable rule.

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G.

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SUBPOENA IN ANOTHER ACTION
20.

In the event any person, party or entity having possession, custody or

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control of any “Confidential” or “Highly Confidential” information receives a

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subpoena or other process or order to produce the “Confidential” or “Highly

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Confidential” information, that person or party shall promptly, within ten (10)

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business days:

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(a)

notify, in writing, the attorneys of record of the Designating
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Party;
(b)

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representatives if there is no attorney of record, of all parties to the litigation,
(c)

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notify, in writing, the attorneys of record, or other

furnish all persons notified pursuant to subsections a and b,

above, a copy of the subpoena or other process or order; and
(d)

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provide reasonable cooperation with respect to all procedures

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set forth in the Order for the protection of the “Confidential” or “Highly

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Confidential” information.
21.

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If after receiving the notification set forth in paragraph 20 the

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Designating Party desires to prevent or limit the requested production of

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“Confidential” or “Highly Confidential” information, it will be the responsibility of

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the Designating Party to move to quash or modify the subpoena, or otherwise

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resolve the issue with the subpoenaing party.
22.

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A third party who has an interest in maintaining the confidentiality of

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“Confidential” or “Highly Confidential” information, upon learning that a person,

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party or entity having custody or control of “Confidential” or “Highly

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Confidential” information has received a subpoena or other process or order to

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produce the information, will have the right to object, move to quash, modify the

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subpoena, or otherwise resolve the issue with the subpoenaing party.

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H.

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TERM OF ORDER
23.

This Order does not govern or restrict the use of any document or

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information (including information designated as “Confidential” or “Highly

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Confidential” under this order) at trial in any manner whatsoever. When and if the

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Action proceeds to trial, all of the documents and information to be used at trial

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will be presumptively available to all members of the public, including the press,

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unless good cause is shown to the district judge in advance of the trial.

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24.

If the action is concluded before trial is commenced, the Order shall

remain in full force and effect after such conclusion and the Court shall retain
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jurisdiction to enforce its terms. In such a case, all materials, including copies,

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containing information designated as Confidential or Highly Confidential

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Information shall be returned to the Designating Party, or shall be disposed of in a

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manner assuring its confidential destruction, within the following time period:

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Within thirty (30) days or fourteen (14) days following written demand by the

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Designating Party, whichever is later, after final termination of this Action either

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by consensual dismissal with prejudice, after final appellate review has been

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obtained, or after the time for appeal has lapsed without the filing of an appeal by

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any of the parties. Each party shall provide to the Designating Party a declaration

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certifying compliance with this paragraph.
25.

If the action is concluded prior to the commencement of trial,

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regardless of any other provision of this Order, one copy of all pleadings filed in

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the Action containing “Confidential” and/or “Highly Confidential” material or

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information may be retained by counsel of record for each party, and shall be

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sealed, designated and stored as “Confidential or Highly Confidential

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Information Pursuant to Court Order” and shall remain subject to the terms of

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this Order.

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26.

The designation of any information, documents, or things as

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“Confidential” or “Highly Confidential” information pursuant to this Order shall

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not, in and of itself, raise any inference as to the confidentiality of any information,

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documents, exhibits, or things marked for identification purposes or introduced

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into evidence at the trial of this litigation. Nothing in this Order shall preclude any

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party from seeking confidential treatment from the Court with respect to such

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information, documents, exhibits, or things or from raising any available

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objections, including without limitation objections concerning admissibility,

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materiality, and privilege. The parties to this Order expressly reserve their rights to

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object to the manner in which “Confidential” or “Highly Confidential” information

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may be used in an evidentiary hearing or at trial. Special procedures or in camera
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treatment, if any, shall be determined in the future, in compliance with any

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applicable rules and orders.

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I.

NO WAIVER
27.

4

The

disclosure

of

“Confidential”

or

“Highly

Confidential”

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information pursuant to discovery or the procedures set forth in this Order shall not

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constitute a waiver of any trade secret or any intellectual property, proprietary,

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privacy or other rights to or in such information.
28.

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The inadvertent disclosure of information protected by the attorney-

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client, work product, or other applicable privilege or protection in this Action shall

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not constitute a waiver of any valid claim of privilege. Further, failure to assert a

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privilege in this Action as to one document or communication shall not be deemed

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to constitute a waiver of the privilege as to any other document or communication

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allegedly so protected, even involving the same subject matter, unless the

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Designating Party seeks to use or rely upon the privileged material in this Action.
29.

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A party that discovers that it has inadvertently produced privileged

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information shall promptly request its return.

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inadvertently received privileged materials from a Designating Party must

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immediately notify opposing counsel by telephone and email.

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whether the disclosure of privileged information is discovered by the Designating

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Party or the receiving party, it is agreed that the person who discovers the

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potentially privileged information will not share the document or its contents with

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other persons, and that the party that has in its possession any inadvertently

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produced privileged information shall comply with the requirements identified in

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Federal Rule of Civil Procedure 26(b)(5)(B).

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///

A party that knows it has

Regardless of

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Dated: June 25, 2015

JOHNSON & PHAM, LLP

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By: /s/ Marcus F. Chaney
Marcus F. Chaney
Attorneys for Plaintiff
FOREVER 21, INC.

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Dated: June 25, 2015

TINGLEY LAW GROUP, PC

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By: /s/ Stephen D. Collins
Stephen D. Collins
Attorneys for Defendant
IN & OUT FASHION, INC.

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FOR GOOD CAUSE SHOWN,
IT IS SO ORDERED.
Dated: June ___, 2015
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___________________________________
Michael R. Wilner
UNITED STATES MAGISTRATE JUDGE

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PROTECTIVE ORDER EXHIBIT A

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My name is _______________________________________________________

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I work for _________________________________________________________

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My business contact information is: ____________________________________

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_________________________________________________________________.

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I have read the attached Stipulated Protective Order (“Order”) entered by the
Court in the matter of Forever 21, Inc. v. In & Out Fashion, Inc., United States
District Court, Central District of California, Case No. 2:14-cv-07014-CAS-MRW.

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I understand the responsibilities and obligations the Order imposes on me
regarding “Confidential” or “Highly Confidential” information I obtain in this
action.

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I agree to be bound by all of the provisions of the Order.

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I certify that (strike the inaccurate sections of this clause, if any):

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I did not receive any “Confidential” or “Highly Confidential” information
before signing this Exhibit A;
I meet all requirements for receipt of information and other material
designated as “Confidential” or “Highly Confidential” information, pursuant to the
Order;
I am not directly employed by any party to this action;
I am not under contract with any party to this action for any purpose other
than this action.
I have received a copy of the Order, including an executed copy of this
Exhibit A, for my personal use and reference.
I understand that the Court in this matter has the power to enforce the Order,
including but not limited to imposing penalties and/or sanctions on anyone who
violates the Order.
I agree to submit to the jurisdiction of the United States District Court,
Central District of California in matters relating to this Order.

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Signature: _____________________________

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Date: _________________________________

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Print Name: ____________________________

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STIPULATION FOR ENTRY OF [PROPOSED] PROTECTIVE ORDER
361BA585.doc