Brighton Collectibles, LLC v. Believe Production, Inc.

Filing 24

PROTECTIVE ORDER by Magistrate Judge Alka Sagar re Amended Stipulation for Protective Order 23 . (See Order for complete details) (afe)

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HELLER & EDWARDS
Lawrence E. Heller, Esq. State Bar No. 69770
9454 Wilshire Blvd., Suite 500
Beverly Hills, California 90212
Tel: [phone]
Fax: [phone]
Attorneys for Believe Productions, Inc.

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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) Case No.: 2:15-cv-00579-CAS (ASx)
)
)
Plaintiff,
)
) AMENDED STIPULATED
vs.
) PROTECTIVE ORDER
)
)
BELIEVE PRODUCTIONS, INC., a)
Colorado corporation; and DOES 1 through)
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10, inclusive,
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Defendants. )
)
)

BRIGHTON COLLECTIBLES, LLC, a
Delaware limited liability company

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IT IS HEREBY STIPULATED AND AGREED between defendant, Believe

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Production, Inc., a Colorado corporation, and plaintiff, Brighton Collectibles, LLC, a

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Delaware limited liability company, through their respective attorneys of record, that the

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Court may enter a Protective Order containing the following terms and conditions:

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1.

PURPOSES AND LIMITATIONS

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Discovery in this action is likely to involve production of confidential,

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proprietary, or private information for which special protection from public disclosure

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and from use for any purpose other than prosecuting this litigation may be warranted.

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Accordingly, the parties hereby stipulate to and petition the Court to enter the following

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Stipulated Protective Order. The parties acknowledge that this Order does not confer

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blanket protections on all disclosures or responses to discovery and that the protection it
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AMENDED STIPULATED PROTECTIVE ORDER

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affords from public disclosure and use extends only to the limited information or items

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that are entitled to confidential treatment under the applicable legal principles. The

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parties further acknowledge, as set forth below, that this Stipulated Protective Order

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does not entitle them to file confidential information under seal: Civil Local Rule 79-5

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sets forth the procedures that must be followed and the standards that will be applied

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when a party seeks permission from the court to file material under seal.

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2.

GOOD CAUSE STATEMENT

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Disclosure and discovery activity in this action are likely to involve production of

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confidential, proprietary, or private information such as, among other things: the

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manufacturing and design processes plaintiff uses to make its products; the identity of

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those manufacturers;

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component parts; information respecting the identity of, and relations with, other

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vendors; Proprietary and private customer information; and, the pricing of products, for

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which special protection from public disclosure and from use for any purpose other than

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prosecuting this litigation may be warranted. Accordingly, the parties hereby stipulate to

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and petition the court to enter the following Stipulated Protective Order.

product designs, drawings and specifications; the pricing of

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3.

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This Protective Order shall be applicable to all information produced by any party

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or third party (each of which shall be construed as a “party” for purposes of this

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stipulation and order) and so designated by a party pursuant to interrogatories,

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depositions, requests for production of documents, requests for admissions or other

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discovery requests (whether formal or informal), including subpoenas, and all

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information provided by any party in connection with any pre-trial evidentiary hearings

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or other pre-trial proceedings conducted during the course of this action.

SCOPE OF THIS ORDER

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4.

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Any party producing or disclosing information in this action may designate such

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as “CONFIDENTIAL” or “CONFIDENTIAL -- ATTORNEYS’ EYES ONLY” by

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designating them in the manner set forth in paragraph 3 below. The designation of

CONFIDENTIAL AND ATTORNEYS’ EYES ONLY INFORMATION

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AMENDED STIPULATED PROTECTIVE ORDER

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information as “CONFIDENTIAL” shall be limited to information which the disclosing

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party in good faith believes contains trade secret or other confidential research,

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confidential development or confidential commercial information. The designation of

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information as “CONFIDENTIAL -- ATTORNEYS’ EYES ONLY” shall be limited to

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extremely sensitive trade secret or other confidential research, development or

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commercial information which the disclosing party in good faith believes will result in

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competitive disadvantage if disclosed to another party to this action.

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designated as “CONFIDENTIAL” or “CONFIDENTIAL -- ATTORNEYS’ EYES

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ONLY” may only be used and disclosed as set forth in paragraphs 5 to 10 below.

Information

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However,

the parties reserve their rights to challenge any such designations in

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accordance with the provisions of this order. Any use of Protected Material at trial shall

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be governed by the orders of the trial judge. This Order does not govern the use of

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Protected Material.

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5.

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A party may designate materials as “CONFIDENTIAL” or “CONFIDENTIAL --

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MANNER OF DESIGNATION OF MATERIALS

ATTORNEYS’ EYES ONLY” in the following manner:
(a)

Documents or Things. “CONFIDENTIAL” or “CONFIDENTIAL--

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ATTORNEYS’ EYES ONLY” treatment may be obtained by typing or stamping

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“CONFIDENTIAL” or “CONFIDENTIAL -- ATTORNEYS’ EYES ONLY” on the

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particular document or thing.

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(b)

Interrogatories and Requests for Admissions.

In answering any

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interrogatory, request for admission, or part thereof, a party may designate its answer as

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“CONFIDENTIAL”

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affixing thereto the legend “CONFIDENTIAL” or “CONFIDENTIAL--ATTORNEYS’

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EYES ONLY.” Such “CONFIDENTIAL” or “CONFIDENTIAL -- ATTORNEYS’

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EYES ONLY” answers shall be made on separate pages from any other answers or

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portions thereof that are not designated as “CONFIDENTIAL” or “CONFIDENTIAL --

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ATTORNEYS’ EYES ONLY.”

or “CONFIDENTIAL -- ATTORNEYS’ EYES ONLY” by

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AMENDED STIPULATED PROTECTIVE ORDER

(c)

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Testimony. Any party giving, or who gave, testimony in this action,

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including but not limited to deposition testimony, may obtain “CONFIDENTIAL” or

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“CONFIDENTIAL -- ATTORNEYS’ EYES ONLY” treatment therefor by designating,

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during

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“CONFIDENTIAL -- ATTORNEYS’ EYES ONLY” treatment is desired, which

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testimony is claimed to be CONFIDENTIAL or “CONFIDENTIAL -- ATTORNEYS’

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EYES ONLY.” The reporter shall separately transcribe and bind the testimony so

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designated as “CONFIDENTIAL” and “CONFIDENTIAL -- ATTORNEYS’ EYES

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ONLY” and shall mark the face of the separate bound transcript containing such

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testimony with the term “CONFIDENTIAL” or “CONFIDENTIAL -- ATTORNEYS’

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EYES ONLY.”

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confidentiality in writing and within 15 days of the receipt by said party of the transcript

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of said testimony.

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confidential under the provisions of this order, except that it will not be separately

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bound. If, during the course of testimony, any party reasonably believes that the answer

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to a question will result in the disclosure of “CONFIDENTIAL” or “CONFIDENTIAL -

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- ATTORNEYS’ EYES ONLY” information, all persons other than those persons

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entitled to receive such information pursuant to paragraphs 5 and 6 hereof shall be

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excluded from the room in which the testimony is given.

the

course

(d)

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of

that

testimony,

A party also may

for

which

“CONFIDENTIAL”

or

make the above-referenced designation of

In that event, said portion of the transcript will be treated as

Typing

or

stamping

the

legend

“CONFIDENTIAL”

or

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“CONFIDENTIAL -- ATTORNEYS’ EYES ONLY” upon the first page of a collection

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of documents or things or answers which are bound or attached together in any manner

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shall have the effect of designating such collection in its entirety as “CONFIDENTIAL”

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or “CONFIDENTIAL -- ATTORNEYS’ EYES ONLY.”

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6.

RESTRICTIONS ON DISCLOSURE OF DESIGNATED MATERIALS

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Any information produced in discovery by any party in this action (whether in

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response to a formal or informal discovery request or in correspondence between the

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parties), whether or

not designated “CONFIDENTIAL” or “CONFIDENTIAL -4
AMENDED STIPULATED PROTECTIVE ORDER

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ATTORNEYS’ EYES ONLY” may only be used by the recipient of such information in

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connection with the preparation and trial of this action, and for no other purpose. As

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used herein, the phrase “preparation

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preparation for, participation in and prosecution and defense of any motion, trial, appeal,

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hearing, review or other judicial proceeding in the above-entitled action.

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7.

for trial and trial of this action” shall mean

Except by prior order of this Court after notice to the producing party’s

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counsel, information designated as “CONFIDENTIAL” shall not be disclosed to any

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person other than:
(a)

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the attorneys of record herein for the parties

and those of their

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partners, associates, document clerks and paralegals employed by said attorneys who are

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assigned to and necessary to assist such attorneys in the preparation for trial and trial of

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this action;
(b)

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secretaries, stenographers and other office or clerical personnel

employed by said attorneys and who assist them with respect to this action;
(c)

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parties, officers or employees of the parties, to the extent deemed

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necessary by their respective attorneys of record for the preparation for trial and trial of

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this action;

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(d)

the authors, senders, addressees and designated copy recipients of

any document or thing which has been designated as “CONFIDENTIAL” information;
(e)

such other persons as may be consented to by the party designating

such information as “CONFIDENTIAL” information;
(f)

outside

litigation

support

vendors,

including

commercial

photocopying vendors, scanning services vendors, coders and keyboard operators;
(g)

independent outside consultants or experts retained by the attorneys

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of record to assist in this action, to the extent deemed necessary by said attorneys for the

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preparation for trial and trial of this action and who have first executed an Assurance of

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Compliance in the form attached hereto as Exhibit A;

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AMENDED STIPULATED PROTECTIVE ORDER

(h)

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non-party fact witnesses who are in good faith intended to be called

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at trial and who have first executed an Acknowledgment and Agreement to Be Bound

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in the form attached hereto as Exhibit A. If the attendance of a non-party fact witness at

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a deposition can only be obtained through compulsory process, the witness need not

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execute an Assurance of Compliance, provided that: (i) the witness acknowledges his

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obligation to maintain the confidentiality of “CONFIDENTIAL” information under

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oath; and (ii) such “CONFIDENTIAL” information may only be shown to the witness

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during the deposition; and
(i)

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8.

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the Court (including the Court having jurisdiction of any appeal).

Except by prior order of this Court after notice to

the producing party’s

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counsel, information designated as “CONFIDENTIAL -- ATTORNEYS’ EYES ONLY”

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shall not be disclosed to any person other than:
(a)

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the attorneys of record herein for the parties (other than in-house

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counsel for the parties or any attorney who is an officer, director, shareholder or

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employee of any party or its corporate affiliates) and those of their partners, associates,

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document clerks and paralegals employed by said attorneys who are assigned to and

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necessary to assist such attorneys in the preparation for trial and trial of this action.
(b)

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secretaries, stenographers and other office or clerical personnel

employed by said attorneys and who assist them with respect to this action;
(c)

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the authors, senders, addressees and designated copy recipients of

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any document or thing which has been designated as “CONFIDENTIAL --

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ATTORNEYS’ EYES ONLY” information;
(d)

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such other persons as may be consented to by the party designating

such information as “CONFIDENTIAL -- ATTORNEYS’ EYES ONLY” information;
(e)

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outside

litigation

support

vendors,

including

commercial

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photocopying vendors, scanning services vendors, coders and keyboard operators who

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have first executed an Assurance of Compliance in the form attached hereto as Exhibit

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A;
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AMENDED STIPULATED PROTECTIVE ORDER

(f)

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independent outside consultants or experts retained by the attorneys

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of record to assist in this action, to the extent deemed necessary by said attorneys for the

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preparation for trial and trial of this action and who have first executed an Assurance of

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Compliance in the form attached hereto as Exhibit A; and
(g)

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the Court (including the Court having jurisdiction of any appeal).

Each person to whom information designated as “CONFIDENTIAL” or

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”CONFIDENTIAL -- ATTORNEYS’ EYES ONLY” is disclosed, other than the Court,

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shall be informed of the terms of this Order and agree to be bound by it before

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disclosure to such person of any such information.
(a)

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Counsel shall maintain complete lists identifying all persons to

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whom any information designated as “CONFIDENTIAL” or “CONFIDENTIAL --

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ATTORNEYS’ EYES ONLY” is disclosed and the documents or other information so

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disclosed, and also shall maintain the written agreements required by paragraphs 5(g),

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5(h), 6(e) and 6(f).

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counsel for the other party upon request.

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10.

Such lists and agreements shall be available for inspection by

The failure of any party to object to the designation of information as

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"CONFIDENTIAL" or CONFIDENTIAL -- ATTORNEY'S EYES ONLY" shall not be

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deemed an

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admission that such information qualifies for such designation.

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Nothing contained in this Protective Order shall restrict or prevent any

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party to this action from disclosing or otherwise using its own documents and

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information which that party produces or discloses in this action. The failure of a party

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producing information to designate such information

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“CONFIDENTIAL -- ATTORNEYS’ EYES ONLY” shall not preclude such party from

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later applying to the Court for the entry of a Protective Order. Nor shall this Protective

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Order preclude any party from objecting to the production of information on the ground

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of undue burden, relevance or any other ground permitted under pursuant to applicable

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statutory and case law.
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AMENDED STIPULATED PROTECTIVE ORDER

“CONFIDENTIAL” or

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12.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

IN OTHER LITIGATION

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If a Party is served with a subpoena or a court order issued in other litigation that

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compels disclosure of any information or items designated in this Action as

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“CONFIDENTIAL,” that Party must:

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(a)

promptly notify in writing the Designating Party. Such notification

shall include a copy of the subpoena or court order;

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(b)

promptly notify in writing the party who caused the subpoena or

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order to issue in the other litigation that some or all of the material covered by the

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subpoena or order is subject to this Protective Order. Such notification shall include a

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copy of this Stipulated Protective Order; and

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(c)

cooperate with respect to all reasonable procedures sought to be

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

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Designating Party timely seeks a protective order, the Party served with the subpoena or

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court order shall not produce any information designated in this action as

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“CONFIDENTIAL” before a determination by the court from which the subpoena or

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order issued, unless the Party has obtained the Designating Party’s

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permission. The Designating Party shall bear the burden and expense of seeking

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protection in that court of its confidential material and nothing in these provisions should

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be construed as authorizing or encouraging a Receiving Party in this Action to disobey a

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lawful directive from another court.

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13.

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

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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

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and relief provided by this Order. Nothing in these provisions should be construed as

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prohibiting a Non-Party from seeking additional protections.
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AMENDED STIPULATED PROTECTIVE ORDER

(b)

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

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produce a Non-Party’s confidential information in its possession, and the Party is subject

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to an agreement with the Non-Party not to produce the Non-Party’s confidential

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information, then the Party shall:
(1)

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promptly notify in writing the Requesting Party and the Non-

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

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agreement with a Non-Party;
(2)

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Protective Order in this Action, the relevant discovery request(s), and a reasonably
specific description of the information requested; and
(3)

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

make the information requested available for inspection by

the Non-Party, if requested.
(c)

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

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within 14 days of receiving the notice and accompanying information, the Receiving

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Party may produce the Non-Party’s confidential information responsive to the discovery

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request. If the Non-Party timely seeks a protective order, the Receiving Party shall not

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produce any information in its possession or control that is subject to the confidentiality

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agreement with the Non-Party before a determination by the court. Absent a court order

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to the contrary, the Non-Party shall bear the burden and expense of seeking protection in

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this court of its Protected Material.

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14.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

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Protected Material to any person or in any circumstance not authorized under this

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Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing

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the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve

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all unauthorized copies of the Protected Material, (c) inform the person or persons to

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whom unauthorized disclosures were made of all the terms of this Order, and (d) request

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AMENDED STIPULATED PROTECTIVE ORDER

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such person or persons to execute the “Acknowledgment and Agreement to Be Bound”

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that is attached hereto as Exhibit A.

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15.

INADVERTENT PRODUCTION OF PRIVILIGED OR OTHERWISE

PROTECTED MATERIAL

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When a Producing Party gives notice to Receiving Parties that certain

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inadvertently produced material is subject to a claim of privilege or other protection, the

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obligations of the Receiving Parties are those set forth in Federal Rule of Civil

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Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure

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may be established in an e-discovery order that provides for production without prior

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privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the

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parties reach an agreement on the effect of disclosure of a communication or information

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covered by the attorney-client privilege or work product protection, the parties may

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incorporate their agreement in the stipulated protective order submitted

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to the court

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CHALLENGING CONFIDENTIALITY DESIGNATIONS

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A Party challenging the other party’s designation of “CONFIDENTIAL” or

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“CONFIDENTIAL – ATTORNEYS’ EYES ONLY” shall comply with the following

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procedures:

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a.

Timing of Challenges.

Any Party or Non-Party may challenge a

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designation of confidentiality at any time. Unless a prompt challenge to a Designating

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Party’s confidentiality designation is necessary to avoid foreseeable, substantial

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unfairness, unnecessary economic burdens, or a significant disruption or delay of the

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litigation, a Party does not waive its right to challenge a confidentiality designation by

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electing not to mount a challenge promptly after the original designation is disclosed.

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b.

Meet and Confer.

The Challenging Party shall initiate the dispute

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resolution process by providing written notice of each designation it is challenging and

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describing the basis for each challenge. To avoid ambiguity as to whether a challenge

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has been made, the written notice must recite that the challenge to confidentiality is
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AMENDED STIPULATED PROTECTIVE ORDER

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being made in accordance with this specific paragraph of the Protective Order. The

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parties shall attempt to resolve each challenge in good faith and must begin the process

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by conferring directly (in voice to voice dialogue; other forms of communication are not

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sufficient) within 14 days of the date of service of notice. In conferring, the Challenging

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Party must explain the basis for its belief that the confidentiality designation was not

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proper and must give the Designating Party an opportunity to review the designated

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material, to reconsider the circumstances, and, if no change in designation is offered, to

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explain the basis for the chosen designation. A Challenging Party may proceed to the

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next stage of the challenge process only if it has engaged in this meet and confer process

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first or establishes that the Designating Party is unwilling to participate in the meet and

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confer process in a timely manner.

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c.

Judicial Intervention. If the Parties cannot resolve a challenge without

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court intervention, the Designating Party shall file and serve a motion to retain

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confidentiality under Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5,

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if applicable) within 21 days of the initial notice of challenge or within 14 days of the

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parties agreeing that the meet and confer process will not resolve their dispute,

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whichever is earlier. Each such motion must be accompanied by a competent declaration

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affirming that the movant has complied with the meet and confer requirements imposed

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in the preceding paragraph. Failure by the Designating Party to make such a motion

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including the required declaration within 21 days (or 14 days, if applicable) shall

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automatically waive the confidentiality designation for each challenged designation.

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Any Party or Non-Party may challenge a designation of confidentiality at any time that

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is consistent with the Court's Scheduling Orders if there is good cause for doing so,

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including a challenge to the designation of a deposition transcript or any portions

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thereof. Any motion brought pursuant to this provision must be accompanied by a

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competent declaration affirming that the movant has complied with the meet and confer

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requirements imposed by the preceding paragraph.

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The burden of persuasion in any challenge proceeding shall be on the Designating
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AMENDED STIPULATED PROTECTIVE ORDER

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Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or

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impose unnecessary expenses and burdens on other parties) may expose the Challenging

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Party to sanctions. Unless the Designating Party has waived the confidentiality

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designation by failing to file a motion to retain confidentiality as described above, all

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parties shall continue to afford the material in question the level of protection to which it

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is entitled under the Producing Party’s designation until the court rules on the challenge.

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17.

FILING AND USE IN COURT OF DESIGNATED MATERIALS

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If confidential material is included in any papers to be filed with the court, such

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papers shall be accompanied by an application to file the papers, or the confidential

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portion thereof, under seal. The application must show good cause for the under-seal

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filing. The application shall be directed to the judge to whom the papers are directed.

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Pending the ruling on the application, the papers or portions thereof subject to the

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sealing application shall be lodged under seal. If a Party's request to file confidential

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information under seal is denied by the Court the receiving Party may file the

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information in the public record unless otherwise instructed by the Court.

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18.

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If any party receives a subpoena or document request from a third party which

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purports to require the production of materials in that party’s possession which have

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previously been designated as “CONFIDENTIAL” or “CONFIDENTIAL --

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ATTORNEYS’

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such subpoena or document request shall immediately:

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designated

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ATTORNEYS’ EYES ONLY” of the receipt of said subpoena or document request, and

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(b) shall not oppose any effort by the party which designated the material as

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“CONFIDENTIAL” or “CONFIDENTIAL -- ATTORNEYS’ EYES ONLY” to quash

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the subpoena or obtain a protective order limiting discovery of such material.

THIRD-PARTY REQUEST FOR DESIGNATED MATERIALS

the

EYES ONLY” by any other party to this action, the party
materials

as

“CONFIDENTIAL”

receiving

(a) notify the party who
or

“CONFIDENTIAL

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19.

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At the conclusion of this action, including any and all appeals, all documents,

RETURN OR DESTRUCTION OF DESIGNATED MATERIALS

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AMENDED STIPULATED PROTECTIVE ORDER

--

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transcripts or other things or information designated as “CONFIDENTIAL” or

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“CONFIDENTIAL -- ATTORNEYS’ EYES ONLY,” and all copies thereof, that are in

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the possession of the parties or their attorneys shall be returned to the attorneys for the

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party furnishing the same, or shall be destroyed by the attorneys having such documents

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in their possession.

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disclosing information contained in such documents, answers, transcripts or other things

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shall be destroyed at the conclusion of this litigation. This Order shall continue to be

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binding after the conclusion of this litigation.

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20.

In addition, all summaries or other materials containing or

DURATION

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Once this case proceeds to trial, all of the court-filed information that is to be

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introduced and was previously designated as confidential and/or kept and maintained

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pursuant to the terms of a protective order becomes public and will be presumptively

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available to all members of the public, including the press, unless compelling reasons

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supported by factual findings to proceed otherwise are made to the district judge in

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advance of thee trial.

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21.

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The parties hereby agree to submit this Stipulation to the Court for approval and

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APPROVAL OF STIPULATION AND ENTRY OF ORDER

entry as an Order of the Court.

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Respectfully submitted,
DATED: November 10, 2015

HELLER & EDWARDS

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By: /s/: Lawrence E. Heller
Lawrence E. Heller
Attorneys for Defendant Believe
Productions, Inc.

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AMENDED STIPULATED PROTECTIVE ORDER

.

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DATED: November 10, 2015

BROWN GEORGE ROSS LLP

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By: /s/: Keith Wesley
.
Keith Wesley
Attorneys for Brighton Collectibles, LLC

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

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DATED: November 16 , 2015

/ s / Alka Sagar
Honorable Alka Sagar
United States Magistrate Judge

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AMENDED STIPULATED PROTECTIVE ORDER

.

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, _____________________________ [print or type full name], of _________________

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[print or type full address], declare under penalty of perjury that I have read in its

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entirety and understand the Stipulated Protective Order that was issued by the United

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States District Court for the Central District of California on [date] in the case of

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Brighton Collectibles v. Believe Productions, Inc., Case No. 2:15-cv-00579-CAS

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(ASx). I agree to comply with and to be bound by all the terms of this Stipulated

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Protective Order and I understand and acknowledge that failure to so comply could

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expose me to sanctions and punishment in the nature of contempt. I solemnly promise

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that I will not disclose in any manner any information or item that is subject to this

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Stipulated Protective Order to any person or entity except in strict compliance with the

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provisions of this Order.

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I further agree to submit to the jurisdiction of the United States District Court for the

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Central District of California for the purpose of enforcing the terms of this Stipulated

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Protective Order, even if such enforcement proceedings occur after termination of this

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action. I hereby appoint __________________________ [print or type full name]

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of__________________________ [print or type full address and telephone number] as

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my California agent for service of process in connection with this action or any

20

proceedings related to enforcement of this Stipulated Protective Order.

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Date:

22

__________________________________________

________________________City

and

State

where

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Printed Name: __________________________________

25
26

Signature: _____________________________________

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15
AMENDED STIPULATED PROTECTIVE ORDER

sworn

and

signed: