Cohen International, Inc. v. Under Armour, Inc. et al

Filing 28

PROTECTIVE ORDER by Magistrate Judge John E. McDermott re Stipulation for Protective Order 27 . (san)

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FINNEGAN, HENDERSON,
FARABOW, GARRETT & DUNNER,
L.L.P.

witkowlaw APLC
Brandon J Witkow
[e-mail]
Cory A Baskin
[e-mail]
21031 Ventura Boulevard Suite 603
Woodland Hills, CA 91364
Telephone: [phone]
Facsimile: 818-296-9510

Michael C. Elmer (SBN 60366)
[e-mail]
2 Overlook Drive
Newport Beach, CA 92657
Telephone: [phone]
Facsimile: [phone]
Robert F. McCauley (SBN 162056)
[e-mail]
3300 Hillview Avenue
Palo Alto, CA 94304
Telephone: [phone]
Facsimile: [phone]

Attorneys for Plaintiff
COHEN INTERNATIONAL, INC. DBA
HYDRO CLOTHING

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Douglas A. Rettew (pro hac vice pending)
Danny M. Awdeh (pro hac vice pending)
Anna B. Naydonov (pro hac vice pending)
901 New York Avenue, N.W.
Washington, DC 20001
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendants
UNDER ARMOUR, INC. and
DICK’S SPORTING GOODS, 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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COHEN INTERNATIONAL, INC. DBA CASE NO. 2:15-cv-01625-PSG (JEM)
HYDRO CLOTHING,
[PROPOSED] STIPULATED
PROTECTIVE ORDER
Plaintiff,
DISCOVERY MATTER

v.
UNDER ARMOUR, INC. and DICK’S
SPORTING GOODS, INC.,
Defendants.

District Judge: Honorable Philip S.
Gutierrez
Magistrate: Honorable John E. McDermott

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[PROPOSED] STIPULATED PROTECTIVE ORDER
CASE NO. 2:15-CV-01625-PSG (JEM)

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Plaintiff Cohen International, Inc. DBA Hydro Clothing (“Cohen”) and

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Defendants Under Armour, Inc. (“Under Armour”) and Dick’s Sporting Goods, Inc.

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(“Dick’s) (together, “Defendants”), stipulate and agree between and among

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themselves, by and through their attorneys, to the entry of this Protective Order to

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govern the use, dissemination, and disclosure of certain documents and materials

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described below and obtained by the parties through discovery or otherwise in this

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action. The parties agree as follows:

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A.

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This Protective Order shall apply to all information, premises, documents, and

Scope of Order

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things owned or controlled by the parties, or of any parents, subsidiaries, divisions,

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branches, affiliates, related companies, agents, or licensees of any party, or of any

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other parties added or substituted in this case, that are subject to discovery in this

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action, including without limitation, testimony adduced at depositions upon oral

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examination or upon written questions, answers to interrogatories, documents and

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things produced or otherwise provided, information obtained from inspection of

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premises or things, and answers to requests for admission (hereafter “Information and

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Materials”).

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B.

Definitions

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1.

As used in this Order, “Confidential” Information and Materials shall

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include all Information and Materials that have not been made public, the disclosure

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of which the disclosing party contends could cause harm to its business operations or

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provide improper advantage to others. “Confidential” Information and Materials shall

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include, but shall not be limited to information that concerns or relates to (1) sales,

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marketing, manufacturing, or research and development; (2) financial performance;

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(3) manufacturing or other costs of doing business; (4) licenses or other confidential

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agreements; and/or (5) technical product details or methods of doing business.

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2.

As used in this Order, “Highly Confidential—Attorneys’ Eyes Only”

Information and Materials shall include trade secrets within the meaning of the
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[PROPOSED] STIPULATED PROTECTIVE ORDER
CASE NO. 2:15-CV-01625-PSG (JEM)

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Uniform Trade Secrets Act and all Information and Materials that the disclosing party

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has reasonable grounds to believe would, if known to any officer, director, employee,

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or agent of a receiving party, another third party, or to the public, lead to a significant

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harm or injury to the reputation and/or business of the disclosing party or provide

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improper advantage to others.

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C.

Marking Requirements

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1.

All Information and Materials deemed Confidential or Highly

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Confidential—Attorneys’ Eyes Only will be so identified and labeled by the producing

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party.

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2.

If qualified Information and Materials cannot be labeled, they shall be

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designated as Confidential or Highly Confidential—Attorneys’ Eyes Only in a manner

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to be agreed upon by the parties.

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3.

In lieu of marking the original of a document or thing, if the original is

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not produced, the designating party may mark the copies that are produced or

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exchanged, but the other party, by its counsel, shall have the right to examine the

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original, to be provided with a full and complete copy, and to call for production of

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the original at the trial in this action. However, nothing in this Stipulated Protective

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Order requires the production of privileged or work-product Information and

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Materials, or any Information and Materials that are otherwise not subject to

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discovery. If a producing party inadvertently discloses to a receiving party

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information that is privileged, said producing party shall promptly upon discovery of

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such disclosure so advise the receiving party in writing and request that the item(s) of

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information be returned, and no party to this action shall thereafter assert that such

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disclosure waived any privilege. It is further agreed that the receiving party will

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return such inadvertently produced item(s) of information and all copies thereof

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within three (3) business days of receiving a written request for the return of such

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item(s) of information.

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[PROPOSED] STIPULATED PROTECTIVE ORDER
CASE NO. 2:15-CV-01625-PSG (JEM)

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4.

The identification and labeling specified in Paragraphs C.1, C.2, and C.3

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of this Order shall be made at the time when the answer to the interrogatory or the

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answer to the request for admission is served, and when a copy of the document or

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thing is provided to Under Armour, Dick’s, or Cohen. In the case of hearing and

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deposition transcript pages, the designating party shall advise opposing counsel of the

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specific pages to be maintained in confidence within forty-five (45) days after the

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receipt of the transcript or as otherwise agreed by counsel. During this period, the

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entire transcript shall be deemed to be Highly Confidential—Attorneys’ Eyes Only.

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5.

In the event that a disclosing party discovers a failure to mark qualified

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Information or Materials as Confidential or Highly Confidential—Attorneys’ Eyes

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Only, the other party shall be notified immediately and the following corrective action

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shall be taken:

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(a)

The receiving party shall notify all persons who have received the

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Information and Materials that the Information and Materials are designated

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Confidential or Highly Confidential—Attorneys Eyes’ Only and must be treated as

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designated in this Order;

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(b)

The receiving party shall take all reasonable steps to place the

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applicable Confidential or Highly Confidential—Attorneys’ Eyes Only label on the

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designated Information and Materials; and

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(c)

The receiving party shall treat the newly marked Information and

Materials as set out in Paragraphs F and G of this Order.

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[PROPOSED] STIPULATED PROTECTIVE ORDER
CASE NO. 2:15-CV-01625-PSG (JEM)

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D.

Designating Information and Documents

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1.

In designating Information and Materials as Confidential or Highly

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Confidential—Attorneys Eyes’ Only, a party will make such designation only as to that

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information that it in good faith believes to be Confidential or Highly Confidential—

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Attorneys Eyes Only as defined in Paragraph B of this Order.

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2.

If counsel for a party believes that questions put to a witness being

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examined during a deposition will disclose Confidential or Highly Confidential—

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Attorneys’ Eyes Only Information and Materials of his or her client, or that the answer

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to any question or questions requires such disclosure, or if documents to be used as

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exhibits during the examination contain such information, counsel shall so notify

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opposing counsel and the deposition of such witness, or portions thereof, shall be

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taken only in the presence of appropriate persons as defined in Paragraph F, counsel

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for the witness, if any, the stenographic reporter, and the officers or employees of the

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party whose Confidential or Highly Confidential—Attorneys’ Eyes Only information is

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being disclosed.

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E.

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Redacted versions of Confidential or Highly Confidential—Attorneys’ Eyes

Redaction

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Only materials that no longer contain Confidential or Highly Confidential—Attorneys’

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Eyes Only information, and that are not subject to this Order, may be used for any

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proper purpose for this case.

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F.

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Access to Confidential or Highly Confidential—Attorneys’ Eyes Only
Information and Materials

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It is the general intent of the parties to limit disclosure to the smallest

number of persons, consistent with the needs of litigation.
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All access, possession, use, testing, inspection, study, or copying of any

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Information or Materials designated as Confidential under this Order is governed by

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this Order and is limited to the following persons:

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[PROPOSED] STIPULATED PROTECTIVE ORDER
CASE NO. 2:15-CV-01625-PSG (JEM)

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a.

The law firms Finnegan, Henderson, Farabow, Garrett & Dunner,

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L.L.P.; Witkowlaw APLC; litigation insurance/claims personnel at

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the Chubb Group of Insurance Companies and Zurich North

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America; and in-house counsel for Under Armour and Dick’s,

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including attorneys, law clerks, stenographic, clerical, and

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paralegal employees whose functions require access to such

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Confidential Information and Materials.

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b.

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Two employee representatives of Under Armour, Dick’s, and
Cohen, not to include in-house counsel or members of the legal

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department. Disclosures to such persons, however, will be allowed

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only after the conditions set forth in Paragraph F.4 of this Order

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are satisfied.

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c.

Independent experts, consultants, or translators for each party and

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their clerical personnel, who are not employees of the parties or

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employees of Defendants’ Competitors (defined below) (or their

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parents, subsidiaries, divisions, branches, affiliates, or agents), and

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whose advice and consultation will be used by such party in

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connection with preparation of this case for trial. Disclosures to

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such persons, however, will be allowed only after the conditions

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set forth in Paragraph F.4 of this Order are satisfied. In no event

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may Cohen or its counsel disclose any materials designated as

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Confidential or Highly Confidential—Attorneys Eyes Only to any

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Under Armour competitor, e.g., manufacturers of apparel and/or

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athletic products, or Dick’s competitor, e.g. retailer or wholesaler

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of athletic apparel and/or sporting goods (together, “Defendants’

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Competitor”) whether or not the Defendants’ Competitor has

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executed Exhibit A and B to this Order.

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[PROPOSED] STIPULATED PROTECTIVE ORDER
CASE NO. 2:15-CV-01625-PSG (JEM)

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3.

All access, possession, use, testing, inspection, study, or copying of any

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Information or Materials designated as Highly Confidential—Attorneys’ Eyes Only

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under this Order is governed by this Order and is limited to in-house and outside

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counsel and their staff, as identified above in Paragraph F.2.a, and experts and their

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staff, as identified above in Paragraph F.2.c.

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4.

Prior to any disclosure of Confidential Information and Materials to those

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persons named in Paragraph F.2.b of this Order, disclosing counsel shall obtain from

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each such person a copy of a signed undertaking as set forth in Exhibit A, including

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any information requested by Exhibit A. Prior to any disclosure of Confidential or

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Highly Confidential—Attorneys’ Eyes Only Information and Materials to those

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persons named in Paragraph F.2.c. of this Order, disclosing counsel shall obtain from

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each such person a copy of a signed undertaking as set forth in Exhibit B, including

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any information requested by Exhibit B.

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5.

The parties will attempt to resolve any disagreements about the

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designation of Information and Materials designated as Confidential or Highly

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Confidential—Attorneys’ Eyes Only on an informal basis before presenting the dispute

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to the Court by motion or otherwise. Acceptance by a party of Information and

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Materials as Confidential or Highly Confidential—Attorneys’ Eyes Only will not, of

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itself, constitute an admission that the designated Information and Materials is entitled

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to protection. If unable to resolve any such disagreements, the objecting party shall

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file an appropriate motion with the Court. Information and Materials designated as

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Confidential or Highly Confidential—Attorneys’ Eyes Only shall remain under the

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protection of this Stipulated Protective Order until there is an order of the Court to the

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contrary or until there is an express written agreement between the parties. No party

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shall be obliged to challenge the proprietary of a Confidential or Highly

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Confidential—Attorneys Eyes’ Only designation at the time of production, and failure

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to do so shall not preclude a subsequent attack on the propriety of such designation.

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[PROPOSED] STIPULATED PROTECTIVE ORDER
CASE NO. 2:15-CV-01625-PSG (JEM)

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G.

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Handling Confidential and Highly Confidential—Attorneys Eyes Only
Information and Materials

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Copies of Confidential or Highly Confidential—Attorneys Eyes Only

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Information and Materials shall not be made public by the party to whom they are

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disclosed unless they become a part of the public record in this action by agreement of

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the parties or by order or action of the Court. Confidential or Highly Confidential—

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Attorneys Eyes’ Only Information and Materials may be included in whole or in part

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in pleadings, motions, or briefs only if such Information and Materials are filed with

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the Court under seal and in accordance with Local Rule 79-5. The parties stipulate

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that Information and Materials identified and labeled in accordance with this

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Paragraph shall be received in camera as directed by the Court.

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3.

Within sixty (60) days after the final judgment and the exhaustion of any

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appeals in this action or the settlement of this action, all Information and Materials

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covered by this Order, except those in possession of the Court, shall be destroyed,

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except that outside counsel may maintain one copy of all correspondence and

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pleadings. Subject to this exception, outside counsel shall certify to counsel for the

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producing party the destruction of all additional copies of Information and Materials

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so designated in their possession, custody or control.

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H.

Miscellaneous

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1.

This Order shall not prevent a party from applying to the Court for relief

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from the Order or any part thereof, or for relief from its application in any particular

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circumstance, or from applying to the Court for further or additional protective

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agreements or orders.

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2.

This Order shall survive the final termination of this or related

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proceedings to the extent that the Confidential or Highly Confidential—Attorneys’

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Eyes Only Information and Materials have not or do not become known to the public.

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3.

No copy of any transcript of any deposition taken by any party that is

designated in part or in whole as Confidential or Highly Confidential—Attorneys’
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[PROPOSED] STIPULATED PROTECTIVE ORDER
CASE NO. 2:15-CV-01625-PSG (JEM)

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Eyes Only shall be furnished by the reporter to any person other than to counsel for the

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parties. Neither the original nor any copy of any transcript of any deposition taken in

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this proceeding shall be filed with the Court or used during the trial in this action until

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the parties’ outside counsel have had the opportunity to designate those portions, if

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any, of the transcript that are to be regarded as Confidential or Highly Confidential—

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Attorneys’ Eyes Only as provided in Paragraph C.4. Upon such a designation, the

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designated portions of the transcript to be filed with the Court or used during the trial

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shall be filed under seal in accordance with Paragraph G of this Order, unless

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otherwise agreed by the parties or ordered by the Court.

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4.

Each person having access to Confidential or Highly Confidential—

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Attorneys’ Eyes Only Information and Materials under this Order shall take all

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reasonable steps to comply with this Order.

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5.

Nothing in this Order shall bar or otherwise restrict any attorney from

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rendering advice to his or her client with respect to this proceeding and, in the course

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of the proceeding, referring to or relying upon his or her examination of Confidential

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or Highly Confidential—Attorneys’ Eyes Only Information and Materials; provided,

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that in rendering such advice and in otherwise communicating with clients, the

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attorney shall not make specific disclosure to any person of any Confidential or

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Highly Confidential—Attorneys’ Eyes Only Information and Materials.

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6.

Any person bound by this Order may rely on a waiver or consent that is

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made by an attorney for a party as if that waiver or consent was made by that party or

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person, provided that such waiver or consent shall be either in writing or on record in

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a hearing, trial, or deposition transcript.

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7.

A person or an entity that is not a party to this litigation may take

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advantage of the protection of Confidential or Highly Confidential—Attorneys’ Eyes

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Only Information and Materials provided by this Order, and such person or entity shall

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be entitled to all rights and protections afforded the disclosing party under this Order.

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[PROPOSED] STIPULATED PROTECTIVE ORDER
CASE NO. 2:15-CV-01625-PSG (JEM)

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8.

This Order shall not be construed: (a) to prevent any party or its

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attorneys from making use of information that is lawfully in its possession prior to its

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disclosure by the Producing Party; (b) to apply to information that appears in public

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records, printed publications, or otherwise becomes publicly known; or (c) to apply to

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information that any party or its attorneys have, after disclosure by the Producing

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Party, lawfully obtained from a third party having the right to disclose such

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information.

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The parties, through their undersigned counsel, agree to the terms of this
Stipulated Protective Order as of the last dates shown below.
Respectfully submitted,
Dated: November 4, 2015

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By: /s/ Brandon J. Witkow
Brandon J. Witkow

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Attorneys for Plaintiff
COHEN INTERNATIONAL, INC.
DBA HYDRO CLOTHING

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witkowlaw, a professional law
corporation

Dated: November 4, 2015

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FINNEGAN, HENDERSON,
FARABOW, GARRETT &
DUNNER, LLP
By: /s/ Robert F. McCauley
Robert F. McCauley

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Attorneys for Defendants
UNDER ARMOUR, INC. &
DICK’S SPORTING GOODS, INC.

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ATTESTATION

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I attest that all other signatories listed, and on whose behalf the filing is

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submitted, concur in the filing’s content and have authorized the filing of this

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document.
/s/ Robert F. McCauley
Robert F. McCauley

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[PROPOSED] STIPULATED PROTECTIVE ORDER
CASE NO. 2:15-CV-01625-PSG (JEM)

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IT IS SO ORDERED on this 5th day of October 2015.

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The Honorable John E. McDermott
United States Magistrate Judge

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[PROPOSED] STIPULATED PROTECTIVE ORDER
CASE NO. 2:15-CV-01625-PSG (JEM)

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EXHIBIT A
Cohen International, Inc. v. Under Armour, Inc.
and Dick’s Sporting Goods, Inc.
2:15-cv-01625-PSG (JEM)
United States District Court for the Central District of California

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AGREEMENT TO BE BOUND BY PROTECTIVE ORDER

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UNDERTAKING OF

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STATE OF
COUNTY OF

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I, _____________________________________, being duly sworn, state that:

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1.

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6.

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I will comply with all of the provisions of the Stipulated Protective Order

and understand that a violation of the Stipulated Protective Order or this Agreement
could result in sanctions against me.

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I have carefully read and understand the provisions of the Stipulated

Protective Order.

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I have received a copy of the Stipulated Protective Order in this case.

5.

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My present occupation or job description is:

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My employer is:

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My address is:

2.

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7.

I will hold in confidence and not disclose to anyone not qualified under

the Stipulated Protective Order any “Confidential” Information or Materials disclosed
to me.
8.

I will return all Information and Materials containing or disclosing

“Confidential” Information and Materials which come into my possession, and
Information and Materials that I have prepared relating thereto, to counsel for the
party that provided me with the “Confidential” Information and Materials.

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[PROPOSED] STIPULATED PROTECTIVE ORDER
CASE NO. 2:15-CV-01625-PSG (JEM)

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9.

I submit to the jurisdiction of this Court for the purpose of enforcement

of the Stipulated Protective Order in this case.

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I declare under penalty of perjury that the foregoing is true and correct.

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Date:

By:

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[PROPOSED] STIPULATED PROTECTIVE ORDER
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EXHIBIT B
Cohen International, Inc. v. Under Armour, Inc.
and Dick’s Sporting Goods, Inc.
2:15-cv-01625-PSG (JEM)
United States District Court for the Central District of California

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AGREEMENT TO BE BOUND BY PROTECTIVE ORDER

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UNDERTAKING OF

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STATE OF
COUNTY OF
I, _____________________________________, being duly sworn, state that:
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My address is:

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My employer is:

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My present occupation or job description is:

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I have never been employed and am not currently employed by any of the

parties in this case, or by any parents, subsidiaries, divisions, branches, affiliates, or
competitors of any of the parties in any capacity other than as an expert, consultant, or
translator in this proceeding.
5.

I have received a copy of the Stipulated Protective Order in this case.

6.

I have carefully read and understand the provisions of the Stipulated

Protective Order.
7.

I will comply with all of the provisions of the Stipulated Protective Order

and understand that a violation of the Stipulated Protective Order or this Agreement
could result in sanctions against me.
8.

I will hold in confidence and not disclose to anyone not qualified under

the Stipulated Protective Order any “Confidential” or “Highly Confidential—
Attorneys’ Eyes Only” Information or Materials disclosed to me.

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[PROPOSED] STIPULATED PROTECTIVE ORDER
CASE NO. 2:15-CV-01625-PSG (JEM)

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9.

I will return all Information and Materials containing or disclosing

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“Confidential” or “Highly Confidential—Attorneys’ Eyes Only” Information and

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Materials which come into my possession, and Information and Materials that I have

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prepared relating thereto, to counsel for the party that provided me with the

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“Confidential” “Highly Confidential—Attorneys Eyes Only” Information and

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Materials.

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10.

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I submit to the jurisdiction of this Court for the purpose of enforcement

of the Stipulated Protective Order in this case.

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I declare under penalty of perjury that the foregoing is true and correct.

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Date:

By:

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[PROPOSED] STIPULATED PROTECTIVE ORDER
CASE NO. 2:15-CV-01625-PSG (JEM)