United Fabrics International Inc v. Again Trading Corp. et al

Filing 21

PROTECTIVE ORDER by Magistrate Judge John E. McDermott re Stipulation for Protective Order 20 . (san)

1 Stephen M. Doniger, Esq. (SBN 179314)
Email: [e-mail]
2 Scott A. Burroughs, Esq. (SBN 235718)
3 Email: [e-mail]
Trevor W. Barrett (SBN 287174)
4 Email: [e-mail]
5 DONIGER / BURROUGHS
603 Rose Avenue
6 Venice, California 90291
7 Telephone: [phone]
8 Attorneys for Plaintiff
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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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13 UNITED FABRICS INTERNATIONAL, Case No.: 2:15-cv-03521-RGK-JEM
Referred to Honorable Judge John E.
INC.,
McDermott
14
15 Plaintiff,

[DISCOVERY MATTER]

16 vs.
17
AGAIN TRADING CORP., a New York
18 Corporation; ROSS STORES, INC., a
19 California Corporation, individually and
doing business as “DD’S DISCOUNT”;
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and DOES 1-10,
21
Defendant.
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[PROPOSED] PROTECTIVE
ORDER

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Having considered the parties’ pleadings on file to date, and the parties’
jointly submitted Stipulation for Entry of a Protective Order to govern the handling
of information and materials produced in the course of discovery or filed with the
Court in this action, the Court determines as follows:

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[PROPOSED] PROTECTIVE ORDER

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GOOD CAUSE STATEMENT
It is the intent of the parties and the Court that information will not be

3 designated as confidential in this case for tactical reasons, and that nothing shall be
4 designated without a good faith belief that there is good cause why it should not be
5 part of the public record. Examples of confidential information that the parties
6 may seek to protect from unrestricted or unprotected disclosure include:
7

(a)

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

8

confidentiality agreement or obligation, and/or Protective Order

9

issued in another case;

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(b)

of a party’s supplier, distributor, or designer;

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The names, or other information tending to reveal the identity

(c)

Agreements with third-parties, including license agreements,

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distributor agreements, manufacturing agreements, design

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agreements, development agreements, supply agreements, sales

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agreements, or service agreements;

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(d)

Research and development information;

(e)

Proprietary engineering or technical information, including

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product

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information, drawings, memoranda and reports;

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(f)

design,

manufacturing

techniques,

processing

Information related to budgets, sales, profits, costs, margins,
licensing of technology or designs, product pricing, or other
internal financial/accounting information, including non-public
information related to financial condition or performance and
income or other non-public tax information;

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[PROPOSED] PROTECTIVE ORDER

1

(g)

2

Information related to internal operations including personnel
information;

3

(h)

4

Information related to past, current and future product
development;

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6

(i)

Information related to past, current and future market analyses

7

and business and marketing development, including plans,

8

strategies, forecasts and competition; and

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(j)

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information is located).

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12

Trade secrets (as defined by the jurisdiction in which the

Unrestricted or unprotected disclosure of such confidential technical,

13 commercial or personal information would, in the producing party’s opinion, result
14 in prejudice or harm to the producing party by revealing the producing party’s
15 competitive confidential information, which has been developed at the expense of
16 the producing party and which represents valuable tangible and intangible assets of
17 that party. Additionally, legitimate privacy interests must be safeguarded.
18 Accordingly, the parties respectfully submit that there is good cause for the entry
19 of this Protective Order.
20

The parties agree, subject to the Court’s approval, that the following terms

21 and conditions shall apply to this civil action.
22

1.

Designated Material.

23

1.1

Information or material may be designated for confidential treatment

24 pursuant to this Protective Order by any party, person or entity producing or
25 lodging it in this action (the “Designating Party”), if: (a) produced or served,
26 formally or informally, pursuant to the Federal Rules of Civil Procedure or in
27 response to any other formal or informal discovery request in this action; and/or
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[PROPOSED] PROTECTIVE ORDER

1 (b) filed or lodged with the Court. All such information and material and all
2 information or material derived from it constitutes “Designated Material” under
3 this Protective Order.
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1.2

Unless and until otherwise ordered by the Court or agreed to in

writing by the parties, all Designated Materials designated under this Protective
Order shall be used by the parties and persons receiving such Designated
Materials (“Receiving Party”) solely for litigation purposes, including any
appellate proceeding relating thereto. Designated Material shall not be used by
any party or person receiving them for any business or any other non-litigation
purpose. No party or person shall disclose Designated Material to any other party
or person not entitled to receive such Designated Material under the specific
terms of this Protective Order. For purposes of this Protective Order, “disclose”
or “disclosed” means to show, furnish, reveal or provide, indirectly or directly,
any portion of the Designated Material or its contents, orally or in writing,
including the original or any copy of the Designated Material.
2.

Access to Designated Materials.

2.1

Materials Designated “CONFIDENTIAL”: Subject to the limitations

set forth in this Protective Order, Designated Material may be marked
“CONFIDENTIAL” for the purpose of preventing the disclosure of information
or materials that the designating party in good faith believes is confidential.
Before designating any specific information or material “CONFIDENTIAL,” the
Designating Party’s counsel shall make a good faith determination that the
information warrants protection under Rule 26(c) of the Federal Rules of Civil
Procedure. Such information may include, but is not limited to:
(a)

The financial performance or results of the Designating Party,

including without limitation income statements, balance sheets, cash flow
analyses, budget projections, sales records, and present value calculations;
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[PROPOSED] PROTECTIVE ORDER

1

(b)

Corporate and strategic planning by the Designating Party, including

2 without limitation marketing plans, competitive intelligence reports, sales
3 projections and competitive strategy documents;
4

(c)

Names, addresses, and other information that would identify

5 prospective customers, or the distributors or prospective distributors of the
6 Designating Party, however it is expressly understood and agreed that the names
7 of vendors and customers for the allegedly infringing goods at issue, other than
8 individuals, may shall not be deemed confidential, and Plaintiff is free to amend
9 the operative pleadings to add such customers as appropriate;
10

(d)

Technical data, research and development data, and any other

11 confidential commercial information, including but not limited to trade secrets of
12 the Designating Party;
13

(e)

Information used by the Designating Party in or pertaining to its

14 trade or business, which information the Designating Party believes in good faith
15 has competitive value, which is not generally known to others and which the
16 Designating Party would not normally reveal to third parties except in
17 confidence, or has undertaken with others to maintain in confidence;
18

(f)

Information which the Designating Party believes in good faith falls

19 within the right to privacy guaranteed by the laws of the United States or
20 California; and
21

(g)

Information which the Designating Party believes in good faith to

22 constitute, contain, reveal or reflect proprietary, financial, business, technical, or
23 other confidential information.
24

The fact that an item or category is listed as an example in this or other

25 sections of this Protective Order does not, by itself, render the item or category
26 discoverable.
27

2.1.0 Materials designated “CONFIDENTIAL” may be disclosed only to

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[PROPOSED] PROTECTIVE ORDER

1 the following Designees:
2

2.1.1 Persons who appear on the face of Designated Materials marked

3 “CONFIDENTIAL” as an author, addressee, or recipient thereof;
4

2.1.2 Counsel retained as outside litigation attorneys of record in this

5 action, and their respective associates, clerks, legal assistants, stenographic,
6 videographic and support personnel, and other employees of such outside
7 litigation attorneys, and organizations retained by such attorneys to provide
8 litigation support services in this action and the employees of said organizations.
9 “Counsel” explicitly excludes any in-house counsel whether or not they are
10 attorneys of record in this action.
11

2.1.3 Consultants, including non-party experts and consultants retained or

12 employed by Counsel to assist in the preparation of the case, to the extent they
13 are reasonably necessary to render professional services in this action, and subject
14 to the disclosure requirements of section 2.3. Each consultant must sign a
15 certification that he or she has read this Stipulated Protective Order, will abide by
16 its provisions, and will submit to the jurisdiction of this Court regarding the
17 enforcement of this Order’s provisions.
18

2.1.4 A party’s officers and/or employees, which may include in-house

19 counsel.
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2.1.5 The Court, its clerks and secretaries, and any court reporter retained

21 to record proceedings before the Court;
22

2.2

Materials Designated “HIGHLY CONFIDENTIAL – ATTORNEYS’

23 EYES ONLY”: Subject to the limitations in this Protective Order, Designated
24 Materials may be marked “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
25 ONLY” for the purpose of preventing the disclosure of information or materials
26 which, if disclosed to the receiving party, might cause competitive harm to the
27 Designating Party. Information and material that may be subject to this
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[PROPOSED] PROTECTIVE ORDER

1 protection includes, but is not limited to, technical and/or research and
2 development data, intellectual property, financial, marketing and other sales data,
3 and/or information having strategic commercial value pertaining to the
4 Designating Party’s trade or business. Nothing in paragraph 2.1 shall limit the
5 information or material that can be designated “HIGHLY CONFIDENTIAL –
6 ATTORNEYS’ EYES ONLY” under this paragraph. Before designating any
7 specific information “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
8 ONLY,” the Designating Party’s counsel shall make a good faith determination
9 that the information warrants such protection.
10

2.2.0 Materials designated “HIGHLY CONFIDENTIAL – ATTORNEYS’

11 EYES ONLY” materials may be disclosed only to the following Designees:
12

2.2.1 Persons who appear on the face of Designated Materials marked

13 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” as an author,
14 addressee, or recipient thereof;
15

2.2.2 Counsel for the parties to this action, as defined in section 2.1.2;

16

2.2.3 Consultants for the parties to this action, as defined in section 2.1.3;

17 and
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2.2.4 The Court, its clerks and secretaries, and any court reporter retained

19 to record proceedings before the Court.
20

2.2.5 Court reporters retained to transcribe depositions.

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2.3

Legal Effect of Designation. The designation of any information or

23 materials as “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’
24 EYES ONLY” is intended solely to facilitate the conduct of this litigation.
25 Neither such designation nor treatment in conformity with such designation shall
26 be construed in any way as an admission or agreement by the Receiving Party
27 that the Designated Materials constitute or contain any trade secret or confidential
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[PROPOSED] PROTECTIVE ORDER

1 information. Except as provided in this Protective Order, the Receiving Party
2 shall not be obligated to challenge the propriety of any designation, and a failure
3 to do so shall not preclude a subsequent attack on the propriety of such
4 designation.
5

2.4

Nothing herein in any way restricts the ability of the Receiving Party

6 to use “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’
7 EYES ONLY” material produced to it in examining or cross-examining any
8 employee or consultant of the Designating Party.
9

2.5

The parties agree that the Plaintiff may be provided by its counsel a

10 summary document, or oral summary, setting forth the alleged infringers’ full
11 identities, revenues, and gross profits numbers, notwithstanding any party’s
12 designation of documents showing such information as “HIGHLY
13 CONFIDENTIAL – ATTORNEYS’ EYES ONLY”. The parties further agree that
14 the identities and contact information of alleged infringers is not confidential, and
15 Plaintiff is free to name revealed alleged infringers as defendants in a lawsuit.
16

3.

Certificates Concerning Designated Materials. Each Consultant as

17 defined in section 2.1.3, to whom any Designated Materials will be disclosed
18 shall, prior to disclosure of such material, execute the Acknowledgement of
19 Stipulated Protective Order in the form attached hereto as Exhibit A. Counsel
20 who makes any disclosure of Designated Materials shall retain each executed
21 Acknowledgement of Stipulated Protective Order and shall circulate copies to all
22 Counsel for the opposing party concurrently with the identification of the
23 Consultant to the attorneys for the Designating Party pursuant at the conclusion
24 of the case or upon such consultants designation as an expert witness.
25

4.

Use of Designated Materials by Designating Party. Nothing in this

26 Protective Order shall limit a Designating Party’s use of its own information or
27 materials, or prevent a Designating Party from disclosing its own information or
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[PROPOSED] PROTECTIVE ORDER

1 materials to any person. Such disclosure shall not affect any designations made
2 pursuant to the terms of this Protective Order, so long as the disclosure is made in
3 a manner that is reasonably calculated to maintain the confidentiality of the
4 information.
5

5.

Manner of Designating Written Materials.

6

5.1

Documents, discovery responses and other written materials shall be

7 designated as “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL –
8 ATTORNEYS’ EYES ONLY” whether in whole or in part, as follows.
9

5.2

The producing party shall designate materials by placing the legend

10 “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
11 ONLY” on each page so designated prior to production. If the first or cover page
12 of a multi-page document bears the legend “CONFIDENTIAL,” “HIGHLY
13 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” the entire document shall be
14 deemed so designated, and the absence of marking each page shall not constitute
15 a waiver of the terms of this Order. If the label affixed to a computer disk
16 containing

multiple

files

bears

the

legend

“CONFIDENTIAL,”

17 “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” the entire disk shall be
18 deemed so protected, and the absence of marking of each file shall not constitute
19 a waiver of the terms of this Order.
20

5.3

A

designation

of

““CONFIDENTIAL,”

or

“HIGHLY

21 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” as to any item, thing or
22 object that cannot otherwise be categorized as a document, shall be made: (1) by
23 placing the legend “CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL –
24 ATTORNEYS’ EYES ONLY” on the thing, object or container within which it is
25 stored; or (2) by specifically identifying, in writing, the item and the level of
26 confidentiality designation, where such labeling is not feasible.
27

5.4

When a party wishes to designate as “CONFIDENTIAL,” or

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[PROPOSED] PROTECTIVE ORDER

1 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” materials
2 produced by someone other than the Designating Party (a “Producing Party”),
3 such designation shall be made:
4

5.4.1 Within fifteen (15) business days from the date that the Designating

5 Party receives copies of the materials from the producing or disclosing entity; and
6

5.4.2 By notice to all parties to this action and to the Producing Party, if

7 such party is not a party to this action, identifying the materials to be designated
8 with particularity (either by production numbers or by providing other adequate
9 identification of the specific material). Such notice shall be sent by U.S. mail and
10 either facsimile or e-mail.
11

5.4.3. A party shall be permitted to designate as “CONFIDENTIAL,” or

12 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” material produced
13 by a Producing Party only where:
14

a. The material being produced was provided to or developed by such

15 Producing Party: (i) under a written confidentiality agreement with the Designating
16 Party; or (ii) within a relationship with the Designating Party (or a party operating
17 under the control thereof) in which confidentiality is imposed by law (including,
18 but not limited, to the employment relationship and the vendor-customer
19 relationship); and
20

b. The material being produced would be considered confidential material

21 of the Designating Party under Section 2.1 of this Agreement if it were in the
22 possession of the Designating Party.
23

5.5

Upon notice of designation, all persons receiving notice of the

24 requested designation of materials shall:
25

5.5.1 Make no further disclosure of such Designated Material or

26 information contained therein, except as allowed in this Protective Order;
27

5.5.2 Take reasonable steps to notify any persons known to have

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[PROPOSED] PROTECTIVE ORDER

1 possession of or access to such Designated Materials of the effect of such
2 designation under this Protective Order; and
3

5.5.3 If “CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL –

4 ATTORNEYS’ EYES ONLY” material or information contained therein is
5 disclosed to any person other than those entitled to disclosure in the manner
6 authorized by this Protective Order, the party responsible for the disclosure shall,
7 immediately upon learning of such disclosure, inform the Designating Party in
8 writing of all pertinent facts relating to such disclosure, and shall make every
9 effort to prevent further disclosure by the unauthorized person(s).
10

6.

Manner of Designating Deposition Testimony.

11

6.1

Deposition transcripts and portions thereof taken in this action may

12 be designated as “CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL –
13 ATTORNEYS’ EYES ONLY” during the deposition or after, in which case the
14 portion of the transcript containing Designated Material shall be identified in the
15 transcript by the Court Reporter as “CONFIDENTIAL,” or “HIGHLY
16 CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” The designated testimony
17 shall be bound in a separate volume and marked by the reporter accordingly.
18

6.2

Where testimony is designated during the deposition, the

19 Designating Party shall have the right to exclude, at those portions of the
20 deposition, all persons not authorized by the terms of this Protective Order to
21 receive such Designated Material.
22

6.3

Within thirty (30) days after a deposition transcript is certified by the

23 court reporter, any party may designate pages of the transcript and/or its exhibits
24 as Designated Material. During such thirty (30) day period, the transcript in its
25 entirety shall be treated as “CONFIDENTIAL” (except for those portions
26 identified earlier as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
27 ONLY” which shall be treated accordingly from the date of designation). If any
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[PROPOSED] PROTECTIVE ORDER

1 party so designates such material, the parties shall provide written notice of such
2 designation to all parties within the thirty (30) day period. Designated Material
3 within the deposition transcript or the exhibits thereto may be identified in
4 writing by page and line, or by underlining and marking such portions
5 “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
6 ONLY” and providing such marked-up portions to all counsel.
7

7.

Copies. All complete or partial copies of a document that disclose

8 Designated Materials shall be subject to the terms of this Protective Order.
9

8.

Court Procedures.

10

8.1

Disclosure of Designated Material to Court Officials. Subject to the

11 provisions of this section, Designated Material may be disclosed to the Court,
12 Court officials or employees involved in this action (including court reporters,
13 persons operating video recording equipment at depositions, and any special
14 master, referee, expert, technical advisor or Third-Party Consultant appointed by
15 the Court), and to the jury in this action, and any interpreters interpreting on
16 behalf of any party or deponent.
17

8.2

Filing Designated Materials with the Court. Nothing in this Order

18 shall vary the requirements for filing under Seal imposed by the Federal Rules of
19 Civil Procedure or the Local Rules of this Court. If a party wishes to file with the
20 Court any document, transcript or thing containing information which has been
21 designated “CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL –
22 ATTORNEYS’ EYES ONLY” the Party shall designate the material as set forth
23 herein and file it with the Court in an application for filing under seal under the
24 Local Rules of this Court, with the material bearing the legend:
25 “[CONFIDENTIAL, or HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
ONLY] INFORMATION SUBJECT TO PROTECTIVE ORDER.”
26
27 The Application for Filing under Seal must show good cause for the under seal
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[PROPOSED] PROTECTIVE ORDER

1 filing. Filing the document under seal shall not bar any party from unrestricted use
2 or dissemination of those portions of the document that do not contain material
3 designated “CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL –
4 ATTORNEYS’ EYES ONLY.” If a filing party fails to designate information as
5 “CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
6 ONLY,” any party who in good faith believes that designation and filing under seal
7 is required by this Protective Order may move the Court to file said information
8 under seal within five (5) days of learning of the defective filing. Notice of such
9 designation shall be given to all parties. Nothing in this provision relieves a party
10 of liability for damages caused by failure to properly sent, file Designated Material
11 under seal.
12

8.3

In the event that the Court refuses to allow any document to be filed

13 under seal, despite the Receiving Party’s compliance with Section 8.2, the Federal
14 Rules of Civil Procedure and Local Rules of this Court, the Receiving Party may,
15 nonetheless, file such documents with the Court as part of the public record.
16

8.4

Retrieval of Designated Materials. The party responsible for lodging

17 or filing the Designated Materials shall be responsible for retrieving such
18 Designated Materials from the Court following the final termination of the action
19 (including after any appeals).
20

9.

Objections

21

9.1

A party may challenge any designation under this Protective Order at

22 any time, on the grounds that the information or material does not meet the
23 standards of Sections 1 and 2, by following the procedure of Local Rule 37 of this
24 Court.
25

9.2

The parties shall meet and confer in good faith prior to the filing of

26 any motion under this section.
27

10.

Client Communication. Nothing in this Protective Order shall

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1 prevent or otherwise restrict counsel from rendering advice to their clients and, in
2 the course of rendering such advice, relying upon the examination of Designated
3 Material. In rendering such advice and otherwise communicating with the client,
4 however, counsel shall not disclose any Designated Material, except as otherwise
5 permitted by this Protective Order.
6

11.

No Prejudice.

7

11.1 This Protective Order shall not diminish any existing obligation or

8 right with respect to Designated Material, nor shall it prevent a disclosure to
9 which the Designating Party consented in writing before the disclosure takes
10 place.
11

11.2 Unless the parties stipulate otherwise, evidence of the existence or

12 nonexistence of a designation under this Protective Order shall not be admissible
13 for any purpose during any proceeding on the merits of this action.
14

11.3 If any party required to produce documents contends that it

15 inadvertently produced any Designated Material without marking it with the
16 appropriate legend, or inadvertently produced any Designated Material with an
17 incorrect legend, the producing party may give written notice to the receiving
18 party or parties, including appropriately stamped substitute copies of the
19 Designated Material. If the parties collectively agree to replacement of the
20 Designated Material, then the documents will be so designated. Within five (5)
21 business days of receipt of the substitute copies, the receiving party shall return
22 the previously unmarked or mismarked items and all copies thereof. If the parties
23 do not collectively agree to replacement of the Designated Material, the
24 producing party shall comply with the procedure of Local Rule 37 in seeking
25 protection for the inadvertently produced material. The Receiving Party shall
26 maintain the alleged inadvertently produced material in accordance with the
27 requested Designation for 60 days or ruling on an Motion under Local Rule 37,
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1 whichever is earlier.
2

11.4 Neither the provisions of this Protective Order, nor the filing of any

3 material under seal, shall prevent the use in open court, in deposition, at any
4 hearing, or at trial of this case of any material that is subject to this Protective
5 Order or filed under seal pursuant to its provisions. At deposition, the party using
6 Designated Material must request that the portion of the proceeding where use is
7 made be conducted so as to exclude persons not qualified to receive such
8 Designated Material. At trial, the party using Designated Material must request
9 that the portion of the proceeding where use is made be conducted so as to
10 exclude persons not qualified to receive such Designated Material. All
11 confidentiality designations or legends placed pursuant to this Stipulated
12 Protective Order shall be removed from any document or thing used as a trial
13 exhibit in this case. The removal of such confidentiality designations or legends
14 under the preceding sentence shall not affect the treatment of such documents and
15 things as Designated Material under this Stipulated Protective Order. Upon
16 request of a party, the parties shall meet and confer concerning the use and
17 protection of Designated Material in open court at any hearing. Prior to the
18 pretrial conference, the parties shall meet and confer concerning appropriate
19 methods for dealing with Designated Material at trial.
20

11.5 Any inadvertent production of documents containing privileged

21 information shall not be deemed to be a waiver of the attorney-client privilege,
22 work product doctrine, or any other applicable privilege or doctrines. All parties
23 specifically reserve the right to demand the return of any privileged documents
24 that it may produce inadvertently during discovery if the producing party
25 determines that such documents contain privileged information. After receiving
26 notice of such inadvertent production by the producing party, the receiving party
27 agrees to make reasonable and good faith efforts to locate and return to the
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1 producing party all such inadvertently produced documents.
2 12.

Modification and Survival.

3

12.1 Modification. The Order shall be subject to modification by the Court

4 on its own initiative, or on Motion of a party or any other person with standing.
5 Accordingly, the parties reserve the right to seek modification of this Protective
6 Order at any time for good cause. The parties agree to meet and confer prior to
7 seeking to modify this Protective Order for any reason. The restrictions imposed
8 by this Protective Order may only be modified or terminated by written
9 stipulation of all parties or by order of this Court. Parties entering into this
10 Protective Order will not be deemed to have waived any of their rights to seek
11 later amendment to this Protective Order.
12

12.2 Trial. The parties understand that this Protective Order does not

13 extend to material presented at the trial of this Action. Once the case proceeds to
14 trial, any information that is presented on the record during trial, whether or not
15 designated as confidential and/or kept and maintained pursuant to the terms of
16 this Protective Order, will be presumptively available to all members of the
17 public, including the press, unless good cause is shown to the district judge in
18 advance of the presentation of that material at trial to proceed otherwise.
19 However, any documents or things that have been designated as confidential do
20 not lose their protected character simply by virtue of having been presented as an
21 exhibit at trial.
22

12.3 Survival and Return of Designated Material. This Protective Order

23 shall survive termination of this action prior to trial of this action. Upon final
24 termination of the action prior to trial of this action, and at the written request
25 of the Designating Party, all Designated Material, including deposition
26 testimony, and all copies thereof, shall be returned to counsel for the
27 Designating Party (at the expense of the Designating Party) or (at the option
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[PROPOSED] PROTECTIVE ORDER

1 and expense of the requesting party) shall be destroyed. Upon request for the
2 return or destruction of Designated Materials, counsel shall certify their
3 compliance with this provision and shall serve such certification to counsel
4 for the Designating Party not more than ninety (90) days after the written
5 request to return or destroy Designated Materials. Counsel who have
6 submitted one or more Certificate(s) prepared pursuant to Section 3 do not
7 need to retain such Certificate(s) past the ninety (90) day period.
8

13.

No Contract. This Protective Order shall not be construed to

9 create a contract between the parties or between the parties and their
10 respective counsel.
11

14.

Court’s Retention of Jurisdiction. The Court retains jurisdiction

12 after final termination of the action prior to trial, to enforce this Stipulation.
13

15.

Exception for Public Information. Nothing in this Stipulation shall be

14 deemed in any way to restrict the use of documents or information which are
15 lawfully obtained or publicly available to a party independently of discovery in this
16 action, whether or not the same material has been obtained during the course of
17 discovery in the action and whether or not such documents or information have
18 been designated hereunder. However, in the event of a dispute regarding such
19 independent acquisition, a party wishing to use any independently acquired
20 documents or information shall bear the burden of proving independent
21 acquisition.
22

16.

Any material designated “CONFIDENTIAL” or “HIGHLY

23 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” by a party will be deemed by
24 the Designating Party to this agreement to be authentic and a business record of the
25 Designating Party, and the Designating Party will be precluded from challenging
26 the authenticity of any document so designated at any time during this litigation,
27 including during any necessary collection or appeal proceedings. To the extent that
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[PROPOSED] PROTECTIVE ORDER

1 such material is not a business record of the Designating Party and was not created
2 by the Designating Party, the non-producing party for which the material is a
3 business record shall have opportunity to challenge the authenticity of the material
4 so designated.
5

17.

No Prior Judicial Determination. This Order is entered based on the

6 representations and agreements of the parties and for the purpose of facilitating
7 discovery. Nothing herein shall be construed or presented as a judicial
8 determination that any document or material designated Confidential Information
9 or Attorneys’ Eyes Only Information by counsel or the parties is entitled to
10 protection under Rule 26(c) of the Federal Rules of Civil Procedure or otherwise
11 until such time as the Court may rule on a specific document or issue.
12

18.

No Admission. The designation by a producing Party of Confidential

13 Information or Attorneys Eyes Only Information is intended solely to facilitate the
14 preparation and trial of this action. Such designation is not an admission by any
15 Party that the designated disclosure constitutes or contains any Confidential
16 Information or Attorneys Eyes Only Information. Disclosure of Confidential
17 Information or Attorneys Eyes Only Information is not a waiver of any right of the
18 producing Party to object to admissibility.
19

19.

20

(a)

Miscellaneous.
Right to Assert Other Objections. By stipulating to the entry of this

21 Order no Party waives any right it otherwise would have to object to disclosing or
22 producing any information or item on any ground not addressed in this Order.
23 Similarly, no Party waives any right to object on any ground to the use in evidence
24 of any of the material covered by this Order. Moreover, this Order shall not
25 preclude or limit any Party’s right to seek further and additional protection against
26 or limitation upon production of documents produced in response to discovery.
27

(b)

Other Privileges. Nothing in this Order shall require disclosure of

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[PROPOSED] PROTECTIVE ORDER

1 materials that a Party contends are protected from disclosure by the attorney-client
2 privilege or the attorney work-product doctrine. This provision shall not, however,
3 be construed to preclude any Party from moving the Court for an order directing
4 the disclosure of such materials where it disputes the claim of attorney-client
5 privilege or attorney work-product doctrine.
6

(c)

Self-Disclosure. Nothing in this Order shall affect the right of the

7 Designating Party to disclose the Designating Party’s own Confidential
8 information or items to any person or entity. Such disclosure shall not waive any
9 of the protections of this Order.
10

(d)

Captions. The captions of paragraphs contained in this Order are

11 for reference only and are not to be construed in any way as a part of this Order.
12
13

IT IS SO ORDERED.

14
15 Dated: 7/20/2015
16

_____________________________________
Honorable John E. McDermott
United States Magistrate Judge

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[PROPOSED] PROTECTIVE ORDER

1

Exhibit A

2
UNITED STATES DISTRICT COURT

3

CENTRAL DISTRICT OF CALIFORNIA

4
5

UNITED FABRICS INTERNATIONAL, Case No.: 2:15-cv-03521-RGK-JEM
Referred to Honorable Judge John E.
INC.,
McDermott
7
Plaintiff,
[DISCOVERY MATTER]
8
6

[PROPOSED] PROTECTIVE
ORDER

9 vs.
10

AGAIN TRADING CORP., a New York
11 Corporation; ROSS STORES, INC., a
12 California Corporation, individually and
doing business as “DD’S DISCOUNT”;
13 and DOES 1-10,
14 Defendant.
15
16
17

The undersigned hereby acknowledges that he/she has read the

18 STIPULATED PROTECTIVE ORDER entered in the above captioned litigation,
19 and that he/she fully understands and agrees to abide by the obligations and
20 conditions thereof.
21
22

Dated: _____________________

______________________________
(Signature)

23

______________________________
(Print Name)

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26
27
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[PROPOSED] PROTECTIVE ORDER