Unicolors Inc v. Shoreline Wear Inc et al

Filing 27

ORDER ADOPTING STIPULATED PROTECTIVE ORDER by Magistrate Judge Gail J. Standish. (ec)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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UNICOLORS, INC., a California
Corporation,

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Plaintiff,

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vs.
SHORELINE WEAR, INC., a New
York Corporation; AMAZON.COM,
INC., a Washington Corporation;
ROSS STORES, INC., a California
Corporation; and DOES
1 through 10,

Case No. 2:16-cv-00295 DSF-(GJS)
Assigned to: Hon. Dale S. Fischer
United States District Judge
Referred to: Hon. Gail J. Standish
United States Magistrate Judge
ORDER ADOPTING STIPULATED
PROTECTIVE ORDER
NOTE ADDITIONS AND
DELETIONS MADE BY THE COURT
IN BOLD

Defendants.

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-1-

[PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER

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Upon consideration of the Stipulated Protective Order dated May 13, 2016

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between Plaintiff Unicolors, Inc. (“Plaintiff” or “Unicolors”) and Defendants Ross

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Stores, Inc. (“Ross”), Shoreline Wear, Inc. (“Shoreline”), and Amazon.com, Inc.

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(“Amazon”) (Ross, Shoreline, and Amazon collectively, “Defendants”), and finding

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good cause thereon,

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IT IS HEREBY ORDERED that the terms of the Stipulated Protective

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Order shall govern the handling and disclosure of documents, things, and

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information produced in this Action as follows:

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A. PURPOSES AND LIMITATIONS
Discovery in this action is likely to involve production of confidential,

proprietary or private information for which special protection from public
disclosure and from use for any purpose other than prosecuting this litigation may
be warranted. Accordingly, the parties hereby stipulate to and petition the Court to
enter the following Stipulated Protective Order. The parties acknowledge that this
Order does not confer blanket protections on all disclosures or responses to
discovery and that the protection it affords from public disclosure and use extends
only to the limited information or items that are entitled to confidential treatment
under the applicable legal principles.

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B. GOOD CAUSE STATEMENT
This action is likely to involve trade secrets, customer and pricing lists and
other valuable research, development, commercial, financial, technical and/or
proprietary information for which special protection from public disclosure during
discovery and from use for any purpose other than prosecution of this action may
be [] warranted. Such confidential and proprietary materials and information consist
of, among other things, confidential business or financial information, information
regarding confidential business practices, or other confidential research,

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development, or commercial information (including information implicating privacy

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rights of third parties), information otherwise generally unavailable to the public, or

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which may be privileged or otherwise protected from disclosure under state or

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federal statutes, court rules, case decisions, or common law. Accordingly, to

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expedite the flow of information, to facilitate the prompt resolution of disputes over

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confidentiality of discovery materials, to adequately protect information the parties

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are entitled to keep confidential, to ensure that the parties are permitted reasonable

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necessary uses of such material in preparation for [] trial to address their handling at

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the end of the litigation, and serve the ends of justice, a protective order for such

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information is justified in this matter. It is the intent of the parties that information

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will not be designated as confidential for tactical reasons and that nothing be so

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designated without a good faith belief that it has been maintained in a confidential,

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non-public manner, and there is good cause why it should not be part of the public

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record of this case. The parties understand and acknowledge that this

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Protective Order does not govern the use of materials at trial. Any motions for

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protective order or requests that documents be maintained under seal must be

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made to the judicial officer handling the trial.

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C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL

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The parties further acknowledge, as set forth in Section 12.3, below, that this

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Stipulated Protective Order does not entitle them to file confidential information

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under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed

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and the standards that will be applied when a party seeks permission from the court

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to file material under seal.

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There is a strong presumption that the public has a right of access to judicial

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proceedings and records in civil cases. In connection with non-dispositive motions,

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good cause must be shown to support a filing under seal. See Kamakana v. City and

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County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors
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Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics,

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Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders

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require good cause showing), and a specific showing of good cause or compelling

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reasons with proper evidentiary support and legal justification, must be made with

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respect to Protected Material that a party seeks to file under seal. The parties’ mere

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designation of Disclosure or Discovery Material as CONFIDENTIAL does not—

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without the submission of competent evidence by declaration, establishing that the

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material sought to be filed under seal qualifies as confidential, privileged, or

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otherwise protectable—constitute good cause.
Further, if a party requests sealing related to a dispositive motion or trial, then

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compelling reasons, not only good cause, for the sealing must be shown, and the

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relief sought shall be narrowly tailored to serve the specific interest to be protected.

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See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). For

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each item or type of information, document, or thing sought to be filed or introduced

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under seal in connection with a dispositive motion or trial, the party seeking

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protection must articulate compelling reasons, supported by specific facts and legal

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justification, for the requested sealing order. Again, competent evidence supporting

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the application to file documents under seal must be provided by declaration.
Any document that is not confidential, privileged, or otherwise protectable in

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its entirety will not be filed under seal if the confidential portions can be redacted.

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If documents can be redacted, then a redacted version for public viewing, omitting

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only the confidential, privileged, or otherwise protectable portions of the document,

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shall be filed. Any application that seeks to file documents under seal in their

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entirety should include an explanation of why redaction is not feasible.

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2.

DEFINITIONS
2.1

Action: This pending federal lawsuit.

2.2

Challenging Party: a Party or Non-Party that challenges the
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designation of information or items under this Order.
2.3.1 “CONFIDENTIAL” Information or Items: information (regardless of
how it is generated, stored or maintained) or tangible things that qualify for
protection under Federal Rule of Civil Procedure 26(c), and as specified above in
the Good Cause Statement.
2.3.2 “HIGHLY CONFIDENTIAL - ACO” Information or Items:
information that constitutes a trade secret of the Designating Party.
2.4

Counsel: Outside Counsel of Record and House Counsel (as well as

their support staff).
2.5

Designating Party: a Party or Non-Party that designates information or

items that it produces in disclosures or in responses to discovery as
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ACO”.
2.6

Disclosure or Discovery Material: all items or information, regardless

of the medium or manner in which it is generated, stored, or maintained (including,
among other things, testimony, transcripts, and tangible things), that are produced or
generated in disclosures or responses to discovery in this matter.
2.7

Expert: a person with specialized knowledge or experience in a matter

pertinent to the litigation who has been retained by a Party or its counsel to serve as
an expert witness or as a consultant in this Action.
2.8

House Counsel: attorneys who are employees of a party to this Action.

House Counsel does not include Outside Counsel of Record or any other outside
counsel.
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Non-Party: any natural person, partnership, corporation, association or

other legal entity not named as a Party to this action.
2.10 Outside Counsel of Record: attorneys who are not employees of a
party to this Action but are retained to represent or advise a party to this Action and
have appeared in this Action on behalf of that party or are affiliated with a law firm
that has appeared on behalf of that party, and includes support staff.

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2.11 Party: any party to this Action, including all of its officers, directors,

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employees, consultants, retained experts, and Outside Counsel of Record (and their
support staffs).
2.12 Producing Party: a Party or Non-Party that produces Disclosure or

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Discovery Material in this Action.
2.13 Professional Vendors: persons or entities that provide litigation

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support services (e.g., photocopying, videotaping, translating, preparing exhibits or
demonstrations, and organizing, storing, or retrieving data in any form or medium)
and their employees and subcontractors.
2.14 Protected Material: any Disclosure or Discovery Material that is

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designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ACO”.
2.15 Receiving Party: a Party that receives Disclosure or Discovery

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Material from a Producing Party.

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3.

The protections conferred by this Stipulation and Order cover not only

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Protected Material (as defined above), but also (1) any information copied or
extracted from Protected Material; (2) all copies, excerpts, summaries, or
compilations of Protected Material; and (3) any testimony, conversations, or
presentations by Parties or their Counsel that might reveal Protected Material.
Any use of Protected Material at trial shall be governed by the orders of the

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SCOPE

trial judge. This Order does not govern the use of Protected Material at trial.

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4.

DURATION
Once a case proceeds to trial, information that was designated as

CONFIDENTIAL or maintained pursuant to this protective order used or introduced
as an exhibit at trial becomes public and will be presumptively available to all
members of the public, including the press, unless compelling reasons supported by

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specific factual findings to proceed otherwise are made to the trial judge in advance
of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause”
showing for sealing documents produced in discovery from “compelling reasons”
standard when merits-related documents are part of court record). Accordingly, the
terms of this protective order do not extend beyond the commencement of the trial.

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5.

DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection.

Each Party or Non-Party that designates information or items for protection under
this Order must take care to limit any such designation to specific material that
qualifies under the appropriate standards. The Designating Party must designate for
protection only those parts of material, documents, items or oral or written
communications that qualify so that other portions of the material, documents, items
or communications for which protection is not warranted are not swept unjustifiably
within the ambit of this Order.
Mass, indiscriminate or routinized designations are prohibited. Designations
that are shown to be clearly unjustified or that have been made for an improper
purpose (e.g., to unnecessarily encumber the case development process or to impose
unnecessary expenses and burdens on other parties) may expose the Designating
Party to sanctions.
If it comes to a Designating Party’s attention that information or items that it
designated for protection do not qualify for protection, that Designating Party must
promptly notify all other Parties that it is withdrawing the inapplicable designation.
5.2

Manner and Timing of Designations. Except as otherwise provided in

this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
under this Order must be clearly so designated before the material is disclosed or
produced.

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Designation in conformity with this Order requires:
(a) for information in documentary form (e.g., paper or electronic
documents, but excluding transcripts of depositions or other pretrial or trial
proceedings), that the Producing Party affix at a minimum, the legend
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ACO”, as may be
appropriate, (hereinafter “CONFIDENTIAL legend”), to each page that contains
protected material. If only a portion of the material on a page qualifies for
protection, the Producing Party also must clearly identify the protected portion(s)
(e.g., by making appropriate markings in the margins).
A Party or Non-Party that makes original documents available for inspection
need not designate them for protection until after the inspecting Party has indicated
which documents it would like copied and produced. During the inspection and
before the designation, all of the material made available for inspection shall be
deemed “CONFIDENTIAL.” After the inspecting Party has identified the
documents it wants copied and produced, the Producing Party must determine which
documents, or portions thereof, qualify for protection under this Order. Then,
before producing the specified documents, the Producing Party must affix the
“CONFIDENTIAL legend” to each page that contains Protected Material. If only a
portion of the material on a page qualifies for protection, the Producing Party also
must clearly identify the protected portion(s) (e.g., by making appropriate markings
in the margins).
(b) for testimony given in depositions that the Designating Party identifies
the Disclosure or Discovery Material on the record, before the close of the
deposition all protected testimony.
(c) for information produced in some form other than documentary and
for any other tangible items, that the Producing Party affix in a prominent place on
the exterior of the container or containers in which the information is stored the
legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ACO” as may be

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appropriate. If only a portion or portions of the information warrants protection, the
Producing Party, to the extent practicable, shall identify the protected portion(s).
5.3

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failure to designate qualified information or items does not, standing alone, waive
the Designating Party’s right to secure protection under this Order for such material.
Upon timely correction of a designation, the Receiving Party must make reasonable
efforts to assure that the material is treated in accordance with the provisions of this
Order.
6.

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Scheduling Order.
6.2

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Meet and Confer. The Challenging Party shall initiate the dispute

resolution process under Local Rule 37.1 et seq.
6.3

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Timing of Challenges. Any Party or Non-Party may challenge a

designation of confidentiality at any time that is consistent with the Court’s

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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Inadvertent Failures to Designate. If timely corrected, an inadvertent

The burden of persuasion in any such challenge proceeding shall be on

the Designating Party. Frivolous challenges, and those made for an improper
purpose (e.g., to harass or impose unnecessary expenses and burdens on other
parties) may expose the Challenging Party to sanctions. Unless the Designating
Party has waived or withdrawn the confidentiality designation, all parties shall
continue to afford the material in question the level of protection to which it is
entitled under the Producing Party’s designation until the Court rules on the
challenge.

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7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

Basic Principles. A Receiving Party may use Protected Material that is

disclosed or produced by another Party or by a Non-Party in connection with this
Action only for prosecuting, defending or attempting to settle this Action. Such
Protected Material may be disclosed only to the categories of persons and under the

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conditions described in this Order. When the Action has been terminated, a
Receiving Party must comply with the provisions of section 13 below (FINAL
DISPOSITION).
Protected Material must be stored and maintained by a Receiving Party at a
location and in a secure manner that ensures that access is limited to the persons
authorized under this Order.
7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless

otherwise ordered by the court or permitted in writing by the Designating Party, a
Receiving Party may disclose any information or item designated
“CONFIDENTIAL” only to:
(a) the Receiving Party’s Outside Counsel of Record in this Action, as
well as employees of said Outside Counsel of Record to whom it is reasonably
necessary to disclose the information for this Action;
(b) the officers, directors, and employees (including House Counsel) of
the Receiving Party to whom disclosure is reasonably necessary for this Action;
(c) Experts (as defined in this Order) of the Receiving Party to whom
disclosure is reasonably necessary for this Action and who have signed the
“Acknowledgment and Agreement to Be Bound” (Exhibit A);
(d) the court and its personnel;
(e) court reporters and their staff;
(f) professional jury or trial consultants, mock jurors, and Professional
Vendors to whom disclosure is reasonably necessary for this Action and who have
signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(g) the author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information;
(h) during their depositions, witnesses, and attorneys for witnesses, in the
Action to whom disclosure is reasonably necessary provided: (1) the deposing party
requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will

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not be permitted to keep any confidential information unless they sign the
“Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise
agreed by the Designating Party or ordered by the court. Pages of transcribed
deposition testimony or exhibits to depositions that reveal Protected Material may
be separately bound by the court reporter and may not be disclosed to anyone except
as permitted under this Stipulated Protective Order; and
(i) any mediator or settlement officer, and their supporting personnel,

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mutually agreed upon by any of the parties engaged in settlement discussions.
7.3

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Disclosure of “HIGHLY CONFIDENTIAL - ACO” Information or

Items. Unless otherwise ordered by the court or permitted in writing by the
Designating Party, a Receiving Party may disclose any information or item
designated “HIGHLY CONFIDENTIAL - ACO” only to: those persons identified
above in Section 7.2(a) and (c)-(i). “HIGHLY CONFIDENTIAL – ACO”
information may not be disclosed to the officers, directors, and employees of the
Receiving Party, but may be disclosed to House Counsel for the Receiving Party.

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8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
IN OTHER LITIGATION
If a Party is served with a subpoena or a court order issued in other litigation

that compels disclosure of any information or items designated in this Action as
“CONFIDENTIAL,” that Party must:
(a) promptly notify in writing the Designating Party. Such notification
shall include a copy of the subpoena or court order;
(b) promptly notify in writing the party who caused the subpoena or order
to issue in the other litigation that some or all of the material covered by the
subpoena or order is subject to this Protective Order. Such notification shall include
a copy of this Stipulated Protective Order; and
(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 Designating Party timely seeks a protective order, the Party served with

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the subpoena or court order shall not produce any information designated in this
action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ACO” before a
determination by the court from which the subpoena or order issued, unless the
Party has obtained the Designating Party’s permission. The Designating Party shall
bear the burden and expense of seeking protection in that court of its confidential
material and nothing in these provisions should be construed as authorizing or
encouraging a Receiving Party in this Action to disobey a lawful directive from
another court.

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9.

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

Non-Party in this Action and designated as “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL – ACO”. Such information produced by Non-Parties in
connection with this litigation is protected by the remedies and relief provided by
this Order. Nothing in these provisions should be construed as prohibiting a NonParty from seeking additional protections.
(b) In the event that a Party is required, by a valid discovery request, to
produce a Non-Party’s confidential information in its possession, and the Party is
subject to an agreement with the Non-Party not to produce the Non-Party’s
confidential information, then the Party shall:
(1) promptly notify in writing the Requesting Party and the Non-Party
that some or all of the information requested is subject to a confidentiality
agreement with a Non-Party;
(2) promptly provide the Non-Party with a copy of the Stipulated
Protective Order in this Action, the relevant discovery request(s), and a reasonably

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specific description of the information requested; and
(3) make the information requested available for inspection by the

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Non-Party, if requested.
(c) If the Non-Party fails to seek a protective order from this court within

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14 days of receiving the notice and accompanying information, the Receiving Party
may produce the Non-Party’s confidential information responsive to the discovery
request. If the Non-Party timely seeks a protective order, the Receiving Party shall
not produce any information in its possession or control that is subject to the
confidentiality agreement with the Non-Party before a determination by the court.
Absent a court order to the contrary, the Non-Party shall bear the burden and
expense of seeking protection in this court of its Protected Material.

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10.

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

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UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

Protected Material to any person or in any circumstance not authorized under this
Stipulated Protective Order, the Receiving Party must immediately (a) notify in
writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
to retrieve all unauthorized copies of the Protected Material, (c) inform the person or
persons to whom unauthorized disclosures were made of all the terms of this Order,
and (d) request such person or persons to execute the “Acknowledgment and
Agreement to Be Bound” that is attached hereto as Exhibit A.

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11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
PROTECTED MATERIAL
When a Producing Party gives notice to Receiving Parties that certain

inadvertently produced material is subject to a claim of privilege or other protection,
the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
Procedure 26(b)(5)(B). This provision is not intended to modify whatever

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procedure may be established in an e-discovery order that provides for production
without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and
(e), insofar as the parties reach an agreement on the effect of disclosure of a
communication or information covered by the attorney-client privilege or work
product protection, the parties may incorporate their agreement in the stipulated
protective order submitted to the court.

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12.

12.1 Right to Further Relief. Nothing in this Order abridges the right of any

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person to seek its modification by the Court in the future.
12.2 Right to Assert Other Objections. By stipulating to the entry of this

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Protective Order, no Party waives any right it otherwise would have to object to
disclosing or producing any information or item on any ground not addressed in this
Stipulated Protective Order. Similarly, no Party waives any right to object on any
ground to use in evidence of any of the material covered by this Protective Order.
12.3 Filing Protected Material. A Party that seeks to file under seal any

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MISCELLANEOUS

Protected Material must comply with Local Civil Rule 79-5. Protected Material
may only be filed under seal pursuant to a court order authorizing the sealing of the
specific Protected Material at issue. If a Party’s request to file Protected Material
under seal is denied by the court, then the Receiving Party may file the information
in the public record unless otherwise instructed by the court.

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13.

FINAL DISPOSITION
After the final disposition of this Action, as defined in paragraph 4, within 60

days of a written request by the Designating Party, each Receiving Party must return
all Protected Material to the Producing Party or destroy such material. As used in
this subdivision, “all Protected Material” includes all copies, abstracts, compilations,

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summaries, and any other format reproducing or capturing any of the Protected
Material. Whether the Protected Material is returned or destroyed, the Receiving
Party must submit a written certification to the Producing Party (and, if not the same
person or entity, to the Designating Party) by the 60 day deadline that (1) identifies
(by category, where appropriate) all the Protected Material that was returned or
destroyed and (2) affirms that the Receiving Party has not retained any copies,
abstracts, compilations, summaries or any other format reproducing or capturing any
of the Protected Material. Notwithstanding this provision, Counsel are entitled to
retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing
transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert
reports, attorney work product, and consultant and expert work product, even if such
materials contain Protected Material. Any such archival copies that contain or
constitute Protected Material remain subject to this Protective Order as set forth in
Section 4 (DURATION).
14.

VIOLATION
Any violation of this Order may be punished by appropriate measures

including, without limitation, contempt proceedings and/or monetary sanctions.

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

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DATED: May 24, 2016
__________________________________
Gail J. Standish
United States Magistrate Judge

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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

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that I have read in its entirety and understand the Stipulated Protective Order that

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was issued by the United States District Court for the Central District of California

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on [date] in the case of ___________ [insert formal name of the case and the

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number and initials assigned to it by the court]. I agree to comply with and to be

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bound by all the terms of this Stipulated Protective Order and I understand and

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acknowledge that failure to so comply could expose me to sanctions and punishment

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in the nature of contempt. I solemnly promise that I will not disclose in any manner

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any information or item that is subject to this Stipulated Protective Order to any

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person or entity except in strict compliance with the 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 enforcing the terms of this Stipulated Protective

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

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I hereby appoint __________________________ [print or type full name] of

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_______________________________________ [print or type full address and

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telephone number] as my California agent for service of process in connection with

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this action or any proceedings related to enforcement of this Stipulated Protective

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Order.

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Date: ______________________________________

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City and State where sworn and signed: _________________________________

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Printed name: _______________________________

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Signature: __________________________________
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