JITRADE Inc. v. Neiman Marcus Group Inc et al

Filing 41

PROTECTIVE ORDER by Magistrate Judge Frederick F. Mumm re Stipulation for Protective Order 31 (see attached) (jm)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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JITRADE, INC., a California Corporation;
Plaintiff,

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2:16-cv-4434 GW (FFMx)

[PROPOSED] STIPULATED
PROTECTIVE ORDER

v.

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Case No.

NEIMAN MARCUS GROUP, INC., a
Delaware Corporation; and DOES 1-10,
inclusive,
Defendant.

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1.

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

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private information for which special protection from public disclosure and from use for any
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purpose other than prosecuting this litigation may be warranted. Accordingly, the parties hereby
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stipulate to and petition the Court to enter the following Stipulated Protective Order. The parties
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acknowledge that this Order does not confer blanket protections on all disclosures or responses
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to discovery and that the protection it affords from public disclosure and use extends only to the
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limited information or items that are entitled to confidential treatment under the applicable legal
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principles. 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 under seal;
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Civil Local Rule 79-5 sets forth the procedures that must be followed and the standards that will
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be applied when a party seeks permission from the court to file material under seal.
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STIPULATION FOR PROTECTIVE ORDER

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B.

GOOD CAUSE STATEMENT

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This action is likely to involve trade secrets, customer and pricing lists and other valuable

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research, development, commercial, financial, technical and/or proprietary information for which

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

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this action is warranted. Such confidential and proprietary materials and information consist of,

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among other things, confidential business or financial information, information regarding

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confidential business practices, or other confidential research, development, or commercial

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information (including information implicating privacy rights of third parties), information

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otherwise generally unavailable to the public, or which may be privileged or otherwise protected

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from disclosure under state or federal statutes, court rules, case decisions, or common law.

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

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over confidentiality of discovery materials, to adequately protect information the parties are

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entitled to keep confidential, to ensure that the parties are permitted reasonably necessary uses of

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such material in preparation for and in the conduct of trial, to address their handling at the end of

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the litigation, and to serve the ends of justice, a protective order for such information is justified

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in this matter. It is the intent of the parties that information will not be designated as confidential

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for tactical reasons and that nothing be so designated without a good faith belief that it has been

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maintained in a confidential, non-public manner, and there is good cause why it should not be

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part of the public record of this case.

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2.

DEFINITIONS

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2.1

Action: This pending federal law suit

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2.2

Challenging Party:

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a Party or Non-Party that challenges the designation of

information or items under this Order.
2.3

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“CONFIDENTIAL” Information or Items: information (regardless of how it is

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generated, stored or maintained) or tangible things that qualify for protection under Federal Rule

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of Civil Procedure 26(c), and as specified above in the Good Cause Statement.
2.4

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

staff).
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STIPULATION FOR PROTECTIVE ORDER

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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.”
2.6

Disclosure or Discovery Material: all items or information, regardless of the

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medium or manner in which it is generated, stored, or maintained (including, among other things,

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testimony, transcripts, and tangible things), that are produced or generated in disclosures or

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responses to discovery in this matter.

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2.7

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

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to the litigation who has been retained by a Party or its counsel to serve as an expert witness or as

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a consultant in this Action.

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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.
2.9

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

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Action but are retained to represent or advise a party to this Action and have appeared in this

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Action on behalf of that party or are affiliated with a law firm which has appeared on behalf of

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that party, and includes support staff.

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2.11

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

Material in this Action.
2.13

Professional Vendors: persons or entities that provide litigation support services

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(e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and

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organizing, storing, or retrieving data in any form or medium) and their employees and

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subcontractors.

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2.14

Protected Material: any Disclosure or Discovery Material that is designated as

“CONFIDENTIAL.”

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STIPULATION FOR PROTECTIVE ORDER

2.15

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Receiving Party: a Party that receives Disclosure or Discovery Material from a

Producing Party.

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3.

The protections conferred by this Stipulation and Order cover not only Protected Material

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(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 trial judge.

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This Order does not govern the use of Protected Material at trial.
4.

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DURATION
Once a case proceeds to trial, all of the information that was designated as confidential or

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SCOPE

maintained pursuant to this protective order becomes public and will be presumptively available
to all members of the public, including the press, unless compelling reasons supported by
specific factual findings to proceed otherwise are made to the trial judge in advance of the trial.
See Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1180-81 (9th Cir. 2006)
(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.
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.
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STIPULATION FOR PROTECTIVE ORDER

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Mass, indiscriminate, or routinized designations are prohibited. Designations that are

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shown to be clearly unjustified or that have been made for an improper purpose (e.g., to

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unnecessarily encumber the case development process or to impose unnecessary expenses and

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burdens on other parties) may expose the Designating Party to sanctions.

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If it comes to a Designating Party’s attention that information or items that it designated

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for protection do not qualify for protection, that Designating Party must promptly notify all other

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Parties that it is withdrawing the inapplicable designation.
5.2

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Manner and Timing of Designations. Except as otherwise provided in this Order

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(see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered,

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Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so

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designated before the material is disclosed or produced.
Designation in conformity with this Order requires:

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(a)

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for information in documentary form (e.g., paper or electronic documents,

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but excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing

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Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter “CONFIDENTIAL

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legend”), to each page that contains protected material. If only a portion or portions of the

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material on a page qualifies for protection, the Producing Party also must clearly identify the

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protected portion(s)(e.g., by making appropriate markings in the margins).

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A Party or Non-Party that makes original documents available for inspection need not

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designate them for protection until after the inspecting Party has indicated which documents it

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would like copied and produced. During the inspection and before the designation, all of the

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material made available for inspection shall be deemed CONFIDENTIAL. After the inspecting

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Party has identified the documents it wants copied and produced, the Producing Party must

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determine which documents, or portions thereof, qualify for protection under this Order. Then,

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before

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“CONFIDENTIAL” legend to each page that contains Protected Material. If only a portion or

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portions of the material on a page qualifies for protection, the Producing Party also must clearly

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identify the protected portion(s) (e.g., by making appropriate markings in the margins).

producing

the

specified

documents,

the

Producing

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STIPULATION FOR PROTECTIVE ORDER

Party

must

affix

the

(b)

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Any Designating Party wishes to designate as Confidential testimony or

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exhibits in a deposition may do so on the record during the deposition, or within 15 business

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days after receipt of the deposition transcript and exhibits, by providing written notice of the

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designation to the opposing Party, to the court reporter, and to the recording technician, if any.

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Until the end of such 15 business day period, or before said written notice by the Designating

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Party (whichever is sooner), the Parties shall treat such transcript and exhibits as Confidential. If

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the designation is made on the record at the deposition, the Designating Party shall be

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responsible for ensuring that those portions of the deposition transcript and exhibits designated

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as Confidential are marked by the court reporter and the recording technician in the manner

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described herein. If the designation is made by notice after receipt of the transcript or exhibits,

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any Party shall stamp as Confidential the designated portions of any copies of the transcript or

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exhibits and all recordings in its possession, and shall take all reasonable steps to assure that

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notice of the designation will be affixed to transcripts and recordings copied but no longer in the

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possession of said Party.
(c)

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for information produced in some form other than documentary and for

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any other tangible items, that the Producing Party affix in a prominent place on the exterior of

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the container or containers in which the information is stored the legend “CONFIDENTIAL.” If

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only a portion or portions of the information warrants protection, the Producing Party, to the

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extent practicable, shall identify the protected portion(s).
5.3

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Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to

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designate qualified information or items does not, standing alone, waive the Designating Party’s

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right to secure protection under this Order for such material. Upon timely correction of a

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designation, the Receiving Party must make reasonable efforts to assure that the material is

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treated in accordance with the provisions of this Order.

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6.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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

confidentiality at any time that is consistent with the Court’s Scheduling Order.

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STIPULATION FOR PROTECTIVE 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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The burden of persuasion in any such challenge proceeding shall be on the

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

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

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

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designation, all parties shall continue to afford the material in question the level of protection to

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which it is entitled under the Producing Party’s designation until the Court rules on the

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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

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or produced by another Party or by a Non-Party in connection with this Action only for

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prosecuting, defending, or attempting to settle this Action. Such Protected Material may be

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disclosed only to the categories of persons and under the conditions described in this Order.

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When the Action has been terminated, a Receiving Party must comply with the provisions of

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section 13 below (FINAL DISPOSITION).

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7.2

Protected Material must be stored and maintained by a Receiving Party at a

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location and in a secure manner that ensures that access is limited to the persons authorized

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under this Order.

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7.3

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

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ordered by the court or permitted in writing by the Designating Party, a Receiving Party may

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disclose any information or item designated “CONFIDENTIAL” only to:

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(a)

the Receiving Party’s Outside Counsel of Record in this Action, as well as

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employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the

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information for this Action;

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(b)

the officers, directors, and employees (including House Counsel) of the

Receiving Party to whom disclosure is reasonably necessary for this Action;

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STIPULATION FOR PROTECTIVE ORDER

(c)

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Experts (as defined in this Order) of the Receiving Party to whom

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disclosure is reasonably necessary for this Action and who have signed the “Acknowledgment

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and Agreement to Be Bound” (Exhibit A);

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(d)

the court and its personnel;

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(e)

court reporters and their staff;

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(f)

professional jury or trial consultants, mock jurors, and Professional

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Vendors to whom disclosure is reasonably necessary for this Action and who have signed the

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“Acknowledgment and Agreement to Be Bound” (Exhibit A);
(g)

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the author or recipient of a document containing the information or a

custodian or other person who otherwise possessed or knew the information;
(h)

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during their depositions, witnesses, and attorneys for witnesses, in the

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Action to whom disclosure is reasonably necessary provided: (1) the deposing party requests that

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the witness sign the form attached as Exhibit 1 hereto; and (2) they will not be permitted to keep

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any confidential information unless they sign the “Acknowledgment and Agreement to Be

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Bound” (Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court.

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Pages of transcribed deposition testimony or exhibits to depositions that reveal Protected

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Material may be separately bound by the court reporter and may not be disclosed to anyone

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except as permitted under this Stipulated Protective Order; and
(i)

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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.

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8.

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OTHER LITIGATION

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PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

8.1

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

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compels disclosure of any information or items designated in this Action as “CONFIDENTIAL,”

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that Party must:

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(a)

promptly notify in writing the Designating Party. Such notification shall

include a copy of the subpoena or court order;

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STIPULATION FOR PROTECTIVE ORDER

(b)

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promptly notify in writing the party who caused the subpoena or order to

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

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subject to this Protective Order. Such notification shall include a copy of this Stipulated

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Protective Order; and
(c)

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cooperate with respect to all reasonable procedures sought to be pursued

by the Designating Party whose Protected Material may be affected.
8.2

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If the Designating Party timely seeks a protective order, the Party served with the

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

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

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issued, unless the Party has obtained the Designating Party’s permission. The Designating Party

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shall bear the burden and expense of seeking protection in that court of its confidential material

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and nothing in these provisions should be construed as authorizing or encouraging a Receiving

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Party in this Action to disobey a lawful directive from another court.

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9.

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THIS LITIGATION

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN

(a)

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The terms of this Order are applicable to information produced by a Non-

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Party in this Action and designated as “CONFIDENTIAL.” Such information produced by Non-

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Parties in connection with this litigation is protected by the remedies and relief provided by this

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Order. Nothing in these provisions should be construed as prohibiting a Non-Party from seeking

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additional protections.
(b)

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

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

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agreement with the Non-Party not to produce the Non-Party’s confidential information, then the

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Party shall:
(1)

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promptly notify in writing the Requesting Party and the Non-Party

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

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Non-Party;

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STIPULATION FOR PROTECTIVE ORDER

(2)

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

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Protective Order in this Action, the relevant discovery request(s), and a reasonably specific

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description of the information requested; and
(3)

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make the information requested available for inspection by the

Non-Party, if requested.
(c)

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If the Non-Party fails to seek a protective order from this court within 14

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days of receiving the notice and accompanying information, the Receiving Party may produce

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the Non-Party’s confidential information responsive to the discovery request. If the Non-Party

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timely seeks a protective order, the Receiving Party shall not produce any information in its

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possession or control that is subject to the confidentiality agreement with the Non-Party before a

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determination by the court. Absent a court order to the contrary, the Non-Party shall bear the

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burden and expense of seeking protection in this court of its Protected Material.

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10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
10.1

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

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

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

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

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the Protected Material, (c) inform the person or persons to whom unauthorized disclosures were

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made of all the terms of this Order, and (d) request such person or persons to execute the

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“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A.

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11.

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PROTECTED MATERIAL

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INADVERTENT

11.1

PRODUCTION

OF

PRIVILEGED

OR

OTHERWISE

When a Producing Party gives notice to Receiving Parties that certain

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

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

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26(b)(5)(B). This provision is not intended to modify whatever procedure may be established in

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an e-discovery order that provides for production without prior privilege review. Pursuant to

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Federal Rule of Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect
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STIPULATION FOR PROTECTIVE ORDER

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of disclosure of a communication or information covered by the attorney-client privilege or work

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product protection, the parties may incorporate their agreement in the stipulated protective order

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submitted to the court.

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12.

12.1

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

seek its modification by the Court in the future.
12.2

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

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Order no Party waives any right it otherwise would have to object to disclosing or producing any

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information or item on any ground not addressed in this Stipulated Protective Order. Similarly,

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no Party waives any right to object on any ground to use in evidence of any of the material

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covered by this Protective Order.
12.3

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Filing Protected Material. A Party that seeks to file under seal any Protected

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Material must comply with Civil Local Rule 79-5. Protected Material may only be filed under

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seal pursuant to a court order authorizing the sealing of the specific Protected Material at issue. If

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a Party's request to file Protected Material under seal is denied by the court, then the Receiving

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Party may file the information in the public record unless otherwise instructed by the court.

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13.

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FINAL DISPOSITION
13.1

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

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days of a written request by the Designating Party, each Receiving Party must return all

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Protected Material to the Producing Party or destroy such material. As used in this subdivision,

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“all Protected Material” includes all copies, abstracts, compilations, summaries, and any other

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format reproducing or capturing any of the Protected Material. Whether the Protected Material is

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returned or destroyed, the Receiving Party must submit a written certification to the Producing

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Party (and, if not the same person or entity, to the Designating Party) by the 60 day deadline that

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(1) identifies (by category, where appropriate) all the Protected Material that was returned or

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destroyed and (2) affirms that the Receiving Party has not retained any copies, abstracts,

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compilations, summaries or any other format reproducing or capturing any of the Protected

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Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy of all
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STIPULATION FOR PROTECTIVE ORDER

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pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda,

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correspondence, deposition and trial exhibits, expert reports, attorney work product, and

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consultant and expert work product, even if such materials contain Protected Material. Any such

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archival copies that contain or constitute Protected Material remain subject to this Protective

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Order as set forth in Section 4 (DURATION).

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STIPULATION FOR PROTECTIVE ORDER

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14.

Any violation of this Order may be punished by any and all appropriate measures

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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: November 29, 2016

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/S/FREDERICK F. MUMM
Honorable Frederick F. Mumm
United States District/Magistrate Judge

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STIPULATION FOR PROTECTIVE ORDER

EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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

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

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understand the Stipulated Protective Order that was issued by the United States District Court for

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the Central District of California on [date] in the case of JITRADE, INC. v. NEIMAN MARCUS

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GROUP, INC.; 2:16-cv-4434 GW (FFMx). I agree to comply with and to be bound by all the

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terms of this Stipulated Protective Order and I understand and acknowledge that failure to so

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

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

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

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provisions of this Order.

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

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

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

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appoint

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_______________________________________ [print or type full address and telephone

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

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proceedings related to enforcement of this Stipulated Protective Order.

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Date: ______________________________________

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City and State where sworn and signed: _________________________________

__________________________

[print

or

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Printed name: _______________________________

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Signature: __________________________________

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STIPULATION FOR PROTECTIVE ORDER

type

full

name]

of