Universal Dyeing and Printing Inc v. Nordstrom Inc et al

Filing 25

PROTECTIVE ORDER by Magistrate Judge Steve Kim. In re: Stipulation for Protective Order 24 . (mkr)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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UNIVERSAL DYEING &
PRINTING, INC.

Case No. CV16-06374-ODW (SK)

Referred to Hon. Steve Kim

Plaintiff,

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v.

STIPULATED PROTECTIVE
ORDER

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NORDSTROM, INC., et al.
Defendant.

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1.

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

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proprietary, or private information for which special protection from public

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disclosure and from use for any purpose other than prosecuting this litigation may

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be warranted. Accordingly, the parties hereby stipulate to and petition the Court to

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enter the following Stipulated Protective Order. The parties acknowledge that this

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Order does not confer blanket protections on all disclosures or responses to

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discovery and that the protection it affords from public disclosure and use extends

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only to the limited information or items that are entitled to confidential treatment

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under the applicable legal principles. The parties further acknowledge, as set forth in

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Section 12.3, below, that this Stipulated Protective Order does not entitle them to

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file confidential information under seal; Civil Local Rule 79-5 sets forth the

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procedures that must be followed and the standards that will be applied when a party

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seeks permission from the court to file material under seal.

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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

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other valuable research, development, commercial, financial, technical and/or

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proprietary information for which special protection from public disclosure and

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from use for any purpose other than prosecution of this action is warranted. Such

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confidential and proprietary materials and information consist of, among other

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things, confidential business or financial information, information regarding

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

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commercial information (including information implicating privacy rights of third

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parties), information otherwise generally unavailable to the public, or which may be

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privileged or otherwise protected from disclosure under state or federal statutes,

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court rules, case decisions, or common law. Accordingly, to expedite the flow of

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information, to facilitate the prompt resolution of disputes over confidentiality of

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discovery materials, to adequately protect information the parties are entitled to keep

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confidential, to ensure that the parties are permitted reasonable necessary uses of

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

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at 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.

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2.

DEFINITIONS
2.1

Action: this pending federal lawsuit, Universal Dyeing & Printing, Inc.
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v. Nordstrom, Inc., et al., Case No. CV16-06374-ODW-SK.
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Challenging Party: a Party or Non-Party that challenges the

designation of information or items under this Order.
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“CONFIDENTIAL” Information or Items: information (regardless of

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how it is generated, stored or maintained) or tangible things that qualify for

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protection under Federal Rule of Civil Procedure 26(c), and as specified above in

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the Good Cause Statement.

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2.4

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

their support staff).
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Designating Party: a Party or Non-Party that designates information or

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items that it produces in disclosures or in responses to discovery as

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“CONFIDENTIAL.”

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2.6

Disclosure or Discovery Material: all items or information, regardless

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of the medium or manner in which it is generated, stored, or maintained (including,

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among other things, testimony, transcripts, and tangible things), that are produced or

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generated in disclosures or responses to discovery in this matter.

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2.7

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

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pertinent to the litigation who has been retained by a Party or its counsel to serve as

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an expert witness or as a consultant in this Action.

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2.8

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

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House Counsel does not include Outside Counsel of Record or any other outside

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counsel.

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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

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

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have appeared in this Action on behalf of that party or are affiliated with a law firm

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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

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support staffs).
2.12 Producing Party: a Party or Non-Party that produces Disclosure or

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Discovery Material in this Action.

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2.13 Professional Vendors: persons or entities that provide litigation

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support services (e.g., photocopying, videotaping, translating, preparing exhibits or

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

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and their employees and subcontractors.
2.14 Protected Material: any Disclosure or Discovery Material that is

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

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ONLY.”
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.

SCOPE

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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

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extracted from Protected Material; (2) all copies, excerpts, summaries, or

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compilations of Protected Material; and (3) any testimony, conversations, or

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

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4.

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

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CONFIDENTIAL or CONFIDENTIAL – ATTORNEYS’ EYES ONLY or

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maintained pursuant to this protective order used or introduced as an exhibit at trial
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becomes public and will be presumptively available to all members of the public,

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including the press, unless compelling reasons supported by specific factual findings

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to proceed otherwise are made to the trial judge in advance of the trial. See

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Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause” showing for sealing

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documents produced in discovery from “compelling reasons” standard when merits-

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related documents are part of court record). Accordingly, the terms of this

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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.

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Each Party or Non-Party that designates information or items for protection under

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this Order must take care to limit any such designation to specific material that

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qualifies under the appropriate standards. The Designating Party must designate for

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protection only those parts of material, documents, items or oral or written

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communications that qualify so that other portions of the material, documents, items

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or communications for which protection is not warranted are not swept unjustifiably

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within the ambit of this Order.

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Mass, indiscriminate or routinized designations are prohibited. Designations

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that are shown to be clearly unjustified or that have been made for an improper

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purpose (e.g., to unnecessarily encumber the case development process or to impose

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unnecessary expenses and burdens on other parties) may expose the Designating

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Party to sanctions.

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

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designated for protection do not qualify for protection, that Designating Party must

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promptly notify all other Parties that it is withdrawing the inapplicable designation.

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5.2

Manner and Timing of Designations. Except as otherwise provided in

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

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stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
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under this Order must be clearly so designated before the material is disclosed or

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produced.

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Designation in conformity with this Order requires:

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

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documents, but excluding transcripts of depositions or other pretrial or trial

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proceedings), that the Producing Party affix at a minimum, the legend

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“CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that

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contains protected material. If only a portion of the material on a page qualifies for

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protection, the Producing Party also must clearly identify the protected portion(s)

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(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

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need not designate them for protection until after the inspecting Party has indicated

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which documents it would like copied and produced. During the inspection and

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before the designation, all of the material made available for inspection shall be

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deemed “CONFIDENTIAL.” After the inspecting Party has identified the

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documents it wants copied and produced, the Producing Party must determine which

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

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producing the specified documents, the Producing Party must affix the

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

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portion or portions of the material on a page qualifies for protection, the Producing

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Party also must clearly identify the protected portion(s) (e.g., by making appropriate

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markings in the margins).

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(b) for testimony given in depositions that the Designating Party identify

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the Disclosure or Discovery Material on the record, before the close of the

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deposition all protected testimony.

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(c) for information produced in some form other than documentary and

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

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the exterior of the container or containers in which the information is stored the
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legend “CONFIDENTIAL.” If only a portion or portions of the information

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warrants protection, the Producing Party, to the extent practicable, shall identify the

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protected portion(s).
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Inadvertent Failures to Designate. If timely corrected, an inadvertent

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failure to designate qualified information or items does not, standing alone, waive

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the Designating Party’s right to secure protection under this Order for such material.

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Upon timely correction of a designation, the Receiving Party must make reasonable

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efforts to assure that the material is treated in accordance with the provisions of this

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Order

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6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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

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

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

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the Designating Party. Frivolous challenges, and those made for an improper

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purpose (e.g., to harass or impose unnecessary expenses and burdens on other

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parties) may expose the Challenging Party to sanctions. Unless the Designating

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Party has waived or withdrawn the confidentiality designation, all parties shall

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

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

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challenge.

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7.

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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
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Action only for prosecuting, defending or attempting to settle this Action. Such

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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

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Receiving Party must comply with the provisions of section 13 below (FINAL

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DISPOSITION).

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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

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authorized under this Order.

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7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless

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

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Receiving Party may disclose any information or item designated

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“CONFIDENTIAL” only to:

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(a) the Receiving Party’s Outside Counsel of Record in this Action, as

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well as employees of said Outside Counsel of Record to whom it is reasonably

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necessary to disclose the information for this Action;

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

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

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(c) 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

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“Acknowledgment 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

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

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

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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

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“Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise

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agreed by the Designating Party or ordered by the court. Pages of transcribed

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deposition testimony or exhibits to depositions that reveal Protected Material may

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

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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.
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Disclosure of “CONFIDENTIAL – ATTORNEYS EYES ONLY”

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Information or Items. Unless otherwise ordered by the Court or permitted in writing

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by the Designating Party, a Receiving Party may disclose any information or item

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designated “CONFIDENTIAL – ATTORNEYS EYES ONLY” only to:

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(a) the Receiving Party’s Outside Counsel of Record in this Action, as

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well as employees of said Outside Counsel of Record to whom it is reasonably

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necessary to disclose the information for this Action;

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(b) 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

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

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(c) the Court and its personnel;

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(d) court reporters and their staff;

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(e) 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

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

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(f) the author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information;
(g) 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

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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

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“Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise

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agreed by the Designating Party or ordered by the court. Pages of transcribed

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deposition testimony or exhibits to depositions that reveal Protected Material may

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

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as permitted under this Stipulated Protective Order; and
(h) 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.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

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IN OTHER LITIGATION

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

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

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“CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS EYES ONLY,” that

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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;
(b) promptly notify in writing the party who caused the subpoena or order

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

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

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a copy of this Stipulated Protective Order; and

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(c) cooperate with respect to all reasonable procedures sought to be
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

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action as “CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS EYES

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ONLY” 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

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Designating Party shall bear the burden and expense of seeking protection in that

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court of its confidential material and nothing in these provisions should be construed

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

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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

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Non-Party in this Action and designated as “CONFIDENTIAL” or

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“CONFIDENTIAL – ATTORNEYS EYES ONLY.” Such information produced by

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

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

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prohibiting a Non-Party from seeking additional protections.

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(b) 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

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

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confidential information, then the Party shall:

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(1) 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

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agreement with a Non-Party;

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(2) 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

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specific description of the information requested; and

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(3) make the information requested available for inspection by the
Non-Party, if requested.

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

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request. If the Non-Party timely seeks a protective order, the Receiving Party shall

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not produce any information in its possession or control that is subject to the

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

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Absent a court order to the contrary, the Non-Party shall bear the burden and

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

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10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

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

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

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

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

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persons to whom unauthorized disclosures were made of all the terms of this Order,

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and (d) request such person or persons to execute the “Acknowledgment and

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

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11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

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PROTECTED MATERIAL

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When a Producing Party gives notice to Receiving Parties that certain

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

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

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

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

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

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

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

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parties may incorporate their agreement in the stipulated protective order submitted
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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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MISCELLANEOUS

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

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disclosing or producing any information or item on any ground not addressed in this

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Stipulated Protective Order. Similarly, no Party waives any right to object on any

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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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Protected Material must comply with Civil Local Rule 79-5. Protected Material may

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only be filed under seal pursuant to a court order authorizing the sealing of the

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specific Protected Material at issue. If a Party's request to file Protected Material

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under seal is denied by the court, then the Receiving Party may file the information

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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

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

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all Protected Material to the Producing Party or destroy such material. As used in

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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

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Material. Whether the Protected Material is returned or destroyed, the Receiving

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Party must submit a written certification to the Producing Party (and, if not the same

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person or entity, to the Designating Party) by the 60 day deadline that (1) identifies

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(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,
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abstracts, compilations, summaries or any other format reproducing or capturing any

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of the Protected Material. Notwithstanding this provision, Counsel are entitled to

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retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing

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transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert

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reports, attorney work product, and consultant and expert work product, even if such

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materials contain Protected Material. Any such archival copies that contain or

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constitute Protected Material remain subject to this Protective Order as set forth in

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Section 4 (DURATION).

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14.

Any violation of this Order may be punished by appropriate measures

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

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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DATED February 13, 2017

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/s/ Frank Gregory Casella
Stephen M. Doniger, Esq.
Frank Gregory Casella, Esq.
DONIGER / BURROUGHS
Attorneys for Plaintiff

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DATED:February 13, 2017

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/s/ Samuel G. Brooks
Samuel G. Brooks, Esq.
CALL & JENSEN
Attorneys for Defendants

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

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DATED: February 15, 2017

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_____________________________________
Honorable Steve Kim
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],

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declare under penalty of perjury that I have read in its entirety and understand the

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

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the Central District of California on __________________ in the case of Universal

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Dyeing & Printing, Inc. v. Nordstrom, Inc., et al., CV 16-06374-ODW-SK. I agree

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to comply with and to be bound by all the terms of this Stipulated Protective Order

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and I understand and acknowledge that failure to so comply could expose me to

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sanctions and punishment in the nature of contempt. I solemnly promise that I will

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

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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 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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