Couture Textile Inc. v. Cleo Patra Jeans Inc et al

Filing 72

STIPULATED PROTECTIVE ORDER by Magistrate Judge Alexander F. MacKinnon. Re Stipulation for Protective Order 67 . (ib)

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UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA

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COUTURE TEXTILE, INC., a
California corporation,

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v.

Case No.: 2:16-cv-06579-JAK-AFM
[Assigned for all purposes to Hon.
John A. Kronstadt, judge presiding]

Plaintiff,

[PROPOSED] STIPULATED
CLEO PATRA JEANS, INC., a
California corporation dba Cleo Apparel, PROTECTIVE ORDER
dba Cleo Casual, dba Cleo, dba C.L.O.;
ANS PRODUCTION CORPORATION,
a California corporation dba Cleo
Apparel, dba Cleo Casual, dba Cleo, dba
C.L.O.; CLO APPAREL, INC., a
California corporation dba Cleo;
RAINBOW APPAREL
DISTRIBUTION CENTER, CORP., a
New Jersey corporation dba Rainbow
Apparel; ANTTOI CORP., a California
corporation; and DOES 1 through 10,
inclusive,

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Defendants.

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PURPOSES AND LIMITATIONS
Disclosure and discovery activity in this action are 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. The parties further
acknowledge, as set forth in Section 14.4, below, that this Stipulated Protective
Order does not entitle them to file confidential information under seal; Civil Local
Rule 79-5.1 sets forth the procedures that must be followed and the standards that
will be applied when a party seeks permission from the court to file material under
seal.
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 and
from use for any purpose other than prosecution of this action is 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, development, or
commercial information (including information implicating privacy rights of third
parties), information otherwise generally unavailable to the public, or which may be
privileged or otherwise protected from disclosure under state or federal statutes,
court rules, case decisions, or common law. Accordingly, to expedite the flow of
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 confidential, to ensure that the parties are permitted reasonable necessary uses
of such material in preparation for and in the conduct of trial, to address their
handling at the end of the litigation, and serve the ends of justice, a protective order
for such information is justified in this matter. It is the intent of the parties that
information will not be designated as confidential for tactical reasons and that no
information shall be so designated.

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Notwithstanding anything contained in this Protective Order, the Parties
acknowledge and agree that the discoverability of sensitive documents and/or
information, as well as a party’s ability and/or decision to disclose, withhold, or
redact any sensitive documents and/or information, shall not otherwise be affected
by its ability to classify such sensitive documents and/or information as
CONFIDENTIAL or HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,
as defined hereinafter. Nothing herein shall prevent any Party from withholding or
redacting any documents and/or information that the Party deems privileged,
irrelevant, or otherwise objectionable.
2.

DEFINITIONS
2.1

Challenging Party: a Party or Non-Party that challenges the

designation of information or items under this Order.
2.2

“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). Such information may
include, but is not limited to:
(a)

The financial performance or results of the Designating Party,

including without limitation income statements, balance sheets, cash flow analyses,
and budget projections;
(b)

Corporate and strategic planning by the Designating Party,

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including without limitation marketing plans, sales projections and competitive
strategy documents;

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(c)

customers or prospective customers, or the distributors or prospective distributors
of the Designating Party;

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(d)

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Designating Party;
(e)

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has competitive value, which is not generally known to others and which the
Designating Party would not normally reveal to third parties except in confidence,
or has undertaken with others to maintain in confidence;
(f)

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California; and
(g)

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Information which the Designating Party believes in good faith

to constitute, contain, reveal or reflect proprietary, financial, business, technical, or
other confidential information.

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Information which the Designating Party believes in good faith

falls within the right to privacy guaranteed by the laws of the United States or

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Information used by the Designating Party in or pertaining to its

trade or business, which information the Designating Party believes in good faith

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Research and development data, and any other confidential

commercial information, including but not limited to trade secrets of the

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Names, addresses, and other information that would identify

(h)

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

or other sections of this Protective Order does not, by itself, render the item or
category discoverable.
2.3

Counsel (without qualifier): Outside Counsel of Record and House

Counsel (as well as their support staff).
2.4

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 – ATTORNEYS’ EYES

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ONLY”.
2.5

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.
2.6

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.
2.7

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

Information or Items: extremely sensitive “Confidential Information or Items,”
disclosure of which to another Party or Non-Party would create a substantial risk of
serious harm that could not be avoided by less restrictive means. Information and
material that may be subject to this protection includes, but is not limited to,
research and development data, intellectual property, financial, marketing and other
sales data, and/or information having strategic commercial value pertaining to the
Designating Party’s trade or business.
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 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
which has appeared on behalf of that party.
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

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support staffs).

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2.12 Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this action.

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2.13 Professional Vendors: persons or entities that provide litigation
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.

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2.14 Protected Material: any Disclosure or Discovery Material that is
designated as “CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY.”

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2.15 Receiving Party: a Party that receives Disclosure or Discovery
Material from a Producing Party.
3.

SCOPE
The protections conferred by this Stipulation and Order cover not only

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.
However, the protections conferred by this Stipulation and Order do not cover the
following information: (a) any information that is in the public domain at the time
of disclosure to a Receiving Party or becomes part of the public domain after its
disclosure to a Receiving Party as a result of publication not involving a violation
of this Order, including becoming part of the public record through trial or
otherwise; and (b) any information known to the Receiving Party prior to the
disclosure or obtained by the Receiving Party after the disclosure from a source
who obtained the information lawfully and under no obligation of confidentiality to
the Designating Party. Any use of Protected Material at trial shall be governed by a

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separate agreement or order.
The designation of any information or materials as “CONFIDENTIAL” or
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” is intended solely
to facilitate the conduct of this litigation. Neither such designation nor treatment
in conformity with such designation shall be construed in any way as an
admission or agreement by the Receiving Party that the Protected Materials
constitute or contain any trade secret or confidential information, or the
discoverability thereof. Except as provided in this Protective Order, the Receiving
Party shall not be obligated to challenge the propriety of any designation, and a
failure to do so shall not preclude a subsequent attack on the propriety of such
designation.
Nothing contained herein in any way restricts the ability of the Receiving
Party to use “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY” material produced to it in examining or crossexamining any employee or consultant of the Designating Party. The Parties
acknowledge and agree that Receiving Party may not use Protected Materials
marked by a Designating Party to examine or cross-examine an employee or
consultant or another individual associated with a non-Designating Party. At
deposition, the party using Designated Material must request that the portion of
the proceeding where use is made be conducted so as to exclude persons not
qualified to receive such Designated Material.
If a party wishes to use Protected Material during an examination of an
employee or consultant or another individual associated with a non-Designating
Party, and the Designating Party objects to such use, the parties shall hold a meet
and confer to resolve the dispute. If the meet and confer is unsuccessful, the parties
may contact the Court to request an informal discovery conference with the
Magistrate Judge, to be held telephonically, to resolve the dispute.

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DURATION
Even after final disposition of this litigation, the confidentiality obligations

imposed by this Order shall remain in effect until a Designating Party agrees
otherwise in writing or a court order otherwise directs. Final disposition shall be
deemed to be the later of (1) dismissal of all claims and defenses in this action, with
or without prejudice; and (2) final judgment herein after the completion and
exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,
including the time limits for filing any motions or applications for extension of time
pursuant to applicable law.
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. To the extent it is practical to do so, 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 or retard the case development process or
to impose unnecessary expenses and burdens on other parties) 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 at all or do not qualify for the
level of protection initially asserted, that Designating Party must promptly notify all
other parties that it is withdrawing the mistaken designation.

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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.
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 the legend “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY” to each page that contains
protected material. If only a portion or portions 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) and must specify,
for each portion, the level of protection being asserted.
A Party or Non-Party that makes original documents or materials available
for inspection need not designate them for protection until after the inspecting Party
has indicated which material it would like copied and produced. During the
inspection and before the designation, all of the material made available for
inspection shall be deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
ONLY.” 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 appropriate legend
(“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
ONLY”) to each page that contains Protected Material. If only a portion or portions
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

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the margins) and must specify, for each portion, the level of protection being
asserted.
(b) for testimony given in deposition or in other pretrial or trial proceedings,
that the Designating Party identify on the record, before the close of the deposition,
hearing, or other proceeding, all protected testimony and specify the level of
protection being asserted. When it is impractical to identify separately each portion
of testimony that is entitled to protection and it appears that substantial portions of
the testimony may qualify for protection, the Designating Party may invoke on the
record (before the deposition, hearing, or other proceeding is concluded) a right to
have up to 45 days to identify the specific portions of the testimony as to which
protection is sought and to specify the level of protection being asserted. Only
those portions of the testimony that are appropriately designated for protection
within the 45 days shall be covered by the provisions of this Stipulated Protective
Order. Alternatively, a Designating Party may specify, at the deposition or up to 45
days afterwards if that period is properly invoked, that the entire transcript shall be
treated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’
EYES ONLY.”
Parties shall give the other parties notice if they reasonably expect a
deposition, hearing or other proceeding to include Protected Material so that the
other parties can ensure that only authorized individuals who have signed the
“Acknowledgment and Agreement to Be Bound” (Exhibit A) are present at those
proceedings. The use of a document as an exhibit at a deposition shall not in any
way affect its designation as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL
– ATTORNEYS’ EYES ONLY.”
Transcripts containing Protected Material shall have an obvious legend on
the title page that the transcript contains Protected Material, and the title page shall
be followed by a list of all pages (including line numbers as appropriate) that have

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been designated as Protected Material and the level of protection being asserted by
the Designating Party. The Designating Party shall inform the court reporter of
these requirements. Any transcript that is prepared before the expiration of a 45day period for designation shall be treated during that period as if it had been
designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its
entirety unless otherwise agreed. After the expiration of that period, the transcript
shall be treated only as actually designated.

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(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 or item is stored the
legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’
EYES ONLY”. If only a portion or portions of the information or item warrant
protection, the Producing Party, to the extent practicable, shall identify the
protected portion(s) and specify the level of protection being asserted.

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5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent

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.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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

designation of confidentiality at any time. Unless a prompt challenge to a
Designating Party’s confidentiality designation is necessary to avoid foreseeable,
substantial unfairness, unnecessary economic burdens, or a significant disruption or
delay of the litigation, a Party does not waive its right to challenge a confidentiality
designation by electing not to mount a challenge promptly after the original

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designation is disclosed.
6.2

Meet and Confer. The Challenging Party shall initiate the dispute

resolution process by providing written notice of each designation it is challenging
and describing the basis for each challenge. To avoid ambiguity as to whether a
challenge has been made, the written notice must recite that the challenge to
confidentiality is being made in accordance with this specific paragraph of the
Protective Order. The parties shall attempt to resolve each challenge in good faith
and must begin the process by conferring directly (in voice to voice dialogue; other
forms of communication are not sufficient) within 14 days of the date of service of
notice. In conferring, the Challenging Party must explain the basis for its belief that
the confidentiality designation was not proper and must give the Designating Party
an opportunity to review the designated material, to reconsider the circumstances,
and, if no change in designation is offered, to explain the basis for the chosen
designation. A Challenging Party may proceed to the next stage of the challenge
process only if it has engaged in this meet and confer process first or establishes
that the Designating Party is unwilling to participate in the meet and confer process
in a timely manner.
6.3

Judicial Intervention. If the Parties cannot resolve a challenge without

court intervention, the Challenging Party shall file and serve a motion to challenge
confidentiality under Civil Local Rule 7 (and in compliance with Civil Local Rule
79-5.1, if applicable) within 21 days of the initial notice of challenge or within 14
days of the parties agreeing that the meet and confer process will not resolve their
dispute, whichever is earlier. Each such motion must be accompanied by a
competent declaration affirming that the movant has complied with the meet and
confer requirements imposed in the preceding paragraph. Failure by the
Challenging Party to make such a motion including the required declaration within
21 days (or 14 days, if applicable) shall automatically waive the ability to challenge

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the confidentiality designation for each challenged designation. In addition, the
Designating Party may file a motion for a protective order preserving the
confidential designation at any time if there is good cause for doing so. Any
motion brought pursuant to this provision must be accompanied by a competent
declaration affirming that the movant has complied with the meet and confer
requirements imposed by the preceding paragraph.

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The burden of persuasion in any such challenge proceeding shall be on the
Challenging 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. Until such time as a determination has
been made on any such motion by the Court, 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.
7.

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7.1

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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
case only for prosecuting, defending, or attempting to settle this litigation. Such
Protected Material may be disclosed only to the categories of persons and under the
conditions described in this Order. When the litigation has been terminated, a
Receiving Party must comply with the provisions of section 13 below (FINAL
DISPOSITION).

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ACCESS TO AND USE OF PROTECTED MATERIAL

Protected Material must be stored and maintained by a Receiving Party at a
location and in a secure manner1 that ensures that access is limited to the persons
authorized under this Order.

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7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless

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It may be appropriate under certain circumstances to require the Receiving Party to store any electronic Protected Material in
password-protected form.

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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 litigation;
(b) the officers, directors, and employees (including House Counsel) of the
Receiving Party to whom disclosure is reasonably necessary for this litigation;
(c) Experts (as defined in this Order) of the Receiving Party to whom
disclosure is reasonably necessary for this litigation 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, professional jury or trial consultants, and
Professional Vendors to whom disclosure is reasonably necessary for this litigation
and who have signed the “Acknowledgment and Agreement to Be Bound”
(Exhibit A);
(f) during their depositions, witnesses in the action to whom disclosure is
reasonably necessary and who have signed 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 must be separately bound by the court
reporter and may not be disclosed to anyone except as permitted under this
Stipulated Protective Order.
(g) the author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information.
7.3

Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

ONLY” Information or Items. Unless otherwise ordered by the court or permitted

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in writing by the Designating Party, a Receiving Party may disclose any
information or item designated “HIGHLY CONFIDENTIAL – ATTORNEYS’
EYES ONLY” only to:

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(a) Counsel for the parties, as that term is defined in Section 2.3 herein, as
well as employees of said Counsel to whom it is reasonably necessary to disclose
the information for this litigation;

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(c) Experts of the Receiving Party to whom disclosure is reasonably
necessary for this litigation, and who have signed the “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, professional jury or trial consultants, and
Professional Vendors to whom disclosure is reasonably necessary for this litigation
and who have signed the “Acknowledgment and Agreement to Be Bound”
(Exhibit A); and

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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.
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” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
ONLY” 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

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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.

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If the Designating Party timely seeks a protective order, the Party served with
the subpoena or court order shall not produce any information designated in this
action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’
EYES ONLY” 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.
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 – ATTORNEYS’ EYES ONLY”. 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 Non-Party 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 NonParty that some or all of the information requested is subject to a confidentiality
agreement with a Non-Party;

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2. promptly provide the Non-Party with a copy of the Stipulated
Protective Order in this litigation, the relevant discovery request(s), and a
reasonably specific description of the information requested; and

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3. make the information requested available for inspection by the
Non-Party.

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(c)

court within 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.
///
10.

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If the Non-Party fails to object or seek a protective order from this

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

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.
11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
PROTECTED MATERIAL
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 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 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.
12.

MISCELLANEOUS
12.1 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 Right to Assert Other Objections. By stipulating to the entry of this
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. Moreover, this Order shall not preclude or limit any Party’s right to seek
further and additional protection against or limitation upon production of
documents produced in response to discovery. The parties reserve their rights to
object to, redact or withhold any information, including confidential, proprietary, or
private information, on any other applicable grounds permitted by law, including
third-party rights and relevancy.
12.3 Other Privileges. Nothing in this Order shall require disclosure of
materials that a Party contends are protected from disclosure by the attorney-client
privilege or the attorney work-product doctrine. This provision shall not, however,
be construed to preclude any Party from moving the Court for an order directing the

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disclosure of such materials where it disputes the claim of attorney-client privilege
or attorney work-product doctrine.
12.4 Filing Protected Material. Without written permission from the
Designating Party or a court order secured after appropriate notice to all interested
persons, a Party may not file in the public record in this action any Protected
Material. A Party that seeks to file under seal any Protected Material must comply
with Civil Local Rule 79-5.1. Protected Material may only be filed under seal
pursuant to a court order authorizing the sealing of the specific Protected Material
at issue. Pursuant to Civil Local Rule 79-5.1, a sealing order will issue only upon a
request establishing that the Protected Material at issue is privileged, protectable as
a trade secret, or otherwise entitled to protection under the law. If a Receiving
Party’s request to file Protected Material under seal pursuant to Civil Local Rule
79-5.1 is denied by the court, then the Receiving Party may file the Protected
Material in the public record pursuant to Civil Local Rule 79-5.1 unless otherwise
instructed by the court.
12.5 No Prejudice. This Protective Order shall not diminish any existing
obligation or right with respect to Protected Material, nor shall it prevent a
disclosure to which the Designating Party consented in writing before the
disclosure takes place.Unless the parties stipulate otherwise, evidence of the
existence or nonexistence of a designation under this Protective Order shall not be
admissible for any purpose during any proceeding on the merits of this action.
12.6 Self-Disclosure. Nothing in this Order shall affect the right of the
Designating Party to disclose the Designating Party’s own Confidential information
or items to any person or entity. Such disclosure shall not waive any of the
protections of this Order.
12.7 Captions. The captions of paragraphs contained in this Order are for
reference only and are not to be construed in any way as a part of this Order.

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13.

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FINAL DISPOSITION
After the final disposition of this Action, 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, provided that no party will be
required to expunge any system back-up media such as copies of any computer
records or files containing Protected Material which have been created pursuant to
automatic archiving or back-up procedures on secured central storage servers and
which cannot reasonably be expunged, and further provided that any destruction
does not destroy or affect the destroying party’s computer programs, hardware,
software, servers, or the like. As used in this subdivision, “all Protected Material”
includes all copies, abstracts, compilations, 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.
///
///
///
///
///
///
///
///

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Notwithstanding this provision, Counsel are entitled to retain archival copies
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.

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IT IS SO ORDERED.

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Dated:2/13/2017
Alexander F. MacKinnon

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United Stated Magistrate Judge

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EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
The undersigned hereby acknowledges that he/she has read the
PROTECTIVE ORDER entered in Couture Textile, Inc. v. Cleo Patra Jeans, Inc.,
et al., Case No.: 2:16-cv-06579-JAK-AFM, and that he/she fully understands and
agrees to abide by the obligations and conditions thereof.

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Dated: _____________________

______________________________
(Signature)

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______________________________
(Print Name)

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[PROPOSED] STIPULATED PROTECTIVE ORDER