Couture Textile Inc. v. Earthbound Trading Company et al

Filing 24

PROTECTIVE ORDER by Magistrate Judge Alka Sagar re Stipulation for Protective Order 23 . (See document for complete details) (afe)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 COUTURE TEXTILE, INC., a California Corporation, 13 Plaintiff, 14 vs. 15 16 17 18 Case No.: 2:16-cv-07882-FMO-AS [PROPOSED] STIPULATED PROTECTIVE ORDER EARTHBOUND TRADING COMPANY, a Texas Company; JHKO, INC. d/b/a Fashion Q, a California Company, and DOES 1 – 10, inclusive, Defendants. 19 20 21 22 23 24 25 26 27 28 1 [PROPOSED] ORDER 1 1. A. PURPOSES AND LIMITATIONS 2 3 Discovery in this action is likely to involve production of confidential, 4 proprietary, or private information for which special protection from public 5 disclosure and from use for any purpose other than prosecuting this litigation may 6 be warranted. Accordingly, the parties hereby stipulate to and petition the Court to 7 enter the following Stipulated Protective Order. The parties acknowledge that this 8 Order does not confer blanket protections on all disclosures or responses to 9 discovery and that the protection it affords from public disclosure and use extends 10 only to the limited information or items that are entitled to confidential treatment 11 under the applicable legal principles. The parties further acknowledge, as set forth 12 in Section 12.3, below, that this Stipulated Protective Order does not entitle them 13 to file confidential information under seal; Civil Local Rule 79-5 sets forth the 14 procedures that must be followed and the standards that will be applied when a 15 party seeks permission from the court to file material under seal. 16 17 B. GOOD CAUSE STATEMENT 18 19 This action is likely to involve trade secrets, customer and pricing lists and 20 other valuable research, development, commercial, financial and/or technical 21 information for which special protection from public disclosure and from use for any 22 purpose other than prosecution of this action is warranted. Such confidential 23 materials and information consist of, among other things, confidential business or 24 financial information, information regarding purchase and sale prices of fabric or 25 garments by suppliers, manufacturers, importers, distributors or fashion retailers, 26 information regarding business practices, information regarding the creation, 27 purchase or sale of graphics used on textiles and garments, or other confidential 28 commercial information (including information implicating privacy rights of third 2 [PROPOSED] ORDER 1 parties), information generally unavailable to the public, or which may be privileged 2 or otherwise protected from disclosure under state of federal rules, court rules, case 3 decisions, or common law. Accordingly, to expedite the flow of information, to 4 facilitate the prompt resolution of disputes over confidentiality of discovery 5 materials, to adequately protect information the parties are entitled to keep 6 confidential, to ensure that the parties are permitted reasonable necessary uses of 7 such material in preparation for and in the conduct of trial, to address their handling 8 at the end of the litigation, and serve the ends of justice, a protective order for such 9 information is justified in this matter. It is the intent of the parties that information 10 will not be designated as confidential for tactical reasons and that nothing be so 11 designated without a good faith belief that it has been maintained in a confidential, 12 non-public manner, and there is good cause why it should not be part of the public 13 record of this case. 14 15 2. DEFINITIONS 16 2.1 Action: This pending federal law suit. 17 2.2 Challenging Party: a Party or Non-Party that challenges the 18 19 designation of information or items under this Order. 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 20 how it is generated, stored or maintained) or tangible things that qualify for 21 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 22 the Good Cause Statement. 23 24 25 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their support staff). 2.5 Designating Party: a Party or Non-Party that designates information or 26 items that it produces in disclosures or in responses to discovery as 27 “CONFIDENTIAL.” 28 2.6 Disclosure or Discovery Material: all items or information, regardless 3 [PROPOSED] ORDER 1 of the medium or manner in which it is generated, stored, or maintained (including, 2 among other things, testimony, transcripts, and tangible things), that are produced 3 or generated in disclosures or responses to discovery in this matter. 4 2.7 Expert: a person with specialized knowledge or experience in a matter 5 pertinent to the litigation who has been retained by a Party or its counsel to serve 6 as an expert witness or as a consultant in this Action. 7 2.8 House Counsel: attorneys who are employees of a party to this Action. 8 House Counsel does not include Outside Counsel of Record or any other outside 9 counsel. 10 11 12 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 13 party to this Action but are retained to represent or advise a party to this Action 14 and have appeared in this Action on behalf of that party or are affiliated with a law 15 firm which has appeared on behalf of that party, and includes support staff. 16 2.11 Party: any party to this Action, including all of its officers, directors, 17 employees, consultants, retained experts, and Outside Counsel of Record (and their 18 support staffs). 19 20 21 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 22 support services (e.g., photocopying, videotaping, translating, preparing exhibits or 23 demonstrations, and organizing, storing, or retrieving data in any form or medium) 24 and their employees and subcontractors. 25 26 27 28 2.14 Protected Material: any Disclosure or Discovery Material that is designated as “CONFIDENTIAL.” 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing Party. 4 [PROPOSED] ORDER 1 2 3. SCOPE 3 The protections conferred by this Stipulation and Order cover not only 4 Protected Material (as defined above), but also (1) any information copied or 5 extracted from Protected Material; (2) all copies, excerpts, summaries, or 6 compilations of Protected Material; and (3) any testimony, conversations, or 7 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 8 9 trial judge. This Order does not govern the use of Protected Material at trial. 10 11 4. DURATION Even after final disposition of this litigation, the confidentiality obligations 12 13 imposed by this Order shall remain in effect until a Designating Party agrees 14 otherwise in writing or a court order otherwise directs. Final disposition shall be 15 deemed to be the later of (1) dismissal of all claims and defenses in this Action, 16 with or without prejudice; and (2) final judgment herein after the completion and 17 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action, 18 including the time limits for filing any motions or applications for extension of 19 time pursuant to applicable law. 20 21 22 5. DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. 23 Each Party or Non-Party that designates information or items for protection under 24 this Order must take care to limit any such designation to specific material that 25 qualifies under the appropriate standards. The Designating Party must designate for 26 protection only those parts of material, documents, items, or oral or written 27 communications that qualify so that other portions of the material, documents, 28 items, or communications for which protection is not warranted are not swept 5 [PROPOSED] ORDER 1 2 unjustifiably within the ambit of this Order. Mass, indiscriminate, or routinized designations are prohibited. Designations 3 that are shown to be clearly unjustified or that have been made for an improper 4 purpose (e.g., to unnecessarily encumber the case development process or to 5 impose unnecessary expenses and burdens on other parties) may expose the 6 Designating Party to sanctions. 7 If it comes to a Designating Party’s attention that information or items that it 8 designated for protection do not qualify for protection, that Designating Party must 9 promptly notify all other Parties that it is withdrawing the inapplicable designation. 10 5.2 Manner and Timing of Designations. Except as otherwise provided in 11 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 12 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 13 under this Order must be clearly so designated before the material is disclosed or 14 produced. 15 16 Designation in conformity with this Order requires: (a) for information in documentary form (e.g., paper or electronic 17 documents, but excluding transcripts of depositions or other pretrial or trial 18 proceedings), that the Producing Party affix at a minimum, the legend 19 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that 20 contains protected material. If only a portion or portions of the material on a page 21 qualifies for protection, the Producing Party also must clearly identify the 22 protected portion(s) (e.g., by making appropriate markings in the margins). 23 A Party or Non-Party that makes original documents available for inspection 24 need not designate them for protection until after the inspecting Party has indicated 25 which documents it would like copied and produced. During the inspection and 26 before the designation, all of the material made available for inspection shall be 27 deemed “CONFIDENTIAL.” After the inspecting Party has identified the 28 6 [PROPOSED] ORDER 1 documents it wants copied and produced, the Producing Party must determine 2 which documents, or portions thereof, qualify for protection under this Order. 3 Then, before producing the specified documents, the Producing Party must affix 4 the “CONFIDENTIAL legend” to each page that contains Protected Material. If 5 only a portion or portions of the material on a page qualifies for protection, the 6 Producing Party also must clearly identify the protected portion(s) (e.g., by making 7 appropriate markings in the margins). (b) for testimony given in depositions that the Designating Party identify 8 9 10 the Disclosure or Discovery Material on the record, before the close of the deposition all protected testimony. 11 (c) for information produced in some form other than documentary and 12 for any other tangible items, that the Producing Party affix in a prominent place on 13 the exterior of the container or containers in which the information is stored the 14 legend “CONFIDENTIAL.” If only a portion or portions of the information 15 warrants protection, the Producing Party, to the extent practicable, shall identify 16 the protected portion(s). 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 17 18 failure to designate qualified information or items does not, standing alone, waive 19 the Designating Party’s right to secure protection under this Order for such 20 material. Upon timely correction of a designation, the Receiving Party must make 21 reasonable efforts to assure that the material is treated in accordance with the 22 provisions of this Order. 23 24 25 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 26 designation of confidentiality at any time that is consistent with the Court’s 27 Scheduling Order. 28 6.2 Meet and Confer. The Challenging Party shall initiate the dispute 7 [PROPOSED] ORDER 1 resolution process under Local Rule 37.1 et seq. 6.3 The burden of persuasion in any such challenge proceeding shall be on 2 3 the Designating Party. Frivolous challenges, and those made for an improper 4 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 5 parties) may expose the Challenging Party to sanctions. Unless the Designating 6 Party has waived or withdrawn the confidentiality designation, all parties shall 7 continue to afford the material in question the level of protection to which it is 8 entitled under the Producing Party’s designation until the Court rules on the 9 challenge. 10 11 7. ACCESS TO AND USE OF PROTECTED MATERIAL 12 7.1 Basic Principles. A Receiving Party may use Protected Material that is 13 disclosed or produced by another Party or by a Non-Party in connection with this 14 Action only for prosecuting, defending, or attempting to settle this Action. Such 15 Protected Material may be disclosed only to the categories of persons and under 16 the conditions described in this Order. When the Action has been terminated, a 17 Receiving Party must comply with the provisions of section 13 below (FINAL 18 DISPOSITION). 19 Protected Material must be stored and maintained by a Receiving Party at a 20 location and in a secure manner that ensures that access is limited to the persons 21 authorized under this Order. 22 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 23 otherwise ordered by the court or permitted in writing by the Designating Party, a 24 Receiving Party may disclose any information or item designated 25 “CONFIDENTIAL” only to: 26 (a) the Receiving Party’s Outside Counsel of Record in this Action, as 27 well as employees of said Outside Counsel of Record to whom it is reasonably 28 necessary to disclose the information for this Action; 8 [PROPOSED] ORDER (b) the officers, directors, and employees (including House Counsel) of 1 2 the Receiving Party to whom disclosure is reasonably necessary for this Action; (c) Experts (as defined in this Order) of the Receiving Party to whom 3 4 disclosure is reasonably necessary for this Action and who have signed the 5 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 6 (d) the court and its personnel; 7 (e) court reporters and their staff; 8 (f) professional jury or trial consultants, mock jurors, and Professional 9 Vendors to whom disclosure is reasonably necessary for this Action and who have 10 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); (g) the author or recipient of a document containing the information or a 11 12 custodian or other person who otherwise possessed or knew the information; (h) during their depositions, witnesses ,and attorneys for witnesses, in the 13 14 Action to whom disclosure is reasonably necessary provided: (1) the deposing 15 party requests that the witness sign the form attached as Exhibit 1 hereto; and (2) 16 they will not be permitted to keep any confidential information unless they sign the 17 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 18 agreed by the Designating Party or ordered by the court. Pages of transcribed 19 deposition testimony or exhibits to depositions that reveal Protected Material may 20 be separately bound by the court reporter and may not be disclosed to anyone 21 except as permitted under this Stipulated Protective Order; and (i) any mediator or settlement officer, and their supporting personnel, 22 23 mutually agreed upon by any of the parties engaged in settlement discussions. 24 25 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 26 IN OTHER LITIGATION 27 If a Party is served with a subpoena or a court order issued in other litigation 28 that compels disclosure of any information or items designated in this Action as 9 [PROPOSED] ORDER 1 “CONFIDENTIAL,” that Party must: (a) promptly notify in writing the Designating Party. Such notification 2 3 shall include a copy of the subpoena or court order; (b) promptly notify in writing the party who caused the subpoena or order 4 5 to issue in the other litigation that some or all of the material covered by the 6 subpoena or order is subject to this Protective Order. Such notification shall 7 include a copy of this Stipulated Protective Order; and (c) cooperate with respect to all reasonable procedures sought to be 8 9 pursued by the Designating Party whose Protected Material may be affected. 10 If the Designating Party timely seeks a protective order, the Party served with 11 the subpoena or court order shall not produce any information designated in this 12 action as “CONFIDENTIAL” before a determination by the court from which the 13 subpoena or order issued, unless the Party has obtained the Designating Party’s 14 permission. The Designating Party shall bear the burden and expense of seeking 15 protection in that court of its confidential material and nothing in these provisions 16 should be construed as authorizing or encouraging a Receiving Party in this Action 17 to disobey a lawful directive from another court. 18 19 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 20 PRODUCED IN THIS LITIGATION 21 (a) The terms of this Order are applicable to information produced by a 22 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information 23 produced by Non-Parties in connection with this litigation is protected by the 24 remedies and relief provided by this Order. Nothing in these provisions should be 25 construed as prohibiting a Non-Party from seeking additional protections. 26 27 (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 28 10 [PROPOSED] ORDER 1 subject to an agreement with the Non-Party not to produce the Non-Party’s 2 confidential information, then the Party shall: (1) promptly notify in writing the Requesting Party and the Non-Party 3 4 that some or all of the information requested is subject to a confidentiality 5 agreement with a Non-Party; (2) promptly provide the Non-Party with a copy of the Stipulated 6 7 Protective Order in this Action, the relevant discovery request(s), and a reasonably 8 specific description of the information requested; and (3) make the information requested available for inspection by the 9 10 Non-Party, if requested. (c) If the Non-Party fails to seek a protective order from this court within 11 12 14 days of receiving the notice and accompanying information, the Receiving 13 Party may produce the Non-Party’s confidential information responsive to the 14 discovery request. If the Non-Party timely seeks a protective order, the Receiving 15 Party shall not produce any information in its possession or control that is subject 16 to the confidentiality agreement with the Non-Party before a determination by the 17 court. Absent a court order to the contrary, the Non-Party shall bear the burden and 18 expense of seeking protection in this court of its Protected Material. 19 20 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 21 If a Receiving Party learns that, by inadvertence or otherwise, it has 22 disclosed Protected Material to any person or in any circumstance not authorized 23 under this Stipulated Protective Order, the Receiving Party must immediately (a) 24 notify in writing the Designating Party of the unauthorized disclosures, (b) use its 25 best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform 26 the person or persons to whom unauthorized disclosures were made of all the terms 27 of this Order, and (d) request such person or persons to execute the 28 11 [PROPOSED] ORDER 1 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit 2 A. 3 4 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 5 PROTECTED MATERIAL 6 When a Producing Party gives notice to Receiving Parties that certain 7 inadvertently produced material is subject to a claim of privilege or other 8 protection, the obligations of the Receiving Parties are those set forth in Federal 9 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify 10 whatever procedure may be established in an e-discovery order that provides for 11 production without prior privilege review. Pursuant to Federal Rule of Evidence 12 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure 13 of a communication or information covered by the attorney-client privilege or 14 work product protection, the parties may incorporate their agreement in the 15 stipulated protective order submitted to the court. 16 12. 17 18 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. 19 12.2 Right to Assert Other Objections. By stipulating to the entry of this 20 Protective Order no Party waives any right it otherwise would have to object to 21 disclosing or producing any information or item on any ground not addressed in 22 this Stipulated Protective Order. Similarly, no Party waives any right to object on 23 any ground to use in evidence of any of the material covered by this Protective 24 Order. 25 12.3 Filing Protected Material. A Party that seeks to file under seal any 26 Protected Material must comply with Civil Local Rule 79-5. Protected Material 27 may only be filed under seal pursuant to a court order authorizing the sealing of the 28 specific Protected Material at issue. If a Party's request to file Protected Material 12 [PROPOSED] ORDER 1 under seal is denied by the court, then the Receiving Party may file the information 2 in the public record unless otherwise instructed by the court. 3 4 13. FINAL DISPOSITION 5 After the final disposition of this Action, as defined in paragraph 4, within 6 60 days of a written request by the Designating Party, each Receiving Party must 7 return all Protected Material to the Producing Party or destroy such material. As 8 used in this subdivision, “all Protected Material” includes all copies, abstracts, 9 compilations, summaries, and any other format reproducing or capturing any of the 10 Protected Material. Whether the Protected Material is returned or destroyed, the 11 Receiving Party must submit a written certification to the Producing Party (and, if 12 not the same person or entity, to the Designating Party) by the 60 day deadline that 13 (1) identifies (by category, where appropriate) all the Protected Material that was 14 returned or destroyed and (2)affirms that the Receiving Party has not retained any 15 copies, abstracts, compilations, summaries or any other format reproducing or 16 capturing any of the Protected Material. Notwithstanding this provision, Counsel 17 are entitled to retain an archival copy of all pleadings, motion papers, trial, 18 deposition, and hearing transcripts, legal memoranda, correspondence, deposition 19 and trial exhibits, expert reports, attorney work product, and consultant and expert 20 work product, even if such materials contain Protected Material. Any such archival 21 copies that contain or constitute Protected Material remain subject to this 22 Protective Order as set forth in Section 4 (DURATION). 23 // 24 // 25 // 26 // 27 // 28 // 13 [PROPOSED] ORDER 1 14. Any violation of this Order may be punished by any and all appropriate 2 measures including, without limitation, contempt proceedings and/or monetary 3 sanctions. 4 5 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 6 7 Dated: January 3, 2017 /s/C. Yong Jeong C. Yong Jeong Amy Choe Ryan Ostrowski JEONG & LIKENS, L.C. Attorneys for Plaintiff Dated: January 3, 2017 /s/ Rachel A. Saldaña Rachel A. Saldaña SALDAÑA IP Attorney for Defendant 8 9 10 11 12 13 14 15 16 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 17 18 DATED:________________________ January 5, 2017 19 _____________________________________ /s/ 20 Honorable Alka Sagar United States Magistrate Judge 21 22 23 24 25 26 27 28 14 [PROPOSED] ORDER 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _____________________________ [print or type full name], of 4 _________________ [print or type full address], declare under penalty of perjury 5 that I have read in its entirety and understand the Stipulated Protective Order that 6 was issued by the United States District Court for the Central District of California 7 on [date] in the case of ___________ COUTURE TEXTILE, INC. v. 8 EARTHBOUND TRADING COMPANY, et al., 2:16-cv-07882-FMO-AS . I agree to 9 comply with and to be bound by all the terms of this Stipulated Protective Order 10 and I understand and acknowledge that failure to so comply could expose me to 11 sanctions and punishment in the nature of contempt. I solemnly promise that I will 12 not disclose in any manner any information or item that is subject to this Stipulated 13 Protective Order to any person or entity except in strict compliance with the 14 provisions of this Order. 15 I further agree to submit to the jurisdiction of the United States District Court for 16 the Central District of California for the purpose of enforcing the terms of this 17 Stipulated Protective Order, even if such enforcement proceedings occur after 18 termination of this action. I hereby appoint __________________________ [print 19 or type full name] of _______________________________________ [print or 20 type full address and telephone number] as my California agent for service of 21 process in connection with this action or any proceedings related to enforcement of 22 this Stipulated Protective Order. 23 Date: ______________________________________ 24 City and State where sworn and signed: _________________________________ 25 26 27 Printed name: _______________________________ Signature: __________________________________ 28 15 [PROPOSED] ORDER

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