Urban Textile, Inc. v. Hotginger, Inc. et al

Filing 35

PROTECTIVE ORDER by Magistrate Judge Michael R. Wilner. (See Order for details) re Stipulation for Protective Order 34 (vm)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9
10

CENTRAL DISTRICT OF CALIFORNIA

11
12

URBAN TEXTILE, INC., a California
Corporation;

Case No.: 2:16-cv-8156 PSG (MRWx)

13
14
15
16
17
18

Plaintiff,

STIPULATED PROTECTIVE
ORDER

vs.
HOTGINGER, INC, a California
Corporation; 599FASHION, INC, a
California corporation and DOES 1-10,
inclusive1-10, inclusive,

19
20

Defendants.

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

22

any 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

2

privileged or otherwise protected from disclosure under state of federal rules, court

3

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

4

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

5

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

6

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

7

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

8

handling at the end of the litigation, and serve the ends of justice, a protective order

9

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

10

information will not be designated as confidential for tactical reasons and that

11

nothing be so designated without a good faith belief that it has been maintained in a

12

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

13

of the public 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
4
5
6
7
8
9
10
.

11
12
13

4.

DURATION

14
15
16
17
18
19
“

20
”

21

“
”

22
23

.

24
25
26
27
28

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
5
[PROPOSED] ORDER

1

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

2

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

3

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

4

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

5

items, or communications for which protection is not warranted are not swept

6

unjustifiably within the ambit of this Order.

7

Mass, indiscriminate, or routinized designations are prohibited. Designations

8

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

9

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

10

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

11

Designating Party to sanctions.

12

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

13

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

14

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

15

5.2 Manner and Timing of Designations. Except as otherwise provided in

16

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

17

stipulated or ordered, Disclosure or Discovery Material that qualifies for protection

18

under this Order must be clearly so designated before the material is disclosed or

19

produced.

20
21

Designation in conformity with this Order requires:
(a) for information in documentary form (e.g., paper or electronic

22

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

23

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

24

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

25

contains protected material. If only a portion or portions of the material on a page

26

qualifies for protection, the Producing Party also must clearly identify the

27

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

28

A Party or Non-Party that makes original documents available for inspection
6
[PROPOSED] ORDER

1

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

2

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

3

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

4

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

5

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

6

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

7

Then, before producing the specified documents, the Producing Party must affix

8

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

9

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

10

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

11

appropriate markings in the margins).
(b) for testimony given in depositions that the Designating Party identify

12
13

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

14

deposition all protected testimony.

15

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

16

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

17

the exterior of the container or containers in which the information is stored the

18

legend “CONFIDENTIAL.” If only a portion or portions of the information

19

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

20

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

21
22

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

23

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

24

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

25

reasonable efforts to assure that the material is treated in accordance with the

26

provisions of this Order.

27
28

6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
7
[PROPOSED] ORDER

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

1
2

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

3

Scheduling Order.
6.2 Meet and Confer. The Challenging Party shall initiate the dispute

4
5

resolution process under Local Rule 37.1 et seq.
6.3 The burden of persuasion in any such challenge proceeding shall be on

6
7

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

8

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

9

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

10

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

11

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

12

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

13

challenge.

14
15

7.

ACCESS TO AND USE OF PROTECTED MATERIAL

16

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

17

disclosed or produced by another Party or by a Non-Party in connection with this

18

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

19

Protected Material may be disclosed only to the categories of persons and under

20

the conditions described in this Order. When the Action has been terminated, a

21

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

22

DISPOSITION).

23

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

24

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

25

authorized under this Order.

26

7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless

27

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

28

Receiving Party may disclose any information or item designated
8
[PROPOSED] ORDER

1
2

“CONFIDENTIAL” only to:
(a) the Receiving Party’s Outside Counsel of Record in this Action, as

3

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

4

necessary to disclose the information for this Action;

5
6
7

(b) the officers, directors, and employees (including House Counsel) of
the Receiving Party to whom disclosure is reasonably necessary for this Action;
(c) Experts (as defined in this Order) of the Receiving Party to whom

8

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

9

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

10

(d) the court and its personnel;

11

(e) court reporters and their staff;

12

(f) professional jury or trial consultants, mock jurors, and Professional

13

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

14

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

15
16
17

(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

18

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

19

party requests that the witness sign the form attached as Exhibit 1 hereto; and (2)

20

they will not be permitted to keep any confidential information unless they sign the

21

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

22

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

23

deposition testimony or exhibits to depositions that reveal Protected Material may

24

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

25

except as permitted under this Stipulated Protective Order; and

26
27

(i) any mediator or settlement officer, and their supporting personnel,
mutually agreed upon by any of the parties engaged in settlement discussions.

28
9
[PROPOSED] ORDER

1

8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

2

IN OTHER LITIGATION

3

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

4

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

5

“CONFIDENTIAL,” that Party must:
(a) promptly notify in writing the Designating Party. Such notification

6
7

shall include a copy of the subpoena or court order;
(b) promptly notify in writing the party who caused the subpoena or order

8
9

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

10

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

11

include a copy of this Stipulated Protective Order; and
(c) cooperate with respect to all reasonable procedures sought to be

12
13

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

14

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

15

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

16

action as “CONFIDENTIAL” before a determination by the court from which the

17

subpoena or order issued, unless the Party has obtained the Designating Party’s

18

permission. The Designating Party shall bear the burden and expense of seeking

19

protection in that court of its confidential material and nothing in these provisions

20

should be construed as authorizing or encouraging a Receiving Party in this Action

21

to disobey a lawful directive from another court.

22
23

9.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

24

PRODUCED IN THIS LITIGATION

25

(a) The terms of this Order are applicable to information produced by a

26

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

27

produced by Non-Parties in connection with this litigation is protected by the

28

remedies and relief provided by this Order. Nothing in these provisions should be
10
[PROPOSED] ORDER

1

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

2
3

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

4

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

5

confidential information, then the Party shall:
(1) promptly notify in writing the Requesting Party and the Non-Party

6
7

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

8

agreement with a Non-Party;
(2) promptly provide the Non-Party with a copy of the Stipulated

9
10

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

11

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

12
13

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

14
15

14 days of receiving the notice and accompanying information, the Receiving

16

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

17

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

18

Party shall not produce any information in its possession or control that is subject

19

to the confidentiality agreement with the Non-Party before a determination by the

20

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

21

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

22
23

10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

24

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

25

disclosed Protected Material to any person or in any circumstance not authorized

26

under this Stipulated Protective Order, the Receiving Party must immediately (a)

27

notify in writing the Designating Party of the unauthorized disclosures, (b) use its

28

best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform
11
[PROPOSED] ORDER

1

the person or persons to whom unauthorized disclosures were made of all the terms

2

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

3

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

4

A.

5
6

11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

7

PROTECTED MATERIAL

8

When a Producing Party gives notice to Receiving Parties that certain

9

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

10

protection, the obligations of the Receiving Parties are those set forth in Federal

11

Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify

12

whatever procedure may be established in an e-discovery order that provides for

13

production without prior privilege review. Pursuant to Federal Rule of Evidence

14

502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure

15

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

16

work product protection, the parties may incorporate their agreement in the

17

stipulated protective order submitted to the court.

18

12.

19
20

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.

21

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

22

Protective Order no Party waives any right it otherwise would have to object to

23

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

24

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

25

any ground to use in evidence of any of the material covered by this Protective

26

Order.

27

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

28
12
[PROPOSED] ORDER

1

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

2

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

3

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

4

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

5

in the public record unless otherwise instructed by the court.

6
7

13.

FINAL DISPOSITION

8

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

9

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

10

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

11

used in this subdivision, “all Protected Material” includes all copies, abstracts,

12

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

13

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

14

Receiving Party must submit a written certification to the Producing Party (and, if

15

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

16

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

17

returned or destroyed and (2)affirms that the Receiving Party has not retained any

18

copies, abstracts, compilations, summaries or any other format reproducing or

19

capturing any of the Protected Material. Notwithstanding this provision, Counsel

20

are entitled to retain an archival copy of all pleadings, motion papers, trial,

21

deposition, and hearing transcripts, legal memoranda, correspondence, deposition

22

and trial exhibits, expert reports, attorney work product, and consultant and expert

23

work product, even if such materials contain Protected Material. Any such archival

24

copies that contain or constitute Protected Material remain subject to this

25

Protective Order as set forth in Section 4 (DURATION).

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: April 11, 2017

/s/C. Yong Jeong
C. Yong Jeong
JEONG & LIKENS, L.C.
Attorneys for Plaintiff

8
9
10

Dated: April 11, 2017

11
/s/ Henrik Mosesi
Henrik Mosesi
LAW OFFICE OF HENRIK MOSESI
Attorneys for Defendant
599 FASHION, INC.

12
13
14
15
16
17

FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

18
19
20
21

DATED:________________________
April 11, 2017
_____________________________________
Honorable MICHAEL R. WILNER
United States Magistrate Judge

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 URBAN TEXTILE, INC. v. HOTGINGER, INC.; et al 2:16-

8

cv-8156 PSG (MRWx) . I agree to comply with and to be bound by all the terms of

9

this Stipulated Protective Order and I understand and acknowledge that failure to

10

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

11

I solemnly promise that I will not disclose in any manner any information or item

12

that is subject to this Stipulated Protective Order to any person or entity except in

13

strict compliance with the provisions of this Order.

14

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

15

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

16

Stipulated Protective Order, even if such enforcement proceedings occur after

17

termination of this action. I hereby appoint __________________________ [print

18

or type full name] of _______________________________________ [print or

19

type full address and telephone number] as my California agent for service of

20

process in connection with this action or any proceedings related to enforcement of

21

this Stipulated Protective Order.

22

Date: ______________________________________

23

City and State where sworn and signed: _________________________________

24
25
26

Printed name: _______________________________
Signature: __________________________________

27
28
15
[PROPOSED] ORDER