City Prints, LLC v. Baldwin Sun Inc et al

Filing 40

PROTECTIVE ORDER by Magistrate Judge Jean P. Rosenbluth re Stipulation for Protective Order 39 . (See Order for details) [Note Changes Made By The Court]. (bem)

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NOTE: CHANGES MADE BY THE COURT

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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CITY PRINTS, LLC,

14 Plaintiff,
15 v.
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BALDWIN SUN, INC.; et al.,
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Case No.: 2:16-cv-08424-RGK-JPR
Hon. R. Gary Klausner Presiding
Referred to Hon. Jean P. Rosenbluth
PROTECTIVE ORDER

Defendants.

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On stipulation of the Parties, the Court enters a Protective Order in this matter as

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1.

PURPOSES AND LIMITATIONS

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Disclosure and discovery activity in this action are likely to involve production of

26 confidential, proprietary, or private information for which special protection from
27 public disclosure and from use for any purpose other than prosecuting this matter would
28 be warranted. Accordingly, the parties have stipulated to and petitioned this Court to
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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 extends only to the limited information or items that
the parties believe are entitled under the applicable legal principles to treatment as
confidential. The parties have agreed that the terms of this Protective Order shall also
apply to any future voluntary disclosures of confidential, proprietary, or private
information. The parties reserve their rights to object to or withhold any information,
including confidential, proprietary, or private information, on any other applicable
grounds permitted by law, including third-party rights and relevancy.

2.

DEFINITIONS
2.1

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

employees, consultants, retained experts, and outside counsel (and their support staff).
2.2

Disclosure or Discovery Material:

all items or information,

regardless of the medium or manner generated, stored, or maintained (including, among
other things, testimony, transcripts, or tangible things), that are produced or generated in
disclosures or responses to discovery in this matter.
2.3

“Confidential” Information or Items: All information in whatever

form, such as oral, written, documentary, tangible, intangible, electronic, or digitized
now or hereafter in existence that:
a) derives independent economic value, actual or potential, from not
being generally known to, and not being readily ascertainable by proper means, by other
persons who can obtain economic value from its disclosure or use;
b) is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy; and
c) is otherwise regarded by a party as being confidential, private, or
proprietary in nature.
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2.4

“Attorneys’ Eyes Only”: Discovery Material or such portion of such

material that the disclosing party has a reasonable belief that the information disclosed,
if known to one or more parties in the case would have a reasonable chance of putting
the disclosing party to a competitive disadvantage or otherwise result in the disclosure
of sensitive proprietary information that could cause future harm. Notwithstanding the
terms of this agreement, Plaintiff’s attorney is entitled to disclose to Plaintiff the total
revenue and gross profit data disclosed in this action, as well as the names of any parties
responsible for distributing the infringing product at issue, or any components of said
product.
2.5

Receiving Party:

a Party that receives Disclosure or Discovery

Material from a Producing Party.
2.6

Producing Party: a Party or non-party that produces Disclosure or

Discovery Material in this action.
2.7

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 “ATTORNEYS’ EYES ONLY.”
2.8

Protected Material: any Disclosure or Discovery Material that is

designated as “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY.”
2.9

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.

This definition includes a

professional jury or trial consultant retained in connection with this litigation. The
expert witness or consultant may not be a past or a current employee of the Party
(including any affiliates or related entities) adverse to the Party engaging the expert
witness or consultant, or someone who at the time of retention is anticipated to become
an employee of the Party (including any affiliates or related entities) adverse to the
Party engaging the expert witness or consultant.
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2.10 Professional Vendors:

persons or entities that provide litigation

support services (e.g., photocopying; videotaping; translating; preparing exhibits or
demonstrations; organizing, storing, or retrieving data in any form or medium; etc.) and
their employees and subcontractors.

3.

SCOPE

The protections conferred by this Stipulation and Order cover not only Protected
Material (as defined above), but also any information copied or extracted therefrom, as
well as all copies, excerpts, summaries, or compilations thereof, plus testimony,
conversations, or presentations by parties or counsel to or in litigation or in other
settings that might reveal Protected Material.

4.

DURATION

Even after the termination of this action, 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.

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. A Designating Party must take care to
designate for protection only those parts of material, documents, items, or oral or
written communications that qualify – so that other portions of the material, documents,
items, or communications for which protection is not warranted are not swept
unjustifiably within the ambit of this Order.

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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, 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 (apart from transcripts

of depositions or other pretrial or trial proceedings), that the Producing Party affix the
legend “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” at the top or bottom of
each page that contains protected material.
A Party or non-party that makes originals or copies of documents or
materials available for inspection need not designate them for protection until after the
inspecting Party has indicated which material it intends to copy. During the inspection
and before the designation, all of the material made available for inspection shall be
deemed “ATTORNEYS’ EYES ONLY.” After the inspecting Party has identified the
documents it wants copied and produced, the Producing Party must designate, either in
writing or on the record (at a deposition), which documents, or portions thereof, qualify
for protection under this Order.

Then the Receiving Party must affix the

“CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” legend at the top of each
copied 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 (either
“CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY”).
(b)

for testimony given in deposition or in other discovery-related

proceedings, that the Party or non-party offering or sponsoring the testimony identify on
the record, before the close of the deposition, hearing, or other proceeding, all protected
testimony, and further specify any portions of the testimony that qualify as
“CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY.” When it is impractical to
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identify separately each portion of testimony that is entitled to protection, and when it
appears that substantial portions of the testimony may qualify for protection, the Party
or non-party that sponsors, offers, or gives the testimony may invoke on the record
(before the deposition or proceeding is concluded) a right to have up to 20 days to
identify the specific portions of the testimony as to which protection is sought and to
specify the level of protection being asserted (“CONFIDENTIAL” or “ATTORNEYS’
EYES ONLY”). Only those portions of the testimony that are appropriately designated
for protection within the 20 days shall be covered by the provisions of this Stipulated
Protective Order.
Transcript pages containing Protected Material must be separately
bound by the court reporter, who must affix to the top of each such page the legend
“CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY,” as instructed by the Party or
non-party offering or sponsoring the witness or presenting the testimony.
(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 “ATTORNEYS’ EYES ONLY.” If
only portions of the information or item warrant protection, the Producing Party, to the
extent practicable, shall identify the protected portions, specifying whether they qualify
as “CONFIDENTIAL” or as “ATTORNEYS’ EYES ONLY.”
5.3

Inadvertent Failures to Designate.

If timely corrected, an

inadvertent failure to designate qualified information or items as “CONFIDENTIAL” or
“ATTORNEYS’ EYES ONLY” does not, standing alone, waive the Designating
Party’s right to secure protection under this Order for such material. If material is
appropriately designated as “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY”
after the material was initially produced, the Receiving Party, on timely notification of
the designation, must make reasonable efforts to assure that the material is treated in
accordance with the provisions of this Order.
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6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges. Unless a prompt challenge to a Designating

Party’s confidentiality designation is necessary to avoid foreseeable substantial
unfairness, unnecessary economic burdens, or a later 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 designation is disclosed.
6.2

Meet and Confer. A Party that elects to initiate a challenge to a

Designating Party’s confidentiality designation must do so in good faith and must begin
the process by conferring with counsel for the Designating Party in writing.

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.
6.3

Court Intervention. A Party that elects to press a challenge to a

confidentiality designation after considering the justification offered by the Designating
Party may file and serve a motion under Local Rule 37 that identifies the challenged
material and sets forth in detail the basis for the challenge. Each such motion must be
accompanied by a competent declaration that affirms that the movant has complied with
the meet-and-confer requirements imposed in the preceding paragraph and Local Rule
37 and that sets forth with specificity the justification for the confidentiality designation
that was given by the Designating Party in the meet-and-confer dialogue. The parties
agree that a confidentiality designation shall not create a presumption in favor of such
confidentiality designation, and that the Court shall decide the issue as such.

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Until the Court rules on the challenge, 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.

7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

Basic Principles. A Receiving Party may use Protected Material that

is disclosed or produced by another Party or by a non-party in connection with this 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 11, below (FINAL DISPOSITION).
Protected Material must be stored and maintained by a Receiving Party at a
location and in a secure manner that ensures that access is limited to the persons
authorized under this Order.
The parties agree that in order to make decisions regarding settlement,
Plaintiff may require access to the following information: (1) the identities of any
persons not named in the complaint who are known to Defendants to have sold the
items at issue in the case, (2) Defendants’ gross revenues, (3) Defendants’ profits, (4)
fabric yields, and (5) information regarding production fabrication. The parties agree
that, notwithstanding the inclusion of such information in a document marked
“ATTORNEY’S EYES ONLY,” Plaintiff’s counsel may orally communicate to
Plaintiff’s president (1) the identity of any person who sold the items at issue in this
case, (2) the amount of Defendants’ total gross revenues for sale of the items at issue in
this case, (3) the amount of Defendants’ gross profits for sale of the items at issue in this
case, (4) the amount of Defendants’ net profits for sale of the items at issue in this case,
(5) fabric yields, and (6) the identity of any person who produced the fabric at issue in
this case, provided that Plaintiff’s counsel advises Plaintiff’s president that the
information is confidential and subject to this protective order.
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7.2

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Receiving Party may disclose any information or item designated “CONFIDENTIAL”
only to:
(a)

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the Receiving Party’s outside counsel, as well as employees of

said outside counsel to whom it is reasonably necessary to disclose the information for
this litigation;
(b)

Board members, officers and directors of the Receiving Party;

(c)

Other employees of the Receiving Party to whom disclosure is

reasonably necessary for this litigation and who are bound by internal confidentiality
obligations as part of their employment or who have signed the “Acknowledgment and
Agreement to Be Bound” (Exhibit A);
(d)

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);
(e)

the Court personnel assigned to this litigation;

(f)

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Unless

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

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Disclosure of “CONFIDENTIAL” Information or Items.

court reporters, their staffs, 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);
(g)

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). 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; and
(h)

the author of the document or the original source of the

information.
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7.3

Unless otherwise ordered by the Court or permitted in writing by the Designating Party,
a Receiving Party may disclose any information or item designated “ATTORNEYS’
EYES ONLY” only to:
(a)

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the Receiving Party’s outside counsel, as well as employees of

said outside counsel to whom it is reasonably necessary to disclose the information for
this litigation;
(b)

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);
(c)

the Court personnel assigned to this litigation;

(d)

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Disclosure of “ATTORNEYS’ EYES ONLY” Information or Items.

court reporters, their staffs, 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
(e)

the author of the document or the original source of the

information.

8.

PROTECTED

MATERIAL

SUBPOENAED

OR

ORDERED

PRODUCED IN OTHER LITIGATION
If a Receiving Party is served with a subpoena or an order issued in other
litigation that would compel disclosure of any Discovery Material, the Receiving Party
must so notify the Designating Party unless prohibited by law, in writing immediately
and in no event more than five business days after receiving the subpoena or order.
Such notification must include a copy of the subpoena or court order. The Receiving
Party also must immediately inform 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 the subject of this Protective Order. In addition, the Receiving
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Party must deliver a copy of this Stipulated Protective Order promptly to the Party in
the other action that caused the subpoena or order to issue.
The purpose of imposing these duties is to alert the interested parties to the
existence of this Protective Order and to afford the Designating Party in this case an
opportunity to try to protect its confidentiality interests in the court from which the
subpoena or order issued.

9.

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 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.

10.

FILING PROTECTED MATERIAL

Without written permission from the Designating Party, or a court order secured
after appropriate notice to all interested persons and after following the procedures
provided for in Local Rule 79-5.1, a Party may not file in the public record in this action
any Protected Material.

11.

FINAL DISPOSITION

Unless otherwise ordered or agreed to in writing by the Producing Party, within
60 days after the final termination of this action, each Receiving Party must return all
Protected Material to the Producing Party or destroy the Protected Material. As used in
this subdivision, “all Protected Material” includes all copies, abstracts, compilations,
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summaries or any other form of reproducing or capturing any of the Protected Material.
Notwithstanding this provision, counsel are entitled to retain an archival copy of all
pleadings, motion papers, transcripts, legal memoranda, correspondence or attorney
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 as set forth in Section 4 (DURATION), above.

12.

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

any person to seek its modification 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.
12.3 Inadvertent Production of Privileged Documents. If a Party, through
inadvertence, produces any document or information that it believes is immune from
discovery pursuant to an attorney-client privilege, the work product privilege, or any
other privilege, such production shall not be deemed a waiver of any privilege, and the
Producing Party may give written notice to the Receiving Party that the document or
information produced is deemed privileged and that return of the document or
information is requested.

Upon receipt of such notice, the Receiving Party shall

immediately gather the original and all copies of the document or information of which
the Receiving Party is aware, in addition to any abstracts, summaries, or descriptions
thereof, and shall immediately return the original and all such copies to the Producing
Party. Nothing stated herein shall preclude a Party from challenging an assertion by the
other Party of privilege or confidentiality.
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12.4 Exception for Public Information. Nothing in this Stipulation shall
be deemed in any way to restrict the use of documents or information which are
lawfully obtained or publicly available to a party independently of discovery in this
action, whether or not the same material has been obtained during the course of
discovery in the action and whether or not such documents or information have been
designated hereunder. However, in the event of a dispute regarding such independent
acquisition, a party wishing to use any independently acquired documents or
information shall bear the burden of proving independent acquisition.

PURSUANT TO STIPULATION, IT IS SO ORDERED.

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By:
Honorable Jean P. Rosenbluth
United States Magistrate Judge

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EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

I, ________________________________________________ [print full name],
of ____________________________________________________ [print full address],
declare under penalty of perjury that I have read in its entirety and understand the
Stipulated Protective Order that was issued by the United States District Court for the
Central District of California in the case of City Prints, LLC v. Baldwin Sun, Inc., et al.
2:16-cv-08424-RGK-JPR. I agree to comply with and to be bound by all of the terms of
this Stipulated Protective Order and I understand and acknowledge that failure to so
comply could expose me to sanctions and punishment in the nature of contempt. I
solemnly promise that I will not disclose in any manner any information or item that is
subject to this Stipulated Protective Order to any person or entity except in strict
compliance with the provisions of this Order.
I further agree to submit to the jurisdiction of the United States District Court for
the Central District of California for the purpose of enforcing the terms of this
Stipulated Protective Order, even if such enforcement proceedings occur after
termination of this action.
I hereby appoint _____________________________________ [print full name]
of __________________________________________________ [print full address and
telephone number] as my California agent for service of process in connection with this
action or any proceedings related to enforcement of this Stipulated Protective Order.

Date: _________________________________
City and State where sworn and signed: _________________________________
Printed name: ______________________________
Signature: _________________________________
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