Unicolors Inc v. Cann Studio Inc et al

Filing 33

ORDER TO STIPULATED PROTECTIVE ORDER by Judge Manuel L. Real, re Stipulation 32 . See document for details. (gk)

1 Bryan King Sheldon (Bar No. 116219)
2 George Busu (Bar No. 235993)
LIMNEXUS LLP
3 1055 West Seventh Street, 28th Floor
4 Los Angeles, CA 90017
Telephone: [phone]
5 Facsimile: [phone]
6 E-mail: [e-mail]
[e-mail]
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8 Attorneys for Defendants, CANN STUDIO, INC.
and ROSS STORES, INC.
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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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UNICOLORS, INC., a California
14 corporation,
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Plaintiff,

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v.

18 CANN STUDIO, INC., individually and
d/b/a Oboe, a California Corporation;
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ROSS STORES, INC., individually and
20 d/b/a DD’s Discounts, a Delaware
Corporation; THE TJX COMPANIES,
21
INC., individually and d/b/a/Marshalls, a
22 Delaware Corporation; TOGETHERBE
LLC, individually and d/b/a R2D, a
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Colorado Limited Liability Company; and
24 DOES 1 through 10,
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Defendants.

Case No.: 2:16-cv-08678-R-GJS

ORDER TO STIPULATED
PROTECTIVE ORDER

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1.

PURPOSES AND LIMITATIONS
1.1

Stipulation and Acknowledgments

Discovery in this Action is 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
12.3 below, that this Stipulated Protective Order does not entitle them to file
confidential information under seal; Civil Local Rule 79-5 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.
1.2

Good Cause Statement

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
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information, to facilitate the prompt resolution of disputes over confidentiality of
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” or “HIGHLY CONFIDENTIALATTORNEYS’ EYES ONLY” for tactical reasons and that nothing be so designated
without a good faith belief that it has been maintained in a confidential, non-public
manner, and there is good cause why it should not be part of the public record of this
case.
2.

DEFINITIONS
2.1

Action: Unicolors, Inc. v. CANN Studio, Inc., et al, Case No. 2:16-cv-

08678-R-GJS United States District Court for the Central District of California.
2.2

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

designation of information or items under this Order.
2.3

“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), and as specified above in the
Good Cause Statement.
2.4

Counsel: Outside Counsel of Record (as well as their support staff) and

House Counsel (as well as their support staff).
2.5

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

ONLY.”
2.6

Disclosure or Discovery Material: all items or information, regardless

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of the medium or manner in which it is generated, stored, or maintained (including,
among other things, testimony, transcripts, and tangible things), that are produced or
generated in disclosures or responses to discovery in this matter.
2.7

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.
2.8

“HIGHLY

CONFIDENTIAL-ATTORNEYS’

ONLY”

Information or Items: information (regardless of how it is generated, stored or
maintained) or tangible things which are “CONFIDENTIAL” within the meaning of
the definition of Section 2.3 above which are extremely sensitive such that the
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, including but not
limited to information the disclosures of which the Producing Party believes in good
faith will cause harm to its business position.

Disclosure of “HIGHLY

CONFIDENTIAL-ATTORNEYS’ EYES ONLY” Information or Items is limited to
that as set forth in Section 7.3 below.
2.9

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.
2.10 Non-Party: any natural person, partnership, corporation, association, or
other legal entity not named as a Party to this Action.
2.11 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, and includes support staff.

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EYES

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2.12 Party: any Party to this Action, including all of its officers, directors,
employees, consultants, retained experts, and Outside Counsel of Record (and their
support staff).

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2.13 Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this Action.

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2.14 Professional Vendors: persons or entities that provide litigation
support services (e.g., photocopying, court reporter, transcription, 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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2.15 Protected Material: any Disclosure or Discovery Material that is
designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL- ATTORNEYS’
EYES ONLY.”

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

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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.

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SCOPE

Any use of Protected Material at trial shall be governed by the orders of the
trial judge. This Order does not govern the use of Protected Material at trial.
4.

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
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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. 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 the case development process or to impose
unnecessary expenses and burdens on other parties) may 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, that Designating Party must
promptly notify all other Parties that it is withdrawing the inapplicable designation.
5.2

Manner and Timing of Designations. Except as otherwise provided in

this Order (see, e.g., second section of Paragraph 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:
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(a)

documents, but excluding transcripts of depositions or other pretrial or trial
proceedings), that the Producing Party affix at a minimum, the legend
“CONFIDENTIAL”

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“HIGHLY

CONFIDENTIAL-ATTORNEYS’

EYES

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).
A Party or Non-Party that makes original documents available for inspection
need not designate them for protection until after the inspecting Party has indicated
which documents 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 “CONFIDENTIALITY legend” 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).
(b)

for testimony given in depositions that the Designating Party

identify the Disclosure or Discovery Material on the record, before the close of the
deposition all protected testimony.

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or

ONLY” (hereinafter “CONFIDENTIALITY legend”), to each page that contains

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

(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 is stored the
legend “CONFIDENTIAL.” If only a portion or portions of the information warrants
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protection, the Producing Party, to the extent practicable, shall identify the protected
portion(s).

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5.3

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.

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

designation of confidentiality at any time that is consistent with the Court’s
Scheduling Order.
6.2

Meet and Confer. The Challenging Party shall initiate the dispute

resolution process under Local Rule 37.1 et seq.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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Inadvertent Failures to Designate. If timely corrected, an inadvertent

6.3

Burden of Persuasion. The burden of persuasion in any such challenge

proceeding shall be on the Designating 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. Unless the
Designating Party has waived or withdrawn the confidentiality designation, 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.

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
Action only for prosecuting, defending, or attempting to settle this Action. Such
Protected Material may be disclosed only to the categories of persons and under the
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conditions described in this Order. When the Action has been terminated, a
Receiving Party must comply with the provisions of Paragraph 13 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.
7.2

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

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(a)

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(b)

(c)

designated

the Receiving Party’s Outside Counsel of Record in this Action,

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

Experts (as defined in this Order) of the Receiving Party to whom

the court and its personnel;

(e)

court reporters and their staff;

(f)

professional jury or trial consultants, mock jurors, and

Professional Vendors to whom disclosure is reasonably necessary for this Action and
who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(g)

the author or recipient of a document containing the information

or a custodian or other person who otherwise possessed or knew the information;

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item

(d)

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or

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

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information

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

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any

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

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disclose

necessary to disclose the information for this Action;

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may

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

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Party

“CONFIDENTIAL” only to:

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Disclosure of “CONFIDENTIAL” Information or Items. Unless

(h)

during their depositions, witnesses ,and attorneys for witnesses, in

the Action to whom disclosure is reasonably necessary provided: (1) the deposing
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party requests that the witness sign the form attached as Exhibit 1 hereto; and (2)
they will not be permitted to keep any confidential information unless they sign 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 may be
separately bound by the court reporter and may not be disclosed to anyone except as
permitted under this Stipulated Protective Order; and

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(i)

personnel, mutually agreed upon by any of the parties engaged in settlement
discussions.

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7.3

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

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necessary to disclose the information for this Action;
(b)

Agreement to Be Bound” (Exhibit A);
(c)

court reporters and their staff;

(e)

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the Court and its personnel;

(d)

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Experts (as defined in Paragraph 2.7) to whom disclosure is

reasonably necessary for this Action and who have signed the “Acknowledgment and

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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

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Disclosure of “HIGHLY CONFIDENTIAL-ATTORNEYS’ EYES

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

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any mediator or settlement officer, and their supporting

professional jury or trial consultants, mock jurors, and

Professional Vendors to whom disclosure is reasonably necessary for this Action and
who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(f)

or a custodian or the original source of the information;

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(g)

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or received a copy of the “HIGHLY CONFIDENTIAL-ATTORNEYS’ EYES
ONLY”

information

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Designating

Party

who

have

signed

the

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 Protective Order; and
(h)

any mediator or settlement officer, and their supporting

personnel, mutually agreed upon by any of the parties engaged in settlement
discussions, who have signed the “Acknowledgment and Agreement to Be Bound”
(Exhibit A).
(i)

Any active sitting judge of the United States District Court and

their supporting personnel are specifically exempt from the requirement to sign the
“Acknowledgment and Agreement to Be Bound” (Exhibit A).
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,” that Party must:
(a)

promptly notify in writing the Designating Party. Such

notification shall include a copy of the subpoena or court order;

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the

Order, unless otherwise agreed by the Designating Party or ordered by the Court.

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of

“Acknowledgment and Agreement to Be Bound” in Exhibit A to this Protective

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during their depositions, witnesses in the Action (and their

attorneys) who are current employees or former employees who originated, authored

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the author or recipient of a document containing the information

(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
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subpoena or order is subject to this Protective Order. Such notification shall include
a copy of this Stipulated Protective Order; and

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(c)

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” 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

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(a)

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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)

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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:

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The terms of this Order are applicable to information produced by

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

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cooperate with respect to all reasonable procedures sought to be

(i)

promptly notify in writing the Requesting Party and the

Non-Party that some or all of the information requested is subject to a confidentiality
agreement with a Non-Party;

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(ii)

Stipulated Protective Order in this Action, the relevant discovery request(s), and a
reasonably specific description of the information requested; and

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(iii)

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(c)

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If the Non-Party fails to seek a protective order from this 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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make the information requested available for inspection by

the Non-Party, if requested.

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promptly provide the Non-Party with a copy of the

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
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
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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.

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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.

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MISCELLANEOUS

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

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

Protected Material must comply with Civil Local Rule 79-5. Protected Material may
only be filed under seal pursuant to a court order authorizing the sealing of the
specific Protected Material at issue. If a Party's request to file Protected Material
under seal is denied by the court, then the Receiving Party may file the information
in the public record unless otherwise instructed by the court.
13.

FINAL DISPOSITION
After the final disposition of this Action, as defined in paragraph 4, 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. 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
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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. Notwithstanding this provision, Counsel are entitled to
retain an archival copy 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 as set forth in
Paragraph 4 (DURATION).
14.

VIOLATION. Any violation of this Order may be punished by any and all

appropriate measures including, without limitation, contempt proceedings and/or
monetary sanctions.
IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
Pursuant to Civil L.R. 5-4.3.4(a)(2)(i), the filer attests that all other signatories
listed, and on whose behalf this filing is submitted, concur in the filing’s content and
have authorized the filing.

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
DATED: April 27, 2017

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_____________________________________
Honorable Manuel L. Real
United States District Judge

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, _____________________________ [print or type full name], of

5 ___________________________________________________ [print or type full
6 address], declare under penalty of perjury that I have read in its entirety and
7 understand the Stipulated Protective Order that was issued by the United States
8 District Court for the Central District of California on _________________[date] in
9 the case of Unicolors, Inc. v. CANN Studio, Inc., et al, Case No. 2:16-cv-08678-R10 GJS, U.S. District Court Central District of California. I agree to comply with and to
11 be bound by all the terms of this Stipulated Protective Order and I understand and
12 acknowledge that failure to so comply could expose me to sanctions and punishment
13 in the nature of contempt. I solemnly promise that I will not disclose in any manner
14 any information or item that is subject to this Stipulated Protective Order to any
15 person or entity except in strict compliance with the provisions of this Order. I
16 further agree to submit to the jurisdiction of the United States District Court for the
17 Central District of California for the purpose of enforcing the terms of this Stipulated
18 Protective Order, even if such enforcement proceedings occur after termination of
19 this action. I hereby appoint __________________________ [print or type full
20 name] of _______________________________________ [print or type full address
21 and telephone number] as my California agent for service of process in connection
22 with this action or any proceedings related to enforcement of this Stipulated
23 Protective Order.
24 Date: ______________________________________
25 City and State where sworn and signed: _______________________________
26 Printed name: _______________________________________________
27 Signature: ____________________________________
28

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