Turn Key Wine Brands LLC v. Customvine Corp., et al

Filing 115

PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION by Magistrate Judge Alexander F. MacKinnon. re Stipulation for Protective Order 113 . (sbou)

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1 2 3 4 5 6 7 8 9 LOUIS M. CIAVARRA (admitted pro hac vice) lciavarra@bowditch.com DAVID VIENS (admitted pro hac vice) dviens@bowditch.com BOWDITCH & DEWEY, LLP 311 Main Street P.O. Box 15156 Worcester, MA 01615-0156 Telephone: +1 508 926 3408 Facsimile: +1 508 929 3011 Attorneys for Defendants Kevin Boyer, CustomVine Corp., Penrose Hill, Limited and Time, Inc. Attorney list continued on next page: UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 WESTERN DIVISION 12 13 TURN KEY WINE BRANDS LLC, 14 15 16 17 18 19 20 Plaintiff, v. CUSTOMVINE CORP.; PENROSE HILL, LIMITED; TIME, INC.; KEVIN BOYER; L18 WINES, LLC; L18 HOLDINGS, INC.; R B WINE ASSOCIATES, LLC; A W DIRECT, LLC; SPELLETICH FAMILY, INC.; GREGG & GREGG, INC.; PLATA WINE PARTNERS, LLC; and DOES 1-10, inclusive, 21 Case No.: 2:16-cv-09088-RGK-AFM [PROPOSED] PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION [Discovery Document: Referred to Magistrate Judge Alexander F. MacKinnon] Judge: Hon. R. Gary Klausner Defendants. 22 23 CUSTOMVINE CORP. and PENROSE HILL, LIMITED, 24 25 26 Counterclaimants, v. TURN KEY WINE BRANDS LLC, 27 Counterdefendant. 28 OHSUSA:767140543.3 [PROPOSED] STIP’D PROTECTIVE ORDER 2:16-CV-9088 1 2 3 4 5 6 7 8 MARK P. WINE (STATE BAR NO. 189897) mwine@orrick.com JAMES MAUNE (STATE BAR NO. 293923) jmaune@orrick.com ORRICK, HERRINGTON & SUTCLIFFE LLP 2050 Main Street Suite 1100 Irvine, CA 92614-8255 Telephone: +1 949 567 6700 Facsimile: +1 949 567 6710 Attorneys for Defendants Kevin Boyer, CustomVine Corp., Penrose Hill, Limited and Time, Inc. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 OHSUSA:767140543.3 -2- [PROPOSED] STIP’D PROTECTIVE ORDER 2:16-CV-9088 1 Plaintiff Turn Key Wine Brands LLC and Defendants CustomVine Corp, 2 Penrose Hill, Limited, Time, Inc., Kevin Boyer, L18 Wines, LLC, and L18 3 Holdings, Inc., by and through their respective counsel, acknowledge that the 4 discovery and pre-trial phase of this action is likely to involve the disclosure of 5 trade secrets and/or other confidential and proprietary business, technical or 6 financial information. Therefore, the parties hereby stipulate that the Court may 7 enter the following Stipulated Protective Order1 pursuant to Fed. R. Civ. P. 26(c). 8 9 1. 10 A. PURPOSES AND LIMITATIONS Discovery in this action is likely to involve production of confidential, 11 proprietary or private information for which special protection from public 12 disclosure and from use for any purpose other than prosecuting this litigation may 13 be warranted. Accordingly, the parties hereby stipulate to and petition the Court to 14 enter the following Stipulated Protective Order. The parties acknowledge that this 15 Order does not confer blanket protections on all disclosures or responses to 16 discovery and that the protection it affords from public disclosure and use extends 17 only to the limited information or items that are entitled to confidential treatment 18 under the applicable legal principles. 19 B. 20 21 GOOD CAUSE STATEMENT This action is likely to involve trade secrets, customer and pricing lists and 22 other valuable research, development, commercial, financial, technical and/or 23 proprietary information for which special protection from public disclosure and 24 from use for any purpose other than prosecution of this action is warranted. Such 25 confidential and proprietary materials and information consist of, among other 26 things, confidential business or financial information, information regarding 27 28 1 This Stipulated Protective Order is based substantially on the model protective order provided under Magistrate Judge Alexander F. MacKinnon’s Procedures. OHSUSA:767140543.3 [PROPOSED] STIP’D PROTECTIVE ORDER 2:16-CV-9088 1 confidential business practices, or other confidential research, development, or 2 commercial information (including information implicating privacy rights of third 3 parties), information otherwise generally unavailable to the public, or which may be 4 privileged or otherwise protected from disclosure under state or federal statutes, 5 court rules, case decisions, or common law. Accordingly, to expedite the flow of 6 information, to facilitate the prompt resolution of disputes over confidentiality of 7 discovery materials, to adequately protect information the parties are entitled to 8 keep confidential, to ensure that the parties are permitted reasonable necessary uses 9 of such material in preparation for and in the conduct of trial, to address their 10 handling at the end of the litigation, and serve the ends of justice, a protective order 11 for such information is justified in this matter. It is the intent of the parties that 12 information will not be designated as confidential for tactical reasons and that 13 nothing be so designated without a good faith belief that it has been maintained in a 14 confidential, non-public manner, and there is good cause why it should not be part 15 of the public record of this case. 16 17 18 19 C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL The parties further acknowledge, as set forth in Section 12.3, below, that this 20 Stipulated Protective Order does not entitle them to file confidential information 21 under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed 22 and the standards that will be applied when a party seeks permission from the court 23 to file material under seal. 24 There is a strong presumption that the public has a right of access to judicial 25 proceedings and records in civil cases. In connection with non-dispositive motions, 26 good cause must be shown to support a filing under seal. See Kamakana v. City and 27 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors 28 Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics, OHSUSA:767140543.3 -2- [PROPOSED] STIP’D PROTECTIVE ORDER 2:16-CV-9088 1 Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders 2 require good cause showing), and a specific showing of good cause or compelling 3 reasons with proper evidentiary support and legal justification, must be made with 4 respect to Protected Material that a party seeks to file under seal. The parties’ mere 5 designation of Disclosure or Discovery Material as CONFIDENTIAL does not— 6 without the submission of competent evidence by declaration, establishing that the 7 material sought to be filed under seal qualifies as confidential, privileged, or 8 otherwise protectable—constitute good cause. 9 Further, if a party requests sealing related to a dispositive motion or trial, 10 then compelling reasons, not only good cause, for the sealing must be shown, and 11 the relief sought shall be narrowly tailored to serve the specific interest to be 12 protected. See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir. 13 2010). For each item or type of information, document, or thing sought to be filed 14 or introduced under seal in connection with a dispositive motion or trial, the party 15 seeking protection must articulate compelling reasons, supported by specific facts 16 and legal justification, for the requested sealing order. Again, competent evidence 17 supporting the application to file documents under seal must be provided by 18 declaration. 19 Any document that is not confidential, privileged, or otherwise protectable in 20 its entirety will not be filed under seal if the confidential portions can be redacted. 21 If documents can be redacted, then a redacted version for public viewing, omitting 22 only the confidential, privileged, or otherwise protectable portions of the document, 23 shall be filed. Any application that seeks to file documents under seal in their 24 entirety should include an explanation of why redaction is not feasible. 25 26 2. DEFINITIONS 27 2.1 28 related actions.] Action: [this pending federal lawsuit]. [*Option: consolidated or OHSUSA:767140543.3 -3- [PROPOSED] STIP’D PROTECTIVE ORDER 2:16-CV-9088 1 2 3 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 4 how it is generated, stored or maintained) or tangible things that qualify for 5 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 6 the Good Cause Statement. 7 8 9 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 10 items that it produces in disclosures or in responses to discovery as 11 “CONFIDENTIAL.” 12 2.6 Disclosure or Discovery Material: all items or information, regardless 13 of the medium or manner in which it is generated, stored, or maintained (including, 14 among other things, testimony, transcripts, and tangible things), that are produced 15 or generated in disclosures or responses to discovery in this matter. 16 2.7 Expert: a person with specialized knowledge or experience in a matter 17 pertinent to the litigation who has been retained by a Party or its counsel to serve as 18 an expert witness or as a consultant in this Action. 19 2.8 House Counsel: attorneys who are employees of a party to this Action. 20 House Counsel does not include Outside Counsel of Record or any other outside 21 counsel. 22 23 2.9 Non-Party: any natural person, partnership, corporation, association or other legal entity not named as a Party to this action. 24 2.10 Outside Counsel of Record: attorneys who are not employees of a 25 party to this Action but are retained to represent or advise a party to this Action and 26 have appeared in this Action on behalf of that party or are affiliated with a law firm 27 that has appeared on behalf of that party, and includes support staff. 28 OHSUSA:767140543.3 -4- [PROPOSED] STIP’D PROTECTIVE ORDER 2:16-CV-9088 1 2.11 Party: any party to this Action, including all of its officers, directors, 2 employees, consultants, retained experts, and Outside Counsel of Record (and their 3 support staffs). 4 5 2.12 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this Action. 6 2.13 Professional Vendors: persons or entities that provide litigation 7 support services (e.g., photocopying, videotaping, translating, preparing exhibits or 8 demonstrations, and organizing, storing, or retrieving data in any form or medium) 9 and their employees and subcontractors. 10 11 2.14 Protected Material: any Disclosure or Discovery Material that is designated as “CONFIDENTIAL.” 12 13 14 15 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing Party. 3. SCOPE 16 The protections conferred by this Stipulation and Order cover not only 17 Protected Material (as defined above), but also (1) any information copied or 18 extracted from Protected Material; (2) all copies, excerpts, summaries, or 19 compilations of Protected Material; and (3) any testimony, conversations, or 20 presentations by Parties or their Counsel that might reveal Protected Material. 21 22 23 24 25 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 Once a case proceeds to trial, information that was designated as 26 CONFIDENTIAL or maintained pursuant to this protective order used or 27 introduced as an exhibit at trial becomes public and will be presumptively available 28 to all members of the public, including the press, unless compelling reasons OHSUSA:767140543.3 -5- [PROPOSED] STIP’D PROTECTIVE ORDER 2:16-CV-9088 1 supported by specific factual findings to proceed otherwise are made to the trial 2 judge in advance of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing 3 “good cause” showing for sealing documents produced in discovery from 4 “compelling reasons” standard when merits-related documents are part of court 5 record). Accordingly, the terms of this protective order do not extend beyond the 6 commencement of the trial. 7 8 9 5. DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. 10 Each Party or Non-Party that designates information or items for protection under 11 this Order must take care to limit any such designation to specific material that 12 qualifies under the appropriate standards. The Designating Party must designate for 13 protection only those parts of material, documents, items or oral or written 14 communications that qualify so that other portions of the material, documents, 15 items or communications for which protection is not warranted are not swept 16 unjustifiably within the ambit of this Order. 17 Mass, indiscriminate or routinized designations are prohibited. Designations 18 that are shown to be clearly unjustified or that have been made for an improper 19 purpose (e.g., to unnecessarily encumber the case development process or to 20 impose unnecessary expenses and burdens on other parties) may expose the 21 Designating Party to sanctions. 22 If it comes to a Designating Party’s attention that information or items that it 23 designated for protection do not qualify for protection, that Designating Party must 24 promptly notify all other Parties that it is withdrawing the inapplicable designation. 25 5.2 Manner and Timing of Designations. Except as otherwise provided in 26 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 27 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 28 OHSUSA:767140543.3 -6- [PROPOSED] STIP’D PROTECTIVE ORDER 2:16-CV-9088 1 under this Order must be clearly so designated before the material is disclosed or 2 produced. 3 4 Designation in conformity with this Order requires: (a) for information in documentary form (e.g., paper or electronic 5 documents, but excluding transcripts of depositions or other pretrial or trial 6 proceedings), that the Producing Party affix at a minimum, the legend 7 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that 8 contains protected material. If only a portion of the material on a page qualifies for 9 protection, the Producing Party also must clearly identify the protected portion(s) 10 (e.g., by making appropriate markings in the margins). 11 A Party or Non-Party that makes original documents available for inspection 12 need not designate them for protection until after the inspecting Party has indicated 13 which documents it would like copied and produced. During the inspection and 14 before the designation, all of the material made available for inspection shall be 15 deemed “CONFIDENTIAL.” After the inspecting Party has identified the 16 documents it wants copied and produced, the Producing Party must determine 17 which documents, or portions thereof, qualify for protection under this Order. Then, 18 before producing the specified documents, the Producing Party must affix the 19 “CONFIDENTIAL legend” to each page that contains Protected Material. If only a 20 portion of the material on a page qualifies for protection, the Producing Party also 21 must clearly identify the protected portion(s) (e.g., by making appropriate markings 22 in the margins). 23 (b) for testimony given in depositions that the Designating Party 24 identifies the Disclosure or Discovery Material on the record, before the close of 25 the deposition all protected testimony. 26 (c) for information produced in some form other than documentary and 27 for any other tangible items, that the Producing Party affix in a prominent place on 28 the exterior of the container or containers in which the information is stored the OHSUSA:767140543.3 -7- [PROPOSED] STIP’D PROTECTIVE ORDER 2:16-CV-9088 1 legend “CONFIDENTIAL.” If only a portion or portions of the information 2 warrants protection, the Producing Party, to the extent practicable, shall identify the 3 protected portion(s). 4 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 5 failure to designate qualified information or items does not, standing alone, waive 6 the Designating Party’s right to secure protection under this Order for such 7 material. Upon timely correction of a designation, the Receiving Party must make 8 reasonable efforts to assure that the material is treated in accordance with the 9 provisions of this Order. 10 11 12 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 13 designation of confidentiality at any time that is consistent with the Court’s 14 Scheduling Order. 15 16 17 18 19 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process under Local Rule 37-1 et seq. 6.3 Joint Stipulation. Any challenge submitted to the Court shall be via a joint stipulation pursuant to Local Rule 37-2. 6.4 The burden of persuasion in any such challenge proceeding shall be on 20 the Designating Party. Frivolous challenges, and those made for an improper 21 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 22 parties) may expose the Challenging Party to sanctions. Unless the Designating 23 Party has waived or withdrawn the confidentiality designation, all parties shall 24 continue to afford the material in question the level of protection to which it is 25 entitled under the Producing Party’s designation until the Court rules on the 26 challenge. 27 28 OHSUSA:767140543.3 -8- [PROPOSED] STIP’D PROTECTIVE ORDER 2:16-CV-9088 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 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 conditions described in this Order. When the Action has been terminated, a Receiving Party must comply with the provisions of section 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 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any information or item designated “CONFIDENTIAL” only to: (a) the Receiving Party’s Outside Counsel of Record in this Action, as well as employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the information for this Action; (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 disclosure is reasonably necessary for this Action and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); (d) the court and its personnel; (e) court reporters and their staff; 27 28 OHSUSA:767140543.3 -9- [PROPOSED] STIP’D PROTECTIVE ORDER 2:16-CV-9088 1 (f) professional jury or trial consultants, mock jurors, and Professional 2 Vendors to whom disclosure is reasonably necessary for this Action and who have 3 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 4 5 (g) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information; 6 (h) during their depositions, witnesses, and attorneys for witnesses, in 7 the Action to whom disclosure is reasonably necessary provided: (1) the deposing 8 party requests that the witness sign the form attached as Exhibit 1 hereto; and (2) 9 they will not be permitted to keep any confidential information unless they sign the 10 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 11 agreed by the Designating Party or ordered by the court. Pages of transcribed 12 deposition testimony or exhibits to depositions that reveal Protected Material may 13 be separately bound by the court reporter and may not be disclosed to anyone 14 except as permitted under this Stipulated Protective Order; and 15 16 17 18 19 20 (i) any mediator or settlement officer, and their supporting personnel, mutually agreed upon by any of the parties engaged in settlement discussions. 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 21 that compels disclosure of any information or items designated in this Action as 22 “CONFIDENTIAL,” that Party must: 23 24 25 (a) promptly notify in writing the Designating Party. Such notification shall include a copy of the subpoena or court order; (b) promptly notify in writing the party who caused the subpoena or 26 order to issue in the other litigation that some or all of the material covered by the 27 subpoena or order is subject to this Protective Order. Such notification shall include 28 a copy of this Stipulated Protective Order; and OHSUSA:767140543.3 - 10 - [PROPOSED] STIP’D PROTECTIVE ORDER 2:16-CV-9088 1 2 (c) cooperate with respect to all reasonable procedures sought to be pursued by the Designating Party whose Protected Material may be affected. 3 If the Designating Party timely seeks a protective order, the Party served with 4 the subpoena or court order shall not produce any information designated in this 5 action as “CONFIDENTIAL” before a determination by the court from which the 6 subpoena or order issued, unless the Party has obtained the Designating Party’s 7 permission. The Designating Party shall bear the burden and expense of seeking 8 protection in that court of its confidential material and nothing in these provisions 9 should be construed as authorizing or encouraging a Receiving Party in this Action 10 11 12 13 14 to disobey a lawful directive from another court. 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION (a) The terms of this Order are applicable to information produced by a 15 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information 16 produced by Non-Parties in connection with this litigation is protected by the 17 remedies and relief provided by this Order. Nothing in these provisions should be 18 construed as prohibiting a Non-Party from seeking additional protections. 19 (b) In the event that a Party is required, by a valid discovery request, to 20 produce a Non-Party’s confidential information in its possession, and the Party is 21 subject to an agreement with the Non-Party not to produce the Non-Party’s 22 confidential information, then the Party shall: 23 (1) promptly notify in writing the Requesting Party and the Non- 24 Party that some or all of the information requested is subject to a confidentiality 25 agreement with a Non-Party; 26 (2) promptly provide the Non-Party with a copy of the Stipulated 27 Protective Order in this Action, the relevant discovery request(s), and a reasonably 28 specific description of the information requested; and OHSUSA:767140543.3 - 11 - [PROPOSED] STIP’D PROTECTIVE ORDER 2:16-CV-9088 1 2 (3) make the information requested available for inspection by the Non-Party, if requested. 3 (c) If the Non-Party fails to seek a protective order from this court 4 within 14 days of receiving the notice and accompanying information, the 5 Receiving Party may produce the Non-Party’s confidential information responsive 6 to the discovery request. If the Non-Party timely seeks a protective order, the 7 Receiving Party shall not produce any information in its possession or control that 8 is subject to the confidentiality agreement with the Non-Party before a 9 determination by the court. Absent a court order to the contrary, the Non-Party shall 10 bear the burden and expense of seeking protection in this court of its Protected 11 Material. 12 13 10. 14 UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 15 Protected Material to any person or in any circumstance not authorized under this 16 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 17 writing the Designating Party of the unauthorized disclosures, (b) use its best 18 efforts to retrieve all unauthorized copies of the Protected Material, (c) inform the 19 person or persons to whom unauthorized disclosures were made of all the terms of 20 this Order, and (d) request such person or persons to execute the “Acknowledgment 21 and Agreement to Be Bound” that is attached hereto as Exhibit A. 22 23 24 25 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL When a Producing Party gives notice to Receiving Parties that certain 26 inadvertently produced material is subject to a claim of privilege or other 27 protection, the obligations of the Receiving Parties are those set forth in Federal 28 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify OHSUSA:767140543.3 - 12 - [PROPOSED] STIP’D PROTECTIVE ORDER 2:16-CV-9088 1 whatever procedure may be established in an e-discovery order that provides for 2 production without prior privilege review. Pursuant to Federal Rule of Evidence 3 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure 4 of a communication or information covered by the attorney-client privilege or work 5 product protection, the parties may incorporate their agreement in the stipulated 6 protective order submitted to the court. 7 8 12. 9 10 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. 11 12.2 Right to Assert Other Objections. By stipulating to the entry of this 12 Protective Order, no Party waives any right it otherwise would have to object to 13 disclosing or producing any information or item on any ground not addressed in 14 this Stipulated Protective Order. Similarly, no Party waives any right to object on 15 any ground to use in evidence of any of the material covered by this Protective 16 Order. 17 12.3 Filing Protected Material. A Party that seeks to file under seal any 18 Protected Material must comply with Local Civil Rule 79-5. Protected Material 19 may only be filed under seal pursuant to a court order authorizing the sealing of the 20 specific Protected Material at issue. If a Party’s request to file Protected Material 21 under seal is denied by the court, then the Receiving Party may file the information 22 in the public record unless otherwise instructed by the court. 23 24 25 13. FINAL DISPOSITION After the final disposition of this Action, as defined in paragraph 4, within 60 26 days of a written request by the Designating Party, each Receiving Party must 27 return all Protected Material to the Producing Party or destroy such material. As 28 used in this subdivision, “all Protected Material” includes all copies, abstracts, OHSUSA:767140543.3 - 13 - [PROPOSED] STIP’D PROTECTIVE ORDER 2:16-CV-9088 1 compilations, summaries, and any other format reproducing or capturing any of the 2 Protected Material. Whether the Protected Material is returned or destroyed, the 3 Receiving Party must submit a written certification to the Producing Party (and, if 4 not the same person or entity, to the Designating Party) by the 60 day deadline that 5 (1) identifies (by category, where appropriate) all the Protected Material that was 6 returned or destroyed and (2) affirms that the Receiving Party has not retained any 7 copies, abstracts, compilations, summaries or any other format reproducing or 8 capturing any of the Protected Material. Notwithstanding this provision, Counsel 9 are entitled to retain an archival copy of all pleadings, motion papers, trial, 10 deposition, and hearing transcripts, legal memoranda, correspondence, deposition 11 and trial exhibits, expert reports, attorney work product, and consultant and expert 12 work product, even if such materials contain Protected Material. Any such archival 13 copies that contain or constitute Protected Material remain subject to this Protective 14 Order as set forth in Section 4 (DURATION). 15 16 17 18 14. VIOLATION Any violation of this Order may be punished by appropriate measures including, without limitation, contempt proceedings and/or monetary sanctions. 19 20 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 21 DATED: 9/7/2017 22 23 24 ALEXANDER F. MacKINNON United States Magistrate Judge 25 26 27 28 OHSUSA:767140543.3 - 14 - [PROPOSED] STIP’D PROTECTIVE ORDER 2:16-CV-9088 1 2 EXHIBIT A ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 4 I, ________________________________________ [print or type full name], 5 of ________________________________ [print or type full address], declare 6 under penalty of perjury that I have read in its entirely and understand the 7 Stipulated Protective Order that was issued by the United States District Court for 8 the Central District of California on [date] in the case of Turn Key Wine Brands 9 LLC v. CustomVine Corp., et al., Case No. 2:16-CV-09088-RGK-AFM. I agree to 10 comply with and to be bound by all the terms of this Stipulated Protective Order 11 and I understand and acknowledge that failure to so comply could expose me to 12 sanctions and punishment in the nature of contempt. I solemnly promise that I will 13 not disclose in any manner any information or item that is subject to this Stipulated 14 Protective Order to any person or entity except in strict compliance with the 15 provisions of this Order. 16 I further agree to submit to the jurisdiction of the United States District Court 17 for the Central District of California for the purpose of enforcing the terms of this 18 Stipulated Protective Order, even if such enforcement proceedings occur after 19 termination of this action. I hereby appoint ______________________________ 20 [print or type full name] of ___________________________ [print or type full 21 address and telephone number] as my California agent for service of process in 22 connection with this action or any proceedings related to enforcement of this 23 Stipulated Protective Order. 24 25 26 Date: __________________________ City and State where sworn and signed: __________________________ 27 28 Printed name OHSUSA:767140543.3 Signature - 15 - [PROPOSED] STIP’D PROTECTIVE ORDER 2:16-CV-9088

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