Neman Brothers and Assoc., Inc. v. True Destiny, LLC et al

Filing 18

PROTECTIVE ORDER by Magistrate Judge Andrew J. Wistrich re Stipulation for Protective Order granted. 17 (SEE ATTACHED ORDER FOR FURTHER DETAILS.) (jsan)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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NEMAN BROTHERS & ASSOC.,
INC., a California Corporation;

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Plaintiff,

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vs.

Case No.: 2:16-cv-09224-JFW-AJW
STIPULATION FOR PROTECTIVE
ORDER

TRUE DESTINY, LLC, a New York
Limited Liability Company; ROSS
STORES, INC., D/B/A DD’S
Hon. John F. Walter, Judge Presiding
DISCOUNTS, INC., a California
Corporation; and DOES 1-10, inclusive,
Hon. Andrew J. Wistrich, Magistrate
Judge
Defendants.

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0989.013\9996

1
[PROPOSED] ORDER

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

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1.

A. PURPOSES AND LIMITATIONS

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Disclosure and discovery activity in this action are likely to involve

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production of confidential, proprietary, or private information for which special

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protection from public disclosure and from use for any purpose other than

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prosecuting this matter would be warranted.

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stipulated to and petitioned this Court to enter the following Stipulated Protective

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Order. The parties acknowledge that this Order does not confer blanket protections

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on all disclosures or responses to discovery and that the protection it affords

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extends only to the limited information or items that are entitled under the

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applicable legal principles to treatment as confidential. The parties have agreed

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that the terms of this Protective Order shall also apply to any future voluntary

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disclosures of confidential, proprietary, or private information. The parties reserve

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their rights to object to or withhold any information, including confidential,

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proprietary, or private information, on any other applicable grounds permitted by

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law, including third-party rights and relevancy. The parties further acknowledge,

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as set forth in Section 12.3, below, that this Stipulated Protective Order does not

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entitle them to file confidential information under seal; Civil Local Rule 79-5 sets

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forth the procedures that must be followed and the standards that will be applied

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when a party seeks permission from the court to file material under seal.

Accordingly, the parties have

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B. GOOD CAUSE STATEMENT

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This action involves claims for copyright infringement under the Copyright

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Act of 1976, Title 17 U.S.C., § 101 et seq.

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manufacturers, licensors and vendors of textile designs, and apparel distributors

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and retailers, are direct and/or indirect competitors of each other. In order to
0989.013\9996

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[PROPOSED] ORDER

The parties, who are variously

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establish their claims and defenses, the parties intend to seek discovery regarding

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information which the parties deem confidential, including but not limited to

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information regarding sales, vendor identities and preferences, customer identities

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and preferences, import and export practice, other financial information, and

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potentially other commercially and competitively sensitive information.

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There will also potentially be multiple depositions of the parties’ employees

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or agents and third party vendors, customers, licensees or clients and such persons

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will likely be asked to answer questions on these potentially sensitive subject areas.

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Because this matter will necessarily involve requests for disclosure of confidential

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information, a protective order is therefore necessary to avoid any prejudice or

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harm which would likely result if such information was disclosed in the absence of

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the protections set forth herein. Accordingly, to expedite the flow of information, to

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facilitate the prompt resolution of disputes over confidentiality of discovery

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

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

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

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

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information is justified in this matter.

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2.

DEFINITIONS
2.1

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

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directors, employees, consultants, retained experts, and outside counsel (and their

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support staff).
2.2 Challenging Party: a Party or Non-Party that challenges the

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designation of information or items under this Order.

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2.3

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Disclosure or Discovery Material: all items or information,

regardless of the medium or manner generated, stored, or maintained (including,
0989.013\9996

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[PROPOSED] ORDER

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among other things, testimony, transcripts, or tangible things), that are produced or

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generated in disclosures or responses to discovery in this matter.

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2.4A “Confidential” Information or Items: information (regardless of

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how it is generated, stored or maintained) or tangible things that qualify for

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protection under Federal Rule of Civil Procedure 26(c), and as specified above in

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the Good Cause Statement.
2.4B “Attorneys’ Eyes Only”:

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A Designating Party may only

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designate material ATTORNEYS’ EYES ONLY if it deems that disclosure of such

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material to another person or party would be injurious to the commercial interests

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of the designating entity under the standards of Rule 26 and that the material

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contains highly propriety technical or trade secret or business information so that

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the risk of improper use or disclosure to another party outweighs the right of that

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party to review such information.
2.5

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Material from a Producing Party.
2.6

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Receiving Party: a Party that receives Disclosure or Discovery

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

or Discovery Material in this action.
2.7

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Designating Party:

a Party or non-party that designates

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information or items that it produces in disclosures or in responses to discovery as

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“CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY.”
2.8

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Protected Material: any Disclosure or Discovery Material that

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

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Expert: a person with specialized knowledge or experience in a

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matter pertinent to the litigation who has been retained by a Party or its counsel to

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serve as an expert witness or as a consultant in this action. This definition includes

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a professional jury or trial consultant retained in connection with this litigation.

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The expert witness or consultant may not be a past or a current employee of the

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Party (including any affiliates or related entities) adverse to the Party engaging the
0989.013\9996

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[PROPOSED] ORDER

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expert witness or consultant, or someone who at the time of retention is anticipated

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to become an employee of the Party (including any affiliates or related entities)

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adverse to the Party engaging the expert witness or consultant.

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2.10 Professional Vendors: persons or entities that provide litigation

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support services (e.g., photocopying; videotaping; translating; preparing exhibits or

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demonstrations; organizing, storing, or retrieving data in any form or medium; etc.)

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and their employees and subcontractors.

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3.

SCOPE

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The protections conferred by this Stipulation and Order cover not only

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Protected Material (as defined above), but also any information copied or extracted

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therefrom, as well as all copies, excerpts, summaries, or compilations thereof, plus

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testimony, conversations, or presentations by parties or counsel to or in litigation or

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in other settings that might reveal Protected Material.

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4.

DURATION

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Once a case proceeds to trial, all of the information that was designated as

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confidential or maintained pursuant to this protective order becomes public and

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will be presumptively available to all members of the public, including the press,

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unless compelling reasons supported by specific factual findings to proceed

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otherwise are made to the trial judge in advance of the trial. See Kamakana v. City

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and County of Honolulu, 447 F.3d 1172, 1180-81 (9th Cir. 2006) (distinguishing

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“good cause” showing for sealing documents produced in discovery from

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“compelling reasons” standard when merits-related documents are part of court

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record). Accordingly, the terms of this protective order do not extend beyond the

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commencement of the trial.

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Even after the termination of this action, the confidentiality obligations

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imposed by this Order shall remain in effect until a Designating Party agrees
0989.013\9996

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[PROPOSED] ORDER

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otherwise in writing or a court order otherwise directs. Final disposition shall be

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deemed to be the later of (1) dismissal of all claims and defenses in this Action,

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with or without prejudice; and (2) final judgment herein after the completion and

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exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,

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including the time limits for filing any motions or applications for extension of

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time pursuant to applicable law.

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5.

DESIGNATING PROTECTED MATERIAL
5.1

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Exercise of Restraint and Care in Designating Material for

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Protection.

Each Party or non-party that designates information or items for

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protection under this Order must take care to limit any such designation to specific

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material that qualifies under the appropriate standards. A Designating Party must

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take care to designate for protection only those parts of material, documents, items,

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or oral or written communications that qualify – so that other portions of the

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material, documents, items, or communications for which protection is not

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warranted are not swept unjustifiably within the ambit of this Order.
5.2

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Manner and Timing of Designations.

Except as otherwise

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

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otherwise stipulated or ordered, material that qualifies for protection under this

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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)

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for information in documentary form (apart from

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transcripts of depositions or other pretrial or trial proceedings), that the Producing

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Party affix the legend “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” at

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the top or bottom of each page that contains protected material.

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A Party or non-party that makes originals or copies of

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documents or materials available for inspection need not designate them for

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protection until after the inspecting Party has indicated which material it intends to
0989.013\9996

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[PROPOSED] ORDER

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copy. During the inspection and before the designation, all of the material made

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available for inspection shall be deemed “ATTORNEYS’ EYES ONLY.” After

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the inspecting Party has identified the documents it wants copied and produced, the

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Producing Party must designate, either in writing or on the record (at a deposition),

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

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Then the Receiving Party must affix the “CONFIDENTIAL” or “ATTORNEYS’

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EYES ONLY” legend at the top of each copied page that contains Protected

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Material. If only a portion or portions of the material on a page qualifies for

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protection, the Producing Party also must clearly identify the protected portion(s)

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(e.g., by making appropriate markings in the margins) and must specify, for each

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portion, the level of protection being asserted (either “CONFIDENTIAL” or

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“ATTORNEYS’ EYES ONLY”).
(b)

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for testimony given in deposition or in other pretrial or

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trial proceedings, that the Party or non-party offering or sponsoring the testimony

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identify on the record, before the close of the deposition, hearing, or other

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proceeding, all protected testimony, and further specify any portions of the

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testimony that qualify as “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY.”

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When it is impractical to identify separately each portion of testimony that is

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entitled to protection, and when it appears that substantial portions of the testimony

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may qualify for protection, the Party or non-party that sponsors, offers, or gives the

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testimony may invoke on the record (before the deposition or proceeding is

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concluded) a right to have up to 30 days to identify the specific portions of the

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testimony as to which protection is sought and to specify the level of protection

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being asserted (“CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY”). Only

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those portions of the testimony that are appropriately designated for protection

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within the 30 days shall be covered by the provisions of this Stipulated Protective

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Order.

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0989.013\9996

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[PROPOSED] ORDER

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Transcript pages containing Protected Material must be

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separately bound by the court reporter, who must affix to the top of each such page

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the legend “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY,” as instructed

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by the Party or non-party offering or sponsoring the witness or presenting the

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testimony.
(c)

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for information produced in some form other than

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documentary, and for any other tangible items, that the Producing Party affix in a

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prominent place on the exterior of the container or containers in which the

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information or item is stored the legend “CONFIDENTIAL” or “ATTORNEYS’

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EYES ONLY.” If only portions of the information or item warrant protection, the

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Producing Party, to the extent practicable, shall identify the protected portions,

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specifying whether they qualify as “CONFIDENTIAL” or as “ATTORNEYS’

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EYES ONLY.”

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5.3

Inadvertent Failures to Designate.

failure

to

designate

qualified

If timely corrected, an

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inadvertent

information

or

items

as

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“CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” does not, standing alone,

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

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material. If material is appropriately designated as “CONFIDENTIAL” or

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“ATTORNEYS’ EYES ONLY” after the material was initially produced, the

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Receiving Party, on timely notification of the designation, must make reasonable

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efforts to assure that the material is treated in accordance with the provisions of this

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Order.

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6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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

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

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Scheduling Order.

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0989.013\9996

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[PROPOSED] ORDER

6.2

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Meet and Confer.

The Challenging Party shall initiate the

dispute resolution process under Local Rule 37.1 et seq.
6.3

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The burden of persuasion in any such challenge proceeding

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shall be on the Designating Party. Frivolous challenges, and those made for an

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

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

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Designating Party has waived or withdrawn the confidentiality designation, all

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parties shall continue to afford the material in question the level of protection to

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

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the challenge.

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7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

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Basic Principles.

A Receiving Party may use Protected

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Material that is disclosed or produced by another Party or by a non-party in

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connection with this case only for prosecuting, defending, or attempting to settle

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this litigation. Such Protected Material may be disclosed only to the categories of

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persons and under the conditions described in this Order. When the litigation has

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been terminated, a Receiving Party must comply with the provisions of section 11,

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below (FINAL DISPOSITION).

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Protected Material must be stored and maintained by a Receiving

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

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persons authorized under this Order.
7.2

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Disclosure of “CONFIDENTIAL” Information or Items.

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Unless otherwise ordered by the Court or permitted in writing by the Designating

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Party, a Receiving Party may disclose any information or item designated

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“CONFIDENTIAL” only to:

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0989.013\9996

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[PROPOSED] ORDER

(a)

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the Receiving Party’s outside counsel, as well as

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employees of said outside counsel to whom it is reasonably necessary to disclose

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the information for this litigation;
(b)

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the officers, directors, and employees (including in-house

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counsel) of the Receiving Party to whom disclosure is reasonably necessary for this

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Action;
(c)

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

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to whom disclosure is reasonably necessary for this litigation and who have signed

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

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(d)

the court and its personnel;

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(e)

court reporters and their staff;

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(f)

professional jury or trial consultants, mock jurors, and

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Professional Vendors to whom disclosure is reasonably necessary for this litigation

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and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit

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A);
(g)

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during their depositions, witnesses in the action to whom

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disclosure is reasonably necessary and who have signed the “Acknowledgment and

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Agreement to Be Bound” (Exhibit A). Pages of transcribed deposition testimony

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or exhibits to depositions that reveal Protected Material must be separately bound

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by the court reporter and may not be disclosed to anyone except as permitted under

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this Stipulated Protective Order; and
(h)

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the author of the document or the original source of the

information.
7.3

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Disclosure of “ATTORNEYS’ EYES ONLY” Information or

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Items. Unless otherwise ordered by the Court or permitted in writing by the

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Designating Party, a Receiving Party may disclose any information or item

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designated “ATTORNEYS’ EYES ONLY” only to:

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0989.013\9996

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[PROPOSED] ORDER

(a)

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the Receiving Party’s outside counsel, as well as

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employees of said outside counsel to whom it is reasonably necessary to disclose

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the information for this litigation;
(b)

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

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to whom disclosure is reasonably necessary for this litigation and who have signed

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

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(c)

the court and its personnel;

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(d)

court reporters and their staff;

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(e)

professional jury or trial consultants, mock jurors, and

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Professional Vendors to whom disclosure is reasonably necessary for this litigation

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and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit

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A);(f)

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reasonably necessary and who have signed the “Acknowledgment and Agreement

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to Be Bound” (Exhibit A). Pages of transcribed deposition testimony or exhibits to

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depositions that reveal Protected Material must be separately bound by the court

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reporter and may not be disclosed to anyone except as permitted under this

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Stipulated Protective Order; and

during their depositions, witnesses in the action to whom disclosure is

(g)

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the author of the document or the original source of the

information.

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8.

PROTECTED

MATERIAL

SUBPOENAED

OR

ORDERED

PRODUCED IN OTHER LITIGATION

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If a Receiving Party is served with a subpoena or an order issued in other

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litigation that would compel disclosure of any information or items designation in

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this case as CONFIDENTIAL or ATTORNEYS’ EYES ONLY, the Receiving

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Party must promptly notify the Designating Party. Such notification must include a

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copy of the subpoena or court order. The Receiving Party also must immediately

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inform in writing the Party who caused the subpoena or order to issue in the other
0989.013\9996

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[PROPOSED] ORDER

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litigation that some or all of the material covered by the subpoena or order is the

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subject of this Protective Order. In addition, the Receiving Party must deliver a

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copy of this Stipulated Protective Order promptly to the Party in the other action

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that caused the subpoena or order to issue. The Received Party must cooperate

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with respect to all reasonable procedures sought to be pursued by the Designating

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Party whose Protected Material may be affected.

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

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

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this action as “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” before a

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determination by the court from which the subpoena or order issued, unless the

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Party has obtained the Designating Party’s permission. The Designating Party shall

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bear the burden and expense of seeking protection in that court of its confidential

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material and nothing in these provisions should be construed as authorizing or

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encouraging a Receiving Party in this Action to disobey a lawful directive from

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another court.

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9.

PRODUCED IN THIS LITIGATION

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A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

(a)

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

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Non-Party in this case and designated as “CONFIDENTIAL” or “ATTORNEYS’

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EYES ONLY.” Such information produced by Non-Parties in connection with this

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litigation is protected by the remedies and relief provided by this Order. Nothing in

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these provisions should be construed as prohibiting a Non-Party from seeking

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additional protections.

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(b)

In the event that a Party is required, by a valid discovery request, to

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

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

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Confidential Information or Items, then the Party shall:
0989.013\9996

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[PROPOSED] ORDER

(1)

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promptly notify in writing the Requesting Party and the Non-

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

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agreement with a Non-Party;

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(2)

promptly provide the Non-Party with a copy of the Stipulated

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

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specific description of the information requested; and
(3)

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8

make the information requested available for inspection by the

Non-Party, if requested.
(4)

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If the Non-Party fails to seek a protective order from this court

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

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Receiving Party may produce the Non-Party’s confidential information or Items

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responsive to the discovery request. If the Non-Party timely seeks a protective

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order, the Receiving Party shall not produce any information in its possession or

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control that is subject to the confidentiality agreement with the Non-Party before a

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determination by the court. Absent a court order to the contrary, the Non-Party

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shall bear the burden and expense of seeking protection in this court of its

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Protected Material.

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10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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

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

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

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

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best efforts to retrieve all copies of the Protected Material, (c) inform the person or

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persons to whom unauthorized disclosures were made of all the terms of this Order,

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and (d) request such person or persons to execute the “Acknowledgment and

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Agreement to Be Bound” that is attached hereto as Exhibit A.

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0989.013\9996

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[PROPOSED] ORDER

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11.

INADVERTENT

PRODUCTION

OF

PRIVILEGED

OR

OTHERWISE PROTECTED MATERIAL

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3

When a Producing Party gives notice to Receiving Parties that certain

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

5

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

6

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

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

8

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

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

10

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

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

12

protective order submitted to the court.

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12.

FINAL DISPOSITION

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Unless otherwise ordered or agreed to in writing by the Producing Party,

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within 60 days after the final termination of this action, each Receiving Party must

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return all Protected Material to the Producing Party or destroy the Protected

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

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abstracts, compilations, summaries or any other form of reproducing or capturing

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any of the Protected Material. Notwithstanding this provision, counsel are entitled

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to retain an archival copy of all pleadings, motion papers, transcripts, legal

22

memoranda, correspondence or attorney work product, even if such materials

23

contain Protected Material. Any such archival copies that contain or constitute

24

Protected Material remain subject to this Protective Order as set forth in Section 4

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(DURATION), above.

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0989.013\9996

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[PROPOSED] ORDER

13.

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13.1 Right to Further Relief. Nothing in this Order abridges the right

2
3

MISCELLANEOUS

of any person to seek its modification by the Court in the future.

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13.2 Right to Assert Other Objections. By stipulating to the entry of

5

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

6

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

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

8

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

9

Order.

10

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

11

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

12

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

13

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

14

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

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in the public record unless otherwise instructed by the court.

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//

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//

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PURSUANT TO STIPULATION, IT IS SO ORDERED.

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Dated: March 13, 2017

By:
Hon. Andrew J. Wistrich,
Magistrate Judge

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0989.013\9996

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[PROPOSED] ORDER

EXHIBIT A

1
2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, ________________________________________________ [print full

4

name], of ____________________________________________________ [print

5

full address], declare under penalty of perjury that I have read in its entirety and

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understand the Stipulated Protective Order that was issued by the United States

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District Court for the Central District of California in the case of NEMAN

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BROTHERS & ASSOC., INC., v. TRUE DESTINY, LLC, Case No. 2:16-cv-09224-

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JFW-AJW. I agree to comply with and to be bound by all of the terms of this

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

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

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

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

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strict compliance with the provisions of this Order.

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

16

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

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this Stipulated Protective Order, even if such enforcement proceedings occur after

18

termination of this action.

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I hereby appoint _____________________________________ [print full

20

name] of __________________________________________________ [print full

21

address and telephone number] as my California agent for service of process in

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

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Stipulated Protective Order.

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25

Date: _________________________________

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City and State where sworn and signed: _________________________________

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Printed name: ______________________________

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Signature: _________________________________
0989.013\9996

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[PROPOSED] ORDER