Body Jewelz Inc v. Valley Forge Insurance Company et al

Filing 48


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NOTE: CHANGES MADE BY THE COURT 1 Aaron M. McKown (SBN No. 208781) Paula L. Zecchini (SBN No. 238731) 2 Jeffrey M. Monhait (admitted pro hac vice) COZEN O’CONNOR 3 601 S. Figueroa Street, Suite 3700 Los Angeles, CA 90017 4 Telephone: 213-892-7900 Facsimile: 213-892-7999 5 E-Mail: pzecchini 6 7 Attorneys for Defendant GODADDY.COM, LLC 8 (erroneously sued as GoDaddy, Inc.) 9 UNITED STATES DISTRICT COURT 10 FOR THE CENTRAL DISTRICT OF CALIFORNIA 11 BODY JEWELZ, INC., Case No.: 2:17-cv-00140-ODW (PLAx) 12 STIPULATION AND PROTECTIVE ORDER 13 Plaintiff, vs. 14 VALLEY FORGE INSURANCE COMPANY; CNA FINANCIAL 15 CORPORATION; CNA EQUIPMENT BREAKDOWN RISK CONTROL; 16 GODADDY, INC.; and DOES 1 through 100, 17 Defendants. 18 Magistrate: Hon. Paul L. Abrams Discovery Cutoff: March 5, 2018 Pretrial Conference: May 14, 2018 Trial Date: June 5, 2018 [DISCOVERY MATTER] 19 20 21 22 23 24 25 26 27 28 STIPULATION AND PROTECTIVE ORDER 1 The parties agree that the disclosure and discovery activity in the above- 2 captioned litigation may require the disclosure of documents, things, and information 3 (collectively, “Information”) in the possession, custody, or control of the named 4 parties in this case, Plaintiff Body Jewelz, Inc. (“Plaintiff”), and Defendants 5, LLC (“GoDaddy”) and Valley Forge Insurance Company (“Valley 6 Forge”), as well as other parties who may be added to this case at a later date, and 7 non-parties, which may be protected under constitutional, statutory, or common law 8 rights to privacy, be subject to contractual restrictions, or constitute or contain trade 9 secrets or other confidential research, development, commercial, or proprietary 10 information. 11 Without waiver of objections to the discoverability of any documents, the 12 parties intend to provide a mechanism for the discovery of relevant Information, 13 otherwise not objectionable, in a manner which protects all parties, including non14 parties to this litigation, from the risk of disclosure of such confidential Information. 15 NOW, WHEREFORE, good cause having been shown, the parties in the above- 16 captioned litigation hereby STIPULATE AND AGREE, and the Court HEREBY 17 ORDERS AS FOLLOWS: 18 1. 19 This action involves, among other things, GoDaddy’s business operations Introduction and Scope 20 related to the provision of hosting services, and as such may require the production of 21 information not currently in the public domain and containing trade secrets, know22 how, proprietary data, commercially sensitive information, or other confidential 23 information, including, without limitation, technical, sales, marketing, underwriting, 24 employee, business, financial, privacy, and other proprietary information. This action 25 also involves Plaintiff’s business operations related to its website, as well as Valley 26 Forge’s business operations related to the provision of insurance, and as such may 27 require the disclosure of information not currently in the public domain and containing 28 trade secrets, know-how, proprietary data, commercially sensitive information, or 1 STIPULATION AND PROTECTIVE ORDER 1 other confidential information, including, without limitation, technical, sales, 2 marketing, underwriting, employee, business, financial, privacy, and other proprietary 3 information. 4 This Protective Order shall protect against the disclosure of such confidential 5 and private information that should not be publicly available and shall govern any 6 designated record or information produced in this action, including all designated 7 motions and other papers submitted to the Court, all designated deposition testimony, 8 all designated testimony, interrogatory answers, documents and other discovery 9 materials, whether produced informally or in response to interrogatories, requests for 10 admissions, requests for production of documents, subpoenas, or other formal method 11 of discovery. 12 2. 13 This action is likely to involve trade secrets, customer financial information and Good Cause Statement 14 other valuable commercial, financial, technical and/or proprietary information for 15 which special protection from public disclosure and from use for any purpose other 16 than prosecution of this action is warranted. Such confidential and proprietary 17 materials and information consist of, among other things, confidential business or 18 financial information, information regarding confidential business practices, or other 19 confidential research, development, or commercial information (including information 20 implicating privacy rights of third parties), information otherwise generally 21 unavailable to the public, or which may be privileged or otherwise protected from 22 disclosure under state or federal statutes, court rules, case decisions, or common law. 23 Accordingly, to expedite the flow of information, to facilitate the prompt resolution of 24 disputes over confidentiality of discovery materials, to adequately protect information 25 the parties are entitled to keep confidential, to ensure that the parties are permitted 26 reasonable necessary uses of such material in preparation for and in the conduct of 27 trial, to address their handling at the end of the litigation, and serve the ends of justice, 28 a protective order for such information is justified in this matter. It is the intent of the 2 STIPULATION AND PROTECTIVE ORDER 1 parties that information will not be designated as confidential for tactical reasons and 2 that nothing be so designated without a good faith belief that it has been maintained in 3 a confidential, non-public manner, and there is good cause why it should not be part of 4 the public record of this case. 5 3. 6 Each party shall have the right to designate as confidential and subject to this Designation – CONFIDENTIAL. 7 Protective Order any thing, information, document, or portion of any document 8 produced or prepared by it in this litigation which the producing party deems to 9 contain trade secrets, know-how, proprietary data, commercially sensitive information, 10 or other confidential information, including, without limitation, technical, sales, 11 marketing, underwriting, employee, business, financial, privacy, and other proprietary 12 information (“Confidential Information”). 13 This designation shall be made by stamping each page of a document 14 containing Confidential Information with the legend CONFIDENTIAL, at or before 15 production to the receiving party. In the event a party inadvertently produces 16 Confidential Information without such legend, that party shall promptly furnish 17 written notice to the receiving party that the Confidential Information is designated 18 CONFIDENTIAL under this Protective Order along with appropriately labeled copies 19 of the Confidential Information. Such post-production designation of Confidential 20 Information shall not, under any circumstance, be deemed a waiver, in whole or in 21 part, of the right to assert confidentiality or of the protections of this Protective Order, 22 and shall not entitle the receiving party or its attorneys to disclose such information in 23 violation of this Protective Order. 24 Any Confidential Information not reduced to documentary, electronic, tangible, 25 or physical form, or which cannot be easily stamped may be designated by providing 26 written notice of such designation and the designation of any storage media shall 27 extend to the contents of such storage media. Materials provided for inspection by a 28 party’s counsel need not be designated as Confidential Information until copies of the 3 STIPULATION AND PROTECTIVE ORDER 1 materials are requested after inspection and selection by counsel. Making 2 Confidential Information available for inspection shall not constitute a waiver of any 3 claim of confidentiality, or privilege, and all materials provided for inspection by a 4 party’s counsel shall be treated as though designated as CONFIDENTIAL at the time 5 of the inspection. 6 4. 7 Each party and all persons bound by the terms of this Protective Order shall use Limit on Use of Confidential Information. 8 any Confidential Information governed by this Protective Order only for the purpose 9 of prosecution, defense, or settlement of the captioned action; no party or other person 10 shall use any Confidential Information governed by this Protective Order for any 11 purpose other than the prosecution, defense, or settlement of the captioned action. 12 5. 13 Except as otherwise provided by written stipulation of the parties, or by further Material Designated CONFIDENTIAL. 14 order of the Court, Confidential Information designated as CONFIDENTIAL shall 15 only be disclosed by the receiving party in furtherance of the prosecution, defense, or 16 settlement of the captioned action) and only to: 17 A. The attorneys of record at (1) Cozen O’Connor P.C., (2) Selik and 18 Associates APC, (3) CNA Coverage Litigation Group, and (4) CNA 19 Coverage Counsel, including their respective paralegals, secretaries, and 20 other support staff; 21 B. Experts (whether acting as testifying experts or non-testifying 22 consultants) and their staff retained by the receiving party for the purpose of 23 providing advice, an expert opinion and/or testifying at the trial at this 24 matter, and subject to Paragraph 6, infra; 25 C. Non-parties specifically retained to assist the attorneys of record or a 26 party in copying or computer coding of documents, organizing, filing, 27 translating, converting, storing or retrieving data, or designing programs for 28 handling data connected with this action, including the performance of such 4 STIPULATION AND PROTECTIVE ORDER 1 duties in relation to a computerized litigation support system, but only for 2 purposes of performing such services in connection with this litigation; 3 D. The Court and Court personnel as provided in Paragraphs 9 and 11, infra; 4 E. The parties to this action, but only for purposes of prosecution, defense, 5 or settlement of the captioned action; 6 F. Any court reporter employed in this litigation and acting in that capacity; 7 and 8 G. Author(s), addressee(s), subject(s), and recipient(s) of the Confidential 9 Information. 10 6. 11 A party desiring to disclose Confidential Information designated as Identification of Experts. 12 CONFIDENTIAL to outside experts (whether acting as testifying experts or non13 testifying consultants) under Paragraph 5, supra, (“Disclosing Party”) shall first obtain 14 from each expert a signed undertaking in the form of Exhibit A hereto. 15 7. 16 Confidential Information designated CONFIDENTIAL shall include (a) all Related Documents. 17 copies, extracts, and complete or partial summaries prepared from such information; 18 (b) portions of deposition transcripts and exhibits thereto which contain or reflect the 19 content of any such information, copies, extracts, or summaries of it; (c) portions of 20 affidavits, briefs, memoranda, or any other writing filed with the Court and exhibits 21 thereto which contain or reflect the content of any such information, copies, extracts, 22 or summaries of it; (d) deposition testimony designated in accordance with Paragraph 23 8, infra; and (e) testimony taken at a hearing or other proceeding that is designated in 24 accordance with Paragraph 9, infra. 25 8. 26 Deposition transcripts, or portions thereof, as well as exhibits that have not Designation of Deposition Transcripts. 27 otherwise been designated pursuant to this Protective Order may be designated as 28 subject to this Protective Order either: (i) At the time of such deposition, in which case 5 STIPULATION AND PROTECTIVE ORDER 1 the transcript of the designated testimony shall be bound in a separate volume and 2 marked CONFIDENTIAL by the reporter, as the designating party may direct; or (ii) 3 Within thirty (30) calendar days following receipt of the deposition transcript by 4 providing written notice to the reporter and all counsel of record, in which case all 5 counsel receiving such notice shall mark the copies or portions of the designated 6 transcript in their possession or under their control as directed by the designating 7 party. 8 All deposition transcripts not previously designated shall be treated as 9 CONFIDENTIAL for a period of thirty (30) calendar days after receipt of the 10 transcript, and the transcript shall not be disclosed by a non-designating party to 11 persons other than those persons named or approved according to Paragraph 5, supra, 12 to review documents or materials designated CONFIDENTIAL on behalf of that non13 designating party. 14 Aside from professional translators and stenographic reporters, the designating 15 party shall have the right to exclude the following persons from a deposition before 16 the taking of testimony which the designating party designates as subject to this 17 Protective Order, as to testimony and exhibits designated as CONFIDENTIAL, all 18 persons except the deponent and counsel for the deponent who agrees to be bound by 19 this Protective Order; and any person authorized to receive disclosure under Paragraph 20 5, supra. 21 9. 22 With respect to testimony elicited and exhibits marked during hearings and Designation of Hearing Testimony or Argument. 23 other proceedings, whenever counsel for any party deems that any question or line of 24 questioning calls for the disclosure of Confidential Information that should be kept 25 CONFIDENTIAL, counsel may designate on the record prior to such disclosure that it 26 is CONFIDENTIAL. Whenever matter designated as CONFIDENTIAL is to be 27 discussed in a hearing or other proceeding, any party claiming such confidentiality 28 may, with permission of the Court only, exclude from the room any person who is not 6 STIPULATION AND PROTECTIVE ORDER 1 entitled under this Protective Order to receive information designated as 2 CONFIDENTIAL. 3 10. 4 Notwithstanding any other provisions of this Protective Order, nothing herein Disclosure to Author or Recipient. 5 shall prohibit counsel for a party from disclosing any document, whether designated 6 as CONFIDENTIAL, to any person whom the document clearly identifies as the 7 author or a recipient of such document and regardless of designation pursuant to this 8 Protective Order, but only for the purposes set forth in Paragraph 4, supra. The person 9 viewing such documents shall not be permitted to retain copies of any of the 10 documents, unless that person is authorized to do so under other provisions of this 11 Protective Order. 12 11. 13 A party filing any paper that reflects, contains, or includes any Confidential Designation of Documents Under Seal. 14 Information subject to this Protective Order shall comply with C.D. Cal. Local Rule 15 79-5, and follow the procedures set forth in that rule to file any such paper under seal. 16 Good cause must be shown for the under seal filing. 17 12. 18 No person may disclose any Confidential Information, except as provided in Confidentiality of Party’s Own Documents. 19 this Protective Order; but nothing herein shall affect the right of a party to disclose 20 Confidential Information which it designated as CONFIDENTIAL to its officers, 21 directors, employees, consultant, or experts, or to any non-party. Such disclosure shall 22 not waive the protections of this Protective Order and shall not entitle other parties or 23 their attorneys to disclose such information in violation of this Protective Order. 24 13. Preparation of Witness and Exhibit Designation. 25 Any party may mark any Confidential Information designated as 26 CONFIDENTIAL as an exhibit to a deposition, hearing, or other proceeding and 27 examine any witness who is not otherwise prohibited from viewing such material 28 7 STIPULATION AND PROTECTIVE ORDER 1 thereon, provided the exhibit and related transcript pages receive the same type of 2 confidentiality designation as the original document. 3 14. 4 This Protective Order shall not preclude any party from seeking and obtaining, Other Protections; Challenge to Confidentiality Designation. 5 on an appropriate showing, such additional protection with respect to the 6 confidentiality of Confidential Information, or other discovery material as such party 7 may consider appropriate. No party shall be precluded from: (a) claiming that any 8 Confidential Information is not entitled to the protections of this Protective Order; (b) 9 applying to the Court for an order permitting a disclosure or use of Confidential 10 Information otherwise prohibited by this Protective Order; or (c) applying for an order 11 modifying this Protective Order in any respect. No party shall be obligated to 12 challenge the propriety of any confidentiality designation, and failure to do so shall 13 not preclude a subsequent attack on the propriety of such designation. 14 If any party receiving Confidential Information objects to the classification of 15 such Information as “Confidential” and the parties cannot resolve the objection 16 informally, then the objecting party may move for an order to determine whether the 17 Information has been properly designated. In such an event, the burden shall remain 18 on the Producing Person to demonstrate that protection of the information is proper. 19 Pending resolution of any such motion, all persons bound by this Protective Order 20 shall continue to treat the Information which is the subject of the motion according to 21 its designation, i.e. as CONFIDENTIAL. The procedures set forth in Local Rule 37 22 shall apply to any challenge to the designation of Confidential Information. 23 15. 24 The restrictions and obligations set forth herein relating to documents and Prior or Public Knowledge. 25 things marked CONFIDENTIAL shall not apply to any information which the parties 26 agree in writing, or if they are unable to agree, the Court determines: (a) was or 27 becomes public knowledge other than as a result of disclosure by the receiving party; 28 or (b) has come or shall come into the receiving party’s lawful possession 8 STIPULATION AND PROTECTIVE ORDER 1 independently of the producing party. Such restrictions and obligations shall not be 2 deemed to prohibit discussions with any person about any documents or things 3 marked CONFIDENTIAL if that person already had or obtained lawful possession 4 thereof other than pursuant to this Protective Order. Nothing in this Protective Order 5 shall affect or restrict use or disclosure of documents or things obtained other than 6 through discovery pursuant to this Protective Order. 7 16. 8 This Protective Order does not preclude any party from seeking further relief or Limitation of Protective Order. 9 protective orders from the Court as may be appropriate. 10 17. 11 The terms of this Protective Order shall be applicable to CONFIDENTIAL Non-Party Confidential Information. 12 information obtained from a non-party, and such information produced in connection 13 with this action shall be protected by the provisions of this Protective Order. Such a 14 non-party shall have: (a) the same right as a party to designate any such information 15 under this Protective Order; and (b) standing to enforce the terms of this Protective 16 Order with respect to disclosure and use of that non-party’s designated information. 17 In addition, if any such non-party is under an obligation of confidentiality to a 18 party (“Obliging Party”), the Obliging Party may designate any such information as 19 CONFIDENTIAL. Any other party (“Requesting Party”) obtaining any materials 20 from such a non-party shall provide immediate and simultaneous access to the 21 information to the Obliging Party. The Obliging Party shall have ten (10) calendar 22 days to notify the Requesting Party of the status of the materials. In the interim, any 23 materials obtained from such a non-party by the Receiving Party shall be treated by 24 the Receiving Party as if designated CONFIDENTIAL. The Obliging Party may 25 request that the Receiving Party label and number such materials according to the 26 designation and provide a copy of the labeled and numbered materials to the Obliging 27 Party, the Receiving Party may produce its set of non-party materials to the Obliging 28 Party and the Obliging Party will, within five (5) business days, label and number the 9 STIPULATION AND PROTECTIVE ORDER 1 materials according to the designation and provide a copy of the labeled and 2 numbered materials to the Receiving Party. Any party who receives from a non-party 3 Confidential Information that has not been designated CONFIDENTIAL may itself 4 designate the Confidential Information as CONFIDENTIAL pursuant to the 5 provisions of this Protective Order. 6 18. 7 If Compulsory Service from a Non-Party. a party in possession of Confidential Information designated 8 CONFIDENTIAL is served with a valid subpoena, document request, interrogatories 9 or other compulsory process from a non-party to this Protective Order seeking 10 production or other disclosure of such designated information, such party 11 (“Subpoenaed Party”) shall, within five (5) business days, give prompt written notice 12 to counsel for the party who designated the Confidential Information as 13 CONFIDENTIAL (“Designating Party”) in no more than two (2) business days after 14 receipt of the request identifying the designated information sought and enclosing a 15 copy of the subpoena, request, or interrogatory. The Subpoenaed Party shall make 16 timely objections to the production of the designated information, including by 17 referencing the existence of this Protective Order, and the Designating Party may 18 intervene without opposition from the Subpoenaed Party to object to the production of 19 the designated information. Unless and until such objections are overruled by the 20 Court, or the Court otherwise orders production of the designated information, the 21 Subpoenaed Party shall not produce or divulge the contents of the designated 22 information. Nothing herein shall be construed as requiring the Subpoenaed Party, or 23 any party, to challenge or oppose any court order requiring production of the 24 designated information, or subject itself to the risk of sanctions or penalty arising from 25 non-compliance with any such legal process or court order. 26 19. 27 Upon final termination of this action, unless otherwise agreed to in writing by Return of Designated Information. 28 an attorney of record for the designating party, each party shall assemble and return all 10 STIPULATION AND PROTECTIVE ORDER 1 Confidential Information designated as CONFIDENTIAL, including all copies 2 (whether in the possession of the party, counsel, experts, or non-parties), extracts and 3 summaries thereof, to the party from whom the such designated Confidential 4 Information was obtained, or provide a statement to the attorney of record for the 5 designating party that such documents (and all copies) have been destroyed, except 6 that any documents or copies which contain or constitute attorney’s work product may 7 be retained by counsel, or destroyed. 8 20. 9 The inadvertent production of any privileged information shall not be deemed a Privileged Information. 10 waiver or impairment of any claim or privilege or protection afforded to the privileged 11 information. Upon receiving written notice from the producing party that privileged 12 information has been inadvertently produced, the receiving party shall immediately 13 return all such privileged information, and all copies thereof, to the producing party. 14 Such return shall be without prejudice to, and does not waive, any claim by the 15 returning party that the returned document(s) are not protected by a privilege, 16 provided, however, that nothing contained in the returned document(s) shall be used 17 by the returning party to establish the alleged lack of privilege. 18 21. 19 This Protective Order shall not be deemed a waiver of any party’s right to seek Waiver or Termination of Protective Order. 20 an order compelling discovery with respect to any discovery request; any party’s right 21 to object to any discovery or the production of any information or documents; any 22 party's right to object to the admission of any evidence on any grounds in any 23 proceeding herein; or any party’s right to use its own documents produced in this 24 litigation with complete discretion. 25 No part of the restrictions imposed by this Protective Order may be waived or 26 terminated, except by the written stipulation executed by counsel of record for each 27 designating party, or by an order of the Court for good cause shown. The restrictions 28 11 STIPULATION AND PROTECTIVE ORDER 1 provided for herein shall not terminate upon the conclusion of this action, but shall 2 continue until further order of this Court. 3 22. 4 This Protective Order may be modified, and any matter related to it may be Modification of Protective Order. 5 resolved, by written stipulation of the parties subject to approval of the Court. 6 23. 7 Upon final resolution of this litigation, including all appeals, all Information Destruction of Documents. 8 designated as CONFIDENTIAL shall be returned or destroyed by the party possessing 9 the Information pursuant to the terms of this Order within 30 days. 10 24. 11 The Title Captions for each paragraph of this Protective Order are for Paragraph Captions. 12 convenience only, and are not intended to affect or alter the text of the paragraphs or 13 the substance of the Protective Order. 14 IT IS SO STIPULATED 15 Dated: August 7, 2017 16 17 COZEN O’CONNOR Aaron M. McKown Paula L. Zecchini Jeffrey M. Monhait 18 19 20 By: s/ Aaron M. McKown Aaron M. McKown Attorneys for Defendant GODADDY.COM, LLC 21 22 23 Dated: August 7, 2017 24 SELIK AND ASSOCIATES LLC Evan M. Selik 25 26 27 By: s/ Evan M. Selik Evan M. Selik Attorneys for Plaintiff BODY JEWELZ, INC. 28 12 STIPULATION AND PROTECTIVE ORDER 1 Dated: August 7, 2017 CNA COVERAGE LITIGATION GROUP Anthony S. Cox Sherman C. Lee Julie Payne Humphreys 2 3 4 By: s/ Anthony S. Cox Anthony S. Cox Attorneys for Defendant VALLEY FORGE INSURANCE COMPANY 5 6 7 8 9 10 IT IS SO ORDERED. Dated this 8th day of August 2017 _____________________________ Honorable Paul L. Abrams United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 STIPULATION AND PROTECTIVE ORDER 1 Exhibit A 2 3 4 UNITED STATES DISTRICT COURT 5 FOR THE CENTRAL DISTRICT OF CALIFORNIA 6 BODY JEWELZ, INC., Case No.: 2:17-cv-00140-ODW(PLAx) 7 AGREEMENT TO BE BOUND BY STIPULATION AND PROTECTIVE ORDER 8 Plaintiff, vs. 9 VALLEY FORGE INSURANCE COMPANY; CNA FINANCIAL 10 CORPORATION; CNA EQUIPMENT BREAKDOWN RISK CONTROL; 11 GODADDY, INC.; and DOES 1 through 100, 12 Defendants. 13 14 15 I, ________________________________, declare and say that: 16 1. I am employed as ___________________________________________ 17 by_____________________________________. 18 2. I have read, and received a copy of, the Stipulation and Protective Order 19 (the “Order”) with respect to parties Body Jewelz, Inc.,, LLC, and 20 Valley Forge Insurance Company, dated __________________, 2017, in the above21 captioned litigation. 22 3. I promise that I will use any and all “CONFIDENTIAL” information, as 23 defined in the Order, given to me only in a manner authorized by the Order, and only 24 to assist Counsel in the litigation of this matter. 25 4. I promise that I will not disclose or discuss such “CONFIDENTIAL 26 information with anyone other than the persons described in paragraph 5 of this Order. 27 28 STIPULATION AND PROTECTIVE ORDER 1 5. I acknowledge that, by signing this agreement, I am subjecting myself to 2 the jurisdiction of the United States District Court for the Central District of California 3 with respect to the enforcement of the Order. 4 6. I understand that any disclosure or use of “CONFIDENTIAL” 5 information in any manner contrary to the provisions of the Order may subject me to 6 sanctions for contempt of court. 7 7. I will return all “CONFIDENTIAL” Materials (as defined in the Order) 8 to the attorney who provided it to me, upon request of that attorney, and I shall not 9 retain any copies of said Materials or any information contained within 10 “CONFIDENTIAL” Materials. 11 I declare under penalty of perjury under the laws of the United States of 12 America that the foregoing is true and correct. 13 14 15 DATE: __________________ ______________________________ 16 Signature 17 18 19 20 21 22 23 24 25 26 27 28 2 STIPULATION AND PROTECTIVE ORDER

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