C and SM Int'l v. NB Brother Corporation et al

Filing 25

STIPULATED PROTECTIVE ORDER by Magistrate Judge Jean P. Rosenbluth re Stipulation for Protective Order 24 . (See Order for details) [Note Changes Made By The Court]. (bem)

1
2

NOTE: CHANGES MADE BY THE COURT

3
4
5
6
7
UNITED STATES DISTRICT COURT
8
CENTRAL DISTRICT OF CALIFORNIA
9
10
11

C&SM INT’L, a South Korea
Corporation;
Plaintiff,

12

STIPULATED PROTECTIVE
ORDER

v.

13
14
15
16

Case No. 2:17-cv-01326-JFW-JPR

NB BROTHER CORPORATION, a
California Corporation; SUPERLINE,
INC., a California Corporation d/b/a
NEW MIX; ROSS STORES, INC., a
California Corporation; and DOES 110, inclusive,
Defendant.

17
18
19

1.

A. PURPOSES AND LIMITATIONS

20
21

Discovery in this action is likely to involve production of confidential,
22

proprietary, or private information for which special protection from public
23

disclosure and from use for any purpose other than prosecuting this litigation may
24

be warranted. Accordingly, the parties hereby stipulate to and petition the Court to
25

enter the following Stipulated Protective Order. The parties acknowledge that this
26

Order does not confer blanket protections on all disclosures or responses to
27

discovery and that the protection it affords from public disclosure and use extends
28

1

only to the limited information or items that are entitled to confidential treatment

2

under the applicable legal principles. The parties further acknowledge, as set forth in

3

Section 12.3, below, that this Stipulated Protective Order does not entitle them to

4

file confidential information under seal; Civil Local Rule 79-5 sets forth the

5

procedures that must be followed and the standards that will be applied when a party

6

seeks permission from the court to file material under seal.

7
8

B. GOOD CAUSE STATEMENT

9
10

This action is likely to involve trade secrets, customer and pricing lists and

11

other valuable research, development, commercial, financial, technical and/or

12

proprietary information for which special protection from public disclosure and

13

from use for any purpose other than prosecution of this action is warranted. Such

14

confidential and proprietary materials and information consist of, among other

15

things, confidential business or financial information, information regarding

16

confidential business practices, or other confidential research, development, or

17

commercial information (including information implicating privacy rights of third

18

parties), information otherwise generally unavailable to the public, or which may be

19

privileged or otherwise protected from disclosure under state or federal statutes,

20

court rules, case decisions, or common law. Accordingly, to expedite the flow of

21

information, to facilitate the prompt resolution of disputes over confidentiality of

22

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

23

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

24

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

25

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

26

information is justified in this matter. It is the intent of the parties that information

27

will not be designated as confidential for tactical reasons and that nothing be so

28

designated without a good faith belief that it has been maintained in a confidential,
2

1

non-public manner, and there is good cause why it should not be part of the public

2

record of this case.

3
4

2.

DEFINITIONS

5

2.1

6

related actions.]

7

2.2

8
9

Action: [this pending federal law suit]. [*Option: consolidated or

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

10

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

11

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

12

the Good Cause Statement.

13
14
15

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

16

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

17

“CONFIDENTIAL.”

18

2.6

Disclosure or Discovery Material: all items or information, regardless

19

of the medium or manner in which it is generated, stored, or maintained (including,

20

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

21

generated in disclosures or responses to discovery in this matter.

22

2.7

Expert: a person with specialized knowledge or experience in a matter

23

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

24

an expert witness or as a consultant in this Action.

25

2.8

House Counsel: attorneys who are employees of a party to this Action.

26

House Counsel does not include Outside Counsel of Record or any other outside

27

counsel.

28

2.9

Non-Party: any natural person, partnership, corporation, association, or
3

1

other legal entity not named as a Party to this action.

2

2.10 Outside Counsel of Record: attorneys who are not employees of a

3

party to this Action but are retained to represent or advise a party to this Action and

4

have appeared in this Action on behalf of that party or are affiliated with a law firm

5

which has appeared on behalf of that party, and includes support staff.

6

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

7

employees, consultants, retained experts, and Outside Counsel of Record (and their

8

support staffs).
2.12 Producing Party: a Party or Non-Party that produces Disclosure or

9
10

Discovery Material in this Action.
2.13 Professional Vendors:

11

persons or entities that provide litigation

12

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

13

demonstrations, and organizing, storing, or retrieving data in any form or medium)

14

and their employees and subcontractors.

15

2.14 Protected Material:

16

designated as “CONFIDENTIAL.”
2.15 Receiving Party:

17
18

any Disclosure or Discovery Material that is

a Party that receives Disclosure or Discovery

Material from a Producing Party.

19
20

3.

SCOPE

21

The protections conferred by this Stipulation and Order cover not only

22

Protected Material (as defined above), but also (1) any information copied or

23

extracted from Protected Material; (2) all copies, excerpts, summaries, or

24

compilations of Protected Material; and (3) any testimony, conversations, or

25

presentations by Parties or their Counsel that might reveal Protected Material.
Any use of Protected Material at trial shall be governed by the orders of the

26
27

trial judge. This Order does not govern the use of Protected Material at trial.

28

4.

DURATION
4

1

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

2

confidential or maintained pursuant to this protective order becomes public and will

3

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

4

compelling reasons supported by specific factual findings to proceed otherwise are

5

made to the trial judge in advance of the trial. See Kamakana v. City and County of

6

Honolulu, 447 F.3d 1172, 1180-81 (9th Cir. 2006) (distinguishing “good cause”

7

showing for sealing documents produced in discovery from “compelling reasons”

8

standard when merits-related documents are part of court record). Accordingly, the

9

terms of this protective order do not extend beyond the commencement of the trial.

10
11
12

5.

DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection.

13

Each Party or Non-Party that designates information or items for protection under

14

this Order must take care to limit any such designation to specific material that

15

qualifies under the appropriate standards. The Designating Party must designate for

16

protection only those parts of material, documents, items, or oral or written

17

communications that qualify so that other portions of the material, documents,

18

items, or communications for which protection is not warranted are not swept

19

unjustifiably within the ambit of this Order.

20

Mass, indiscriminate, or routinized designations are prohibited. Designations

21

that are shown to be clearly unjustified or that have been made for an improper

22

purpose (e.g., to unnecessarily encumber the case development process or to impose

23

unnecessary expenses and burdens on other parties) may expose the Designating

24

Party to sanctions.

25

If it comes to a Designating Party’s attention that information or items that it

26

designated for protection do not qualify for protection, that Designating Party must

27

promptly notify all other Parties that it is withdrawing the inapplicable designation.

28

5.2

Manner and Timing of Designations. Except as otherwise provided in
5

1

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

2

stipulated or ordered, Disclosure or Discovery Material that qualifies for protection

3

under this Order must be clearly so designated before the material is disclosed or

4

produced.

5
6

Designation in conformity with this Order requires:
(a)

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

7

documents, but excluding transcripts of depositions or other pretrial or trial

8

proceedings), that the Producing Party affix at a minimum, the legend

9

“CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that

10

contains protected material. If only a portion or portions of the material on a page

11

qualifies for protection, the Producing Party also must clearly identify the protected

12

portion(s) (e.g., by making appropriate markings in the margins).

13

A Party or Non-Party that makes original documents available for inspection

14

need not designate them for protection until after the inspecting Party has indicated

15

which documents it would like copied and produced. During the inspection and

16

before the designation, all of the material made available for inspection shall be

17

deemed “CONFIDENTIAL.” After the inspecting Party has identified the

18

documents it wants copied and produced, the Producing Party must determine which

19

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

20

producing the specified documents, the Producing Party must affix the

21

“CONFIDENTIAL legend” to each page that contains Protected Material. If only a

22

portion or portions of the material on a page qualifies for protection, the Producing

23

Party also must clearly identify the protected portion(s) (e.g., by making appropriate

24

markings in the margins).

25

(b) for testimony given in depositions that the Designating Party identify

26

the Disclosure or Discovery Material on the record, before the close of the

27

deposition all protected testimony.

28

(c) for information produced in some form other than documentary and
6

1

for any other tangible items, that the Producing Party affix in a prominent place on

2

the exterior of the container or containers in which the information is stored the

3

legend “CONFIDENTIAL.” If only a portion or portions of the information

4

warrants protection, the Producing Party, to the extent practicable, shall identify the

5

protected portion(s).
5.3

6

Inadvertent Failures to Designate. If timely corrected, an inadvertent

7

failure to designate qualified information or items does not, standing alone, waive

8

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

9

Upon timely correction of a designation, the Receiving Party must make reasonable

10

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

11

Order.

12
13

6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

14

Timing of Challenges.

Any Party or Non-Party may challenge a

15

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

16

Scheduling Order.
6.2

17
18

Meet and Confer. The Challenging Party shall initiate the dispute

resolution process under Local Rule 37.1 et seq.
6.3

19

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

7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7

1

7.1

Basic Principles. A Receiving Party may use Protected Material that is

2

disclosed or produced by another Party or by a Non-Party in connection with this

3

Action only for prosecuting, defending, or attempting to settle this Action. Such

4

Protected Material may be disclosed only to the categories of persons and under the

5

conditions described in this Order. When the Action has been terminated, a

6

Receiving Party must comply with the provisions of section 13 below (FINAL

7

DISPOSITION).

8

Protected Material must be stored and maintained by a Receiving Party at a

9

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

10
11

authorized under this Order.
7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless

12

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

13

Receiving

14

“CONFIDENTIAL” only to:

Party

may

disclose

any

information

or

item

designated

15

(a) the Receiving Party’s Outside Counsel of Record in this Action, as

16

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

17

necessary to disclose the information for this Action;

18
19

(b) the officers, directors, and employees (including House Counsel) of
the Receiving Party to whom disclosure is reasonably necessary for this Action;

20

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

21

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

22

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

23

(d) the court and its personnel;

24

(e) court reporters and their staff;

25

(f) professional jury or trial consultants, mock jurors, and Professional

26

Vendors to whom disclosure is reasonably necessary for this Action and who have

27

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

28

(g) the author or recipient of a document containing the information or a
8

1

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

2

(h) during their depositions, witnesses ,and attorneys for witnesses, in the

3

Action to whom disclosure is reasonably necessary provided: (1) the deposing party

4

requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will

5

not be permitted to keep any confidential information unless they sign the

6

“Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise

7

agreed by the Designating Party or ordered by the court. Pages of transcribed

8

deposition testimony or exhibits to depositions that reveal Protected Material may

9

be separately bound by the court reporter and may not be disclosed to anyone except

10

as permitted under this Stipulated Protective Order; and
(i) any mediator or settlement officer, and their supporting personnel,

11
12

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

13
14

8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

15

IN OTHER LITIGATION

16

If a Party is served with a subpoena or a court order issued in other litigation

17

that compels disclosure of any information or items designated in this Action as

18

“CONFIDENTIAL,” that Party must:

19
20

(a) promptly notify in writing the Designating Party. Such notification
shall include a copy of the subpoena or court order;

21

(b) promptly notify in writing the party who caused the subpoena or order

22

to issue in the other litigation that some or all of the material covered by the

23

subpoena or order is subject to this Protective Order. Such notification shall include

24

a copy of this Stipulated Protective Order; and

25
26

(c)

cooperate with respect to all reasonable procedures sought to be

pursued by the Designating Party whose Protected Material may be affected.

27

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

28

the subpoena or court order shall not produce any information designated in this
9

1

action as “CONFIDENTIAL” before a determination by the court from which the

2

subpoena or order issued, unless the Party has obtained the Designating Party’s

3

permission. The Designating Party shall bear the burden and expense of seeking

4

protection in that court of its confidential material and nothing in these provisions

5

should be construed as authorizing or encouraging a Receiving Party in this Action

6

to disobey a lawful directive from another court.

7
8

9.

A

NON-PARTY’S

PROTECTED

9

MATERIAL

SOUGHT

TO

BE

PRODUCED IN THIS LITIGATION

10

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

11

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

12

produced by Non-Parties in connection with this litigation is protected by the

13

remedies and relief provided by this Order. Nothing in these provisions should be

14

construed as prohibiting a Non-Party from seeking additional protections.

15

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

16

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

17

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

18

confidential information, then the Party shall:

19

(1) promptly notify in writing the Requesting Party and the Non-Party

20

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

21

agreement with a Non-Party;

22

(2) promptly provide the Non-Party with a copy of the Stipulated

23

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

24

specific description of the information requested; and

25
26

(3) make the information requested available for inspection by the
Non-Party, if requested.

27

(c) If the Non-Party fails to seek a protective order from this court within

28

14 days of receiving the notice and accompanying information, the Receiving Party
10

1

may produce the Non-Party’s confidential information responsive to the discovery

2

request. If the Non-Party timely seeks a protective order, the Receiving Party shall

3

not produce any information in its possession or control that is subject to the

4

confidentiality agreement with the Non-Party before a determination by the court.

5

Absent a court order to the contrary, the Non-Party shall bear the burden and

6

expense of seeking protection in this court of its Protected Material.

7
8

10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

9

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

10

Protected Material to any person or in any circumstance not authorized under this

11

Stipulated Protective Order, the Receiving Party must immediately (a) notify in

12

writing the Designating Party of the unauthorized disclosures, (b) use its best efforts

13

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

14

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

15

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

16

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

17

\\

18

11.

19

PROTECTED MATERIAL

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

20

When a Producing Party gives notice to Receiving Parties that certain

21

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

22

the obligations of the Receiving Parties are those set forth in Federal Rule of Civil

23

Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure

24

may be established in an e-discovery order that provides for production without

25

prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar

26

as the parties reach an agreement on the effect of disclosure of a communication or

27

information covered by the attorney-client privilege or work product protection, the

28

parties may incorporate their agreement in the stipulated protective order submitted
11

1

to the court provided the Court so allows.

2
3

12.

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

4
5

MISCELLANEOUS

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

6

12.2 Right to Assert Other Objections. By stipulating to the entry of this

7

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

8

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

9

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

10

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

11

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

12

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

13

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

14

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

15

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

16

in the public record unless otherwise instructed by the court.

17
18

13.

FINAL DISPOSITION

19

After the final disposition of this Action, as defined in paragraph 4, within 60

20

days of a written request by the Designating Party, each Receiving Party must return

21

all Protected Material to the Producing Party or destroy such material. As used in

22

this subdivision, “all Protected Material” includes all copies, abstracts, compilations,

23

summaries, and any other format reproducing or capturing any of the Protected

24

Material. Whether the Protected Material is returned or destroyed, the Receiving

25

Party must submit a written certification to the Producing Party (and, if not the same

26

person or entity, to the Designating Party) by the 60 day deadline that (1) identifies

27

(by category, where appropriate) all the Protected Material that was returned or

28

destroyed and (2)affirms that the Receiving Party has not retained any copies,
12

1

abstracts, compilations, summaries or any other format reproducing or capturing any

2

of the Protected Material. Notwithstanding this provision, Counsel are entitled to

3

retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing

4

transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert

5

reports, attorney work product, and consultant and expert work product, even if such

6

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

7

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

8

Section 4 (DURATION).

9
10

14.

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

11

measures including, without limitation, contempt proceedings and/or monetary

12

sanctions.

13
14

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

15
16

Dated: May 10, 2017

17
18

/s/C. Yong Jeong

19

Chan Yong Jeong

20

JEONG & LIKENS, L.C.

21

Attorney for Plaintiff

22
23

Dated: May 10, 2017

24
25
26
27
28

/s/ Frank N. Lee

Frank N. Lee
LAW OFFICE OF FRANK N. LEE
Attorneys for Defendants,
ROSS STORES, INC.; SUPERLINE, INC.
13

1
2
3

Dated: May 10, 2017

4
/s/ Miles L. Prince

5

David L. Prince
Miles L. Prince
Attorneys for Defendant,
NB BROTHER CORP.

6
7
8
9
10

FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

11
12

DATED: May 8, 2017

13
14
15

_____________________________________
Honorable Jean P. Rosenbluth
United States Magistrate Judge

16
17
18
19
20
21
22
23
24
25
26
27
28
14

1

EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3
4

I,

_____________________________

[print

or

5

_________________ [print or type full address], declare under penalty of perjury

6

that I have read in its entirety and understand the Stipulated Protective Order that

7

was issued by the United States District Court for the Central District of California

8

on [date] in the case of ___________ C&SM INT’L v. NB BROTHERS CORP.; et al 2:17-

9

cv-01326-JFW-JPR. I agree to comply with and to be bound by all the terms of this

10

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

11

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

12

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

13

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

14

compliance with the provisions of this Order.

15

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

16

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

17

Stipulated Protective Order, even if such enforcement proceedings occur after

18

termination of this action. I hereby appoint __________________________ [print

19

or type full name] of _______________________________________ [print or type

20

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

21

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

22

Stipulated Protective Order.

23

Date: ______________________________________

24

City and State where sworn and signed: _________________________________

25
26

Printed name: _______________________________

27
28

Signature: __________________________________
15

type

full

name],

of