Maria Carmela Condie v. Oxgord Incorporated

Filing 24

PROTECTIVE ORDER by Magistrate Judge Jacqueline Chooljian re Stipulation for Protective Order 23 . [NOTE CHANGES MADE BY THE COURT} (dml)

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Ted Luymes (Cal. Bar no. 150351)
TED LUYMES LAW FIRM
140 South Lake Ave., Suite 349
Pasadena, California 91101
Tel: [phone]
[e-mail]

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Attorneys for Plaintiff,
MARIA CARMELA CONDE

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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Plaintiff,

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Case No. 2:17-cv-01952-CAS-JC

MARIA CARMELA CONDE,

STIPULATED PROTECTIVE
ORDER

v.

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OXGORD INCORPORATED, a
California corporation, and DOES 2 –
10, inclusive.

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[CHANGES MADE BY COURT TO
PARAGRAPHS 1C, 2.1, 3, 7.2h, 8, 9c,
12.3 & EXHIBIT A]

Defendants.

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1.

A.

PURPOSES AND LIMITATIONS

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

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proprietary or private information for which special protection from public

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disclosure and from use for any purpose other than prosecuting and defending this

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litigation may be warranted. Accordingly, the parties hereby stipulate to and

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petition the Court to enter the following Stipulated Protective Order. The parties

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acknowledge that this Order does not confer blanket protections on all disclosures
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STIPULATED PROTECTIVE
ORDER

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or responses to discovery and that the protection it affords from public disclosure

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and use extends only to the limited information or items that are entitled to

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confidential treatment under applicable legal principles.

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B.

GOOD CAUSE STATEMENT
This action is likely to involve the disclosure of confidential trade secrets,

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including, but not limited to: (a) the identity of supplier(s) for the allegedly

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infringing material; (b) the supplier’s communications with the parties, including

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pricing information; (c) defendant’s strategies to compete with other sellers on

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Amazon.com and other ecommerce platforms; and (d) profit and loss data for the

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sale of allegedly infringing product(s). The parties acknowledge that both sides

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regard this information as confidential and protect it from public disclosure.

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Indeed, the public disclosure of such information may expose valuable research,

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development, commercial, financial, technical and/or proprietary information for

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which special protection from public disclosure and from use for any purpose

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other than prosecution of this action is warranted. Such confidential and

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proprietary materials and information consist of, among other things, confidential

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business or financial information, information regarding confidential business

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practices, or other confidential research, development, or commercial information

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(including information implicating privacy rights of third parties), information

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otherwise generally unavailable to the public, or which may be privileged or

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otherwise protected from disclosure under state or federal statutes, court rules,

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

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to 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

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handling at the end of the litigation, and serve the ends of justice, a protective
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STIPULATED PROTECTIVE
ORDER

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order for such information is justified in this matter. It is the intent of the parties

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that information will not be designated as confidential for tactical reasons and that

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nothing be so designated without a good faith belief that it has been maintained in

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a confidential, non-public manner, and there is good cause why it should not be

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part of the public record of this case.

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C.

ACKNOWLEDGMENT OF PROCEDURE FOR FILING

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UNDER SEAL

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The parties further acknowledge, as set forth in Section 12.3, below, that

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this Stipulated Protective Order does not entitle them to file confidential

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information under seal. Rather, when the parties seek permission from the court

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to file material under seal, the parties must comply with Civil Local Rule 79-5

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and with any pertinent orders of the assigned District Judge and Magistrate Judge.

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There is a strong presumption that the public has a right of access to judicial

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proceedings and records in civil cases. In connection with non-dispositive

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motions, good cause must be shown to support a filing under seal. See Kamakana

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v. City and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v.

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Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v.

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Sony Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated

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protective orders require good cause showing), and a specific showing of good

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cause or compelling reasons with proper evidentiary support and legal

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justification, must be made with respect to Protected Material that a party seeks to

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file under seal. The parties’ mere designation of Disclosure or Discovery Material

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as CONFIDENTIAL does not - without the submission of competent evidence by

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declaration, establishing that the material sought to be filed under seal qualifies as

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confidential, privileged, or otherwise protectable - constitute good cause.

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Further, if a party requests sealing related to a dispositive motion or trial,
then compelling reasons, not only good cause, for the sealing must be shown, and
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STIPULATED PROTECTIVE
ORDER

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the relief sought shall be narrowly tailored to serve the specific interest to be

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protected. See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir.

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2010). For each item or type of information, document, or thing sought to be

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filed or introduced under seal in connection with a dispositive motion or trial, the

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party seeking protection must articulate compelling reasons, supported by specific

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facts and legal justification, for the requested sealing order. Again, competent

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evidence supporting the application to file documents under seal must be provided

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by declaration.
Any document that is not confidential, privileged, or otherwise protectable

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in its entirety will not be filed under seal if the confidential portions can be

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redacted. If documents can be redacted, then a redacted version for public

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viewing, omitting only the confidential, privileged, or otherwise protectable

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portions of the document, shall be filed. Any application that seeks to file

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documents under seal in their entirety should include an explanation of why

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redaction is not feasible.

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2.

DEFINITIONS

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2.1 Action: Maria Carmela Conde v. Oxgord Corporation U.S.D.C. Case No.

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2:17-cv-01952-CAS-JC.

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2.2 Challenging Party: a Party or Non-Party that challenges the designation of

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information or items under this Order.

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2.3 “CONFIDENTIAL” Information or Items: information (regardless of how it

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

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

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Cause Statement.

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2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their

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support staff).

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STIPULATED PROTECTIVE
ORDER

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2.5 Designating Party: a Party or Non-Party that designates information or items

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that it produces in disclosures or in responses to discovery as

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“CONFIDENTIAL.”

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2.6 Disclosure or Discovery Material: all items or information, regardless of the

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

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

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or generated in disclosures or responses to discovery in this matter.

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

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

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as an expert witness or as a consultant in this Action.

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

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

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counsel.

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

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legal entity not named as a Party to this action.

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

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

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

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

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

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

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their support staffs).

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2.12 Producing Party: a Party or Non-Party that produces Disclosure or

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Discovery Material in this Action.

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2.13 Professional Vendors: persons or entities that provide litigation support

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

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

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medium) and their employees and subcontractors.
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STIPULATED PROTECTIVE
ORDER

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2.14 Protected Material: any Disclosure or Discovery Material that is designated

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as “CONFIDENTIAL.”

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2.15 Receiving Party: a Party that receives Disclosure or Discovery Material

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from a Producing Party.

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3.

SCOPE
The protections conferred by this Stipulation and Order cover not only

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

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

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

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presentations by Parties or their Counsel that might reveal Protected Material,

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other than during a court hearing or at trial.

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Any use of Protected Material during a court hearing or at trial shall be

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governed by the orders of the presiding judge. This Order does not govern the use

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of Protected Material during a court hearing or at trial.

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4.

DURATION
Once a case proceeds to trial, information that was designated as

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CONFIDENTIAL or maintained pursuant to this protective order used or

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introduced as an exhibit at trial becomes public and will be presumptively

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available to all members of the public, including the press, unless compelling

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reasons supported by specific factual findings to proceed otherwise are made to

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the trial judge in advance of the trial. See Kamakana, 447 F.3d at 1180-81

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(distinguishing “good cause” showing for sealing documents produced in

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discovery from “compelling reasons” standard when merits-related documents are

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

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beyond the commencement of the trial.

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STIPULATED PROTECTIVE
ORDER

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5.

DESIGNATING PROTECTED MATERIAL

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5.1 Exercise of Restraint and Care in Designating Material for Protection.

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

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

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that qualifies under the appropriate standards. The Designating Party must

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designate for protection only those parts of material, documents, items or oral or

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

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

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not swept unjustifiably within the ambit of this Order. Mass, indiscriminate or

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routinized designations are prohibited. Designations that are shown to be clearly

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unjustified or that have been made for an improper purpose (e.g., to unnecessarily

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encumber the case development process or to impose unnecessary expenses and

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burdens on other parties) may expose the Designating Party to sanctions.

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

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

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must promptly notify all other Parties that it is withdrawing the inapplicable

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designation.

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5.2 Manner and Timing of Designations. Except as otherwise provided in this

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

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stipulated or ordered, Disclosure or Discovery Material that qualifies for

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

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disclosed or produced.

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Designation in conformity with this Order requires:

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(a)

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but excluding transcripts of depositions or other pretrial or trial proceedings), that

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the Producing Party affix at a minimum, the legend “CONFIDENTIAL”

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

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material. If only a portion of the material on a page qualifies for protection, the

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

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STIPULATED PROTECTIVE
ORDER

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

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making appropriate markings in the margins).
A Party or Non-Party that makes original documents available for inspection

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

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

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inspection and before the designation, all of the material made available for

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inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has

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identified the documents it wants copied and produced, the Producing Party must

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determine which documents, or portions thereof, qualify for protection under this

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Order. Then, before producing the specified documents, the Producing Party must

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affix the “CONFIDENTIAL legend” to each page that contains Protected

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Material. If only a portion of the material on a page qualifies for protection, the

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

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making appropriate markings in the margins).

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(b)

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

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all protected testimony.

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(c)

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

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

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

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

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the protected portion(s).

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5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure

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

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

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for testimony given in depositions that the Designating Party identifies the

for information produced in some form other than documentary and for any

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STIPULATED PROTECTIVE
ORDER

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

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reasonable efforts to assure that the material is treated in accordance with the

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provisions of this Order.

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6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

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

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

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6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution

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process under Local Rule 37-1 et seq.

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6.3 Joint Stipulation. Any challenge submitted to the Court shall be via a joint

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stipulation pursuant to Local Rule 37-2.

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6.4 The burden of persuasion in any such challenge proceeding shall be on the

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Designating Party. Frivolous challenges, and those made for an improper purpose

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(e.g., to harass or impose unnecessary expenses and burdens on other parties) may

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expose the Challenging Party to sanctions. Unless the Designating Party has

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waived or withdrawn the confidentiality designation, all parties shall continue to

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afford the material in question the level of protection to which it is entitled under

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the Producing Party’s designation until the Court rules on the challenge.

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7.

ACCESS TO AND USE OF PROTECTED MATERIAL

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

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

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

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

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

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

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DISPOSITION). Protected Material must be stored and maintained by a

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Receiving Party at a location and in a secure manner that ensures that access is
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STIPULATED PROTECTIVE
ORDER

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limited to the persons authorized under this Order.

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7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

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

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Party may disclose any information or item designated “CONFIDENTIAL” only

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to:

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a.

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employees of said Outside Counsel of Record to whom it is reasonably necessary

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to disclose the information for this Action;

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b.

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

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

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

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c.

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is reasonably necessary for this Action and who have signed the

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“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 Professional Vendors

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

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

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g.

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

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h.

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

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party requests that the witness sign the “Acknowledgment and Agreement to Be

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Bound” form attached as Exhibit A hereto; and (2) they will not be permitted to

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keep any confidential information unless they sign the “Acknowledgment and

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Agreement to Be Bound” attached as Exhibit A, unless otherwise agreed by the

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

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testimony or exhibits to depositions that reveal Protected Material may be

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

the author or recipient of a document containing the information or a

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

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STIPULATED PROTECTIVE
ORDER

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

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as permitted under this Stipulated Protective Order; and

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i.

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

any mediator or settlement officer, and their supporting personnel, mutually

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8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED
PRODUCED IN OTHER LITIGATION

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

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

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“CONFIDENTIAL,” that Party must:

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a.

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include a copy of the subpoena or court order;

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b.

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

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

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include a copy of this Stipulated Protective Order; and

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c.

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the Designating Party whose Protected Material may be affected.

promptly notify in writing the Designating Party. Such notification shall

promptly notify in writing the party who caused the subpoena or order to

cooperate with respect to all reasonable procedures sought to be pursued by

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” before a determination by the court from which

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

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Party’s permission, or unless otherwise required by the law or court order. The

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Designating Party shall bear the burden and expense of seeking protection in that

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court of its confidential material and nothing in these provisions should be

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construed as authorizing or encouraging a Receiving Party in this Action to

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disobey a lawful directive from another court.

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STIPULATED PROTECTIVE
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9.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
PRODUCED IN THIS LITIGATION

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a.

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

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

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

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

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

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b.

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

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

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information, then the Party shall:

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1.

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

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with a Non-Party;

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2.

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

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description of the information requested; and

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3.

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requested.

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c.

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for by Local Rules 45-1 and 37-1, et seq. within 14 days of receiving the notice

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and accompanying information or fails contemporaneously to notify the

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Receiving Party that it has done so, the Receiving Party may produce the Non-

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Party’s confidential information responsive to the discovery request. If an

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unrepresented Non-Party fails to seek a protective order from this court within 14

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

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

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

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

promptly notify in writing the Requesting Party and the Non-Party that

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

make the information requested available for inspection by the Non-Party, if

If a Non-Party represented by counsel fails to commence the process called

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STIPULATED PROTECTIVE
ORDER

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

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

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unless otherwise required by the law or court order. Absent a court order to the

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contrary, the Non-Party shall bear the burden and expense of seeking protection in

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this court of its 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 unauthorized copies of the Protected Material, (c)

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inform the person or persons to whom unauthorized disclosures were made of all

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the terms of this Order, and (d) request such person or persons to execute the

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“Acknowledgment and Agreement to Be Bound” attached hereto as Exhibit A.

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11. INADVERTENT PRODUCTION OF PRIVILEGED OR

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OTHERWISE PROTECTED MATERIAL

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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

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

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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

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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

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disclosure of a communication or information covered by the attorney-client

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privilege or work product protection, the parties may incorporate their agreement

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in the stipulated protective order submitted to the court.
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STIPULATED PROTECTIVE
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12. MISCELLANEOUS

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

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

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

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

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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

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

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Order.

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

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Material must comply with Civil Local Rule 79-5 and with any pertinent orders of

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the assigned District Judge and Magistrate Judge. If a Party's request to file

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Protected Material under seal is denied by the court, then the Receiving Party may

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file the information in the public record unless otherwise instructed by the court.

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13. FINAL DISPOSITION
After the final disposition of this Action, as defined in paragraph 4, within

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

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

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

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compilations, summaries, and any other format reproducing or capturing any of

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

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the Receiving Party must submit a written certification to the Producing Party

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(and, if not the same person or entity, to the Designating Party) by the 60 day

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deadline that (1) identifies (by category, where appropriate) all the Protected

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Material that was returned or destroyed and (2) affirms that the Receiving Party

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has not retained any copies, abstracts, compilations, summaries or any other

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format reproducing or capturing any of the Protected Material. Notwithstanding
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STIPULATED PROTECTIVE
ORDER

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this provision, Counsel are entitled to retain an archival copy of all pleadings,

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motion papers, trial, deposition, and hearing transcripts, legal memoranda,

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correspondence, deposition and trial exhibits, expert reports, attorney work

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product, and consultant and expert work product, even if such materials contain

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

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Material remain subject to this Protective Order as set forth in

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Section 4 (“DURATION”)

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14. VIOLATION

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Any violation of this Order may be punished by appropriate measures including,

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without limitation, contempt proceedings and/or monetary sanctions.

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IT IS SO STIPULATED BY AND THROUGH COUNSEL OF RECORD.

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DATED: August 28, 2017

TED LUYMES LAW FIRM

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By:

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Ted H. Luymes
Attorney for Plaintiff

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/s/

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DATED: September 5, 2017

LAW OFFICE OF ARYEH KAUFMAN
By:

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Aryeh Kaufman
Attorney for Defendant

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/s/

FOR GOOD CAUSE SHOWN, IT IS SO ORDERED AS MODIFIED.

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DATED: October 6, 2017

___________/s/________________
Hon. Jacqueline Chooljian,
U.S. Magistrate Judge

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STIPULATED PROTECTIVE
ORDER

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EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, _____________________________ [print or type full name], of
_____________________________[print or type full address], declare under
penalty of perjury that I have read in its entirety and understand the Stipulated
Protective Order that was issued by the United States District Court for the
Central District of California on [date] in the case of Maria Carmela Conde v.
Oxgord Corporation U.S.D.C. Case No. 2:17-cv-01952-CAS-JC.
I agree to comply with and to be bound by all the terms of this Stipulated
Protective Order and I understand and acknowledge that failure to so comply
could expose me to sanctions and punishment in the nature of contempt. I
solemnly promise that I will not disclose in any manner any information or item
that is subject to this Stipulated Protective Order to any person or entity except in
strict compliance with the provisions of this Order. I further agree to submit to the
jurisdiction of the United States District Court for the Central District of
California for enforcing the terms of this Stipulated Protective Order, even if such
enforcement proceedings occur after termination of this action.
I hereby appoint __________________________ [print or type full name] of
_______________________________________ [print or type full address and
telephone number] as my California agent for service of process in connection
with this action or any proceedings related to enforcement of this Stipulated
Protective Order.
Date: _____________

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City and State where sworn and signed: _________________________________

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Printed name:

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Signature: __________________________________

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STIPULATED PROTECTIVE
ORDER