Fabric Selection, Inc. v. Manjeet International, Inc. et al

Filing 30

PROTECTIVE ORDER by Magistrate Judge Karen L. Stevenson re Stipulation for Protective Order 29 (See order for details) (rh)

1 MICHAEL C. BAUM (SBN 65158)
E-Mail: [e-mail]
2 ANDREW V. JABLON (SBN 199083)
E-Mail: [e-mail]
3 STACEY N. KNOX (SBN 192966)
E-Mail: [e-mail]
4 RESCH POLSTER & BERGER LLP
1840 Century Park East, 17th Floor
5 Los Angeles, California 90067
Telephone: [phone]
6 Facsimile: 310-552-3209
7 Attorneys for Plaintiff
Fabric Selection, Inc.
8
UNITED STATES DISTRICT COURT
9
CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
10
11

FABRIC SELECTION, INC., a
12 California corporation,
Plaintiff,

13
vs.

14

Case No. 2:17-cv-02353-ODW-KS
[PROPOSED] STIPULATED
PROTECTIVE ORDER
Trial Date:

April 24, 2018

15 MANJEET INTERNATIONAL, INC.,
a New York corporation; UNION
16 APPAREL GROUP, LTD., a New York
corporation; and DOES 1 through 10,
17 Inclusive,
Defendants.

18
19
20

1.

21

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

A. PURPOSES AND LIMITATIONS

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 only to the limited information or items that are entitled to confidential treatment
589031.1

1 under the applicable legal principles. The parties further acknowledge, as set forth in
2 Section 12.3, below, that this Stipulated Protective Order does not entitle them to
3 file confidential information under seal; Civil Local Rule 79-5 sets forth the
4 procedures that must be followed and the standards that will be applied when a party
5 seeks permission from the court to file material under seal.
6
7

B. GOOD CAUSE STATEMENT

8

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

9 other valuable research, development, commercial, financial, technical and/or
10 proprietary information for which special protection from public disclosure and
11 from use for any purpose other than prosecution of this action is warranted. Such
12 confidential and proprietary materials and information consist of, among other
13 things, confidential business or financial information, information regarding
14 confidential business practices, or other confidential research, development, or
15 commercial information (including information implicating privacy rights of third
16 parties), information otherwise generally unavailable to the public, or which may be
17 privileged or otherwise protected from disclosure under state or federal statutes,
18 court rules, case decisions, or common law. Accordingly, to expedite the flow of
19 information, to facilitate the prompt resolution of disputes over confidentiality of
20 discovery materials, to adequately protect information the parties are entitled to keep
21 confidential, to ensure that the parties are permitted reasonable necessary uses of
22 such material in preparation for and in the conduct of trial, to address their handling
23 at the end of the litigation, and serve the ends of justice, a protective order for such
24 information is justified in this matter. It is the intent of the parties that information
25 will not be designated as confidential for tactical reasons and that nothing be so
26 designated without a good faith belief that it has been maintained in a confidential,
27 non-public manner, and there is good cause why it should not be part of the public
28 record of this case.
589031.1

2

1

2.

DEFINITIONS

2

2.1

Action: Fabric Selection v. Manjeet International, Inc., Case No. 2:17-

3 cv-02353-ODW-KS.
2.2

4

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

5 of information or items under this Order.
2.3

6

“CONFIDENTIAL” Information or Items: information (regardless of

7 how it is generated, stored or maintained) or tangible things that qualify for
8 protection under Federal Rule of Civil Procedure 26(c), and as specified above in
9 the Good Cause Statement.
2.4

10

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

11 their support staff).
2.5

12

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

13 items that it produces in disclosures or in responses to discovery as
14 “CONFIDENTIAL.”
2.6

15

Disclosure or Discovery Material: all items or information, regardless

16 of the medium or manner in which it is generated, stored, or maintained (including,
17 among other things, testimony, transcripts, and tangible things), that are produced or
18 generated in disclosures or responses to discovery in this matter.
2.7

19

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

20 pertinent to the litigation who has been retained by a Party or its counsel to serve as
21 an expert witness or as a consultant in this Action.
2.8

22

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

23 House Counsel does not include Outside Counsel of Record or any other outside
24 counsel.
2.9

25

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

26 other legal entity not named as a Party to this action.
2.10 Outside Counsel of Record: attorneys who are not employees of a

27

28 party to this Action but are retained to represent or advise a party to this Action and
589031.1

3

1 have appeared in this Action on behalf of that party or are affiliated with a law firm
2 which has appeared on behalf of that party, and includes support staff.
2.11 Party: any party to this Action, including all of its officers, directors,

3

4 employees, consultants, retained experts, and Outside Counsel of Record (and their
5 support staffs).
2.12 Producing Party: a Party or Non-Party that produces Disclosure or

6

7 Discovery Material in this Action.
2.13 Professional Vendors: persons or entities that provide

8

litigation

9 support services (e.g., photocopying, videotaping, translating, preparing exhibits or
10 demonstrations, and organizing, storing, or retrieving data in any form or medium)
11 and their employees and subcontractors.
2.14 Protected Material: any Disclosure or Discovery Material that is

12

13 designated as “CONFIDENTIAL.”
2.15 Receiving Party: a Party that receives Disclosure or

14

Discovery

15 Material from a Producing Party.
16
17

3.

SCOPE

18

The protections conferred by this Stipulation and Order cover not only

19 Protected Material (as defined above), but also (1) any information copied or
20 extracted from Protected Material; (2) all copies, excerpts, summaries, or
21 compilations of Protected Material; and (3) any testimony, conversations, or
22 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

23

24 trial judge. This Order does not govern the use of Protected Material at trial.
25
26

4.

DURATION

27

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

28 confidential or maintained pursuant to this protective order becomes public and will
589031.1

4

1 be presumptively available to all members of the public, including the press, unless
2 compelling reasons supported by specific factual findings to proceed otherwise are
3 made to the trial judge in advance of the trial. See Kamakana v. City and County of
4 Honolulu, 447 F.3d 1172, 1180-81 (9th Cir. 2006) (distinguishing “good cause”
5 showing for sealing documents produced in discovery from “compelling reasons”
6 standard when merits-related documents are part of court record). Accordingly, the
7 terms of this protective order do not extend beyond the commencement of the trial.
8
9

5.

DESIGNATING PROTECTED MATERIAL

10

5.1

Exercise of Restraint and Care in Designating Material for Protection.

11 Each Party or Non-Party that designates information or items for protection under
12 this Order must take care to limit any such designation to specific material that
13 qualifies under the appropriate standards. The Designating Party must designate for
14 protection only those parts of material, documents, items, or oral or written
15 communications that qualify so that other portions of the material, documents,
16 items, or communications for which protection is not warranted are not swept
17 unjustifiably within the ambit of this Order.
18

Mass, indiscriminate, or routinized designations are prohibited. Designations

19 that are shown to be clearly unjustified or that have been made for an improper
20 purpose (e.g., to unnecessarily encumber the case development process or to impose
21 unnecessary expenses and burdens on other parties) may expose the Designating
22 Party to sanctions.
If it comes to a Designating Party’s attention that information or items that it

23

24 designated for protection do not qualify for protection, that Designating Party must
25 promptly notify all other Parties that it is withdrawing the inapplicable designation.
26

5.2

Manner and Timing of Designations. Except as otherwise provided in

27 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
28 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
589031.1

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1 under this Order must be clearly so designated before the material is disclosed or
2 produced.
3

Designation in conformity with this Order requires:

4

(a)

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

5 documents, but excluding transcripts of depositions or other pretrial or trial
6 proceedings), that the Producing Party affix at a minimum, the legend
7 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that
8 contains protected material. If only a portion or portions of the material on a page
9 qualifies for protection, the Producing Party also must clearly identify the protected
10 portion(s) (e.g., by making appropriate markings in the margins).
A Party or Non-Party that makes original documents available for inspection

11

12 need not designate them for protection until after the inspecting Party has indicated
13 which documents it would like copied and produced. During the inspection and
14 before the designation, all of the material made available for inspection shall be
15 deemed

“CONFIDENTIAL.”

After the inspecting Party has identified the

16 documents it wants copied and produced, the Producing Party must determine which
17 documents, or portions thereof, qualify for protection under this Order. Then, before
18 producing the specified documents, the Producing Party must affix the
19 “CONFIDENTIAL legend” to each page that contains Protected Material. If only a
20 portion or portions of the material on a page qualifies for protection, the Producing
21 Party also must clearly identify the protected portion(s) (e.g., by making appropriate
22 markings in the margins).
(b)

23

for testimony given in depositions that the Designating Party identify

24 the Disclosure or Discovery Material on the record, before the close of the
25 deposition all protected testimony.
(c)

26

for information produced in some form other than documentary and for

27 any other tangible items, that the Producing Party affix in a prominent place on the
28 exterior of the container or containers in which the information is stored the legend
589031.1

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1 “CONFIDENTIAL.” If only a portion or portions of the information warrants
2 protection, the Producing Party, to the extent practicable, shall identify the protected
3 portion(s).
4

5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent

5 failure to designate qualified information or items does not, standing alone, waive
6 the Designating Party’s right to secure protection under this Order for such material.
7 Upon timely correction of a designation, the Receiving Party must make reasonable
8 efforts to assure that the material is treated in accordance with the provisions of this
9 Order.
10
11

6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

12

6.1

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

13 designation of confidentiality at any time that is consistent with the Court’s
14 Scheduling Order.
15

6.2

Meet and Confer. The Challenging Party shall initiate the dispute

16

resolution process under Local Rule 37.1 et seq.

17

6.3

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

18 the Designating Party. Frivolous challenges, and those made for an improper
19 purpose (e.g., to harass or impose unnecessary expenses and burdens on other
20 parties) may expose the Challenging Party to sanctions. Unless the Designating
21 Party has waived or withdrawn the confidentiality designation, all parties shall
22 continue to afford the material in question the level of protection to which it is
23 entitled under the Producing Party’s designation until the Court rules on the
24 challenge.
25
26

7.

ACCESS TO AND USE OF PROTECTED MATERIAL

27

7.1

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

28 disclosed or produced by another Party or by a Non-Party in connection with this
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1 Action only for prosecuting, defending, or attempting to settle this Action. Such
2 Protected Material may be disclosed only to the categories of persons and under the
3 conditions described in this Order. When the Action has been terminated, a
4 Receiving Party must comply with the provisions of section 13 below (FINAL
5 DISPOSITION).
Protected Material must be stored and maintained by a Receiving Party at a

6

7 location and in a secure manner that ensures that access is limited to the persons
8 authorized under this Order.
9

7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless

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

Party

may

disclose

any

information

or

item

designated

12 “CONFIDENTIAL” only to:
13

(a)

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

14 as employees of said Outside Counsel of Record to whom it is reasonably necessary
15 to disclose the information for this Action;
(b)

16

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

17 Receiving Party to whom disclosure is reasonably necessary for this Action;
(c)

18

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

19 disclosure is reasonably necessary for this Action and who have signed the
20 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
21

(d)

the court and its personnel;

22

(e)

court reporters and their staff;

23

(f)

professional jury or trial consultants, mock jurors, and Professional

24 Vendors to whom disclosure is reasonably necessary for this Action and who have
25 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(g)

26

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

27 custodian or other person who otherwise possessed or knew the information;
(h)

28
589031.1

during their depositions, witnesses ,and attorneys for witnesses, in the
8

1 Action to whom disclosure is reasonably necessary provided: (1) the deposing party
2 requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will
3 not be permitted to keep any confidential information unless they sign the
4 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise
5 agreed by the Designating Party or ordered by the court. Pages of transcribed
6 deposition testimony or exhibits to depositions that reveal Protected Material may
7 be separately bound by the court reporter and may not be disclosed to anyone except
8 as permitted under this Stipulated Protective Order; and
(i)

9

any mediator or settlement officer, and their supporting personnel,

10 mutually agreed upon by any of the parties engaged in settlement discussions.
11
12

8.

PROTECTED

MATERIAL

SUBPOENAED

OR

ORDERED

13 PRODUCED IN OTHER LITIGATION
14

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

15 that compels disclosure of any information or items designated in this Action as
16 “CONFIDENTIAL,” that Party must:
(a)

17

promptly notify in writing the Designating Party. Such notification

18 shall include a copy of the subpoena or court order;
(b)

19

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

20 to issue in the other litigation that some or all of the material covered by the
21 subpoena or order is subject to this Protective Order. Such notification shall include
22 a copy of this Stipulated Protective Order; and
(c)

23

cooperate with respect to all reasonable procedures sought to be

24 pursued by the Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served with

25

26 the subpoena or court order shall not produce any information designated in this
27 action as “CONFIDENTIAL” before a determination by the court from which the
28 subpoena or order issued, unless the Party has obtained the Designating Party’s
589031.1

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1 permission. The Designating Party shall bear the burden and expense of seeking
2 protection in that court of its confidential material and nothing in these provisions
3 should be construed as authorizing or encouraging a Receiving Party in this Action
4 to disobey a lawful directive from another court.
5
6

9.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

7 PRODUCED IN THIS LITIGATION
8

(a)

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

9 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information
10 produced by Non-Parties in connection with this litigation is protected by the
11 remedies and relief provided by this Order. Nothing in these provisions should be
12 construed as prohibiting a Non-Party from seeking additional protections.
(b)

13

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

14 produce a Non-Party’s confidential information in its possession, and the Party is
15 subject to an agreement with the Non-Party not to produce the Non-Party’s
16 confidential information, then the Party shall:
(1)

17

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

18 some or all of the information requested is subject to a confidentiality agreement
19 with a Non-Party;
(2)

20

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

21 Protective Order in this Action, the relevant discovery request(s), and a reasonably
22 specific description of the information requested; and
(3)

23

make the information requested available for inspection by the Non-

24 Party, if requested.
(c)

25

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

26 14 days of receiving the notice and accompanying information, the Receiving Party
27 may produce the Non-Party’s confidential information responsive to the discovery
28 request. If the Non-Party timely seeks a protective order, the Receiving Party shall
589031.1

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1 not produce any information in its possession or control that is subject to the
2 confidentiality agreement with the Non-Party before a determination by the court.
3 Absent a court order to the contrary, the Non-Party shall bear the burden and
4 expense of seeking protection in this court of its Protected Material.
5
6

10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

7

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

8 Protected Material to any person or in any circumstance not authorized under this
9 Stipulated Protective Order, the Receiving Party must immediately (a) notify in
10 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
11 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or
12 persons to whom unauthorized disclosures were made of all the terms of this Order,
13 and (d) request such person or persons to execute the “Acknowledgment and
14 Agreement to Be Bound” that is attached hereto as Exhibit A.
15
16

11.

INADVERTENT

PRODUCTION

OF

PRIVILEGED

OR

17 OTHERWISE PROTECTED MATERIAL
18

When a Producing Party gives notice to Receiving Parties that certain

19 inadvertently produced material is subject to a claim of privilege or other protection,
20 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
21 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
22 may be established in an e-discovery order that provides for production without
23 prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar
24 as the parties reach an agreement on the effect of disclosure of a communication or
25 information covered by the attorney-client privilege or work product protection, the
26 parties may incorporate their agreement in the stipulated protective order submitted
27 to the court.
28
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1

12.

MISCELLANEOUS

2

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

3 person to seek its modification by the Court in the future.
12.2 Right to Assert Other Objections. By stipulating to the entry of this

4

5 Protective Order no Party waives any right it otherwise would have to object to
6 disclosing or producing any information or item on any ground not addressed in this
7 Stipulated Protective Order. Similarly, no Party waives any right to object on any
8 ground to use in evidence of any of the material covered by this Protective Order.
12.3 Filing Protected Material. A Party that seeks to file under seal any

9

10 Protected Material must comply with Civil Local Rule 79-5. Protected Material may
11 only be filed under seal pursuant to a court order authorizing the sealing of the
12 specific Protected Material at issue. If a Party's request to file Protected Material
13 under seal is denied by the court, then the Receiving Party may file the information
14 in the public record unless otherwise instructed by the court.
15
16

13.

FINAL DISPOSITION

17

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

18 days of a written request by the Designating Party, each Receiving Party must return
19 all Protected Material to the Producing Party or destroy such material. As used in
20 this subdivision, “all Protected Material” includes all copies, abstracts, compilations,
21 summaries, and any other format reproducing or capturing any of the Protected
22 Material. Whether the Protected Material is returned or destroyed, the Receiving
23 Party must submit a written certification to the Producing Party (and, if not the same
24 person or entity, to the Designating Party) by the 60 day deadline that (1) identifies
25 (by category, where appropriate) all the Protected Material that was returned or
26 destroyed and (2)affirms that the Receiving Party has not retained any copies,
27 abstracts, compilations, summaries or any other format reproducing or capturing any
28 of the Protected Material. Notwithstanding this provision, Counsel are entitled to
589031.1

12

1 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing
2 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert
3 reports, attorney work product, and consultant and expert work product, even if such
4 materials contain Protected Material. Any such archival copies that contain or
5 constitute Protected Material remain subject to this Protective Order as set forth in
6 Section 4 (DURATION).
14.

7

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

8 measures including, without limitation, contempt proceedings and/or monetary
9 sanctions.
10
11 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
12 DATED: December 4, 2017
13
14
Hon. Karen L. Stevenson

15
16
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589031.1

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1

EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3

I, _____________________________ [print or type full name], of

4 _________________ [print or type full address], declare under penalty of perjury
5 that I have read in its entirety and understand the Stipulated Protective Order that
6 was issued by the United States District Court for the Central District of California
7 on [date] in the case of Fabric Selection, Inc. v. Gogo Apparel, Inc., et al. Case No.
8 2:17-cv-02650-ODW-PLA. I agree to comply with and to be bound by all the terms
9 of this Stipulated Protective Order and I understand and acknowledge that failure to
10 so comply could expose me to sanctions and punishment in the nature of contempt. I
11 solemnly promise that I will not disclose in any manner any information or item that
12 is subject to this Stipulated Protective Order to any person or entity except in strict
13 compliance with the provisions of this Order.
14

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

15 for the Central District of California for the purpose of enforcing the terms of this
16 Stipulated Protective Order, even if such enforcement proceedings occur after
17 termination

of

this

action.

I

hereby

appoint

18 _____________________________________ [print or type full name] of
19 _______________________________________ [print or type full address and
20 telephone number] as my California agent for service of process in connection with
21 this action or any proceedings related to enforcement of this Stipulated Protective
22 Order.
23 Date: ______________________________________
24 City and State where sworn and signed: _________________________________
25
26 Printed name: _______________________________
27
28 Signature: __________________________________
589031.1

1

PROOF OF SERVICE

2

Fabric Selection, Inc. v Manjeet International, Inc., et al.
Case No. 2:17-cv-02353-ODW-KS

3

STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

4

At the time of service, I was over 18 years of age and not a party to this
action. I am employed in the County of Los Angeles, State of California. My
5
business address is 1840 Century Park East, 17th Floor, Los Angeles, CA 90067.
6
On November 8, 2017, I served true copies of the following document(s)
described as [PROPOSED] STIPULATED PROTECTIVE ORDER on the
7
interested parties in this action as follows:
8
Nicholas A. Rozansky
Attorneys for Defendant Union
[e-mail]
Apparel Group, Ltd.
9
Jeffrey A. Kobulnick
[e-mail]
10
Michael A. Bernet
[e-mail]
11
BRUTZKUS GUBNER
21650 Oxnard Street, Suite 500
12
Woodland Hills, CA 91367
13
BY CM/ECF NOTICE OF ELECTRONIC FILING: I electronically filed
the document(s) with the Clerk of the Court by using the CM/ECF system.
15 Participants in the case who are registered CM/ECF users will be served by the
CM/ECF system. Participants in the case who are not registered CM/ECF users will
16 be served by mail or by other means permitted by the court rules.
14

I declare under penalty of perjury under the laws of the United States of
America that the foregoing is true and correct and that I am employed in the office
18 of a member of the bar of this Court at whose direction the service was made.
17

Executed on November 8, 2017, at Los Angeles, California.

19
20

/s/ Nazia Rahman

21

Nazia Rahman

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589031.1