Mike Sarieddine v. D and A Distribution, LLC et al

Filing 158

PROTECTIVE ORDER by Magistrate Judge Steve Kim. In re: Stipulation for Protective Order 157 (mkr)

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1 2 3 4 Stephen C. McArthur (State Bar No. 277712) stephen@smcarthurlaw.com Valerie McConnell (State Bar No. 274159) valerie@smcarthurlaw.com THE MCARTHUR LAW FIRM PC 400 Corporate Pointe, 3rd Floor Culver City, CA 90230 Telephone: (323) 639-4455 5 6 Attorneys for Plaintiff and Counterdefendant, Mike Sarieddine 7 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 8 9 10 11 Plaintiff, 12 13 14 15 v. D&A Distribution, LLC (dba Strictly ECig), a Georgia limited liability company et al., 16 17 18 19 Case No. 2:17-cv-02390-DSF-SK MIKE SARIEDDINE, an individual, [PROPOSED] ORDER TO STIPULATED PROTECTIVE ORDER Defendants. Shenzhen Technology Co., Ltd. (f/k/a Shenzhen Smok Technology Co., Ltd.), a Chinese corporation et al., 20 Counterclaimants, 21 v. 22 23 24 MIKE SARIEDDINE, an individual, Counter-Defendant. 25 26 Having considered the parties’ pleadings on file to date, and the parties’ 27 jointly submitted Stipulated Protective Order to govern the handling of information 28 and materials produced in the course of discovery, or filed with the Court in this action, the Court determines as follows: 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. INTRODUCTION: 1.1 PURPOSES AND LIMITATIONS. Discovery in this action is likely to involve production of confidential, proprietary, or private information for which special protection from public disclosure and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly, the parties hereby stipulate to and petition the Court to enter the following Stipulated Protective Order. The parties acknowledge that this Order does not confer blanket protections on all disclosures or responses to discovery and that the protection it affords from public disclosure and use extends only to the limited information or items that are entitled to confidential treatment under the applicable legal principles. The parties further acknowledge, as set forth in Section 12.3, below, that this Stipulated Protective Order does not entitle them to file confidential information under seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and the standards that will be applied when a party seeks permission from the Court to file material under seal. 1.2 GOOD CAUSE STATEMENT. This is an action for trademark infringement, unfair competition, and breach of contract. The information disclosed in discovery may be sensitive and may include, without limitation, revenue, profits, costs, trade secrets, marketing, and sales forecasts. Accordingly, the parties believe that the designation of certain materials as Confidential Information or Attorneys’ Eyes-Only Information is necessary because there is significant risk in disclosing certain highly sensitive information beyond the purposes of this litigation. Any of the parties could be irreparably harmed if designated Confidential Information and Attorneys’ Eyes-Only Information is divulged or somehow wrongly misused by the Parties or-non-parties. The unfettered disclosure of the information, including but not limited to the filing of the documents in the public record, could be harmful to the commercial interests of the Parties. There is good cause to enter this Protective Order to ensure adequate protection against the wrongful use or disclosure of protected material, and to protect the value associated with the protected material. Any violation of the confidentiality obligations set forth in this Protective Order could be 2 1 detrimental and prejudicial to one or more Parties. The Parties agree that the concerns 2 set forth in this paragraph are asserted in good faith. 3 2. DEFINITIONS 4 5 6 7 8 9 2.1 Action: Sarieddine v. D&A Distribution, LLC, et al., Case No. 2:17-cv989-DSF-MRW 2.2 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 how it is generated, stored or maintained) or tangible things that qualify for 10 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 11 the Good Cause Statement. 12 2.4 “ATTORNEYS’ EYES ONLY” Information or Items: a subset of 13 Confidential Information that a party in good faith believes is entitled to heightened 14 protection in order to protect economic, competitive, or sensitive personal 15 information. 16 17 18 2.5 Counsel: Outside Counsel of Record and House Counsel (as well as their support staff). 2.6 Designating Party: a Party or Non-Party that designates information or 19 items that it produces in disclosures or in responses to discovery as 20 “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY.” 21 2.7 Disclosure or Discovery Material: all items or information, regardless of 22 the medium or manner in which it is generated, stored, or maintained (including, 23 among other things, testimony, transcripts, and tangible things), that are produced 24 or generated in disclosures or responses to discovery in this matter. 25 2.8 Expert: a person with specialized knowledge or experience in a matter 26 pertinent to the litigation who has been retained by a Party or its counsel to serve as 27 an expert witness or as a consultant in this Action. 28 3 1 2.9 House Counsel: attorneys who are employees of a party to this Action. 2 House Counsel does not include Outside Counsel of Record or any other outside 3 counsel. 4 5 2.10 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 6 2.11 Outside Counsel of Record: attorneys who are not employees of a party 7 to this Action but are retained to represent or advise a party to this Action and have 8 appeared in this Action on behalf of that party or are affiliated with a law firm 9 which has appeared on behalf of that party, and includes support staff. 10 2.12 Party: any party to this Action, including all of its officers, directors, 11 employees, consultants, retained experts, and Outside Counsel of Record (and their 12 support staffs). 13 14 15 2.13 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this Action. 2.14 Professional Vendors: persons or entities that provide litigation support 16 services (e.g., photocopying, videotaping, translating, preparing exhibits or 17 demonstrations, and organizing, storing, or retrieving data in any form or medium) 18 and their employees and subcontractors. 19 20 21 2.15 Protected Material: any Disclosure or Discovery Material that is designated as “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY.” 2.16 Receiving Party: a Party that receives Disclosure or Discovery Material 22 from a Producing Party. 23 3. SCOPE 24 The protections conferred by this Stipulation and Order cover not only 25 Protected Material (as defined above), but also (1) any information copied or 26 extracted from Protected Material; (2) all copies, excerpts, summaries, or 27 compilations of Protected Material; and (3) any testimony, conversations, or 28 presentations by Parties or their Counsel that might reveal Protected Material. 4 1 Any use of Protected Material at trial will be governed by the orders of the 2 trial judge. This Order does not govern the use of Protected Material at trial. 3 4. DURATION 4 Even after final disposition of this litigation, the confidentiality obligations 5 imposed by this Order will remain in effect until a Designating Party agrees 6 otherwise in writing or a court order otherwise directs. Final disposition will be 7 deemed to be the later of (1) dismissal of all claims and defenses in this Action, 8 with or without prejudice; and (2) final judgment herein after the completion and 9 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action, 10 including the time limits for filing any motions or applications for extension of time 11 pursuant to applicable law. 12 5. DESIGNATING PROTECTED MATERIAL 13 5.1 Exercise of Restraint and Care in Designating Material for Protection. 14 Each Party or Non-Party that designates information or items for protection under 15 this Order must take care to limit any such designation to specific material that 16 qualifies under this Order. The Designating Party must designate for protection only 17 those parts of material, documents, items, or oral or written communications that 18 qualify so that other portions of the material, documents, items, or communications 19 for which protection is not warranted are not swept unjustifiably within the ambit of 20 this Order. 21 Mass, indiscriminate, or routinized designations are prohibited. Designations 22 that are shown to have been made for an improper purpose (e.g., to unnecessarily 23 encumber the case development process or to impose unnecessary expenses and 24 burdens on other parties) may expose the Designating 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 1 5.2 Manner and Timing of Designations. Except as otherwise provided in this 2 Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 3 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 4 under this Order should be clearly so designated before the material is disclosed or 5 produced. 6 Designation in conformity with this Order requires: 7 (a) for information in documentary form (e.g., paper or electronic documents, 8 but excluding transcripts of depositions or other pretrial or trial proceedings), that 9 the Producing Party affix at a minimum, the legend “CONFIDENTIAL” 10 (hereinafter “CONFIDENTIAL legend”) “ATTORNEYS’ EYES ONLY” 11 (hereinafter “AEO legend”), to each page that contains protected material. 12 A Party or Non-Party that makes original documents available for inspection 13 need not designate them for protection until after the inspecting Party has indicated 14 which documents it would like copied and produced. During the inspection and 15 before the designation, all of the material made available for inspection will be 16 deemed “ATTORNEYS’ EYES ONLY.” After the inspecting Party has identified 17 the documents it wants copied and produced, the Producing Party must determine 18 which documents, or portions thereof, qualify for protection under this Order. Then, 19 before producing the specified documents, the Producing Party must affix EITHER 20 the “CONFIDENTIAL legend” or the “AEO legend” to each page that contains 21 Protected Material. 22 (b) for testimony given in depositions that the Designating Party identify the 23 Disclosure or Discovery Material on the record, before the close of the deposition 24 all protected testimony or within ten (10) days of receipt of the transcript. 25 (c) for information produced in some form other than documentary and for 26 any other tangible items, that the Producing Party affix in a prominent place on the 27 exterior of the container or containers in which the information is stored the legend 28 “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY.” 6 1 5.3 Inadvertent Failures to Designate. If corrected, an inadvertent failure to 2 designate qualified information or items does not, standing alone, waive the 3 Designating Party’s right to secure protection under this Order for such material. 4 Upon correction of a designation, the Receiving Party must make reasonable efforts 5 to assure that the material is treated in accordance with the provisions of this Order. 6 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 7 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 8 designation of confidentiality at any time that is consistent with the Court’s 9 Scheduling Order. 10 6.2 Meet and Confer. The Challenging Party will initiate the dispute 11 resolution process (and, if necessary, file a discovery motion) under Local Rule 12 37.1 et seq. 13 6.3 The burden of persuasion in any such challenge proceeding will be on the 14 Designating Party. Frivolous challenges made for an improper purpose (e.g., to 15 harass or impose unnecessary expenses and burdens on other parties) may expose 16 the Challenging Party to sanctions. Unless the Designating Party has waived or 17 withdrawn the confidentiality designation, all parties will continue to afford the 18 material in question the level of protection to which it is entitled under the 19 Producing Party’s designation until the Court rules on the challenge. 20 7. ACCESS TO AND USE OF PROTECTED MATERIAL 21 7.1 Basic Principles. A Receiving Party may use Protected Material that is 22 disclosed or produced by another Party or by a Non-Party in connection with this 23 Action only for prosecuting, defending, or attempting to settle this Action. Such 24 Protected Material may be disclosed only to the categories of persons and under the 25 conditions described in this Order. When the Action has been terminated, a 26 Receiving Party must comply with the provisions of section 13 below (FINAL 27 DISPOSITION). Protected Material must be stored and maintained by a Receiving 28 7 1 Party at a location and in a secure manner that ensures that access is limited to the 2 persons authorized under this Order. 3 7.2 Disclosure of “CONFIDENTIAL” Information or Items. 4 Unless otherwise ordered by the Court or permitted in writing by the 5 Designating Party, a Receiving Party may disclose any information or item 6 designated “CONFIDENTIAL” only to: 7 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well as 8 employees of said Outside Counsel of Record to whom it is reasonably necessary to 9 disclose the information for this Action; 10 (b) the officers, directors, and employees (including House Counsel) of the 11 Receiving Party to whom disclosure is reasonably necessary for this Action; 12 (c) Experts (as defined in this Order) of the Receiving Party to whom 13 disclosure is reasonably necessary for this Action and who have signed the 14 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 15 (d) the Court and its personnel; 16 (e) court reporters and their staff; 17 (f) professional jury or trial consultants, mock jurors, and Professional 18 Vendors to whom disclosure is reasonably necessary for this Action and who have 19 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 20 21 22 (g) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information; (h) during their depositions, witnesses, and attorneys for witnesses, in the 23 Action to whom disclosure is reasonably necessary provided they 24 will not be permitted to keep any confidential information unless they sign the 25 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 26 agreed by the Designating Party or ordered by the Court. Pages of transcribed 27 deposition testimony or exhibits to depositions that reveal Protected Material may 28 8 1 be separately bound by the court reporter and may not be disclosed to anyone 2 except as permitted under this Stipulated Protective Order; and 3 (i) any mediator or settlement officer, and their supporting personnel, mutually 4 agreed upon by any of the parties engaged in settlement discussions. 5 7.3 Disclosure of “ATTORNEYS’ EYES ONLY” Information or Items. 6 Unless otherwise ordered by the Court or permitted in writing by the 7 Designating Party, a Receiving Party may disclose any information or item 8 designated as “ATTORNEYS’ EYES ONLY” only to: 9 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well as 10 employees of said Outside Counsel of Record to whom it is reasonably necessary to 11 disclose the information for this Action; 12 (b) Experts (as defined in this Order) of the Receiving Party to whom 13 disclosure is reasonably necessary for this Action and who have signed the 14 “Acknowledgement and Agreement to be Bound” (Exhibit A); 15 (c) the Court and its personnel; and 16 (d) court reporters and their staff. 17 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN 18 OTHER LITIGATION 19 If a Party is served with a subpoena or a court order issued in other litigation 20 that compels disclosure of any information or items designated in this Action as 21 “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY,” that Party must: 22 23 (a) promptly notify in writing the Designating Party. Such notification will include a copy of the subpoena or court order; 24 (b) promptly notify in writing the party who caused the subpoena or order to 25 issue in the other litigation that some or all of the material covered by the subpoena 26 or order is subject to this Protective Order. Such notification will include a copy of 27 this Stipulated Protective Order; and 28 9 1 2 3 (c) cooperate with respect to all reasonable procedures sought to be pursued by the Designating Party whose Protected Material may be affected. If the Designating Party timely seeks a protective order, the Party served with 4 the subpoena or court order will not produce any information designated in this 5 action as “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” before a 6 determination by the court from which the subpoena or order issued, unless the 7 Party has obtained the Designating Party’s permission. The Designating Party will 8 bear the burden and expense of seeking protection in that court of its confidential 9 material and nothing in these provisions should be construed as authorizing or 10 encouraging a Receiving Party in this Action to disobey a lawful directive from 11 another court. 12 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED 13 IN THIS LITIGATION 14 (a) The terms of this Order are applicable to information produced by a Non- 15 Party in this Action and designated as “CONFIDENTIAL” or “ATTORNEYS’ 16 EYES ONLY.” Such information produced by Non-Parties in connection with this 17 litigation is protected by the remedies and relief provided by this Order. Nothing in 18 these provisions should be construed as prohibiting a Non-Party from seeking 19 additional protections. 20 (b) In the event that a Party is required, by a valid discovery request, to 21 produce a Non-Party’s confidential information in its possession, and the Party is 22 subject to an agreement with the Non-Party not to produce the Non-Party’s 23 confidential information, then the Party will: 24 (1) promptly notify in writing the Requesting Party and the Non-Party that 25 some or all of the information requested is subject to a confidentiality agreement 26 with a Non-Party; 27 28 10 1 (2) promptly provide the Non-Party with a copy of the Stipulated Protective 2 Order in this Action, the relevant discovery request(s), and a reasonably specific 3 description of the information requested; and 4 5 6 (3) make the information requested available for inspection by the Non-Party, if requested. (c) If the Non-Party fails to seek a protective order from this court within 14 7 days of receiving the notice and accompanying information, the Receiving Party 8 may produce the Non-Party’s confidential information responsive to the discovery 9 request. If the Non-Party timely seeks a protective order, the Receiving Party will 10 not produce any information in its possession or control that is subject to the 11 confidentiality agreement with the Non-Party before a determination by the court. 12 Absent a court order to the contrary, the Non-Party will bear the burden and 13 expense of seeking protection in this court of its Protected Material. 14 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 15 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 16 Protected Material to any person or in any circumstance not authorized under this 17 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 18 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts 19 to retrieve all unauthorized copies of the Protected Material, (c) inform the person 20 or persons to whom unauthorized disclosures were made of all the terms of this 21 Order, and (d) request such person or persons to execute the “Acknowledgment and 22 Agreement to Be Bound” that is attached hereto as Exhibit A. 23 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 24 PROTECTED MATERIAL 25 When a Producing Party gives notice to Receiving Parties that certain 26 inadvertently produced material is subject to a claim of privilege or other 27 protection, the obligations of the Receiving Parties are those set forth in Federal 28 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify the 11 1 procedure established in the Joint Report (Dkt. 145) that provides for production 2 without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), 3 insofar as the parties have reached an agreement on the effect of disclosure of a 4 communication or information covered by the attorney-client privilege or work 5 product protection, the parties hereby incorporate their agreement in this Stipulated 6 Protective Order. 7 12. MISCELLANEOUS 8 9 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek its modification by the Court in the future. 10 12.2 Right to Assert Other Objections. By stipulating to the entry of this 11 Protective Order no Party waives any right it otherwise would have to object to 12 disclosing or producing any information or item on any ground not addressed in this 13 Stipulated Protective Order. Similarly, no Party waives any right to object on any 14 ground to use in evidence of any of the material covered by this Protective Order. 15 12.3 Filing Protected Material. A Party that seeks to file under seal any 16 Protected Material must comply with Civil Local Rule 79-5. Protected Material 17 may only be filed under seal pursuant to a court order authorizing the sealing of the 18 specific Protected Material at issue. 19 13. FINAL DISPOSITION 20 After the final disposition of this Action, as defined in paragraph 4, within 60 21 days of a written request by the Designating Party, each Receiving Party must 22 return all Protected Material to the Producing Party or destroy such material. As 23 used in this subdivision, “all Protected Material” includes all copies, abstracts, 24 compilations, summaries, and any other format reproducing or capturing any of the 25 Protected Material. Whether the Protected Material is returned or destroyed, the 26 Receiving Party must submit a written certification to the Producing Party (and, if 27 not the same person or entity, to the Designating Party) by the 60 day deadline that 28 (1) identifies (by category, where appropriate) all the Protected Material that was 12 1 returned or destroyed and (2) affirms that the Receiving Party has not retained any 2 copies, abstracts, compilations, summaries or any other format reproducing or 3 capturing any of the Protected Material. Notwithstanding this provision, Counsel 4 are entitled to retain an archival copy of all pleadings, motion papers, trial, 5 deposition, and hearing transcripts, legal memoranda, correspondence, deposition 6 and trial exhibits, expert reports, attorney work product, and consultant and expert 7 work product, even if such materials contain Protected Material. Any such archival 8 copies that contain or constitute Protected Material remain subject to this Protective 9 Order as set forth in Section 4 (DURATION). 10 14. Any willful violation of this Order may be punished by civil or criminal 11 contempt proceedings, financial or evidentiary sanctions, reference to disciplinary 12 authorities, or other appropriate action at the discretion of the Court. 13 14 IT IS SO ORDERED. 15 16 17 18 DATED: November 13, 2017 ___________________________________ HON. STEVE KIM United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28 13 1 EXHIBIT A ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 2 3 4 5 6 7 8 9 10 11 12 13 14 15 I, _____________________________ [full name], of _________________ [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 Sarieddine v. D&A Distribution, LLC, et al., Case No. 2:17-cv-989-DSF-MRW. 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 the purpose of enforcing the terms of this Stipulated Protective Order, even if such enforcement proceedings occur after termination of this action. I hereby appoint __________________________ [full name] of _______________________________________ [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. 16 17 Date: ______________________________________ 18 19 City and State where signed: _________________________________ 20 21 22 Printed name: _______________________________ 23 24 Signature: __________________________________ 25 26 27 28 14 1 2 3 4 5 6 7 8 9 CERTIFICATE OF SERVICE I, Valerie McConnell, hereby certify that on November 9, 2017, I electronically filed the following document with the Clerk of the Court for the United States District Court for the Central District of California by using the CM/ECF system: [PROPOSED] ORDER TO STIPULATED PROTECTIVE ORDER. The document was electronically served by on all parties represented by counsel through the CM/ECF system. Executed on November 9, 2017, at Los Angeles, California. 10 11 12 13 /s/ Valerie McConnell Valerie McConnell 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15

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