L.A. Gem and Jewelry Design, Inc. v. NJS.COM LLC, et al

Filing 25

STIPULATED PROTECTIVE ORDER by Magistrate Judge John E. McDermott. re Stipulation for Protective Order 24 . (See Order for Further Details) (kl)

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Milord A. Keshishian, SBN 197835
[e-mail]
J. Nicolas Anwandter, SBN 294677
[e-mail]
MILORD & ASSOCIATES, P.C.
10517 West Pico Boulevard
Los Angeles, California 90064
Tel: [phone]
Fax: [phone]
Attorneys for Plaintiff
L.A. GEM & JEWELRY DESIGN, INC.

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MILORD & ASSOCIATES, PC
10517 West Pico Boulevard
Los Angeles, CA 90064
[phone]

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
L.A. GEM & JEWELRY DESIGN,
INC., a California corporation,

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Plaintiff,
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vs.
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NJS.COM, LLC, d/b/a
NAMEJEWELRYSPOT, a Delaware )
limited liability company; and DOES 1- )
)
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Defendant.
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)

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Case No.: 2:17-cv-02747 AB (JEMx)
District: Hon. Andre Birotte Jr.
Magistrate: Hon. John E. McDermott
STIPULATED PROTECTIVE
ORDER
[DISCOVERY DOCUMENT:
REFERRED TO MAGISTRATE
JUDGE JOHN E. MCDERMOTT]

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GOOD CAUSE STATEMENT

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Subject to the approval of the Court, all documents, material or information

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produced or created by a party or non-party (“Source”) to a party in this action

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(“Receiving Party”) containing information which the Source or a party believes in

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good faith to be confidential or trade secret information, shall be designated as

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CONFIDENTIAL or CONFIDENTIAL-ATTORNEYS’ EYES ONLY by the

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Source or a party and maintained by the Receiving Party(ies) pursuant to the terms

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of this Order.

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I.

GOOD CAUSE STATEMENT

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A.

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Plaintiff is in the business of manufacturing, marketing, and selling jewelry.

Factual Background

MILORD & ASSOCIATES, PC
10517 West Pico Boulevard
Los Angeles, CA 90064
[phone]

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Defendant is an online reseller for jewelry and other accessories. Because of the

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parties’ status as competitors or potential competitors, business information such as

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supplier lists, customer lists, cost-of-goods sold, pricing, manufacturing

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agreements, and other, similar information are confidential and must be protected

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from disclosure, and with highly sensitive information, safeguards are necessary to

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limit the disclosure of such information to opposing parties and/or other

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competitors in the market so as to avoid competitive harm.

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The threshold issues in the complaint center on copyright infringement

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allegations. Resolution of these issues and damages analysis necessarily require

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evidence of, but not limited to, customer lists, cost of manufactures, supplier lists,

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sales data, and channels of trade.

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B.

The Proposed Protective Order Focuses on the Protection of
Commercially Sensitive Business Information

Federal Rule Civil Procedure Rule 26(c)(7) permits the grant of a protective

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order upon a showing of good cause, and provides that the protection of a trade

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secret or other confidential commercial information is a proper basis for the

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issuance of a protective order. The party seeking such an order must demonstrate a
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particular and specific need for the protective order. Gary v. Rodewald, 133

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F.R.D. 39, 40 (N.D. Cal. 1990).

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A protective order that focuses on preventing disclosure of particular

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information, e.g. confidential business information, where disclosure would “likely

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cause serious harm,” is supported by good cause. Hayden v. Siemens Medical

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Systems, Inc., 106 F.R.D. 551, 556, (S.D.N.Y. 1985). To support a showing of

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good cause, however, a protective order must be sufficiently tailored in the

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information it seeks to protect, e.g. by designating certain classes or types of

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information. Id.
A “blanket” protective order, as opposed to a broader “umbrella” protective

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order, “permits the parties to protect the documents that they in good faith believe

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MILORD & ASSOCIATES, PC
10517 West Pico Boulevard
Los Angeles, CA 90064
[phone]

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contain trade secrets or other confidential commercial information. Such

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protective orders are routinely agreed to by the parties and approved by the courts

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in commercial litigation, especially in cases between direct competitors.” Bayer

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AG and Miles Inc. v. Barr Laboratories, Inc., 162 F.R.D. 456, 465, (S.D.N.Y.

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1995).

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As competitors or potential competitors, the parties’ proposed protective

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order was drafted to protect the confidentiality and disclosure of each party’s

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confidential business information and to provide extra precautions on the

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disclosure of highly sensitive business information, as defined below, and as

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balanced against the need and use for such information to prosecute and defend

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this action. Confidential information, whether designated CONFIDENTIAL or

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CONFIDENTIAL ATTORNEYS’ EYES ONLY, may open to challenge by any

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party, any third party, or the public.

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C.

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Based on the foregoing demonstration of good cause in support of the

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Protective Order, this Order should be granted by the Court to protect that parties’

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confidential business information.

Conclusion

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STIPULATION AND ORDER
In accordance with Rule 26(c) Federal Rules of Civil Procedure the parties

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stipulate and agree, through their respective counsel, to the entry of a protective

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order governing the disclosure during pretrial discovery and the subsequent

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handling of trade secret information, proprietary information, other confidential

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commercial, financial or personal information, and documents containing any such

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information as follows:

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1.

INITIAL DESIGNATION.

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1.1

Confidentiality Designations. Information (regardless of how it is

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

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

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MILORD & ASSOCIATES, PC
10517 West Pico Boulevard
Los Angeles, CA 90064
[phone]

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Statement shall be referred to as “CONFIDENTIAL INFORMATION.”

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CONFIDENTIAL INFORMATION may be designated as “CONFIDENTIAL” or

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“CONFIDENTIAL-ATTORNEYS’ EYES ONLY,” as follows:

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a.

CONFIDENTIAL designation.

A party or non-party may

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designate material CONFIDENTIAL only if it deems that a reasonable basis exists

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for limiting dissemination of the material under the standards of Rule 26 and that

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the material contains confidential and/or proprietary commercial information that

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is not generally available to the public

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b.

CONFIDENTIAL-ATTORNEYS’ EYES ONLY designation.

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A party or non-party may only designate material CONFIDENTIAL-

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ATTORNEYS’ EYES ONLY if it deems that disclosure of such material to

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another person or party would be injurious to the commercial interests of the

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designating entity under the standards of Rule 26 and that the material contains

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highly propriety technical or trade secret or business information so that the risk of

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improper use or disclosure to another party outweighs the right of that party to

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review such information.

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1.2

Produced Documents. A party producing documents that it believes
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constitute or contain CONFIDENTIAL INFORMATION shall produce copies

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bearing a label designating such material CONFIDENTIAL or CONFIDENTIAL-

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ATTORNEYS’ EYES ONLY. As used herein, the term “documents” includes all

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writings or other media on which information is recorded and other electronic files

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and tangible things subject to production under the Federal Rules of Civil

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Procedure.

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Any and all documents, information, or materials provided by a party for the
purpose of settlement discussion prior to the entry of this Order by the Court shall

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be deemed CONFIDENTIAL-ATTORNEYS’ EYES ONLY unless otherwise

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designated or agreed to, in writing, by the parties. Notwithstanding any other

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provisions of this Order, no such documents, information, or materials may be

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MILORD & ASSOCIATES, PC
10517 West Pico Boulevard
Los Angeles, CA 90064
[phone]

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disclosed, shared, or otherwise used during any part of this case unless introduced

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again by the same providing party under this Order.

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1.3

Interrogatory Answers. If a party answering an interrogatory

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believes in good faith under the criteria set forth in Paragraph 1.1 above that its

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answer contains CONFIDENTIAL INFORMATION, it shall set forth its answer in

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a separate document that is produced and designated as CONFIDENTIAL or

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CONFIDENTIAL-ATTORNEYS’ EYES ONLY in the same manner as a

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produced document under subparagraph 1.2. The answers to interrogatories should

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make reference to the separately produced document containing the answer, but

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such document should not be attached to the interrogatories.

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1.4

Inspections of Documents. In the event a party elects to produce

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files and records for inspection and the requesting party elects to inspect them, no

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designation of CONFIDENTIAL INFORMATION need be made in advance of the

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inspection. For purposes of such inspection, all materials produced shall be

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considered as CONFIDENTIAL INFORMATION unless the parties agree, in

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writing, otherwise. If the inspecting party selects specified documents to be

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copied, the producing party shall be treated as CONFIDENTIAL INFORMATION
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until 10 days have elapsed from the time the producing party is provided copies of

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the selected documents, during which time the producing party may designate such

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documents as CONFIDENTIAL INFORMATION in accordance with Section 1.1.

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1.5

Deposition Transcripts. Portions of testimony taken at a deposition

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or conference and any corresponding exhibits may be designated as

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CONFIDENTIAL or CONFIDENTIAL–ATTORNEYS’ EYES ONLY by making

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a statement to that effect on the record at the deposition or other proceeding.

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Arrangements shall be made with the court reporter transcribing such proceeding

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to separately bind such portions of the transcript containing information designated
as CONFIDENTIAL or CONFIDENTIAL–ATTORNEYS’ EYES ONLY and

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label such portions appropriately. For convenience, if a deposition transcript

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MILORD & ASSOCIATES, PC
10517 West Pico Boulevard
Los Angeles, CA 90064
[phone]

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contains repeated references to CONFIDENTIAL INFORMATION which cannot

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conveniently be segregated from non-CONFIDENTIAL INFORMATION, the

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entire transcript may be marked by the reporter as CONFIDENTIAL or

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CONFIDENTIAL–ATTORNEYS’ EYES ONLY.

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A party may also designate information disclosed at a deposition as

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CONFIDENTIAL and/or CONFIDENTIAL-ATTORNEYS’ EYES ONLY by

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notifying all parties in writing, within 30 days of receipt of the transcript, of the

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specific pages and lines designated as such. Each party shall attach a copy of such

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written statement to the face of each transcript in its possession, custody or control.

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For 30 days after receipt of the transcript, depositions shall be treated as

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CONFIDENTIAL-ATTORNEYS’ EYES ONLY, but after that period any portions

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not designated as CONFIDENTIAL and/or CONFIDENTIAL-ATTORNEYS’

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EYES ONLY may be disclosed.

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1.6

Multi-page Documents. A party may designate all pages of an

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integrated, multi-page document, including a deposition transcript, interrogatory

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answers, and/or responses to document requests, as CONFIDENTIAL

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INFORMATION by placing the label specified in subparagraph 1.2 on the first
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page of the document. If a party wishes to designate only certain portions of an

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integrated, multi-page document as CONFIDENTIAL INFORMATION, it should

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designate such portions immediately below the label on the first page of the

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document and place the label specified in subparagraph 1.2 on each page of the

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document containing CONFIDENTIAL INFORMATION.

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1.7

Inadvertent Failures to Designate. An inadvertent failure to

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

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to secure protection under this Protective Order for such material, provided that the

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designating party promptly notifies the Receiving Party, in writing, of its failure to
properly designate the qualified information and corrects the designation after

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discovery of such inadvertent failure. Upon timely correction of a designation, the

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MILORD & ASSOCIATES, PC
10517 West Pico Boulevard
Los Angeles, CA 90064
[phone]

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Receiving Party must make reasonable efforts to assure that the material is treated

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in accordance with the provisions of this Protective Order.

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2.

HANDLING PRIOR TO TRIAL.

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2.1

Disclosure of CONFIDENTIAL Material. Materials designated

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CONFIDENTIAL or information derived therefrom may be disclosed, shown,

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made available, or communicated in any way only to the following persons:

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a.

The parties and employees of the parties, but only to the extent

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necessary to participate in, assist in and monitor the progress of this Action and for

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no other purpose;

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b.

Qualified persons taking testimony involving CONFIDENTIAL

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INFORMATION, and necessary stenographic, videographic, and clerical personnel

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thereof;

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c.

Consultants or experts and their staff who are employed for the

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purposes of this litigation who have signed the “Written Assurance”

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acknowledgement (Attachment A);

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d.

The court and the court’s staff;

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e.

The author, addressees and recipients of the documents or any
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person who would have had access to such information by virtue of his/her

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employment; and for whom disclosure is reasonably necessary,

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f.

any mediator or settlement officer, and their supporting

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personnel, mutually agreed upon by any of the parties engaged in settlement

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discussions.

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g.

Outside counsel for the parties to this litigation and/or the

insurance carriers for the parties to the litigation, including persons working solely

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in secretarial, clerical, and paralegal capacities, and who are providing assistance to

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counsel in this Action, and/or claims representatives and/or claims adjustors, upon

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the condition that such CONFIDENTIAL INFORMATION not be used in policy

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issuance determinations and be immediately destroyed by the insurance carriers

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MILORD & ASSOCIATES, PC
10517 West Pico Boulevard
Los Angeles, CA 90064
[phone]

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upon completion of the instant litigation;

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h.

Third-parties specifically retained to assist outside counsel in

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copying, imaging, and/or coding of documents but for that purpose only, provided

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that all such confidential documents are kept and maintained in a separate and

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secure place and that the third party retained to copy, image, or code confidential

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documents is not currently performing any services, either as an employee,

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consultant, or otherwise for any competitor of either party to this Action or for one

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having any interest adverse to either party to this Action;

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Any other person as to whom the parties previously agree in

writing.
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Disclosure of CONFIDENTIAL – ATTORNEYS’ EYES ONLY

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Material. Material or documents designated as CONFIDENTIAL-ATTORNEYS’

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EYES ONLY may be shown to the persons listed in Sections 2.1(b) through (i).

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2.3

Use of CONFIDENTIAL INFORMATION. Individuals who are

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authorized to review CONFIDENTIAL INFORMATION pursuant to this

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Protective Order shall hold the CONFIDENTIAL INFORMATION and its

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contents in confidence and shall not divulge it, either verbally or in writing, except
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as expressly permitted by this Protective Order, unless authorized to do so by a

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further order of this Court or as specifically required by law.

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2.4

Unauthorized Disclosures. In the event of disclosure of

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CONFIDENTIAL INFORMATION other than as authorized in this Protective

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Order, counsel for the party responsible for the disclosure shall (1) notify all

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parties of the unauthorized disclosures, (2) make every effort to prevent further

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disclosure, including retrieving disclosed materials and copies of such materials,

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and (3) request that the persons to whom the unauthorized disclosure was made

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sign a “Written Assurance” acknowledgement (Attachment “A”). Upon written

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stipulation or motion, in accordance with Local Rule 37, the Court may order such

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further and additional relief as it deems necessary and just.

MILORD & ASSOCIATES, PC
10517 West Pico Boulevard
Los Angeles, CA 90064
[phone]

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2.5

Court Filings. Any CONFIDENTIAL INFORMATION (or

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documents containing CONFIDENTIAL INFORMATION) to be filed with the

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Court shall be filed under seal pursuant to the procedures set forth in Local Rule

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79-5, or pursuant to such other procedures for filing under seal as the Court may

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order or allow. The parties agree that exhibits provided to any jury impaneled in

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this Action shall be provided without the CONFIDENTIAL or CONFIDENTIAL–

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ATTORNEYS’ EYES ONLY stamp.

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3.

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which is subject to this Protective Order may be marked and used as trial exhibits

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by either party, subject to terms and conditions as imposed by the trial court upon

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application by the designating party.

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4.

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survive the final termination of this Action and shall protect all retained materials

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that have remained confidential through final termination of the case. Upon final

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termination of this Action, counsel for the parties may each retain one copy of all

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

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

HANDLING DURING TRIAL. CONFIDENTIAL INFORMATION

HANDLING AFTER FINAL DISPOSITION. This Protective Order shall

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

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contain CONFIDENTIAL INFORMATION. Counsel shall destroy or assemble

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and return to each other materials designated as CONFIDENTIAL and/or

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CONFIDENTIAL–ATTORNEYS’ EYES ONLY and all copies or summaries

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thereof.

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or disclosure by a party of material: (1) obtained lawfully by a party hereto other

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than through discovery in this Action, from a person who, to the best of such

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party’s knowledge, was not at the time such materials were obtained by such party

RESTRICTIONS. Nothing herein shall impose any restriction on the use

under a duty (contractual or otherwise) to maintain such materials in confidence;

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(2) that is public knowledge or became public knowledge after disclosure under

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MILORD & ASSOCIATES, PC
10517 West Pico Boulevard
Los Angeles, CA 90064
[phone]

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this Protective Order (other than through an act or omission or a person receiving

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material under this Protective Order).

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6.

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the right of any party: (i) to request re-designation of material as

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CONFIDENTIAL, CONFIDENTIAL–ATTORNEYS’ EYES ONLY, or neither;

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(ii) upon written stipulation, in accordance with Local Rule 37, to request the

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Court’s ruling on whether a document or information is CONFIDENTIAL,

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CONFIDENTIAL–ATTORNEYS’ EYES ONLY Material, or whether its use

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should be restricted; (iii) to present a motion to the Court under FRCP 26(c) for a

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separate protective order as to any document or information, including restrictions

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differing from those specified herein. Any challenge to a confidentiality

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designation shall be initiated pursuant to Local Rule 37 and the burden of

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persuasion in any such challenge shall be on the party who designated the material

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as CONFIDENTIAL or CONFIDENTIAL–ATTORNEYS’ EYES ONLY. The

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Protective Order shall not be deemed to prejudice the parties in any way in any

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future application for modification of this Protective Order.

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OTHER REQUESTS. This Protective Order shall be without prejudice to

CONFIDENTIAL INFORMATION SUBPOENAED OR ORDERED
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PRODUCED IN OTHER LITIGATION. If a party is served with a subpoena or

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a court order issued in other litigation that compels disclosure of any information

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or items designated in this Action as CONFIDENTIAL or CONFIDENTIAL–

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ATTORNEYS’ EYES ONLY that party must:

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a.

promptly notify, in writing, the designating party. Such notification

shall include a copy of the subpoena or court order;

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b.

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

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order to 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 Protective Order; and

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c.

cooperate with respect to all reasonable procedures sought to be

MILORD & ASSOCIATES, PC
10517 West Pico Boulevard
Los Angeles, CA 90064
[phone]

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pursued by the designating party whose CONFIDENTIAL INFORMATION may

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be affected.

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If the designating party timely seeks a protective order, the party served with

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

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action as CONFIDENTIAL or CONFIDENTIAL–ATTORNEYS’ EYES ONLY

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before a determination by the court from which the subpoena or order issued,

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unless the party has obtained the designating party’s permission. The designating

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party shall bear the burden and expense of seeking protection in that court of its

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CONFIDENTIAL INFORMATION and nothing in these provisions should be

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construed as authorizing or encouraging any party in this Action to disobey a

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lawful directive from another court.

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8.

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information under this Protective Order shall maintain such material and

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information secured and shall exercise the same standard of care with respect to

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storage, custody, use and dissemination of the material as they exercise for their

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own proprietary information, but in no event shall the standard be less than that of

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a reasonable person.

CUSTODY. All Receiving Parties of CONFIDENTIAL material and

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This Protective Order shall be binding on the parties pending entry by the Court.

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IT IS SO STIPULATED.

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Dated: November 29, 2017

MILORD & ASSOCIATES, P.C.
By: /s/ Milord A. Keshishian
Milord A. Keshishian
Attorneys for Plaintiff
L.A. GEM & JEWELRY DESIGN, INC.

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Dated: November 29, 2017

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By: /s/ Mark J. Kesten
Mark J. Kesten
Attorneys for Defendant
NJS.COM LLC, d/b/a
NAMEJEWELRYSPOT

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MILORD & ASSOCIATES, PC
10517 West Pico Boulevard
Los Angeles, CA 90064
[phone]

MARC J. KESTEN, P.L.

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ORDERED.
D
FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

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DATED: November 30, 2017

By: ________________________
__________________________
_

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E McDerm
Honorable John E. McDermott
United States Magistrate Judge

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Attestation Pursuant to L.R. 5-4.3.4(a)(2)(i)
I herby attest that all other signatories listed, and on whose behalf the filing
is submitted, concur in the filing’s content and have authorized the filing.

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Dated: November 29, 2017

/s/ Milord A. Keshishian
Milord A. Keshishian

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MILORD & ASSOCIATES, PC
10517 West Pico Boulevard
Los Angeles, CA 90064
[phone]

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EXHIBIT A

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WRITTEN ASSURANCE

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I, _______________________________________________ (print name),
reside at ___________________________________, in the City of

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______________, ____________. I am employed by and/or affiliated with

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___________________, with a business address of

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________________________________________, in the City of

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______________, ____________. I have read and understand the Stipulated

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Protective Order filed in the case of L.A. Gem & Jewelry Design, Inc. v. NJS.com,

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LLC, et al., United States District Court Case CV 17-2747 BRO (JEMx). I agree

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to comply with and be bound by the provisions of the Stipulated Protective Order.

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MILORD & ASSOCIATES, PC
10517 West Pico Boulevard
Los Angeles, CA 90064
[phone]

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I will not divulge Confidential Material and/or Confidential-Attorneys’ Eyes Only

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Material (as those terms are defined in the Stipulated Protective Order) to persons

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other than those specifically authorized by the Stipulated Protective Order. I will

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not copy or use, except solely for the purpose of this litigation, any information

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protected by the Stipulated Protective Order except as expressly permitted by the

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Court.
Executed at __________________, ___________________ (insert city and
state), this _____ day of _______________, 201__.

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______________________________
Signature

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