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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1 2 3 4 5 6 7 8 Milord A. Keshishian, SBN 197835 milord@milordlaw.com J. Nicolas Anwandter, SBN 294677 nico@milordlaw.com MILORD & ASSOCIATES, P.C. 10517 West Pico Boulevard Los Angeles, California 90064 Tel: (310) 226-7878 Fax: (310) 226-7879 Attorneys for Plaintiff L.A. GEM & JEWELRY DESIGN, INC. 9 10 11 MILORD & ASSOCIATES, PC 10517 West Pico Boulevard Los Angeles, CA 90064 (310) 226-7878 12 13 14 15 16 17 18 19 20 21 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA L.A. GEM & JEWELRY DESIGN, INC., a California corporation, ) ) ) Plaintiff, ) ) vs. ) ) NJS.COM, LLC, d/b/a NAMEJEWELRYSPOT, a Delaware ) limited liability company; and DOES 1- ) ) 10 ) ) Defendant. ) ) 22 23 24 25 26 27 28 1 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] 1 GOOD CAUSE STATEMENT 2 Subject to the approval of the Court, all documents, material or information 3 produced or created by a party or non-party (“Source”) to a party in this action 4 (“Receiving Party”) containing information which the Source or a party believes in 5 good faith to be confidential or trade secret information, shall be designated as 6 CONFIDENTIAL or CONFIDENTIAL-ATTORNEYS’ EYES ONLY by the 7 Source or a party and maintained by the Receiving Party(ies) pursuant to the terms 8 of this Order. 9 I. GOOD CAUSE STATEMENT 10 A. 11 Plaintiff is in the business of manufacturing, marketing, and selling jewelry. Factual Background MILORD & ASSOCIATES, PC 10517 West Pico Boulevard Los Angeles, CA 90064 (310) 226-7878 12 Defendant is an online reseller for jewelry and other accessories. Because of the 13 parties’ status as competitors or potential competitors, business information such as 14 supplier lists, customer lists, cost-of-goods sold, pricing, manufacturing 15 agreements, and other, similar information are confidential and must be protected 16 from disclosure, and with highly sensitive information, safeguards are necessary to 17 limit the disclosure of such information to opposing parties and/or other 18 competitors in the market so as to avoid competitive harm. 19 The threshold issues in the complaint center on copyright infringement 20 allegations. Resolution of these issues and damages analysis necessarily require 21 evidence of, but not limited to, customer lists, cost of manufactures, supplier lists, 22 sales data, and channels of trade. 23 24 25 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 26 order upon a showing of good cause, and provides that the protection of a trade 27 secret or other confidential commercial information is a proper basis for the 28 issuance of a protective order. The party seeking such an order must demonstrate a 2 1 particular and specific need for the protective order. Gary v. Rodewald, 133 2 F.R.D. 39, 40 (N.D. Cal. 1990). 3 A protective order that focuses on preventing disclosure of particular 4 information, e.g. confidential business information, where disclosure would “likely 5 cause serious harm,” is supported by good cause. Hayden v. Siemens Medical 6 Systems, Inc., 106 F.R.D. 551, 556, (S.D.N.Y. 1985). To support a showing of 7 good cause, however, a protective order must be sufficiently tailored in the 8 information it seeks to protect, e.g. by designating certain classes or types of 9 information. Id. A “blanket” protective order, as opposed to a broader “umbrella” protective 11 order, “permits the parties to protect the documents that they in good faith believe 12 MILORD & ASSOCIATES, PC 10517 West Pico Boulevard Los Angeles, CA 90064 (310) 226-7878 10 contain trade secrets or other confidential commercial information. Such 13 protective orders are routinely agreed to by the parties and approved by the courts 14 in commercial litigation, especially in cases between direct competitors.” Bayer 15 AG and Miles Inc. v. Barr Laboratories, Inc., 162 F.R.D. 456, 465, (S.D.N.Y. 16 1995). 17 As competitors or potential competitors, the parties’ proposed protective 18 order was drafted to protect the confidentiality and disclosure of each party’s 19 confidential business information and to provide extra precautions on the 20 disclosure of highly sensitive business information, as defined below, and as 21 balanced against the need and use for such information to prosecute and defend 22 this action. Confidential information, whether designated CONFIDENTIAL or 23 CONFIDENTIAL ATTORNEYS’ EYES ONLY, may open to challenge by any 24 party, any third party, or the public. 25 C. 26 Based on the foregoing demonstration of good cause in support of the 27 Protective Order, this Order should be granted by the Court to protect that parties’ 28 confidential business information. Conclusion 3 1 2 STIPULATION AND ORDER In accordance with Rule 26(c) Federal Rules of Civil Procedure the parties 3 stipulate and agree, through their respective counsel, to the entry of a protective 4 order governing the disclosure during pretrial discovery and the subsequent 5 handling of trade secret information, proprietary information, other confidential 6 commercial, financial or personal information, and documents containing any such 7 information as follows: 8 1. INITIAL DESIGNATION. 9 1.1 Confidentiality Designations. Information (regardless of how it is generated, stored or maintained) or tangible things that qualify for protection under 11 Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause 12 MILORD & ASSOCIATES, PC 10517 West Pico Boulevard Los Angeles, CA 90064 (310) 226-7878 10 Statement shall be referred to as “CONFIDENTIAL INFORMATION.” 13 CONFIDENTIAL INFORMATION may be designated as “CONFIDENTIAL” or 14 “CONFIDENTIAL-ATTORNEYS’ EYES ONLY,” as follows: 15 a. CONFIDENTIAL designation. A party or non-party may 16 designate material CONFIDENTIAL only if it deems that a reasonable basis exists 17 for limiting dissemination of the material under the standards of Rule 26 and that 18 the material contains confidential and/or proprietary commercial information that 19 is not generally available to the public 20 b. CONFIDENTIAL-ATTORNEYS’ EYES ONLY designation. 21 A party or non-party may only designate material CONFIDENTIAL- 22 ATTORNEYS’ EYES ONLY if it deems that disclosure of such material to 23 another person or party would be injurious to the commercial interests of the 24 designating entity under the standards of Rule 26 and that the material contains 25 highly propriety technical or trade secret or business information so that the risk of 26 improper use or disclosure to another party outweighs the right of that party to 27 review such information. 28 1.2 Produced Documents. A party producing documents that it believes 4 1 constitute or contain CONFIDENTIAL INFORMATION shall produce copies 2 bearing a label designating such material CONFIDENTIAL or CONFIDENTIAL- 3 ATTORNEYS’ EYES ONLY. As used herein, the term “documents” includes all 4 writings or other media on which information is recorded and other electronic files 5 and tangible things subject to production under the Federal Rules of Civil 6 Procedure. 7 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 9 be deemed CONFIDENTIAL-ATTORNEYS’ EYES ONLY unless otherwise 10 designated or agreed to, in writing, by the parties. Notwithstanding any other 11 provisions of this Order, no such documents, information, or materials may be 12 MILORD & ASSOCIATES, PC 10517 West Pico Boulevard Los Angeles, CA 90064 (310) 226-7878 8 disclosed, shared, or otherwise used during any part of this case unless introduced 13 again by the same providing party under this Order. 14 1.3 Interrogatory Answers. If a party answering an interrogatory 15 believes in good faith under the criteria set forth in Paragraph 1.1 above that its 16 answer contains CONFIDENTIAL INFORMATION, it shall set forth its answer in 17 a separate document that is produced and designated as CONFIDENTIAL or 18 CONFIDENTIAL-ATTORNEYS’ EYES ONLY in the same manner as a 19 produced document under subparagraph 1.2. The answers to interrogatories should 20 make reference to the separately produced document containing the answer, but 21 such document should not be attached to the interrogatories. 22 1.4 Inspections of Documents. In the event a party elects to produce 23 files and records for inspection and the requesting party elects to inspect them, no 24 designation of CONFIDENTIAL INFORMATION need be made in advance of the 25 inspection. For purposes of such inspection, all materials produced shall be 26 considered as CONFIDENTIAL INFORMATION unless the parties agree, in 27 writing, otherwise. If the inspecting party selects specified documents to be 28 copied, the producing party shall be treated as CONFIDENTIAL INFORMATION 5 1 until 10 days have elapsed from the time the producing party is provided copies of 2 the selected documents, during which time the producing party may designate such 3 documents as CONFIDENTIAL INFORMATION in accordance with Section 1.1. 4 1.5 Deposition Transcripts. Portions of testimony taken at a deposition 5 or conference and any corresponding exhibits may be designated as 6 CONFIDENTIAL or CONFIDENTIAL–ATTORNEYS’ EYES ONLY by making 7 a statement to that effect on the record at the deposition or other proceeding. 8 Arrangements shall be made with the court reporter transcribing such proceeding 9 to separately bind such portions of the transcript containing information designated as CONFIDENTIAL or CONFIDENTIAL–ATTORNEYS’ EYES ONLY and 11 label such portions appropriately. For convenience, if a deposition transcript 12 MILORD & ASSOCIATES, PC 10517 West Pico Boulevard Los Angeles, CA 90064 (310) 226-7878 10 contains repeated references to CONFIDENTIAL INFORMATION which cannot 13 conveniently be segregated from non-CONFIDENTIAL INFORMATION, the 14 entire transcript may be marked by the reporter as CONFIDENTIAL or 15 CONFIDENTIAL–ATTORNEYS’ EYES ONLY. 16 A party may also designate information disclosed at a deposition as 17 CONFIDENTIAL and/or CONFIDENTIAL-ATTORNEYS’ EYES ONLY by 18 notifying all parties in writing, within 30 days of receipt of the transcript, of the 19 specific pages and lines designated as such. Each party shall attach a copy of such 20 written statement to the face of each transcript in its possession, custody or control. 21 For 30 days after receipt of the transcript, depositions shall be treated as 22 CONFIDENTIAL-ATTORNEYS’ EYES ONLY, but after that period any portions 23 not designated as CONFIDENTIAL and/or CONFIDENTIAL-ATTORNEYS’ 24 EYES ONLY may be disclosed. 25 1.6 Multi-page Documents. A party may designate all pages of an 26 integrated, multi-page document, including a deposition transcript, interrogatory 27 answers, and/or responses to document requests, as CONFIDENTIAL 28 INFORMATION by placing the label specified in subparagraph 1.2 on the first 6 1 page of the document. If a party wishes to designate only certain portions of an 2 integrated, multi-page document as CONFIDENTIAL INFORMATION, it should 3 designate such portions immediately below the label on the first page of the 4 document and place the label specified in subparagraph 1.2 on each page of the 5 document containing CONFIDENTIAL INFORMATION. 6 1.7 Inadvertent Failures to Designate. An inadvertent failure to 7 designate qualified information or items does not, standing alone, waive the right 8 to secure protection under this Protective Order for such material, provided that the 9 designating party promptly notifies the Receiving Party, in writing, of its failure to properly designate the qualified information and corrects the designation after 11 discovery of such inadvertent failure. Upon timely correction of a designation, the 12 MILORD & ASSOCIATES, PC 10517 West Pico Boulevard Los Angeles, CA 90064 (310) 226-7878 10 Receiving Party must make reasonable efforts to assure that the material is treated 13 in accordance with the provisions of this Protective Order. 14 2. HANDLING PRIOR TO TRIAL. 15 2.1 Disclosure of CONFIDENTIAL Material. Materials designated 16 CONFIDENTIAL or information derived therefrom may be disclosed, shown, 17 made available, or communicated in any way only to the following persons: 18 a. The parties and employees of the parties, but only to the extent 19 necessary to participate in, assist in and monitor the progress of this Action and for 20 no other purpose; 21 b. Qualified persons taking testimony involving CONFIDENTIAL 22 INFORMATION, and necessary stenographic, videographic, and clerical personnel 23 thereof; 24 c. Consultants or experts and their staff who are employed for the 25 purposes of this litigation who have signed the “Written Assurance” 26 acknowledgement (Attachment A); 27 d. The court and the court’s staff; 28 e. The author, addressees and recipients of the documents or any 7 1 person who would have had access to such information by virtue of his/her 2 employment; and for whom disclosure is reasonably necessary, 3 f. any mediator or settlement officer, and their supporting 4 personnel, mutually agreed upon by any of the parties engaged in settlement 5 discussions. 6 g. Outside counsel for the parties to this litigation and/or the insurance carriers for the parties to the litigation, including persons working solely 8 in secretarial, clerical, and paralegal capacities, and who are providing assistance to 9 counsel in this Action, and/or claims representatives and/or claims adjustors, upon 10 the condition that such CONFIDENTIAL INFORMATION not be used in policy 11 issuance determinations and be immediately destroyed by the insurance carriers 12 MILORD & ASSOCIATES, PC 10517 West Pico Boulevard Los Angeles, CA 90064 (310) 226-7878 7 upon completion of the instant litigation; 13 h. Third-parties specifically retained to assist outside counsel in 14 copying, imaging, and/or coding of documents but for that purpose only, provided 15 that all such confidential documents are kept and maintained in a separate and 16 secure place and that the third party retained to copy, image, or code confidential 17 documents is not currently performing any services, either as an employee, 18 consultant, or otherwise for any competitor of either party to this Action or for one 19 having any interest adverse to either party to this Action; 20 21 22 i. Any other person as to whom the parties previously agree in writing. 2.2 Disclosure of CONFIDENTIAL – ATTORNEYS’ EYES ONLY 23 Material. Material or documents designated as CONFIDENTIAL-ATTORNEYS’ 24 EYES ONLY may be shown to the persons listed in Sections 2.1(b) through (i). 25 2.3 Use of CONFIDENTIAL INFORMATION. Individuals who are 26 authorized to review CONFIDENTIAL INFORMATION pursuant to this 27 Protective Order shall hold the CONFIDENTIAL INFORMATION and its 28 contents in confidence and shall not divulge it, either verbally or in writing, except 8 1 as expressly permitted by this Protective Order, unless authorized to do so by a 2 further order of this Court or as specifically required by law. 3 2.4 Unauthorized Disclosures. In the event of disclosure of 4 CONFIDENTIAL INFORMATION other than as authorized in this Protective 5 Order, counsel for the party responsible for the disclosure shall (1) notify all 6 parties of the unauthorized disclosures, (2) make every effort to prevent further 7 disclosure, including retrieving disclosed materials and copies of such materials, 8 and (3) request that the persons to whom the unauthorized disclosure was made 9 sign a “Written Assurance” acknowledgement (Attachment “A”). Upon written 10 stipulation or motion, in accordance with Local Rule 37, the Court may order such 11 further and additional relief as it deems necessary and just. MILORD & ASSOCIATES, PC 10517 West Pico Boulevard Los Angeles, CA 90064 (310) 226-7878 12 2.5 Court Filings. Any CONFIDENTIAL INFORMATION (or 13 documents containing CONFIDENTIAL INFORMATION) to be filed with the 14 Court shall be filed under seal pursuant to the procedures set forth in Local Rule 15 79-5, or pursuant to such other procedures for filing under seal as the Court may 16 order or allow. The parties agree that exhibits provided to any jury impaneled in 17 this Action shall be provided without the CONFIDENTIAL or CONFIDENTIAL– 18 ATTORNEYS’ EYES ONLY stamp. 19 3. 20 which is subject to this Protective Order may be marked and used as trial exhibits 21 by either party, subject to terms and conditions as imposed by the trial court upon 22 application by the designating party. 23 4. 24 survive the final termination of this Action and shall protect all retained materials 25 that have remained confidential through final termination of the case. Upon final 26 termination of this Action, counsel for the parties may each retain one copy of all 27 pleadings, motion papers, trial, deposition, and hearing transcripts, legal 28 memoranda, correspondence, deposition and trial exhibits, expert reports, attorney HANDLING DURING TRIAL. CONFIDENTIAL INFORMATION HANDLING AFTER FINAL DISPOSITION. This Protective Order shall 9 1 work product, and consultant and expert work product, even if such materials 2 contain CONFIDENTIAL INFORMATION. Counsel shall destroy or assemble 3 and return to each other materials designated as CONFIDENTIAL and/or 4 CONFIDENTIAL–ATTORNEYS’ EYES ONLY and all copies or summaries 5 thereof. 6 5. 7 or disclosure by a party of material: (1) obtained lawfully by a party hereto other 8 than through discovery in this Action, from a person who, to the best of such 9 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; 11 (2) that is public knowledge or became public knowledge after disclosure under 12 MILORD & ASSOCIATES, PC 10517 West Pico Boulevard Los Angeles, CA 90064 (310) 226-7878 10 this Protective Order (other than through an act or omission or a person receiving 13 material under this Protective Order). 14 6. 15 the right of any party: (i) to request re-designation of material as 16 CONFIDENTIAL, CONFIDENTIAL–ATTORNEYS’ EYES ONLY, or neither; 17 (ii) upon written stipulation, in accordance with Local Rule 37, to request the 18 Court’s ruling on whether a document or information is CONFIDENTIAL, 19 CONFIDENTIAL–ATTORNEYS’ EYES ONLY Material, or whether its use 20 should be restricted; (iii) to present a motion to the Court under FRCP 26(c) for a 21 separate protective order as to any document or information, including restrictions 22 differing from those specified herein. Any challenge to a confidentiality 23 designation shall be initiated pursuant to Local Rule 37 and the burden of 24 persuasion in any such challenge shall be on the party who designated the material 25 as CONFIDENTIAL or CONFIDENTIAL–ATTORNEYS’ EYES ONLY. The 26 Protective Order shall not be deemed to prejudice the parties in any way in any 27 future application for modification of this Protective Order. 28 7. OTHER REQUESTS. This Protective Order shall be without prejudice to CONFIDENTIAL INFORMATION SUBPOENAED OR ORDERED 10 1 PRODUCED IN OTHER LITIGATION. If a party is served with a subpoena or 2 a court order issued in other litigation that compels disclosure of any information 3 or items designated in this Action as CONFIDENTIAL or CONFIDENTIAL– 4 ATTORNEYS’ EYES ONLY that party must: 5 6 a. promptly notify, in writing, the designating party. Such notification shall include a copy of the subpoena or court order; 7 b. promptly notify, in writing, the party who caused the subpoena or 8 order to issue in the other litigation that some or all of the material covered by the 9 subpoena or order is subject to this Protective Order. Such notification shall 10 include a copy of this Protective Order; and 11 c. cooperate with respect to all reasonable procedures sought to be MILORD & ASSOCIATES, PC 10517 West Pico Boulevard Los Angeles, CA 90064 (310) 226-7878 12 pursued by the designating party whose CONFIDENTIAL INFORMATION may 13 be affected. 14 If the designating party timely seeks a protective order, the party served with 15 the subpoena or court order shall not produce any information designated in this 16 action as CONFIDENTIAL or CONFIDENTIAL–ATTORNEYS’ EYES ONLY 17 before a determination by the court from which the subpoena or order issued, 18 unless the party has obtained the designating party’s permission. The designating 19 party shall bear the burden and expense of seeking protection in that court of its 20 CONFIDENTIAL INFORMATION and nothing in these provisions should be 21 construed as authorizing or encouraging any party in this Action to disobey a 22 lawful directive from another court. 23 8. 24 information under this Protective Order shall maintain such material and 25 information secured and shall exercise the same standard of care with respect to 26 storage, custody, use and dissemination of the material as they exercise for their 27 own proprietary information, but in no event shall the standard be less than that of 28 a reasonable person. CUSTODY. All Receiving Parties of CONFIDENTIAL material and 11 1 This Protective Order shall be binding on the parties pending entry by the Court. 2 3 IT IS SO STIPULATED. 4 5 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. 6 7 8 9 10 Dated: November 29, 2017 11 By: /s/ Mark J. Kesten Mark J. Kesten Attorneys for Defendant NJS.COM LLC, d/b/a NAMEJEWELRYSPOT 12 MILORD & ASSOCIATES, PC 10517 West Pico Boulevard Los Angeles, CA 90064 (310) 226-7878 MARC J. KESTEN, P.L. 13 14 15 ORDERED. D FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 16 DATED: November 30, 2017 By: ________________________ __________________________ _ 17 E McDerm Honorable John E. McDermott United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28 12 1 2 3 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. 4 5 6 Dated: November 29, 2017 /s/ Milord A. Keshishian Milord A. Keshishian 7 8 9 10 11 MILORD & ASSOCIATES, PC 10517 West Pico Boulevard Los Angeles, CA 90064 (310) 226-7878 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 1 EXHIBIT A 2 WRITTEN ASSURANCE 3 I, _______________________________________________ (print name), reside at ___________________________________, in the City of 5 ______________, ____________. I am employed by and/or affiliated with 6 ___________________, with a business address of 7 ________________________________________, in the City of 8 ______________, ____________. I have read and understand the Stipulated 9 Protective Order filed in the case of L.A. Gem & Jewelry Design, Inc. v. NJS.com, 10 LLC, et al., United States District Court Case CV 17-2747 BRO (JEMx). I agree 11 to comply with and be bound by the provisions of the Stipulated Protective Order. 12 MILORD & ASSOCIATES, PC 10517 West Pico Boulevard Los Angeles, CA 90064 (310) 226-7878 4 I will not divulge Confidential Material and/or Confidential-Attorneys’ Eyes Only 13 Material (as those terms are defined in the Stipulated Protective Order) to persons 14 other than those specifically authorized by the Stipulated Protective Order. I will 15 not copy or use, except solely for the purpose of this litigation, any information 16 protected by the Stipulated Protective Order except as expressly permitted by the 17 18 19 Court. Executed at __________________, ___________________ (insert city and state), this _____ day of _______________, 201__. 20 21 ______________________________ Signature 22 23 24 25 26 27 28 14

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