Unicolors, Inc. v. Zulily, LLC et al
Filing
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ORDER RE STIPULATED PROTECTIVE ORDER by Magistrate Judge Jacqueline Chooljian re Stipulation for Protective Order 35 . See order for details. (hr)
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Morgan E. Pietz (SBN 260629)
mpietz@gerardfoxlaw.com
Timothy G. Lamoureux (SBN 294048)
tlamoureux@gerardfoxlaw.com
Gerard Fox Law P.C.
1880 Century Park East, Suite 1410
Los Angeles, CA 90067
Telephone: (310) 441-0500
Facsimile: (310) 441-4447
Attorneys for Defendant
ZULILY, LLC
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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UNICOLORS, INC., a California
Corporation,
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Plaintiff,
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Case No. 2:17-cv-02809-JAK-JC
Assigned to: Hon. John A. Kronstadt
United States District Judge
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v.
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ZULILY, LLC., a Washington Limited
Liability Company; SPARKLE G, INC., ORDER RE STIPULATED
a California Corporation; HAN S.
PROTECTIVE ORDER
CHOI, an individual; and DOES 1-10,
inclusive,
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Referred to: Hon. Jacqueline Chooljian
United States Magistrate Judge
Defendants.
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-1-
PROTECTIVE ORDER
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1.
A. PURPOSES AND LIMITATIONS
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As the parties have represented that discovery in this action is likely to
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involve production of confidential, proprietary, or private information for which
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special protection from public disclosure and from use for any purpose other than
prosecuting this litigation may be warranted, this Court enters the following
Protective Order. This Order does not confer blanket protections on all disclosures
or responses to discovery. 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. Further, as set forth in Section 12.3,
below, this Protective Order does not entitle the parties to file confidential
information under seal. Rather, when the parties seek permission from the court to
file material under seal, the parties must comply with Civil Local Rule 79-5 and
with any pertinent orders of the assigned District Judge and Magistrate Judge.
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B. GOOD CAUSE STATEMENT
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In light of the nature of the claims and allegations in this case and the parties’
representations that discovery in this case will involve the production of confidential
records, and in order to expedite the flow of information, to facilitate the prompt
resolution of disputes over confidentiality of discovery materials, to adequately
protect information the parties are entitled to keep confidential, to ensure that the
parties are permitted reasonable necessary uses of such material in connection with
this action, to address their handling of such material at the end of the litigation, and
to serve the ends of justice, a protective order for such information is justified in this
matter. The parties shall not designate any information/documents as confidential
without a good faith belief that such information/documents have been maintained
in a confidential, non-public manner, and that there is good cause or a compelling
reason why it should not be part of the public record of this case.
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2.
DEFINITIONS
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2.1
Action: The instant action: Case No. 2:17-cv-02809-JAK-JC.
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2.2
Challenging Party: a Party or Non-Party that challenges the
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designation of information or items under this Order.
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2.3
how it is generated, stored or maintained) or tangible things that qualify for
protection under Federal Rule of Civil Procedure 26(c), and as specified above in
the Good Cause Statement.
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2.4
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2.5
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“CONFIDENTIAL.”
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among other things, testimony, transcripts, and tangible things), that are produced or
generated in disclosures or responses to discovery in this matter.
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an expert witness or as a consultant in this Action.
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counsel.
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Non-Party: any natural person, partnership, corporation, association, or
other legal entity not named as a Party to this action.
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House Counsel: attorneys who are employees of a party to this Action.
House Counsel does not include Outside Counsel of Record or any other outside
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Expert: a person with specialized knowledge or experience in a matter
pertinent to the litigation who has been retained by a Party or its counsel to serve as
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Disclosure or Discovery Material: all items or information, regardless
of the medium or manner in which it is generated, stored, or maintained (including,
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Designating Party: a Party or Non-Party that designates information or
items that it produces in disclosures or in responses to discovery as
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Counsel: Outside Counsel of Record and House Counsel (as well as
their support staff).
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“CONFIDENTIAL” Information or Items: information (regardless of
2.10 Outside Counsel of Record: attorneys who are not employees of a
party to this Action but are retained to represent or advise a party to this Action and
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have appeared in this Action on behalf of that party or are affiliated with a law firm
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which has appeared on behalf of that party, and includes support staff.
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2.11 Party: any party to this Action, including all of its officers, directors,
employees, consultants, retained experts, and Outside Counsel of Record (and their
support staffs).
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2.12 Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this Action.
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2.13 Professional Vendors:
support services (e.g., photocopying, videotaping, translating, preparing exhibits or
demonstrations, and organizing, storing, or retrieving data in any form or medium)
and their employees and subcontractors.
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2.14 Protected Material:
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2.15 Receiving Party:
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3.
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SCOPE
The protections conferred by this Order cover not only Protected Material (as
defined above), but also (1) any information copied or extracted from Protected
Material; (2) all copies, excerpts, summaries, or compilations of Protected Material;
and (3) any deposition testimony, conversations, or presentations by Parties or their
Counsel that might reveal Protected Material, other than during a court hearing or at
trial.
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a Party that receives Disclosure or Discovery
Material from a Producing Party.
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any Disclosure or Discovery Material that is
designated as “CONFIDENTIAL.”
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persons or entities that provide litigation
Any use of Protected Material during a court hearing or at trial shall be
governed by the orders of the presiding judge. This Order does not govern the use
of Protected Material during a court hearing or at trial.
4.
DURATION
Even after final disposition of this litigation, the confidentiality obligations
imposed by this Order shall remain in effect until a Designating Party agrees
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otherwise in writing or a court order otherwise directs. Final disposition shall be
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deemed to be the later of (1) dismissal of all claims and defenses in this Action, with
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or without prejudice; and (2) final judgment herein after the completion and
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exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,
including the time limits for filing any motions or applications for extension of time
pursuant to applicable law.
5.
DESIGNATING PROTECTED MATERIAL
5.1
Exercise of Restraint and Care in Designating Material for Protection.
Each Party or Non-Party that designates information or items for protection under
this Order must take care to limit any such designation to specific material that
qualifies under the appropriate standards. The Designating Party must designate for
protection only those parts of material, documents, items, or oral or written
communications that qualify so that other portions of the material, documents,
items, or communications for which protection is not warranted are not swept
unjustifiably within the ambit of this Order.
Mass, indiscriminate, or routinized designations are prohibited. Designations
that are shown to be clearly unjustified or that have been made for an improper
purpose (e.g., to unnecessarily encumber the case development process or to impose
unnecessary expenses and burdens on other parties) may expose the Designating
Party to sanctions.
If it comes to a Designating Party’s attention that information or items that it
designated for protection do not qualify for protection, that Designating Party must
promptly notify all other Parties that it is withdrawing the inapplicable designation.
5.2
Manner and Timing of Designations. Except as otherwise provided in
this Order (see, e.g., second paragraph of Section 5.2(a) below), or as otherwise
stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
under this Order must be clearly so designated before the material is disclosed or
produced.
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Designation in conformity with this Order requires:
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(a)
for information in documentary form (e.g., paper or electronic
documents, but excluding transcripts of depositions), that the Producing Party affix
at a minimum, the legend “CONFIDENTIAL” (hereinafter “CONFIDENTIAL
legend”), to each page that contains protected material. If only a portion or portions
of the material on a page qualifies for protection, the Producing Party also must
clearly identify the protected portion(s) (e.g., by making appropriate markings in the
margins).
A Party or Non-Party that makes original documents available for inspection
need not designate them for protection until after the inspecting Party has indicated
which documents it would like copied and produced. During the inspection and
before the designation, all of the material made available for inspection shall be
deemed “CONFIDENTIAL.” After the inspecting Party has identified the
documents it wants copied and produced, the Producing Party must determine which
documents, or portions thereof, qualify for protection under this Order. Then, before
producing the specified documents, the Producing Party must affix the
“CONFIDENTIAL legend” to each page that contains Protected Material. If only a
portion or portions of the material on a page qualifies for protection, the Producing
Party also must clearly identify the protected portion(s) (e.g., by making appropriate
markings in the margins).
(b) for testimony given in depositions that the Designating Party identifies
on the record, before the close of the deposition as protected testimony.
(c) for information produced in some form other than documentary and
for any other tangible items, that the Producing Party affix in a prominent place on
the exterior of the container or containers in which the information is stored the
legend “CONFIDENTIAL.” If only a portion or portions of the information
warrants protection, the Producing Party, to the extent practicable, shall identify the
protected portion(s).
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5.3
Inadvertent Failures to Designate. If timely corrected, an inadvertent
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failure to designate qualified information or items does not, standing alone, waive
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the Designating Party’s right to secure protection under this Order for such material.
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Upon timely correction of a designation, the Receiving Party must make reasonable
efforts to assure that the material is treated in accordance with the provisions of this
Order.
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6.1
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6.2
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Meet and Confer. The Challenging Party shall initiate the dispute
resolution process under Local Rule 37-1 et seq.
6.3
The burden of persuasion in any such challenge proceeding shall be on
the Designating Party. Frivolous challenges, and those made for an improper
purpose (e.g., to harass or impose unnecessary expenses and burdens on other
parties) may expose the Challenging Party to sanctions. Unless the Designating
Party has waived or withdrawn the confidentiality designation, all parties shall
continue to afford the material in question the level of protection to which it is
entitled under the Producing Party’s designation until the Court rules on the
challenge.
7.
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Any Party or Non-Party may challenge a
Scheduling Order.
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Timing of Challenges.
designation of confidentiality at any time that is consistent with the Court’s
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CHALLENGING CONFIDENTIALITY DESIGNATIONS
ACCESS TO AND USE OF PROTECTED MATERIAL
7.1
Basic Principles. A Receiving Party may use Protected Material that is
disclosed or produced by another Party or by a Non-Party in connection with this
Action only for prosecuting, defending, or attempting to settle this Action. Such
Protected Material may be disclosed only to the categories of persons and under the
conditions described in this Order. When the Action has been terminated, a
Receiving Party must comply with the provisions of Section 13 below.
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Protected Material must be stored and maintained by a Receiving Party at a
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location and in a secure manner that ensures that access is limited to the persons
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authorized under this Order.
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7.2
Disclosure of “CONFIDENTIAL” Information or Items. Unless
otherwise ordered by the court or permitted in writing by the Designating Party, a
Receiving
Party
may
disclose
any
information
or
item
designated
“CONFIDENTIAL” only to:
(a) the Receiving Party’s Outside Counsel of Record in this Action, as
well as employees of said Outside Counsel of Record to whom it is reasonably
necessary to disclose the information for this Action;
(b) the officers, directors, and employees (including House Counsel) of
the Receiving Party to whom disclosure is reasonably necessary for this Action;
(c) Experts (as defined in this Order) of the Receiving Party to whom
disclosure is reasonably necessary for this Action and who have signed the
“Acknowledgment and Agreement to Be Bound” (Exhibit A);
(d) the court and its personnel;
(e) court reporters and their staff;
(f) professional jury or trial consultants, mock jurors, and Professional
Vendors to whom disclosure is reasonably necessary for this Action and who have
signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(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
Action to whom disclosure is reasonably necessary provided: (1) the deposing party
requests that the witness sign the “Acknowledgment and Agreement to Be Bound”
form attached as Exhibit A hereto; and (2) they will not be permitted to keep any
confidential information unless they sign the “Acknowledgment and Agreement to
Be Bound” attached as Exhibit A, unless otherwise agreed by the Designating Party
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or ordered by the court. Pages of transcribed deposition testimony or exhibits to
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depositions that reveal Protected Material may be separately bound by the court
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reporter and may not be disclosed to anyone except as permitted under this
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Protective Order; and
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(i) any mediator or settlement officer, and their supporting personnel,
mutually agreed upon by any of the parties engaged in settlement discussions.
8.
PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
IN OTHER LITIGATION
If a Party is served with a subpoena or a court order issued in other litigation
that compels disclosure of any information or items designated in this Action as
“CONFIDENTIAL,” that Party must:
(a) promptly notify in writing the Designating Party. Such notification
shall include a copy of the subpoena or court order unless prohibited by law;
(b) promptly notify in writing the party who caused the subpoena or order
to issue in the other litigation that some or all of the material covered by the
subpoena or order is subject to this Protective Order. Such notification shall include
a copy of this Protective Order; and
(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
the subpoena or court order shall not produce any information designated in this
action as “CONFIDENTIAL” before a determination by the court from which the
subpoena or order issued, unless the Party has obtained the Designating Party’s
permission, or unless otherwise required by the law or court order. The Designating
Party shall bear the burden and expense of seeking protection in that court of its
confidential material and nothing in these provisions should be construed as
authorizing or encouraging a Receiving Party in this Action to disobey a lawful
directive from another court.
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9.
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PRODUCED IN THIS LITIGATION
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A
NON-PARTY’S
PROTECTED
MATERIAL
SOUGHT
TO
BE
(a) The terms of this Order are applicable to information produced by a
Non-Party in this Action and designated as “CONFIDENTIAL.” Such information
produced by Non-Parties in connection with this litigation is protected by the
remedies and relief provided by this Order. Nothing in these provisions should be
construed as prohibiting a Non-Party from seeking additional protections.
(b) In the event that a Party is required, by a valid discovery request, to
produce a Non-Party’s confidential information in its possession, and the Party is
subject to an agreement with the Non-Party not to produce the Non-Party’s
confidential information, then the Party shall:
(1) promptly notify in writing the Requesting Party and the Non-Party
that some or all of the information requested is subject to a confidentiality
agreement with a Non-Party;
(2) promptly provide the Non-Party with a copy of the Protective
Order in this Action, the relevant discovery request(s), and a reasonably specific
description of the information requested; and
(3) make the information requested available for inspection by the
Non-Party, if requested.
(c) If a Non-Party represented by counsel fails to commence the process
called for by Local Rules 45-1 and 37-1, et seq. within 14 days of receiving the
notice and accompanying information or fails contemporaneously to notify the
Receiving Party that it has done so, the Receiving Party may produce the NonParty’s confidential information responsive to the discovery request.
If an
unrepresented Non-Party fails to seek a protective order from this court within 14
days of receiving the notice and accompanying information, the Receiving Party
may produce the Non-Party’s confidential information responsive to the discovery
request. If the Non-Party timely seeks a protective order, the Receiving Party shall
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not produce any information in its possession or control that is subject to the
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confidentiality agreement with the Non-Party before a determination by the court
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unless otherwise required by the law or court order. Absent a court order to the
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contrary, the Non-Party shall bear the burden and expense of seeking protection in
this court of its Protected Material.
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If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
Protected Material to any person or in any circumstance not authorized under this
Protective Order, the Receiving Party must immediately (a) notify in writing the
Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve
all unauthorized copies of the Protected Material, (c) inform the person or persons to
whom unauthorized disclosures were made of all the terms of this Order, and (d)
request such person or persons to execute the “Acknowledgment and Agreement to
Be Bound” that is attached hereto as Exhibit A.
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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
PROTECTED MATERIAL
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UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
When a Producing Party gives notice to Receiving Parties that certain
inadvertently produced material is subject to a claim of privilege or other protection,
the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
may be established in an e-discovery order that provides for production without
prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar
as the parties reach an agreement on the effect of disclosure of a communication or
information covered by the attorney-client privilege or work product protection, the
parties may incorporate their agreement into this Protective Order.
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MISCELLANEOUS
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.
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12.2 Right to Assert Other Objections. No Party waives any right it
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otherwise would have to object to disclosing or producing any information or item
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on any ground not addressed in this Protective Order. Similarly, no Party waives
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any right to object on any ground to use in evidence of any of the material covered
by this Protective Order.
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12.3 Filing Protected Material. A Party that seeks to file under seal any
Protected Material must comply with Civil Local Rule 79-5 and with any pertinent
orders of the assigned District Judge and Magistrate Judge. If a Party's request to
file Protected Material under seal is denied by the court, then the Receiving Party
may file the information in the public record unless otherwise instructed by the
court.
13.
FINAL DISPOSITION
After the final disposition of this Action, as defined in Section 4, within 60
days of a written request by the Designating Party, each Receiving Party must return
all Protected Material to the Producing Party or destroy such material. As used in
this subdivision, “all Protected Material” includes all copies, abstracts, compilations,
summaries, and any other format reproducing or capturing any of the Protected
Material. Whether the Protected Material is returned or destroyed, the Receiving
Party must submit a written certification to the Producing Party (and, if not the same
person or entity, to the Designating Party) by the 60 day deadline that (1) identifies
(by category, where appropriate) all the Protected Material that was returned or
destroyed and (2) affirms that the Receiving Party has not retained any copies,
abstracts, compilations, summaries or any other format reproducing or capturing any
of the Protected Material. Notwithstanding this provision, Counsel are entitled to
retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing
transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert
reports, attorney work product, and consultant and expert work product, even if such
materials contain Protected Material. Any such archival copies that contain or
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constitute Protected Material remain subject to this Protective Order as set forth in
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Section 4.
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Any violation of this Order may be punished by any and all appropriate
measures including, without limitation, contempt proceedings and/or monetary
sanctions.
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IT IS SO ORDERED.
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DATED: November 16, 2017
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__________/s/_______________
Honorable Jacqueline Chooljian
United States Magistrate Judge
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EXHIBIT A
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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
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I,
_____________________________
[print
or
name],
of
that I have read in its entirety and understand the Protective Order that was issued
by the United States District Court for the Central District of California on
November 16, 2017 in the case of Unicolors, Inc. v. Zulily, LLC, et al., Case No.
2:17-cv-02809-JAK-JC. I agree to comply with and to be bound by all the terms of
this 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 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
Protective Order, even if such enforcement proceedings occur after termination of
this action. I hereby appoint __________________________ [print or type full
name] of _______________________________________ [print or type full address
and telephone number] as my California agent for service of process in connection
with this action or any proceedings related to enforcement of this Protective Order.
Date: ______________________________________
City and State where sworn and signed: _________________________________
Printed name: _______________________________
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full
_________________ [print or type full address], declare under penalty of perjury
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type
Signature: __________________________________
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