Eagles, Ltd. v. Hotel California Baja, LLC et al

Filing 28

PROTECTIVE ORDER by Magistrate Judge Rozella A. Oliver: GRANTED. #27 (klg)

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Laura A. Wytsma (Bar No. 189527)
[e-mail]
LOEB & LOEB LLP
10100 Santa Monica Blvd., Ste. 2200
Los Angeles, California 90067
[phone]
Douglas N. Masters (pro hac applicant)
[e-mail]
Thomas P. Jirgal (Bar No. 202637)
[e-mail]
Elisabeth K. O’Neill (pro hac applicant)
[e-mail]
LOEB & LOEB LLP
321 North Clark Street, Ste. 2300
Chicago, Illinois 60654
[phone]
Attorneys for plaintiff Eagles, Ltd.

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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Eagles, Ltd.,
Plaintiff,

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v.

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Hotel California Baja; and Does 1-10,

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Defendant.

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Case No.: CV-17-3276-RGK-RAO
[PROPOSED] STIPULATED
PROTECTIVE ORDER
[DISCOVERY MATTER]

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Loeb & Loeb
A Limited Liability Partnership
Including Professional
Corporations

14763850
211107-10014

STIPULATED PROTECTIVE ORDER

PROTECTIVE ORDER

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This protective order (“Protective Order”) is issued to expedite the flow of

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discovery materials, to facilitate the prompt resolution of disputes over

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confidentiality of discovery materials, to adequately protect information the parties

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are entitled to keep confidential, to ensure that only materials the parties are entitled

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to keep confidential are subject to such treatment, and to ensure that the parties are

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permitted reasonably necessary uses of such materials in preparation for and in the

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conduct of trial, pursuant to Fed. R. Civ. P. 26(c) and any other applicable rule of

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this Court. Unless modified, superseded or terminated pursuant to the terms

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contained in this Order, this Protective Order shall remain in effect through the

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conclusion of this litigation and thereafter as set forth below.
GOOD CAUSE STATEMENT

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In support of this Protective Order the Court finds that good cause exists for

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entry of this Protective Order because:
1.

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The parties anticipate that the exchange of information in this case may

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include documents that constitute non-public, highly sensitive financial information

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regarding revenues, expenses and profits generated in connection with the Eagles

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band and its sales of merchandise, defendants’ sale of merchandise, at tours around

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the world, the disclosure of which could cause competitive harm to the parties in

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this action. The parties also anticipate that the exchange of information in this case

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may include non-public drafts of songs and other creative and artistic material,

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which works, if disclosed, may cause competitive harm to the parties in this action.

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The parties further seek to protect documents or information containing personal

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financial information of third parties, including for example licensees of Plaintiff

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that are not a party to this litigation, as well as all confidential and proprietary

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business or commercial information or trade secrets within the meaning of Fed. R.

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Civ. P. 26(c) or California Civil Code § 3426.1;

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Loeb & Loeb
A Limited Liability Partnership
Including Professional
Corporations

14763850
211107-10014

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STIPULATED PROTECTIVE ORDER

2.

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The parties believe that public dissemination and disclosure of

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confidential information could injure or damage the party or a non-party disclosing

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or producing the confidential information and/or could place that party or non-party

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at a competitive disadvantage; and
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To protect the prospective interests of the parties and to facilitate the

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progress of disclosure and discovery in this case, the following Protective Order

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should issue.
THEREFORE, IT IS HEREBY STIPULATED AND ORDERED AS

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FOLLOWS:

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4.

Any document, written discovery response, testimony, deposition

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transcript, and all other materials and information (collectively hereinafter

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“Material”) produced or furnished in connection with the above-captioned litigation

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(the “Action”), or any portion thereof, that is reasonably believed by any party to the

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Action to contain or constitute trade secrets, or confidential or proprietary business

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or financial information, or personal information protected by a right of privacy, or

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non-public drafts or unreleased versions of creative and artistic material, may be

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designated, in whole or in part, as “Confidential” or “Confidential – Attorneys’ Eyes

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Only.”
5.

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Any Material or portion thereof that is designated as “Confidential” or

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“Confidential – Attorneys’ Eyes Only” in accordance with the provisions for such

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designation contained herein (hereinafter, “Confidential Information”), shall be

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deemed confidential and shall be disclosed only to “Qualified Persons” as defined

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herein and in accordance with the terms hereof. The protections conferred by this

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Protective Order cover not only Confidential Information as defined herein, but also

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(1) any information copied or extracted from the Confidential Information; (2) all

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copies, excerpts, summaries, or compilations of the Confidential Information; and

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(3) any testimony, conversations, or presentations by the parties to this Action or

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their counsel that might reveal Confidential Information. However, the protections

Loeb & Loeb
A Limited Liability Partnership
Including Professional
Corporations

14763850
211107-10014

2

STIPULATED PROTECTIVE ORDER

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conferred by this Protective Order do not cover any information that is in the public

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domain at the time of disclosure or becomes part of the public domain after its

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disclosure not involving a violation of this Protective Order, including becoming

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part of the public record through trial or otherwise. Any use of Confidential

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Information at trial shall be governed by a separate agreement or order.
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In designating Material as “Confidential – Attorneys’ Eyes Only,” the

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designating party must have a good faith and reasonable belief that those Materials

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contain competitively sensitive or proprietary information, and could cause

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competitive harm if disclosed to an unauthorized person.
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Any Material other than deposition testimony may be designated as

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“Confidential” or “Confidential – Attorneys’ Eyes Only” by stamping or otherwise

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marking the document or other tangible material containing or embodying the

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Confidential Information as follows: “Confidential – Subject to Protective Order,”

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“Confidential” or “Confidential – Attorneys’ Eyes Only” at the time of production.
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(a)

Counsel for any party or non-party may designate deposition

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testimony as “Confidential” or “Confidential – Attorneys’ Eyes Only” by indicating

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on the record at the deposition that the testimony of the deponent is to be treated as

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“Confidential” or “Confidential – Attorneys’ Eyes Only.” Failure of counsel to

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designate testimony as Confidential Information on the record at the deposition,

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however, shall not constitute a waiver of the confidentiality of the testimony, if such

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testimony is designated as Confidential Information within thirty (30) days after the

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receipt of the transcript of the deposition. Within thirty (30) days after receipt of the

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transcript of the deposition, counsel for a party or non-party shall be entitled to

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designate specific pages and lines of the deposition transcript as Confidential

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Information by a letter addressed to all counsel in the Action that identifies all pages

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and lines of the transcript being designated as Confidential Information.
(b)

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Loeb & Loeb
A Limited Liability Partnership
Including Professional
Corporations

To maintain the confidentiality of any deposition testimony or

exhibits that have been designated as “Confidential” or “Confidential – Attorneys’
14763850
211107-10014

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STIPULATED PROTECTIVE ORDER

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Eyes Only” in accordance with the terms of this Protective Order, the court reporter

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who transcribes the deposition testimony shall mark the cover page of the deposition

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transcript to indicate that Confidential Information is contained therein. The party

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introducing Confidential Information bears the burden of adhering to the provisions

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of this Protective Order, and, as such, shall inform the court reporter of its

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designation and request that the transcript be marked accordingly.
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Any non-party that produces or furnishes Material in connection with

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this Action may obtain the protections provided by this Protective Order with

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respect to the designation of Material as “Confidential” or “Confidential –

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Attorneys’ Eyes Only” by agreeing with the parties that this Protective Order shall

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apply to Material produced by such non-party.
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Unless otherwise expressly authorized by the provisions of this

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Protective Order, by a written agreement of the parties executed following the

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effective date hereof or by Court order, any Material that is designated as

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“Confidential” in accordance with the terms hereof may be disclosed only to the

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following “Qualified Persons”:

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a. The named parties in this Action and their respective officers,

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directors, managers, partners, principals and employees who are assisting that

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party’s counsel in this Action;
b. Inside or outside counsel for the parties, including members of such

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attorneys’ staff (e.g., paralegals, legal secretaries and law clerks);
c. Independent consultants or experts retained by any party in this case

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who are expected to testify at trial or employed by counsel in order to assist in

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preparation for trial or for deposition;

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d. Deponents in this Action (before, during and after their depositions);

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e. The Court and court personnel;

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f. Court reporters or videographers selected by the parties; and

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Loeb & Loeb
A Limited Liability Partnership
Including Professional
Corporations

14763850
211107-10014

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STIPULATED PROTECTIVE ORDER

g. Any persons who authored or previously received the Confidential

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Information.
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Unless otherwise expressly authorized by the provisions of this

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Protective Order, by a written agreement of the parties or by Court order, any

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Material that is designated as “Confidential – Attorneys’ Eyes Only” in accordance

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with the terms hereof may be disclosed only to the following “Qualified Persons”:

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a. Any persons who authored or previously received the Confidential

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Information;
b. Outside counsel for the parties and licensed in-house counsel

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directly assisting that party’s outside counsel in the defense of this Action, including

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members of such attorneys’ staff (e.g., paralegals, legal secretaries and law clerks);
c. Independent consultants or experts retained by any party in this case

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who are expected to testify at trial or employed by counsel in order to assist in

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preparation for trial or for deposition, and who are not competitors of any party or

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employed by a competitor of any party;
d. Non-party witnesses during the course of their depositions, provided

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that (1) counsel for the designating party shall be informed that the witness will be

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shown such Material before the designated information is shown to the witness, to

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give counsel for the designating party an opportunity to object, and (2) if an

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objection to showing the witness is made, the designated Material shall not be

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shown to the witness until the Court rules on the objection;

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e. The Court and court personnel;

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f. Court reporters or videographers selected by the parties.

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Copies may be made by or for the foregoing persons, provided that all

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copies are appropriately marked.
12.

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Before counsel for a party may disclose Confidential Information to

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any Qualified Person other than those Qualified Persons identified in subparagraphs

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(b), (f) and (g) of Paragraph 10 hereof or subparagraphs (f)and (g) of Paragraph 11

Loeb & Loeb
A Limited Liability Partnership
Including Professional
Corporations

14763850
211107-10014

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STIPULATED PROTECTIVE ORDER

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hereof, the disclosing counsel shall obtain from the Qualified Person who is to

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receive such Confidential Information, an executed copy of a Non-Disclosure

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Certificate in the form attached hereto as Exhibit “A.” Counsel shall be responsible

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for obtaining signatures of all such Qualified Persons, and for advising all such

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Qualified Persons that they are not permitted to disclose Confidential Information to

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any person other than Qualified Persons as set forth herein.
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Except for the deponent, no person shall attend those portions of any

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deposition at which Material that has been designated as “Confidential” or

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“Confidential – Attorneys’ Eyes Only” is discussed or used as an exhibit, unless

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such person is a Qualified Person authorized to view such material and, if required

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to do so, has executed a copy of the Non-Disclosure Certificate in the form attached

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as Exhibit “A” hereto.
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If original documents or materials are made available for inspection,

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such documents or materials need not be designated for protection until after the

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inspecting party has indicated which material it would like copied and produced.

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During the inspection and before the designation, all of the material made available

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for inspection shall be deemed Confidential Information.
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All Material produced or furnished in this Action (including but not

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limited to material not marked Confidential or Confidential – Attorneys’ Eyes Only)

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including deposition transcripts and deposition videos, shall be used only in

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connection with this Action and shall not be otherwise disclosed except as agreed to

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by the parties, as required by any court, judicial tribunal, administrative agency,

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taxing body or other governmental unit or entity, or as otherwise required by law.

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All Material, including such deposition transcripts or videos, produced or furnished

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in this Action shall not be used or disclosed for any business, commercial or

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competitive purpose and, furthermore, shall not be used in connection with the

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media or in connection with materials for public dissemination of any kind or type,

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Loeb & Loeb
A Limited Liability Partnership
Including Professional
Corporations

14763850
211107-10014

6

STIPULATED PROTECTIVE ORDER

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including but not limited to dissemination of such Material to the public via the

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internet, social media or any other means now or hereafter known.
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The parties acknowledge that this Protective Order does not entitle

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them to file Confidential Information under seal. Any party or non-party must seek

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permission to file Confidential Information under seal in accordance with the

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Federal Rules of Civil Procedure and the Local Rules of this Court. No Confidential

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Information shall be publicly filed with the Court absent agreement of the producing

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party or Order of the Court.
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The failure of a party or non-party to file a motion or application to seal

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in accordance with the applicable rules shall not operate as or result in a waiver of

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the right of such party or non-party to designate or seek to have the Confidential

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Information at issue treated as Confidential Information for other purposes.
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If Material that a party or non-party intends to designate as Confidential

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Information is inadvertently disclosed without being marked as Confidential

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Information in accordance with the provisions of this Protective Order, the failure so

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to designate such Material shall not be deemed a waiver of its confidentiality. The

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disclosing party shall be permitted to correct its error and provide notice of the

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confidentiality of the Materials. Such correction and notice thereof shall be made in

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writing, accompanied by substitute copies of any document(s) or response(s)

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appropriately marked as Confidential Information. At such time as the Material is

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designated as Confidential Information, it shall be treated as Confidential

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Information in accordance with this Protective Order. Within ten (10) days of

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receipt of the substitute copies, the receiving party shall return or destroy the

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previously-unmarked items and all copies thereof.
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In the event that Confidential Information is, either intentionally or

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inadvertently, disclosed to someone not authorized to receive such Information

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under this Protective Order or, if a person so authorized breaches any of its

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obligations under this Protective Order, counsel of record for any party who is

Loeb & Loeb
A Limited Liability Partnership
Including Professional
Corporations

14763850
211107-10014

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STIPULATED PROTECTIVE ORDER

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involved in or aware of such disclosure shall immediately give written notice of

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such unauthorized disclosure or breach to counsel for the party or non-party that

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initially produced the subject Confidential Information and/or requested the

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confidentiality designation, and also shall disclose the circumstances of the

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unauthorized disclosure or breach. The responsible party shall also take all

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reasonable measures promptly to ensure that no further or greater unauthorized

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disclosure of Confidential Information is made by anyone.
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The acceptance by a party of documents designated as Confidential

Information shall not constitute an agreement, admission or concession, or permit an

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inference, that the Material(s) are in fact properly the subject for protection under

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Fed. R. Civ. P. 26(c), or some other basis. Documents designated as Confidential

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Information shall be treated in accordance with the provisions of this Protective

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Order, except that any party may at any time seek an Order from the Court

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determining that specified information or categories of information are not properly

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designated as Confidential Information, provided that prior to making such a motion

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the parties shall meet and confer in good faith to resolve any differences over the

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designation. A party shall not be obligated to challenge the propriety of a

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designation of Confidential Information at the time made, and failure to do so shall

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not preclude subsequent challenge.
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Notwithstanding the pendency of any challenge to the designation of

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Material as Confidential Information, all Material so designated shall be treated as

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such and shall be subject to the provisions hereof unless and until one of the

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following occurs: (a) the party or non-party who claims that the Material is

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Confidential Information withdraws such designation in writing; or (b) the Court

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rules that the Material is not Confidential Information.
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In the event that a Qualified Person: (a) is served with a subpoena in

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another action, (b) is served with a demand in another action to which the Qualified

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Person is a party, or (c) is served with any other legal process that seeks

Loeb & Loeb
A Limited Liability Partnership
Including Professional
Corporations

14763850
211107-10014

8

STIPULATED PROTECTIVE ORDER

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Confidential Information that was produced or designated as such by someone other

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than the Qualified Person who receives the subpoena, demand or other legal process,

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such Qualified Person shall give prompt written notice of the receipt of such

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subpoena, demand or other written notice to the party or non-party who produced or

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designated the Material as Confidential Information, and shall object to its

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production. Should the person seeking access to the Confidential Information take

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action to enforce the subpoena, demand or other legal process against the Qualified

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Person from whom the Confidential Information is sought, the Qualified Person

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shall cooperate with the party or non-party to this Action who produced or

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designated the Material as Confidential Information in resisting any efforts by such

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other parties to obtain such Confidential Information from the Qualified Person.

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Nothing herein shall be construed as requiring the Qualified Person from whom the

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Confidential Information is sought, or anyone else subject to this Protective Order,

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to challenge or appeal any court order requiring production of the Confidential

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Information, or to subject himself or herself to any penalties for noncompliance with

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any legal process or order, or to seek any relief from this Court.
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The provisions of this Protective Order may be modified at any time by

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stipulation of the parties approved by order of the Court. In addition, a party may at

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any time apply to the Court for modification of this Protective Order pursuant to a

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motion brought on in accordance with the rules of the Court. The parties consent to

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an expedited hearing upon any such application, provided that reasonable time for

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response is allowed.
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Nothing herein shall prevent any of the parties from using Confidential

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Information in any trial in this litigation or from seeking further protection with

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respect to the use of any Confidential Information in any trial in this litigation.

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Means to preserve the confidentiality of Confidential Information presented at any

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trial shall be considered and implemented in advance of such trial.

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Loeb & Loeb
A Limited Liability Partnership
Including Professional
Corporations

14763850
211107-10014

9

STIPULATED PROTECTIVE ORDER

25.

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By stipulating to the entry of this Protective Order, no party waives any

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right it otherwise would have to object to disclosing or producing any information or

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item on any ground not addressed in this Protective Order. Similarly, no party

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waives any right to object on any ground to use in evidence of any of the material

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covered by this Protective Order.
26.

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Within thirty (30) days of the final determination of this Action,

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whether by judgment, settlement or otherwise, and including any appeal from a final

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judgment, any person who is in possession of physical copies of documents that

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have been designated as Confidential Information shall return such copies to the

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person who produced it or the person’s counsel, or shall destroy them, except that

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this paragraph shall not apply to work product of counsel, or to counsels’ copies of

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pleadings, briefs or declarations (“counsels’ pleadings files”). Written confirmation

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of such return or destruction shall be forwarded to the person producing such

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Confidential Information or the person’s counsel.
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This Protective Order shall survive the final conclusion of this Action

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and shall continue in full force and effect. The Court shall retain jurisdiction over

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the parties and any other person bound by this Protective Order in order to enforce

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the provisions contained herein.
28.

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By affixing their signatures below, the parties agree to abide by the

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terms of this Stipulation until this Protective Order or a further protective order is

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entered by the Court.

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IT IS SO STIPULATED.

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Dated: September 20, 2017

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LOEB & LOEB LLP
By: /s/ Thomas P. Jirgal
Thomas P. Jirgal
Attorneys for Plaintiff
EAGLES, LTD.

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Loeb & Loeb
A Limited Liability Partnership
Including Professional
Corporations

14763850
211107-10014

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STIPULATED PROTECTIVE ORDER

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Dated: September 20, 2017

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SEITER LEGAL STUDIO
By: /s/ William J. Seiter
William J. Seiter
Attorneys for Defendant
HOTEL CALIFORNIA BAJA, LLC

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

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Dated: September 22, 2017

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/S/

Honorable Rozella A. Oliver
United States Magistrate Judge

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Loeb & Loeb
A Limited Liability Partnership
Including Professional
Corporations

14763850
211107-10014

11

STIPULATED PROTECTIVE ORDER

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I,________________________________, declare under penalty of perjury

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that my address is ______________________________________________. I have

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read in its entirety and understand the Protective Order that was issued by the United

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States District Court for the Central District of California on

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____________________ , 2017, in the case of Eagles, Ltd. v. Hotel California Baja,

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LLC, Case No.: CV-17-3276-RGK-RAO.
I agree to comply with and to be bound by all the terms of the Protective

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Order and I understand and acknowledge that failure to so comply could expose me

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to sanctions and punishment in the nature of contempt.
I will hold all Confidential Information and any duplicates, notes, abstracts or

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summaries thereof in confidence, will not disclose such information to anyone not

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specifically entitled to access under the Protective Order, and will use the

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Confidential Information solely for purposes of this litigation, except as provided by

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the Protective Order.
At the conclusion of this litigation, I will return or destroy all Confidential

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Information and any duplicates, notes, abstracts or summaries thereof, whether

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prepared by me or to anyone else, to counsel for the party by whom I am employed

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

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for the Central District of California for the purpose of enforcing the terms of the

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Protective Order, even if such enforcement proceedings occur after termination of

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this action.

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14763850
Loeb & Loeb
A Limited Liability Partnership
Including Professional
Corporations

211107-10014

1

STIPULATED PROTECTIVE ORDER

I hereby swear and affirm under the penalties of perjury that the foregoing is

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true and correct.

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Date:

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City and State where sworn and signed:

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Printed name:

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Signature:

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Loeb & Loeb
A Limited Liability Partnership
Including Professional
Corporations

14763850
211107-10014

2

STIPULATED PROTECTIVE ORDER