Cheryl Jackson v. Telebrands Corp. et al

Filing 42

STIPULATED PROTECTIVE ORDER by Magistrate Judge Karen L. Stevenson re Stipulation for Protective Order 38 . See order for details. (hr)

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Richard D. McCune, State Bar No. 132124
E-mail: [e-mail]
David C. Wright, State Bar No. 177468
E-Mail: [e-mail]
MCCUNE WRIGHT AREVALO LLP
3281 East Guasti Road, Suite 100
Ontarion, California 91761
Telephone: [phone]
Facsimile: [phone]
Bryan Clobes*
E-Mail: [e-mail]
CAFFERTY CLOBES MERIWETHER & SPRENGEL LLP
1101 Market St., Suite 2650
Philadelphia, Pennsylvania 19107
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiffs and the Putative Classes

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BESHADA FARNESE LLP
Peter J. Farnese (SBN 251204)
[e-mail]
11601 Wilshire Blvd., Suite 500
Los Angeles, California 90025
Telephone: [phone]
Facsimile: 310-388-1232
Attorneys for Defendant,
Telebrands Corp. and Moulton Logistics Management

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[LIST OF ADDITIONAL COUNSEL BELOW CAPTION]

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UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA

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CHERYL JACKSON, et al., individually
and on behalf of all others
similarly situated,

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Assigned to: Hon. Philip S. Gutierrez
Hon. Karen L. Stevenson

Plaintiffs,

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CASE NO.: 2:17-cv-04107-PSG-KS

STIPULATED PROTECTIVE ORDER

v.
TELEBRANDS CORP., et al.,
Defendants.

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Stipulated Protective Order
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ADDITIONAL COUNSEL

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Daniel Herrera*
E-Mail: [e-mail]
CAFFERTY CLOBES MERIWETHER & SPRENGEL LLP
150 South Wacker Drive, Suite 3000
Chicago, Illinois 60606
Telephone: [phone]
Facsimile: [phone]

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Joseph G. Sauder
E-mail: [e-mail]
Matthew D. Schelkopf
E-Mail: [e-mail]
MCCUNE WRIGHT AREVALO LLP
555 Lancaster Ave
Berwyn, Pennsylvania 19312
Telephone: [phone]

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Stipulated Protective Order
Case No.: 2:17-cv-04107-PSG-KS

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Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure and based on

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the parties’ Stipulation for Protective Order (“Stipulation”) filed on February 26,

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2018, the terms of the protective order to which the parties have agreed are adopted

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as a protective order of this Court (which generally shall govern the pretrial phase

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of this action) except to the extent, as set forth below, that those terms have been

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modified

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CONFIDENTIALITY DESIGNATIONS” of the Stipulation. The Court’s additions

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to the terms of the proposed protective order are indicated in bold typeface.

by

the

Court’s

amendment

of

Section

6,

“CHALLENGING

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Plaintiffs Cheryl Jackson, Erika Hartwieg, and Bowen Lord, individually and on

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behalf of the Putative Class, and Defendants Telebrands Corp. and Moulton Logistics

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Management, hereby agree and stipulate as follows:
WHEREAS, to facilitate the production and receipt of information during

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discovery in the above-captioned litigation (“the Litigation”), the parties agree and

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stipulate, through their respective counsel, to the entry of the following Protective Order

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for the protection of Confidential Materials (as defined herein) that may be produced or

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otherwise disclosed during the course of this Litigation by any party or non-party. The

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Court has been fully advised in the premises and has found good cause for its entry.
Accordingly, IT IS HEREBY ORDERED that the terms and conditions of this

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Protective Order shall govern the handling of discovery materials in the Litigation:

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1.

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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

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prosecuting this litigation may be warranted. Accordingly, the parties hereby stipulate to

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and petition the Court to enter the following Stipulated Protective Order. The parties

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acknowledge that this Order does not confer blanket protections on all disclosures

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or responses to discovery and that the protection it affords from public disclosure and

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use extends only to the limited information or items that are entitled to confidential

A.

Purposes and Limitations:

Discovery in this action is likely to

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treatment under the applicable legal principles. The parties further acknowledge, as set

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forth in Section 12.3, below, that this Stipulated Protective Order does not entitle them

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to file confidential information under seal; Civil Local Rule 79-5 sets forth the

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procedures that must be followed and the standards that will be applied when a party

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seeks permission from the court to file material under seal.
B.

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Good Cause Statement:

This action is likely to involve trade

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secrets, customer and pricing lists and other valuable research, development,

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commercial, financial, technical and/or proprietary information for which special

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protection from public disclosure and from use for any purpose other than

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prosecution of this action is warranted. Such confidential and proprietary materials and

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information consist of, among other things, confidential business or financial

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information, information regarding confidential business practices, or other confidential

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research, development, or commercial information (including information implicating

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privacy rights of third parties), information otherwise generally unavailable to the

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public, or which may be privileged or otherwise protected from disclosure under state

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or federal statutes, court rules, case decisions, or common law. Accordingly, to

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expedite the flow of information, to facilitate the prompt resolution of disputes over

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confidentiality of discovery materials, to adequately protect information the parties are

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entitled to keep confidential, to ensure that the parties are permitted reasonable

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necessary uses of such material in preparation for and in the conduct of trial, to address

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their handling at the end of the litigation, and serve the ends of justice, a protective

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order for such information is justified in this matter. It is the intent of the parties that

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information will not be designated as confidential for tactical reasons and that

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nothing be so designated without a good faith belief that it has been maintained in a

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confidential, non-public manner, and there is good cause why it should not be part of

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the public record of this case.

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2.

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DEFINITIONS
2.1

Action:

Jackson, et al. v. Telebrands Corp., and Moulton
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Logistics Management, Case No. 2:17-cv-04107-PSG-KS.

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2.2

Challenging Party: a Party or Non-Party that

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challenges the designation of information or items under this

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Order.

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2.3

“CONFIDENTIAL”

Information

or

Items:

information

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(regardless of how it is generated, stored or maintained) or tangible things

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that qualify for protection under Federal Rule of Civil Procedure 26(c),

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and as specified above in the Good Cause Statement.

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2.4

Counsel: Outside Counsel of Record and House Counsel (as

well as their support staff).
2.5

Designating Party: a Party or Non-Party that designates

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information or items that it produces in disclosures or in responses to

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discovery as “CONFIDENTIAL.”

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2.6

Disclosure or Discovery Material: all items or information,

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regardless of the medium or manner in which it is generated, stored, or

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maintained (including, among other things, testimony, transcripts, and

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tangible things), that are produced or generated in disclosures or responses to

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discovery in this matter.

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2.7

Expert: a person with specialized knowledge or experience in a

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matter pertinent to the litigation who has been retained by a Party or its

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counsel to serve as an expert witness or as a consultant in this Action.

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2.8

House Counsel: attorneys who are employees of a party to this

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Action. House Counsel does not include Outside Counsel of Record or

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any other outside counsel.

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2.9

Non-Party: any natural person, partnership, corporation,

association, or other legal entity not named as a Party to this action.
2.10 Outside Counsel of Record: attorneys who are not employees
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of a party to this Action but are retained to represent or advise a party to this

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Action and have appeared in this Action on behalf of that party or are

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affiliated with a law firm which has appeared on behalf of that party, and

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includes support staff.

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2.11 Party: any party to this Action, including all of its officers,

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directors, employees, consultants, retained experts, and Outside Counsel of

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Record (and their support staffs).

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2.12 Producing Party: a Party or

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Non-Party that produces

Disclosure or Discovery Material in this Action.

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2.13 Professional

Vendors: persons

or

entities

that

provide

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litigation support services (e.g., photocopying, videotaping, translating,

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preparing exhibits or demonstrations, and organizing, storing, or retrieving

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data in any form or medium) and their employees and subcontractors.

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2.14 Protected Material: any Disclosure or Discovery Material that

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is designated as “CONFIDENTIAL.”

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2.15 Receiving Party: a Party that receives Disclosure or Discovery

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Material from a Producing Party.
3.

SCOPE

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The protections conferred by this Stipulation and Order cover not only

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Protected Material (as defined above), but also (1) any information copied or

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extracted from Protected Material; (2) all copies, excerpts, summaries, or

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compilations of Protected Material; and (3) any testimony, conversations, or

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presentations by Parties or their Counsel that might reveal Protected Material.

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Any use of Protected Material at trial shall be governed by the orders of the

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trial judge. This Order does not govern the use of Protected Material at trial.

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4.

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DURATION
Once a case proceeds to trial, all of the information that was designated as

confidential or maintained pursuant to this protective order becomes public and will
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be presumptively available to all members of the public, including the press, unless

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compelling reasons supported by specific factual findings to proceed otherwise are

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made to the trial judge in advance of the trial. See Kamakana v. City and County

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of Honolulu, 447 F.3d 1172, 1180-81 (9th Cir. 2006) (distinguishing “good cause”

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showing for sealing documents produced in discovery from “compelling reasons”

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standard when merits-related documents are part of court record). Accordingly, the

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terms of this protective order do not extend beyond the commencement of the trial.

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5.

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DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection.

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Each Party or Non-Party that designates information or items for protection under

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this Order must take care to limit any such designation to specific material that

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qualifies under the appropriate standards. The Designating Party must designate for

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protection only those parts of material, documents, items, or oral or written

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communications that qualify so that other portions of the material, documents,

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items, or communications for which protection is not warranted are not swept

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unjustifiably within the ambit of this Order.

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Mass, indiscriminate, or routinized designations are prohibited. Designations

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that are shown to be clearly unjustified or that have been made for an improper

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purpose (e.g., to unnecessarily encumber the case development process or to impose

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unnecessary expenses and burdens on other parties) may expose the Designating

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Party to sanctions.

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If it comes to a Designating Party’s attention that information or items that it

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designated for protection do not qualify for protection, that Designating Party must

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promptly notify all other Parties that it is withdrawing the inapplicable designation.

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5.2

Manner and Timing of Designations. Except as otherwise provided in

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this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise

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stipulated or ordered, Disclosure or Discovery Material that qualifies for protection

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under this Order must be clearly designated before the material is disclosed or
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produced.
Designation in conformity with this Order requires:
(a)

for information in documentary form (e.g., paper or

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electronic documents, but excluding transcripts of depositions or other

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pretrial or trial proceedings), that the Producing Party affix at a minimum,

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the legend “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to

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each page that contains protected material. If only a portion or portions of

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the material on a page qualifies for protection, the Producing Party also

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must clearly identify the protected portion(s) (e.g., by making appropriate

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markings in the margins).

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A Party or Non-Party that makes original documents available for

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inspection need not designate them for protection until after the inspecting Party has

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indicated which documents it would like copied and produced. During the

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

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inspection shall be deemed

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has identified the documents it wants copied and produced, the Producing Party must

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determine which documents, or portions thereof, qualify for protection under this

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Order. Then, before producing the specified documents, the Producing Party must

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affix the “CONFIDENTIAL legend” to each page that contains Protected Material.

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(b)

“CONFIDENTIAL.”

After

the

inspecting

Party

for testimony given in depositions that the Designating

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Party identify the Disclosure or Discovery Material on the record, before

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the close of the deposition all protected testimony.

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(c)

for information produced in some form other than

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documentary and for any other tangible items, that the Producing Party

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affix in a prominent place on the exterior of the container or containers in

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which the information is stored the “CONFIDENTIAL legend.” If only a

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portion or portions of the information warrants protection, the Producing

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Party, to the extent practicable, shall identify the protected portion(s).
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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

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efforts to assure that the material is treated in accordance with the provisions of this

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Order.

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6.

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6.1

Timing of Challenges. Any Party or Non-Party, after complying with the

Court’s pre-motion procedures, may challenge a designation of confidentiality at any
time that is consistent with the Court’s Scheduling Order

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CHALLENGING CONFIDENTIALITY DESIGNATIONS

6.2

Meet and Confer. The Challenging Party shall initiate the dispute

resolution process under Local Rule 37.1 et seq.

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6.3

The burden of persuasion in any such challenge proceeding shall be on the

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Designating Party. If the Designating Party does not initiate the discovery

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motion process under Local Rule 37 within ten (10) days of a challenge, the

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subject Protected Material designation is effectively withdrawn and the

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subject documents and material may be used for all purposes in this

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Litigation. Unless the Designating Party has waived or withdrawn the confidentiality

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designation, all parties shall continue to afford the material in question the level of

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protection to which it is entitled under the Producing Party’s designation until the

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Court rules on the challenge.

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7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

Basic Principles. A Receiving Party may use Protected Material that is

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disclosed or produced by another Party or by a Non-Party in connection with this

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Action only for prosecuting, defending, or attempting to settle this Action. Such

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Protected Material may be disclosed only to the categories of persons and under the

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conditions described in this Order. When the Action has been terminated, a Receiving

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Party must comply with the provisions of section 13 below (FINAL

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DISPOSITION).

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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

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ordered by the court or permitted in writing by the Designating Party, a Receiving

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Party may disclose any information or item designated “CONFIDENTIAL” only to:

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(a)

the Receiving Party’s Outside Counsel of Record in this Action, as

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well as employees of said Outside Counsel of Record to whom it is reasonably

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necessary to disclose the information for this Action;

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(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

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disclosure is reasonably necessary for this Action and who have signed the

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“Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(d)

the court and its personnel;

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(e)

court reporters and their staff;

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(f)

professional jury or trial consultants, mock jurors, and Professional

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Vendors to whom disclosure is reasonably necessary for this Action and who have

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signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(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

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Action to whom disclosure is reasonably necessary provided: (1) the deposing party

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requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will not

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be permitted to keep any confidential information unless they sign the

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“Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise agreed
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by the Designating Party or ordered by the court. Pages of transcribed deposition

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testimony or exhibits to depositions that reveal Protected Material may be separately

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bound by the court reporter and may not be disclosed to anyone except as permitted

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under this Stipulated Protective Order; and
(i)

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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

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OTHER LITIGATION

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If a Party is served with a subpoena or a court order issued in other litigation that

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compels disclosure of any information or items designated in this Action as

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“CONFIDENTIAL,” that Party must:

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(a)

promptly notify in writing the Designating Party. Such notification shall

include a copy of the subpoena or court order;
(b)

promptly notify in writing the party who caused the subpoena or order to

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issue in the other litigation that some or all of the material covered by the

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subpoena or order is subject to this Protective Order. Such notification shall include a

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copy of this Stipulated Protective Order; and

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(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

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

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as “CONFIDENTIAL” before a determination by the court from which the subpoena

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or order issued, unless the Party has obtained the Designating Party’s permission.

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The Designating Party shall bear the burden and expense of seeking protection in

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that court of its confidential material and nothing in these provisions should be

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construed as authorizing or encouraging a Receiving Party in this Action to disobey a

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lawful directive from another court.

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9.

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A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED
IN THIS LITIGATION

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(a)

The terms of this Order are applicable to information produced by a Non-

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Party in this Action and designated as “CONFIDENTIAL.” Such information produced

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by Non-Parties in connection with this litigation is protected by the remedies and relief

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provided by this Order. Nothing in these provisions should be construed as prohibiting

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a Non-Party from seeking additional protections.

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(b)

In the event that a Party is required, by a valid discovery request, to

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produce a Non-Party’s confidential information in its possession, and the Party is

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subject to an agreement with the Non-Party not to produce the Non-Party’s

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confidential information, then the Party shall:

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(1)

promptly notify in writing the Requesting Party and the Non-Party

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that some or all of the information requested is subject to a confidentiality agreement

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with a Non-Party;

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(2)

promptly provide the Non-Party with a copy of the Stipulated

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Protective Order in this Action, the relevant discovery request(s), and a reasonably

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specific description of the information requested; and

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(3)

make the information requested available for inspection by the

Non-Party, if requested.

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(c)

If the Non-Party fails to seek a protective order from this court within 14

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days of receiving the notice and accompanying information, the Receiving Party may

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produce the Non-Party’s confidential information responsive to the discovery request.

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If the Non-Party timely seeks a protective order, the Receiving Party shall not produce

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any information in its possession or control that is subject to the confidentiality

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agreement with the Non-Party before a determination by the court. Absent a court

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order to the contrary, the Non-Party shall bear the burden and expense of seeking

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protection in this court of its Protected Material.

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10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
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If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

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Protected Material to any person or in any circumstance not authorized under this

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Stipulated Protective Order, the Receiving Party must immediately (a) notify in

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writing the Designating Party of the unauthorized disclosures, (b) use its best efforts to

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retrieve all unauthorized copies of the Protected Material, (c) inform the person or

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persons to whom unauthorized disclosures were made of all the terms of this Order, and

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(d) request such person or persons to execute the “Acknowledgment and Agreement to

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Be Bound” that is attached hereto as Exhibit A.
This Order shall not limit or restrict a Receiving Party’s use of information that the

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Receiving Party can demonstrate: (i) was lawfully in the Receiving Party’s possession

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prior to such information being designated as protected material in the Litigation and that

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the receiving Party is not otherwise obligated to treat as confidential; (ii) was obtained

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without any benefit or use of protected material from a third party having the right to

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disclose such information to the Receiving Party without restriction or obligation of

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confidentiality; (iii) was independently developed by it after the time of disclosure by

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personnel who did not have access to the Designating Party’s protected material; or (iv)

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has been published to the general public. If the Receiving Party believes that the

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Designating Party has designated information that is covered by any of the preceding

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categories as Confidential Material, the Receiving Party shall challenge the propriety of

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such designation using the procedure outlined in paragraph 6 above. Any challenged

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designation remains in force until the propriety of such designation has been decided as

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outlined above.

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11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
PROTECTED MATERIAL
When a Producing Party gives notice to Receiving Parties that certain

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inadvertently produced material is subject to a claim of privilege or other protection, the

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obligations of the Receiving Parties are those set forth in Federal Rule of Civil

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Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
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may be established in an e-discovery order that provides for production without

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prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as

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the parties reach an agreement on the effect of disclosure of a communication or

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information covered by the attorney-client privilege or work product protection, the

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parties may incorporate their agreement in the stipulated protective order submitted to

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the court.

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12.

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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. By stipulating to the entry of this

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Protective Order no Party waives any right it otherwise would have to object to

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disclosing or producing any information or item on any ground not addressed in this

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Stipulated Protective Order. Similarly, no Party waives any right to object on any

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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

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Protected Material must comply with Civil Local Rule 79-5. Protected Material may

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only be filed under seal pursuant to a court order authorizing the sealing of the

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specific Protected Material at issue. If a Party's request to file Protected Material

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under seal is denied by the court, then the Receiving Party may file the information in

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the public record unless otherwise instructed by the court.

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13.

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FINAL DISPOSITION
After the final disposition of this Action, as defined in paragraph 4, within 60 days

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of a written request by the Designating Party, each Receiving Party must return all

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Protected Material to the Producing Party or destroy such material. As used in this

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subdivision, “all Protected Material” includes all copies, abstracts, compilations,

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summaries, and any other format reproducing or capturing any of the Protected

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Material. Whether the Protected Material is returned or destroyed, the Receiving

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Party must submit a written certification to the Producing Party (and, if not the same
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person or entity, to the Designating Party) by the 60 day deadline that (1) identifies (by

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category, where appropriate) all the Protected Material that was returned or

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destroyed and (2)affirms that the Receiving Party has not retained any copies, abstracts,

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compilations, summaries or any other format reproducing or capturing any of the

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Protected Material. Notwithstanding this provision, Counsel are entitled to retain an

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archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts,

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

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

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contain Protected Material. Any such archival copies that contain or constitute Protected

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Material remain subject to this Protective Order as set forth in Section 4

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(DURATION).

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14.

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measures including, without limitation, contempt proceedings and/or monetary

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sanctions.

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Any violation of this Order may be punished by any and all appropriate

DATED: March 6, 2018

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BESHADA FARNESE LLP
By:

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s/ Peter J. Farnese
Peter J. Farnese

Attorneys for Defendant Telebrands Corp. and
Moulton Logistics Management

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DATED: March 6, 2018

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CAFFERTY CLOBES
SPRENGEL LLP
By:

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MERIWETHER

s/ Bryan L. Clobes
Bryan L. Clobes

Attorneys for Plaintiffs and the Putative Class

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Stipulated Protective Order
Case No.: 2:17-cv-04107-PSG-KS

&

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

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DATED: March 6, 2018

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_____________________________________
KAREN STEVENSON
UNITED STATES MAGISTRATE JUDGE

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Stipulated Protective Order
Case No.: 2:17-cv-04107-PSG-KS

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, _______________________ [print or type full name], of

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________________________________ [print or type full address], declare under penalty

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of perjury that I have read in its entirety and understand the Stipulated Protective Order

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that was issued by the United States District Court for the Central District of California

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on ____________ [date] in the case of Jackson, et al. v. Telebrands Corp., and Moulton

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Logistics Management, Case No. 2:17-cv-04107-PSG-KS. I agree to comply with and to

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be bound by all the terms of this Stipulated Protective Order and I understand and

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acknowledge that failure to so comply could expose me to sanctions and punishment in

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the nature of contempt. I solemnly promise that I will not disclose in any manner any

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information or item that is subject to this Stipulated Protective Order to any person or

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entity except in strict compliance with the provisions of this Order.

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I further agree to submit to the jurisdiction of the United States District Court for the

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

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

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action. I hereby appoint ____________________________________ [print or type full

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name] of ______________________________________ [print or type full address and

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telephone number] as my California agent for service of process in connection with this

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action or any proceedings related to enforcement of this Stipulated Protective Order.

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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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Stipulated Protective Order
Case No.: 2:17-cv-04107-PSG-KS

SIGNATURE ATTESTATION

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Pursuant to Civil Local Rule 5-1(i), I attest that concurrence in the filing of this
document has been obtained from the signatory listed above.

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Dated: March 6, 2018

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By:

/s/ Bryan L. Clobes
Bryan L. Clobes, Esq.

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Stipulated Protective Order
Case No.: 2:17-cv-04107-PSG-KS