Lanard Toys Limited v. Target Corporation

Filing 44

ORDER RE STIPULATED PROTECTIVE ORDER by Magistrate Judge Jean P. Rosenbluth re Stipulation for Protective Order 42 , 43]. (See Order for details) [Note Changes Made By the Court]. (bem)

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NOTE: CHANGES MADE BY THE COURT

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA – WESTERN DIVISION

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Lanard Toys Limited,

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Plaintiff,
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vs.

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Target Corporation,

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Defendant

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) Case No.: 2:17-cv-04472 - AB (JPRx)
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) ORDER RE STIPULATED
) PROTECTIVE ORDER
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Whereas Plaintiff Lanard Toys Limited and Defendant Target Corporation
have stipulated to the following terms and the entrance of a Protective Order in the
above captioned matter,

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1.

A. PURPOSES AND LIMITATIONS
Discovery in this action is likely to involve production of confidential,

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proprietary or private information for which the parties believe special protection
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from public disclosure and from use for any purpose other than prosecuting this

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ORDER RE STIPULATED PROTECTIVE ORDER - 1

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

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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

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and use extends only to the limited information or items that the parties believe

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are entitled to confidential treatment under the applicable legal principles.

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B. GOOD CAUSE STATEMENT

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This action is likely to involve trade secrets, customer and pricing lists and

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other valuable research, development, commercial, financial, technical and/or
proprietary information for which the parties believe special protection from
public disclosure and from use for any purpose other than prosecution of this

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action is warranted. Such confidential and proprietary materials and information
may consist of, among other things, confidential business or financial

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information, information regarding confidential business practices, or other

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confidential research, development, or commercial information (including

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information implicating privacy rights of third parties), information otherwise

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generally unavailable to the public, or which may be privileged or otherwise

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protected from disclosure under state or federal statutes, court rules, case

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decisions, or common law. Accordingly, to expedite the flow of information, to

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facilitate the prompt resolution of disputes over confidentiality of discovery

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materials, to adequately protect information the parties are entitled to keep

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confidential, to ensure that the parties are permitted reasonable necessary uses of

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such material in preparation for and in the conduct of trial, to address their
handling at the end of the litigation, and serve the ends of justice, a protective
order for such information is justified in this matter. It is the intent of the parties

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that information will not be designated as confidential for tactical reasons and that
nothing be so designated without a good faith belief that it has been maintained in

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

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part of the public record of this case.
ORDER RE STIPULATED PROTECTIVE ORDER - 2

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C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER
SEAL

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The parties further acknowledge, as set forth in Section 12.3, below, that this

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Stipulated Protective Order does not entitle them to file confidential information

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under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed

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and the standards that will be applied when a party seeks permission from the

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court to file material under seal.

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2.

DEFINITIONS
2.1 Action: Lanard Toys Limited v. Target Corporation, Case No.: 2:17-cv-

04472 - AB (JPRx)
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2.2 Challenging Party: a Party or Non-Party that challenges the designation
of information or items under this Order.

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2.3 “CONFIDENTIAL” Information or Items: information (regardless of

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how it is generated, stored or maintained) or tangible things that qualify for

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protection under Federal Rule of Civil Procedure 26(c), and as specified above in

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the Good Cause Statement.

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2.4 Counsel: Outside Counsel of Record and House Counsel (as well as
their support staff).

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2.5 Designating Party: a Party or Non-Party that designates information or

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items that it produces in disclosures or in responses to discovery as

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“CONFIDENTIAL.”

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2.6 Disclosure or Discovery Material: all items or information, regardless of
the medium or manner in which it is generated, stored, or maintained (including,
among other things, testimony, transcripts, and tangible things), that are produced

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or generated in disclosures or responses to discovery in this matter.
2.7 Expert: a person with specialized knowledge or experience in a matter

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

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as an expert witness or as a consultant in this Action.
ORDER RE STIPULATED PROTECTIVE ORDER - 3

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

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House Counsel does not include Outside Counsel of Record or any other outside

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counsel.
2.9 Non-Party: any natural person, partnership, corporation, association or

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other legal entity not named as a Party to this action.

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2.10 Outside Counsel of Record: attorneys who are not employees of a

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party to this Action but are retained to represent or advise a party to this Action

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

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law firm that has appeared on behalf of that party, and includes support staff.
2.11 Party: any party to this Action, including all of its officers, directors,

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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: persons or entities that provide litigation support

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services (e.g., photocopying, videotaping, translating, preparing exhibits or

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demonstrations, and organizing, storing, or retrieving data in any form or

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medium) and their employees and subcontractors.

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2.14 Protected Material:

any Disclosure or Discovery Material that is

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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.

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3.

SCOPE
The protections conferred by this Stipulation and Order cover not only

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
compilations of Protected Material; and (3) any testimony, conversations, or
presentations by Parties or their Counsel that might reveal Protected Material.

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ORDER RE STIPULATED PROTECTIVE ORDER - 4

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Any use of Protected Material at trial shall be governed by the orders of the
trial judge. This Order does not govern the use of Protected Material at trial.

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4.

DURATION

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Once a case proceeds to trial, information that was designated as

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CONFIDENTIAL or maintained pursuant to this protective order used or

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introduced as an exhibit at trial becomes public and will be presumptively

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available to all members of the public, including the press, unless compelling

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reasons supported by specific factual findings to proceed otherwise are made to the

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trial judge in advance of the trial. Accordingly, the terms of this protective order
do not extend beyond the commencement of the trial.
5.

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

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

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that qualifies under the appropriate standards.

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designate for protection only those parts of material, documents, items or oral or

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

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

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swept unjustifiably within the ambit of this Order. Mass, indiscriminate or

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routinized designations are prohibited. Designations that are shown to be clearly

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unjustified or that have been made for an improper purpose (e.g., to unnecessarily

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The Designating Party must

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

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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.

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ORDER RE STIPULATED PROTECTIVE ORDER - 5

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Except as otherwise provided in this Order (see, e.g., second paragraph of

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section 5.2(a) below), or as otherwise stipulated or ordered, Disclosure or

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Discovery Material that qualifies for protection under this Order must be clearly so

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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

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documents, but excluding transcripts of depositions or other pretrial or trial

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proceedings), that the Producing Party affix at a minimum, the legend

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“CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that

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contains protected material. If only a portion 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).

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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

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

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before the designation, all of the material made available for inspection shall be

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deemed “CONFIDENTIAL.”

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documents it wants copied and produced, the Producing Party must determine

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which documents, or portions thereof, qualify for protection under this Order.

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Then, before producing the specified documents, the Producing Party must affix

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

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only a portion of the material on a page qualifies for protection, the Producing

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

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After the inspecting Party has identified the

appropriate markings in the margins).
(b) for testimony given in depositions that the Designating Party identifies
the Disclosure or Discovery Material on the record, before the close of the

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deposition all protected testimony.
(c) for information produced in some form other than documentary and for

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any other tangible items, that the Producing Party affix in a prominent place on the

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exterior of the container or containers in which the information is stored the legend
ORDER RE STIPULATED PROTECTIVE ORDER - 6

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“CONFIDENTIAL.” If only a portion or portions of the information warrants

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protection, the Producing Party, to the extent practicable, shall identify the

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protected portion(s).

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5.3 Inadvertent Failures to Designate.

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If timely corrected, an inadvertent failure to designate qualified information

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or items does not, standing alone, waive the Designating Party’s right to secure

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protection under this Order for such material.

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designation, the Receiving Party must make reasonable efforts to assure that the

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material is treated in accordance with the provisions of this Order.

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Upon timely correction of a

5.4 Attorneys’ Eyes Only
Any document produced before issuance of this Order with the designation
“Confidential” or “Confidential - Outside Attorneys’ Eyes Only” shall receive the

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same treatment as if designated “RESTRICTED - ATTORNEYS’ EYES ONLY”
under this Order, unless and until such document is redesignated to have a different
classification under this Order.
With

respect

to

documents,

information

or

material

designated

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“CONFIDENTIAL” or “RESTRICTED - ATTORNEYS’ EYES ONLY”

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(“DESIGNATED MATERIAL”), subject to the provisions herein and unless

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otherwise stated, this Order governs, without limitation: (a) all documents,

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electronically stored information, and/or things as defined by the Federal Rules of

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Civil Procedure; (b) all pretrial, hearing or deposition testimony, or documents

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marked as exhibits or for identification in depositions and hearings; (c) pretrial

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pleadings, exhibits to pleadings and other court filings; (d) affidavits; and (e)

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stipulations. All copies, reproductions, extracts, digests and complete or partial
summaries prepared from any DESIGNATED MATERIALS shall also be
considered DESIGNATED MATERIAL and treated as such under this Order.

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A designation of Protected Material (i.e., “CONFIDENTIAL” or
“RESTRICTED -ATTORNEYS’ EYES ONLY”) may be made at any time.

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Inadvertent or unintentional production of documents, information or material that

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has not been designated as DESIGNATED MATERIAL shall not be deemed a
ORDER RE STIPULATED PROTECTIVE ORDER - 7

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waiver in whole or in part of a claim for confidential treatment. Any party that

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inadvertently or unintentionally produces Protected Material without designating it

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as DESIGNATED MATERIAL may request destruction of that Protected Material

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by notifying the recipient(s), as soon as reasonably possible after the producing

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Party becomes aware of the inadvertent or unintentional disclosure, and providing

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replacement Protected Material that is properly designated. The recipient(s) shall

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then destroy all copies of the inadvertently or unintentionally produced Protected

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Materials and any documents, information or material derived from or based

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thereon.

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6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1 Timing of Challenges.

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Any Party or Non-Party may challenge a

designation of confidentiality at any time that is consistent with the Court’s
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Scheduling Order.

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6.2 Meet and Confer.

resolution process under Local Rule 37-1 et seq.

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The Challenging Party shall initiate the dispute

6.3 Joint Stipulation. Any challenge submitted to the Court shall be via a
joint stipulation pursuant to Local Rule 37-2.

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

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the Designating Party. Frivolous challenges, and those made for an improper

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purpose (e.g., to harass or impose unnecessary expenses and burdens on other

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parties) may expose the Challenging Party to sanctions. Unless the Designating

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Party has waived or withdrawn the confidentiality designation, all parties shall

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continue to afford the material in question the level of protection to which it is

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entitled under the Producing Party’s designation until the Court rules on the
challenge.
7.

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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

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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
ORDER RE STIPULATED PROTECTIVE ORDER - 8

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

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

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DISPOSITION). Protected Material must be stored and maintained by a Receiving

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Party at a location and in a secure manner that ensures that access is limited to the

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persons authorized under this Order.

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7.2 Disclosure of “CONFIDENTIAL” Information or Items.

Unless

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

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Receiving

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“CONFIDENTIAL” only to:

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Party

may

disclose

any

information

or

item

designated

(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;

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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;

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

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

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agreed by the Designating Party or ordered by the court. Pages of transcribed
ORDER RE STIPULATED PROTECTIVE ORDER - 9

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deposition testimony or exhibits to depositions that reveal Protected Material may

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be separately bound by the court reporter and may not be disclosed to anyone

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except as permitted under this Stipulated Protective Order; and
(i)

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any mediator or settlement officer, and their supporting personnel,

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mutually agreed upon by any of the parties engaged in settlement discussions or

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appointed by the Court.

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8.

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PRODUCED IN OTHER LITIGATION

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PROTECTED

MATERIAL

SUBPOENAED

OR

ORDERED

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:

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(a) promptly notify in writing the Designating Party. Such notification shall
include a copy of the subpoena or court order unless prohibited by law;

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(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 subpoena

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

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of this Stipulated Protective Order; and

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(c) cooperate with respect to all reasonable procedures sought to be pursued

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by the Designating Party whose Protected Material may be affected. If the

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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

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subpoena or order issued, unless the Party has obtained the Designating Party’s
permission or a Court so orders. The Designating Party shall bear the burden and
expense of seeking protection in that court of its confidential material and nothing

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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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ORDER RE STIPULATED PROTECTIVE ORDER - 10

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9.

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PRODUCED IN THIS LITIGATION

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

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(a) The terms of this Order are applicable to information produced by a

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

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produced by Non-Parties in connection with this litigation is protected by the

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remedies and relief provided by this Order. Nothing in these provisions should be

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construed as prohibiting 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
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

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subject to a confidentiality agreement with a Non-Party; (2) promptly provide the
Non-Party with a copy of the Stipulated Protective Order in this Action, the

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relevant discovery request(s), and a reasonably specific description of the

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information requested; and (3) make the information requested available for

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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

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

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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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Absent a court order to the contrary, the Non-Party shall bear the burden and
expense of seeking protection in this court of its Protected Material.
10.

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

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disclosed Protected Material to any person or in any circumstance not authorized

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under this Stipulated Protective Order, the Receiving Party must immediately (a)
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notify in writing the Designating Party of the unauthorized disclosures, (b) use its

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best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform

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the person or persons to whom unauthorized disclosures were made of all the terms

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of this Order, and (d) request such person or persons to execute the

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“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit

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A.

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11.

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OTHERWISE PROTECTED MATERIAL

PRODUCTION

OF

PRIVILEGED

OR

When a Producing Party gives notice to Receiving Parties that certain

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INADVERTENT

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

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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

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production without prior privilege review. Pursuant to Federal Rule of Evidence

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502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure

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of a communication or information covered by the attorney-client privilege or

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work product protection, the parties may incorporate their agreement in the

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stipulated protective order submitted to the court provided the Court so allows.

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12.

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.
12.2 Right to Assert Other Objections. By stipulating to the entry of this
Protective Order, no Party waives any right it otherwise would have to object to
disclosing or producing any information or item on any ground not addressed in

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this Stipulated Protective Order. Similarly, no Party waives 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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ORDER RE STIPULATED PROTECTIVE ORDER - 12

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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 Local Civil Rule 79-5. Protected Material

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may 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

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in the public record unless otherwise instructed by the court.

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13.

FINAL DISPOSITION
After the final disposition of this Action, as defined in paragraph 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,

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compilations, summaries, and any other format reproducing or capturing any of the
Protected Material. Whether the Protected Material is returned or destroyed, the

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Receiving Party must submit a written certification to the Producing Party (and, if

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not the same person or entity, to the Designating Party) by the 60 day deadline that

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(1) identifies (by category, where appropriate) all the Protected Material that was

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returned or destroyed and (2) affirms that the Receiving Party has not retained any

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copies, abstracts, compilations, summaries or any other format reproducing or

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capturing any of the Protected Material. Notwithstanding this provision, Counsel

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are entitled to retain an archival copy of all pleadings, motion papers, trial,

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deposition, and hearing transcripts, legal memoranda, correspondence, deposition

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and trial exhibits, expert reports, attorney work product, and consultant and expert

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work product, even if such materials contain Protected Material.

Any such

archival copies that contain or constitute Protected Material remain subject to this
Protective Order as set forth in Section 4 (DURATION).

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14. VIOLATION
Any violation of this Order may be punished by appropriate measures
including, without limitation, contempt proceedings and/or monetary sanctions.
ORDER RE STIPULATED PROTECTIVE ORDER - 13

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ORDER

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The parties have stipulated to the terms of the protective order and good
cause appearing, IT IS SO ORDERED.
Dated: February 12, 2018

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______________________
Hon. Jean P. Rosenbluth
United States Magistrate Judge

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Respectfully submitted by:

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MCQUAID LAW, APLC
/s/ Carrie McQuaid
Carrie A. McQuaid
Attorneys for Defendant
Target Corporation

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ORDER RE STIPULATED PROTECTIVE ORDER - 14