Virgin Scent, Inc. v. Purest Naturals LLC et al

Filing 57

STIPULATED PROTECTIVE ORDER by Magistrate Judge Jean P. Rosenbluth re Stipulation for Protective Order. (See Order for details) [Note Changes Made By The Court]. 55 , 56 (bem)

1 Aryeh Kaufman (SBN: 289745)
2 LAW OFFICE OF ARYEH KAUFMAN
5482 Wilshire Blvd. Suite #1907
3 Los Angeles, CA 90036
NOTE: CHANGES MADE BY THE COURT
4 P: [phone]
Email: [e-mail]
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6 Attorney for Plaintiff
VIRGIN SCENT, INC d/b/a ART NATURALS
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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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VIRGIN SCENT, INC., d/b/a ART
11 NATURALS., a California
12 corporation,
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Case No.: 2:17-cv-05194-DSF
STIPULATED PROTECTIVE
ORDER

Plaintiff,
v.

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PUREST NATURALS LLC, an entity
17 of unknown type; ELI COHEN, an
18 individual; and DOES 1 – 10,
inclusive,
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Defendants.

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IT IS HEREBY STIPULATED by and between Plaintiff Virgin Scent, Inc.
dba Art Naturals (“Plaintiff”) and Defendants Purest Naturals, LLC and Eliyahu
Cohen (collectively referred to as “Defendants,” and collectively with Plaintiff,
the “Parties”), through their respective attorneys of record, as follows:

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STIPULATED PROTECTIVE
ORDER

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WHEREAS, documents, testimony, and information have been and may be

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sought, produced, or exhibited by and among the Parties constituting, containing,

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or relating to trade secrets, proprietary systems, confidential commercial and sales

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information, confidential marketing and business development plans and

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strategies, confidential research and development or other proprietary

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information, confidential employee information, credit, financial, and other

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personal information, Protected Health Information and individually identifiable

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health information protected from unauthorized disclosure by the Health

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Insurance Portability and Accountability Act of 1996 (45 C.F.R. § 164.500 et

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seq.) and the privacy regulations promulgated thereunder (“HIPAA”), and/or

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other similar confidential, proprietary, or private information belonging to the

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Parties and/or their agents, employees, representatives, clients, and/or customers;

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and WHEREAS, the Parties believe that good cause exists for this Court to enter a

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protective order to facilitate discovery and to govern the dissemination and use of

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confidential, proprietary, or private documents and information produced in this

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matter;

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AND NOW, THEREFORE, IT IS STIPULATED by and among the Parties that

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the Court may enter a protective order as follows:

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1.

This Protective Order (“Order”) is entered pursuant to Federal Rule

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of Civil Procedure 26(c) and shall govern the use, handling, and disclosure of all

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documents, electronically stored information (“ESI”), testimony, or information

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produced or given in this action that is or are designated to be subject to this

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Order. The use of such information at trial or in non-discovery- relating

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proceedings will be governed by a separate order.

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2.

Definitions.
a.

“Confidential Materials.” A document, including but not

limited to deposition testimony, may be designated "CONFIDENTIAL" where it
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STIPULATED PROTECTIVE
ORDER

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contains information received in confidence from a third party, where it contains

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private or confidential personal information (including but not limited to

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Protected Health Information under HIPAA), and/or where it contains

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Commercially sensitive financial or business information that the Producing Party

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(as defined herein) has treated as confidential in the ordinary course of business.

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b.

“Confidential-Attorneys’ Eyes Only Materials.” A document,

7 including but not limited to deposition testimony, may be designated
8 "CONFIDENTIAL – ATTORNEYS EYES ONLY" where it contains the
9 Producing Party’s trade secrets; sensitive financial information; competitively
10 sensitive technical, marketing, financial, sales, or other proprietary or confidential
11 business information; cost information; pricing information; sales information;
12 customer, license, supplier, and vendor information; software and firmware for a
13 party's products; technical and development information about the party's
14 products; comparative product test results; business plans; marketing strategies;
15 new product plans and competitive strategies; or any other information that would
16 put the Producing Party at a competitive disadvantage if the information became
17 known to employees of the Receiving Party or third parties.
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c.

“Confidential Information” shall mean and refer to either

19 and/or both “Confidential Materials” and “Confidential-Attorneys’ Eyes Only
20 Materials.”
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d.

“Producing Party” means a party or non-party that produces

22 Confidential Information in this action.
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e.

“Receiving Party” means a party or non-party that receives

24 Confidential Information in this action.
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f.

“Designating Party” means a party or non-party that designates

26 materials as “CONFIDENTIAL” or “CONFIDENTIAL-ATTORNEY’S EYES
27 ONLY.”
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STIPULATED PROTECTIVE
ORDER

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3.

Designation of Confidential Materials. Except as to deposition and

2 trial testimony and transcripts which are governed by paragraph 4 below, any
3 documents, testimony, or information produced, marked or otherwise submitted,
4 either voluntarily or pursuant to any order in this case, which is asserted in good
5 faith by the Producing Party or by any other party to contain or constitute
6 Confidential Information, shall be so designated in writing (or orally on the record
7 if the document is produced at a deposition, hearing, or trial) and shall be
8 segregated from other information being produced, marked or otherwise
9 submitted. Materials so designated shall be clearly marked on their face with the
10 legend “CONFIDENTIAL” or “CONFIDENTIALATTORNEY’S EYES ONLY,”
11 as appropriate. Such documents, transcripts, or other materials are referred herein
12 as “Confidential Materials” and “Confidential-AEO Materials,” respectively, and
13 collectively as “Confidential Information.”
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4.

Depositions. A party wishing to designate portions of a deposition

15 transcript “CONFIDENTIAL” or “CONFIDENTIAL-ATTORNEYS’ EYES
16 ONLY” pursuant to this Order must, within ten (10) business days from the
17 conclusion of the deposition, order the original or a certified copy of the transcript
18 of the deposition from the court reporter for regular turnaround. The Designating
19 Party may designate those portions of the transcript “CONFIDENTIAL” or
20 “CONFIDENTIAL-ATTORNEYS’ EYES ONLY” in accordance with paragraph
21 2 of this Order. The Designating Party shall designate such information as
22 “CONFIDENTIAL” or “CONFIDENTIAL-ATTORNEYS’ EYES ONLY” either
23 on the record or by serving upon all counsel of record in writing via
24 correspondence, facsimile or other electronic transmission a Notice setting forth
25 the page, line numbers and designation. The Designating Party must serve such
26 Notice within ten (10) calendar days after its counsel receives a copy of the
27 deposition transcript. All transcripts will be treated as Confidential-Attorneys’
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STIPULATED PROTECTIVE
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1 Eyes Only Material until the expiration of the ten-day period described in this
2 paragraph. Any portions of a transcript designated as “CONFIDENTIAL” or
3 “CONFIDENTIAL-ATTORNEYS’ EYES ONLY” shall thereafter be treated as
4 Confidential Material or Confidential-Attorneys’ Eyes Only Material in
5 accordance with such designation, pursuant to this Order. The parties shall
6 negotiate in good faith to alter the time frames set forth in this paragraph.
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5.

Access to Confidential Information. In the absence of prior written

8 permission from the Producing Party or an order of the Court:
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a. Confidential Materials shall not be disclosed to any person other

10 than: (i) the Parties, their attorneys of record, and the members and employees of
11 such attorneys’ firm(s); (ii) qualified persons taking testimony involving such
12 material and necessary stenographic, videography, and clerical personnel; (iii)
13 disclosed experts or retained consultants and their staff employed for this
14 litigation, provided they agree in writing to maintain all Confidential Information
15 as provided for in paragraph 7 below; (iv) witnesses at trial, or in any deposition or
16 other proceeding of this action, but only to the extent that such witness(es)
17 authored or was previously a recipient of such documents; and (v) the Court, Court
18 personnel, and members of any jury impaneled to hear this case.
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b. Confidential-Attorneys’ Eyes Only Materials shall not be disclosed

20 to any person other than: (i) the attorneys of record, and the members and
21 employees of such attorneys’ firm(s); (ii) qualified persons taking testimony
22 involving such material and necessary stenographic, videography, and clerical
23 personnel; (iii) disclosed experts or retained consultants and their staff employed
24 for this litigation, provided they agree in writing to maintain all Confidential
25 Information as provided for in paragraph 7 below; (iv) witnesses at trial, or in any
26 deposition or other proceeding of this action, but only to the extent that such
27 witness(es) authored or was previously a recipient of such documents; and (v) the
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STIPULATED PROTECTIVE
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1 Court, Court personnel, and members of any jury impaneled to hear this case.
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6.

Use and Dissemination of Confidential Information.
a. All Confidential Materials and Confidential-Attorneys’ Eyes Only

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4 Materials, and all information derived therefrom (including but not limited to all
5 testimony, deposition, or otherwise, that refers, reflects, or otherwise discusses any
6 such materials), shall not be used, directly or indirectly, by any person for any
7 business, commercial, or competitive purposes, or for any purpose whatsoever
8 other than for discovery, trial preparation, trial, and/or post-trial motions or
9 appeals in this action and in accordance with this Order.
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7.

Declaration of Recipients. Any person other than the Court or its

11 personnel provided with Confidential Information shall be given a copy of this
12 Order before being shown any Confidential Information, and its provisions shall
13 be explained to them by an attorney. Each such person, before having access to the
14 Confidential Information, shall agree not to disclose or make use of any such
15 material other than solely for purpose of this litigation, and shall acknowledge
16 those obligations and that he or she understands the terms of this Protective Order.
17 Confidential Information shall not be disclosed to any person designated in
18 Paragraph 5(a)(iii) or in Paragraph 5(b)(iii) unless such person has executed a
19 written, dated declaration in the form attached as Exhibit A, acknowledging that he
20 or she has first read this Order, agrees to be bound by the terms thereof, agrees not
21 to reveal such Confidential Information to anyone other than as permitted by this
22 Order, and agrees to utilize such Confidential Information solely for the purposes
23 of this litigation.
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8.

Filing of Confidential Materials. Pleadings, documents and

25 transcripts of testimony that contain Confidential Information shall be requested to
26 be filed and maintained by the Clerk under seal pursuant to Local Rule 79-5,
27 unless otherwise ordered by the Court.
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STIPULATED PROTECTIVE
ORDER

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9.

Subpoena or Request for Confidential Information by Third

2 Party. If any party receiving Confidential Information receives a subpoena, civil
3 investigative demand, or formal request from any governmental agency,
4 governmental office, or other person, they shall provide a copy of such subpoena,
5 demand, or request to the Producing Party within five (5) business days of the
6 receipt of same unless prohibited by law.
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10.

Inadvertent Production and/or Mistaken Designation. If a

8 Producing Party through inadvertence or mistake produces Confidential
9 Information without marking it with the “CONFIDENTIAL” or
10 “CONFIDENTIAL-ATTORNEYS’ EYES ONLY” designations, or by designating
11 it with an incorrect level of confidentiality, the Producing Party (a) may give
12 written notice to the Receiving Party that the material contains
13 “CONFIDENTIAL” or “CONFIDENTIAL-ATTORNEYS’ EYES ONLY”
14 information and should be treated as such in accordance with the provisions of this
15 Order; and (b) shall, if such notice is given, provide the Receiving Party with
16 substitute copies of the affected documents, marked with the appropriate
17 confidentiality designation, at the expense of the Producing Party. Upon receipt of
18 such notice, and upon receipt of properly marked materials, the Receiving Party
19 and all recipients of such information who are governed by this order shall return
20 all unmarked or misdesignated materials and not retain copies thereof, and must
21 treat such material in accordance with its designation and cooperate in restoring
22 the confidentiality of such material, provided however that the Receiving Party
23 shall not be responsible for the disclosure or other distribution of undesignated or
24 misdesignated material made in accordance with the terms of this Order before the
25 receipt of such notification of a claim of confidentiality (“Pre-Notification
26 Disclosure”) and such Pre-Notification Disclosure shall not be deemed to be a
27 violation of this Protective Order. The inadvertent or mistaken disclosure by a
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STIPULATED PROTECTIVE
ORDER

1 Producing Party of Confidential Information, regardless of whether the
2 information was so designated at the time of disclosure, shall not be deemed a
3 waiver in whole or in part of a party's claim of confidentiality either as to the
4 specific information disclosed or as to any other information relating thereto or on
5 the same or related subject matter, provided that the Receiving Party is notified
6 and properly marked documents are supplied as provided herein, and except to the
7 extent of a Pre-Notification Disclosure.
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Improper Designation and Review. Excessive or blanket

9 designations of Confidential Information, including overprotected designations for
10 any such information, are prohibited, and may render the designator subject to
11 sanctions. Any party may seek review by the Court of any designation of
12 information, documents, materials or testimony as Confidential Information
13 pursuant to this Order and Local Rule 37. The designator shall bear the burden of
14 showing good cause for any challenged designation.
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12.

Disagreement Regarding Designation. If a Receiving Party

16 disagrees with any designation made under this Order, the parties shall attempt to
17 resolve their dispute as required by Local Rule 37.1. If the Receiving Party should
18 file a motion seeking review of any such designation, the Receiving Party shall
19 maintain the materials consistent with the Producing Party’s designation, until the
20 Court has ruled on the Receiving Party’s motion.
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13.

Unauthorized Disclosure of Confidential Information. If a

22 Receiving Party learns that, by inadvertence or otherwise, it has disclosed or
23 allowed the disclosure of Confidential Information to any person or in any
24 circumstance not authorized under this Order, the Receiving Party must
25 immediately (a) notify the Producing Party in writing of the unauthorized
26 disclosure(s); (b) use its best efforts to retrieve all copies of the Confidential
27 Information; (c) inform the person or persons to whom unauthorized disclosures
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STIPULATED PROTECTIVE
ORDER

1 were made of all the terms of this Order; and (d) request that such person or
2 persons execute the declaration in the form attached as Exhibit A.
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14.

Procedure upon Disposition of Action. Within thirty (30) days

4 following the settlement or termination of this entire action with prejudice, each
5 party shall:
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a.

Return to the Producing Party or destroy all printed or “hard”

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originals of Confidential Information received from that Producing Party, as

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well as all printed or “hard” copies thereof. If the Receiving Party elects to

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destroy printed or “hard” copies of documents or information designated as

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Confidential Information, it shall certify in writing to the Producing Party

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that, based on a reasonably diligent review, the Receiving Party has

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destroyed all such documents in its possession, custody, or control.

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b.

If Confidential Information from a Producing Party is stored or

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otherwise maintained electronically by the Receiving Party, including but

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not limited to on an email system or server, an internal document storage

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program, computer or external hard drive, disk, cloud storage, or other

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electronic media, the Receiving Party shall take all reasonable steps to

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delete said Confidential Information to the fullest extent technologically

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possible and, in any event, render it inaccessible by their representatives,

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attorneys and staff involved in litigation of this action. Further, as to any

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electronic versions of Confidential Information existing on backup storage

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media (including but not limited to backup “tapes” and archived email

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programs), the parties agree that such electronic copies shall be subject to

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and deleted pursuant to such Receiving Party’s and counsel’s routine data

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backup and retention policies, and that the actual permanent deletion of such

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Confidential Information may occur as such backup media is overwritten or

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otherwise as part of document deletion procedures in the normal course of

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STIPULATED PROTECTIVE
ORDER

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business. The Receiving Party shall not in any event make any attempt to

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retrieve, restore, review, disseminate, or use the Confidential Information

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stored on any such backup storage media for any purpose, and must

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promptly take steps to delete or sequester such Confidential Information if a

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backup containing such data is ever retrieved or restored for any purpose.
c.

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This paragraph shall not require the Receiving Party or his, her,

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or its counsel to destroy or return documents or information containing,

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attaching, or constituting work product, nor shall this paragraph require the

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destruction of documents filed with the Court or other tribunal for or in this

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action, hearing or argument transcripts, deposition transcripts, trial

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transcripts, trial exhibits, discovery requests and written responses,

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stipulations, or correspondence between counsel for the parties in this

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litigation, which contain verbatim Confidential Information, set forth the

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substance of such Confidential Information, or include any deposition

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testimony or documents designated as Confidential Information, provided

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however, that the Receiving Party or his, her, or its counsel who retains such

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documents or information shall maintain them consistent with the provisions

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of paragraph 6 above.

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15.

Survival of Terms. This Order shall remain binding after the

20 conclusion of this case unless otherwise ordered by the Court, and the Court shall
21 retain jurisdiction over all parties bound hereby for the purposes of enforcing this
22 Order. Each individual signing the declaration attached as Exhibit A agrees to be
23 subject to the jurisdiction of this Court for purposes of this Order.
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16.

Producing Party’s Use of Its Own Materials. Nothing herein shall

25 affect or restrict the rights of any party with respect to its own documents or to the
26 information obtained or developed independently of Confidential Information
27 produced in this action.
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ORDER

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17.

Effect of Protective Order on Third Parties. Third parties who are

2 the subject of discovery requests, subpoenas, or depositions in this case may take
3 advantage of the provisions of this Order by providing the Parties with written
4 notice that they intend to comply with and be bound by the terms of this Order.
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18.

Violation. Any violation of this Order may be punished by

6 appropriate measures including, without limitation, contempt proceedings and/or
7 monetary sanctions.
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IT IS SO STIPULATED BY AND THROUGH COUNSEL OF RECORD.

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DATED: May 30, 2018

LAW OFFICE OF ARYEH KAUFMAN

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By:

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/ s/
Aryeh Kaufman, Esq.
Attorney for Plaintiff

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DATED: May 17, 2018

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By:

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/s/
Benjamin Kiss
Attorney for Defendant

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DATED: May 21, 2018

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By:

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/s/
Payam Moradian
Attorney for Defendant

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STIPULATED PROTECTIVE
ORDER

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

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DATED: August 20, 2018

___________________________
Hon. Jean P. Rosenbluth
Magistrate Judge

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STIPULATED PROTECTIVE
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EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, _____________________________ [print or type full name], of
_____________________________[print or type full address], declare under
penalty of perjury that I have read in its entirety and understand the Stipulated
Protective Order that was issued by the United States District Court for the
Central District of California on [date] in the case of Virgin Scent, Inc. dba Art
Naturals v. Purest Naturals LLC, et al U.S.D.C. Case No. 2:17-cv-05194-DSFJPR.
I agree to comply with and to be bound by all the terms of this Stipulated
Protective Order and I understand and acknowledge that failure to so comply
could expose me to sanctions and punishment in the nature of contempt. I
solemnly promise that I will not disclose in any manner any information or item
that is subject to this Stipulated Protective Order to any person or entity except in
strict compliance with the provisions of this Order. I further agree to submit to the
jurisdiction of the United States District Court for the Central District of
California for enforcing the terms of this Stipulated Protective Order, even if such
enforcement proceedings occur after termination of this action.
I hereby appoint __________________________ [print or type full name] of
_______________________________________ [print or type full address and
telephone number] as my California agent for service of process in connection
with this action or any proceedings related to enforcement of this Stipulated
Protective Order.
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
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