Textile 26 Corp. v. Osgood Textile Company, Inc. et al

Filing 17

STIPULATED PROTECTIVE ORDER by Magistrate Judge Rozella A. Oliver re Stipulation for Protective Order 16 . See order for details. (hr)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 TEXTILE 26 CORP, a California Corporation; 13 Plaintiff, vs. 14 15 16 17 18 Case No. 2:17-cv-8883-JVS-RAO [PROPOSED] STIPULATED PROTECTIVE ORDER OSGOOD TEXTILE COMPANY, INC., a Massachusetts Corporation d/b/a ONLINE FABRIC STORE; MAYER KAHAN, an individual; and DOES 1-10, inclusive, Defendants. 19 20 21 22 23 24 25 26 27 28 1. A. PURPOSES AND LIMITATIONS Discovery in this action is likely to involve production of confidential, proprietary, or private information for which special protection from public disclosure and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly, the parties hereby stipulate to and petition the Court to enter the following Stipulated Protective Order. The parties acknowledge that this Order does not confer blanket protections on all disclosures or responses to discovery and that the protection it affords from public disclosure and use extends only to the limited information or items that are entitled to confidential treatment 1 1 under the applicable legal principles. The parties further acknowledge, as set forth 2 in Section 12.3, below, that this Stipulated Protective Order does not entitle them 3 to file confidential information under seal; Civil Local Rule 79-5 sets forth the 4 procedures that must be followed and the standards that will be applied when a 5 party seeks permission from the court to file material under seal. 6 7 B. GOOD CAUSE STATEMENT 8 This action is likely to involve trade secrets, customer and pricing lists and 9 other valuable research, development, commercial, financial and/or technical 10 information for which special protection from public disclosure and from use for 11 any purpose other than prosecution of this action is warranted. Such confidential 12 materials and information consist of, among other things, confidential business or 13 financial information, information regarding purchase and sale prices of fabric or 14 garments by suppliers, manufacturers, importers, distributors or fashion retailers, 15 information regarding business practices, information regarding the creation, 16 purchase or sale of graphics used on textiles and garments, or other confidential 17 commercial information (including information implicating privacy rights of third 18 parties), information generally unavailable to the public, or which may be 19 privileged or otherwise protected from disclosure under state of federal rules, court 20 rules, case decisions, or common law. Accordingly, to expedite the flow of 21 information, to facilitate the prompt resolution of disputes over confidentiality of 22 discovery materials, to adequately protect information the parties are entitled to 23 keep confidential, to ensure that the parties are permitted reasonable necessary uses 24 of such material in preparation for and in the conduct of trial, to address their 25 handling at the end of the litigation, and serve the ends of justice, a protective order 26 for such information is justified in this matter. It is the intent of the parties that 27 information will not be designated as confidential for tactical reasons and that 28 nothing be so designated without a good faith belief that it has been maintained in a 2 1 confidential, non-public manner, and there is good cause why it should not be part 2 of the public record of this case. 3 C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL 4 5 The parties further acknowledge, as set forth in Section 12.3, below, that this 6 Stipulated Protective Order does not entitle them to file confidential information 7 under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed 8 and the standards that will be applied when a party seeks permission from the court 9 to file material under seal. 10 There is a strong presumption that the public has a right of access to judicial 11 proceedings and records in civil cases. In connection with non-dispositive motions, 12 good cause must be shown to support a filing under seal. See Kamakana v. City and 13 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors 14 Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics, 15 Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders 16 require good cause showing), and a specific showing of good cause or compelling 17 reasons with proper evidentiary support and legal justification, must be made with 18 respect to Protected Material that a party seeks to file under seal. The parties’ mere 19 designation of Disclosure or Discovery Material as CONFIDENTIAL does not— 20 without the submission of competent evidence by declaration, establishing that the 21 material sought to be filed under seal qualifies as confidential, privileged, or 22 otherwise protectable—constitute good cause. Further, if a party requests sealing related to a dispositive motion or trial, 23 24 then 25 compelling reasons, not only good cause, for the sealing must be shown, and the 26 relief sought shall be narrowly tailored to serve the specific interest to be protected. 27 See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). For 28 each item or type of information, document, or thing sought to be filed or 3 1 introduced under seal in connection with a dispositive motion or trial, the party 2 seeking protection must articulate compelling reasons, supported by specific facts 3 and legal justification, for the requested sealing order. Again, competent evidence 4 supporting the application to file documents under seal must be provided by 5 declaration. 6 Any document that is not confidential, privileged, or otherwise protectable in 7 its entirety will not be filed under seal if the confidential portions can be redacted. 8 If documents can be redacted, then a redacted version for public viewing, omitting 9 only the confidential, privileged, or otherwise protectable portions of the document, 10 shall be filed. Any application that seeks to file documents under seal in their 11 entirety should include an explanation of why redaction is not feasible. 12 13 2. DEFINITIONS 14 2.1 Action: This pending federal law suit. 15 2.2 Challenging Party: a Party or Non-Party that challenges the 16 17 designation of information or items under this Order. 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 18 how it is generated, stored or maintained) or tangible things that qualify for 19 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 20 the Good Cause Statement. 21 22 23 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 information or 24 items that it produces in disclosures or in responses to discovery as 25 “CONFIDENTIAL.” 26 27 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, 28 4 1 among other things, testimony, transcripts, and tangible things), that are produced 2 or generated in disclosures or responses to discovery in this matter. 3 2.7 Expert: a person with specialized knowledge or experience in a matter 4 pertinent to the litigation who has been retained by a Party or its counsel to serve 5 as an expert witness or as a consultant in this Action. 6 2.8 House Counsel: attorneys who are employees of a party to this Action. 7 House Counsel does not include Outside Counsel of Record or any other outside 8 counsel. 9 10 2.9 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 11 2.10 Outside Counsel of Record: attorneys who are not employees of a 12 party to this Action but are retained to represent or advise a party to this Action 13 and have appeared in this Action on behalf of that party or are affiliated with a law 14 firm which has appeared on behalf of that party, and includes support staff. 15 2.11 Party: any party to this Action, including all of its officers, directors, 16 employees, consultants, retained experts, and Outside Counsel of Record (and their 17 support staffs). 18 19 2.12 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this Action. 20 2.13 Professional Vendors: persons or entities that provide litigation 21 support services (e.g., photocopying, videotaping, translating, preparing exhibits or 22 demonstrations, and organizing, storing, or retrieving data in any form or medium) 23 and their employees and subcontractors. 24 25 26 27 2.14 Protected Material: any Disclosure or Discovery Material that is designated as “CONFIDENTIAL.” 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing Party. 28 5 1 3. SCOPE 2 The protections conferred by this Stipulation and Order cover not only 3 Protected Material (as defined above), but also (1) any information copied or 4 extracted from Protected Material; (2) all copies, excerpts, summaries, or 5 compilations of Protected Material; and (3) any testimony, conversations, or 6 presentations by Parties or their Counsel that might reveal Protected Material. Any use of Protected Material at trial shall be governed by the orders of the 7 8 trial judge. This Order does not govern the use of Protected Material at trial. 9 10 11 4. DURATION Even after final disposition of this litigation, the confidentiality obligations 12 13 imposed by this Order shall remain in effect until a Designating Party agrees 14 otherwise in writing or a court order otherwise directs. Final disposition shall be 15 deemed to be the later of (1) dismissal of all claims and defenses in this Action, 16 with or without prejudice; and (2) final judgment herein after the completion and 17 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action, 18 including the time limits for filing any motions or applications for extension of 19 time pursuant to applicable law. 20 21 22 5. DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. 23 Each Party or Non-Party that designates information or items for protection under 24 this Order must take care to limit any such designation to specific material that 25 qualifies under the appropriate standards. The Designating Party must designate for 26 protection only those parts of material, documents, items, or oral or written 27 communications that qualify so that other portions of the material, documents, 28 6 1 items, or communications for which protection is not warranted are not swept 2 unjustifiably within the ambit of this Order. 3 Mass, indiscriminate, or routinized designations are prohibited. Designations 4 that are shown to be clearly unjustified or that have been made for an improper 5 purpose (e.g., to unnecessarily encumber the case development process or to 6 impose unnecessary expenses and burdens on other parties) may expose the 7 Designating Party to sanctions. 8 If it comes to a Designating Party’s attention that information or items that it 9 designated for protection do not qualify for protection, that Designating Party must 10 promptly notify all other Parties that it is withdrawing the inapplicable designation. 11 5.2 Manner and Timing of Designations. Except as otherwise provided in 12 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 13 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 14 under this Order must be clearly so designated before the material is disclosed or 15 produced. 16 17 Designation in conformity with this Order requires: (a) for information in documentary form (e.g., paper or electronic 18 documents, but excluding transcripts of depositions or other pretrial or trial 19 proceedings), that the Producing Party affix at a minimum, the legend 20 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that 21 contains protected material. If only a portion or portions of the material on a page 22 qualifies for protection, the Producing Party also must clearly identify the 23 protected portion(s) (e.g., by making appropriate markings in the margins). 24 A Party or Non-Party that makes original documents available for inspection 25 need not designate them for protection until after the inspecting Party has indicated 26 which documents it would like copied and produced. During the inspection and 27 before the designation, all of the material made available for inspection shall be 28 deemed “CONFIDENTIAL.” After the inspecting Party has identified the 7 1 documents it wants copied and produced, the Producing Party must determine 2 which documents, or portions thereof, qualify for protection under this Order. 3 Then, before producing the specified documents, the Producing Party must affix 4 the “CONFIDENTIAL legend” to each page that contains Protected Material. If 5 only a portion or portions of the material on a page qualifies for protection, the 6 Producing Party also must clearly identify the protected portion(s) (e.g., by making 7 appropriate markings in the margins). (b) for testimony given in depositions that the Designating Party identify the 8 9 10 Disclosure or Discovery Material on the record, before the close of the deposition all protected testimony. 11 (c) for information produced in some form other than documentary and 12 for any other tangible items, that the Producing Party affix in a prominent place on 13 the exterior of the container or containers in which the information is stored the 14 legend “CONFIDENTIAL.” If only a portion or portions of the information 15 warrants protection, the Producing Party, to the extent practicable, shall identify 16 the protected portion(s). 5.3 17 Inadvertent Failures to Designate. If timely corrected, an inadvertent 18 failure to designate qualified information or items does not, standing alone, waive 19 the Designating Party’s right to secure protection under this Order for such 20 material. Upon timely correction of a designation, the Receiving Party must make 21 reasonable efforts to assure that the material is treated in accordance with the 22 provisions of this Order. 23 24 25 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 26 designation of confidentiality at any time that is consistent with the Court’s 27 Scheduling Order. 28 8 6.2 1 Meet and Confer. The Challenging Party shall initiate the dispute 2 resolution process under Local Rule 37.1, et seq. Any discovery motion must 3 strictly comply with the procedures set forth in Local Rules 37-1, 37-2, and 37-3. 6.3 4 Burden. The burden of persuasion in any such challenge proceeding 5 shall be on the Designating Party. Frivolous challenges, and those made for an 6 improper purpose (e.g., to harass or impose unnecessary expenses and burdens on 7 other parties) may expose the Challenging Party to sanctions. Unless the 8 Designating Party has waived or withdrawn the confidentiality designation, all 9 parties shall continue to afford the material in question the level of protection to 10 which it is entitled under the Producing Party’s designation until the Court rules on 11 the challenge. 12 7. 13 ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that is 14 disclosed or produced by another Party or by a Non-Party in connection with this 15 Action only for prosecuting, defending, or attempting to settle this Action. Such 16 Protected Material may be disclosed only to the categories of persons and under 17 the conditions described in this Order. When the Action has been terminated, a 18 Receiving Party must comply with the provisions of section 13 below (FINAL 19 DISPOSITION). 20 Protected Material must be stored and maintained by a Receiving Party at a 21 location and in a secure manner that ensures that access is limited to the persons 22 authorized under this Order. 23 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 24 otherwise ordered by the court or permitted in writing by the Designating Party, a 25 Receiving Party may disclose any information or item designated 26 “CONFIDENTIAL” only to: 27 28 9 1 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well 2 as employees of said Outside Counsel of Record to whom it is reasonably 3 necessary to disclose the information for this Action; 4 (b) the officers, directors, and employees (including House Counsel) of the 5 Receiving Party to whom disclosure is reasonably necessary for this Action; 6 (c) Experts (as defined in this Order) of the Receiving Party to whom 7 disclosure is reasonably necessary for this Action and who have signed the 8 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 9 (d) the court and its personnel; 10 (e) court reporters and their staff; 11 (f) professional jury or trial consultants, mock jurors, and Professional 12 Vendors to whom disclosure is reasonably necessary for this Action and who have 13 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 14 15 16 (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 17 Action to whom disclosure is reasonably necessary provided: (1) the deposing 18 party requests that the witness sign the form attached as Exhibit 1 hereto; and (2) 19 they will not be permitted to keep any confidential information unless they sign the 20 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 21 agreed by the Designating Party or ordered by the court. Pages of transcribed 22 deposition testimony or exhibits to depositions that reveal Protected Material may 23 be separately bound by the court reporter and may not be disclosed to anyone 24 except as permitted under this Stipulated Protective Order; and 25 26 (i) any mediator or settlement officer, and their supporting personnel, mutually agreed upon by any of the parties engaged in settlement discussions. 27 28 10 1 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 2 IN OTHER LITIGATION If a Party is served with a subpoena or a court order issued in other litigation 3 4 that compels disclosure of any information or items designated in this Action as 5 “CONFIDENTIAL,” that Party must: (a) promptly notify in writing the Designating Party. Such notification shall 6 7 include a copy of the subpoena or court order; 8 (b) promptly notify in writing the party who caused the subpoena or order to 9 issue in the other litigation that some or all of the material covered by the subpoena 10 or order is subject to this Protective Order. Such notification shall include a copy 11 of this Stipulated Protective Order; and (c) cooperate with respect to all reasonable procedures sought to be pursued 12 13 by the Designating Party whose Protected Material may be affected. If the 14 Designating Party timely seeks a protective order, the Party served with the 15 subpoena or court order shall not produce any information designated in this action 16 as “CONFIDENTIAL” before a determination by the court from which the 17 subpoena or order issued, unless the Party has obtained the Designating Party’s 18 permission. The Designating Party shall bear the burden and expense of seeking 19 protection in that court of its confidential material and nothing in these provisions 20 should be construed as authorizing or encouraging a Receiving Party in this Action 21 to disobey a lawful directive from another court. 22 23 9. 24 PRODUCED IN THIS LITIGATION 25 A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE (a) The terms of this Order are applicable to information produced by a Non- 26 Party in this Action and designated as “CONFIDENTIAL.” Such information 27 produced by Non-Parties in connection with this litigation is protected by the 28 11 1 remedies and relief provided by this Order. Nothing in these provisions should be 2 construed as prohibiting a Non-Party from seeking additional protections. (b) In the event that a Party is required, by a valid discovery request, to 3 4 produce a Non-Party’s confidential information in its possession, and the Party is 5 subject to an agreement with the Non-Party not to produce the Non-Party’s 6 confidential information, then the Party shall: (1) promptly notify in writing the Requesting Party and the Non-Party 7 8 that some or all of the information requested is subject to a confidentiality 9 agreement with a Non-Party; (2) promptly provide the Non-Party with a copy of the Stipulated 10 11 Protective Order in this Action, the relevant discovery request(s), and a reasonably 12 specific description of the information requested; and (3) make the information requested available for inspection by the 13 14 Non-Party, if requested. (c) If the Non-Party fails to seek a protective order from this court within 15 16 14 days of receiving the notice and accompanying information, the Receiving 17 Party may produce the Non-Party’s confidential information responsive to the 18 discovery request. If the Non-Party timely seeks a protective order, the Receiving 19 Party shall not produce any information in its possession or control that is subject 20 to the confidentiality agreement with the Non-Party before a determination by the 21 court. Absent a court order to the contrary, the Non-Party shall bear the burden and 22 expense of seeking protection in this court of its Protected Material. 23 24 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 25 If a Receiving Party learns that, by inadvertence or otherwise, it has 26 disclosed Protected Material to any person or in any circumstance not authorized 27 under this Stipulated Protective Order, the Receiving Party must immediately (a) 28 notify in writing the Designating Party of the unauthorized disclosures, (b) use its 12 1 best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform 2 the person or persons to whom unauthorized disclosures were made of all the terms 3 of this Order, and (d) request such person or persons to execute the 4 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit 5 A. 6 7 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 8 PROTECTED MATERIAL When a Producing Party gives notice to Receiving Parties that certain 9 10 inadvertently produced material is subject to a claim of privilege or other 11 protection, the obligations of the Receiving Parties are those set forth in Federal 12 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify 13 whatever procedure may be established in an e-discovery order that provides for 14 production without prior privilege review. Pursuant to Federal Rule of Evidence 15 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure 16 of a communication or information covered by the attorney-client privilege or 17 work product protection, the parties may incorporate their agreement in the 18 stipulated protective order submitted to the court. 19 20 21 22 23 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 24 Protective Order no Party waives any right it otherwise would have to object to 25 disclosing or producing any information or item on any ground not addressed in 26 this Stipulated Protective Order. Similarly, no Party waives any right to object on 27 any ground to use in evidence of any of the material covered by this Protective 28 Order. 13 1 12.3 Filing Protected Material. A Party that seeks to file under seal any 2 Protected Material must comply with Civil Local Rule 79-5. Protected Material 3 may only be filed under seal pursuant to a court order authorizing the sealing of the 4 specific Protected Material at issue. If a Party's request to file Protected Material 5 under seal is denied by the court, then the Receiving Party may file the information 6 in the public record unless otherwise instructed by the court. 7 8 13. FINAL DISPOSITION 9 After the final disposition of this Action, as defined in paragraph 4, within 10 60 days of a written request by the Designating Party, each Receiving Party must 11 return all Protected Material to the Producing Party or destroy such material. As 12 used in this subdivision, “all Protected Material” includes all copies, abstracts, 13 compilations, summaries, and any other format reproducing or capturing any of the 14 Protected Material. Whether the Protected Material is returned or destroyed, the 15 Receiving Party must submit a written certification to the Producing Party (and, if 16 not the same person or entity, to the Designating Party) by the 60 day deadline that 17 (1) identifies (by category, where appropriate) all the Protected Material that was 18 returned or destroyed and (2)affirms that the Receiving Party has not retained any 19 copies, abstracts, compilations, summaries or any other format reproducing or 20 capturing any of the Protected Material. Notwithstanding this provision, Counsel 21 are entitled to retain an archival copy of all pleadings, motion papers, trial, 22 deposition, and hearing transcripts, legal memoranda, correspondence, deposition 23 and trial exhibits, expert reports, attorney work product, and consultant and expert 24 work product, even if such materials contain Protected Material. Any such archival 25 copies that contain or constitute Protected Material remain subject to this 26 Protective Order as set forth in Section 4 (DURATION). 27 28 14. VIOLATION 14 1 Any violation of this Order may be punished by any and all appropriate measures 2 including, without limitation, contempt proceedings and/or monetary sanctions. 3 4 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 5 6 DATED: March 6, 2018 7 8 9 10 /s/ C. Yong Jeong Chan Yong Jeong JEONG & LIKENS, L.C. Attorney for Plaintiff TEXTILE 26 CORP 11 12 DATED: March 6, 2018 13 14 15 16 /s/ Michael J. Niborski Michael J. Niborski PRYOR CASHMAN LLP Attorney for Defendant OSGOOD TEXTILE COMPANY, INC. and MAYER KAHAN 17 18 19 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. DATED: March 6, 2018 20 21 22 23 _____________________________________ HON. ROZELLA A. OLIVER United States District/Magistrate Judge 24 25 26 27 28 15 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 4 I, _____________________________ [print or type full name], of 5 _________________ [print or type full address], declare under penalty of perjury 6 that I have read in its entirety and understand the Stipulated Protective Order that 7 was issued by the United States District Court for the Central District of California 8 on [date] in the case of __________ Textile 26 Corp. v. Osgood Textile Company, 9 Inc. et al 2:17-cv-08883-JVS-RAO. I agree to comply with and to be bound by all 10 the terms of this Stipulated Protective Order and I understand and acknowledge 11 that failure to so comply could expose me to sanctions and punishment in the 12 nature of contempt. I solemnly promise that I will not disclose in any manner any 13 information or item that is subject to this Stipulated Protective Order to any person 14 or entity except in strict compliance with the provisions of this Order. 15 I further agree to submit to the jurisdiction of the United States District 16 Court for the Central District of California for the purpose of enforcing the terms 17 of this Stipulated Protective Order, even if such enforcement proceedings occur 18 after termination of this action. I hereby appoint __________________________ 19 [print or type full name] of _______________________________________ [print 20 or type full address and telephone number] as my California agent for service of 21 process in connection with this action or any proceedings related to enforcement of 22 this Stipulated Protective Order. 23 Date: ______________________________________ 24 City and State where sworn and signed: _________________________________ 25 26 27 Printed name: _______________________________ Signature: __________________________________ 28 16

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