Malvis Cristal Sanchez v. Nutribullet, LLC et al

Filing 72

PROTECTIVE ORDER by Judge Dean D. Pregerson. See order for details. (shb)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

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MALVIS CRISTAL SANCHEZ, an
individual;
Plaintiff,

)
)
)
)
vs.
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)
NUTRIBULLET, L.L.C., a California )
Limited Liability Company; CAPITAL )
BRANDS, L.L.C., a California Limited )
Liability Company; HOMELAND
)
HOUSEWARES, L.L.C., a California )
Limited Liability Company; CALL TO )
ACTION, L.L.C., a California Limited )
Liability Company; NUTRILIVING,
)
L.L.C., and Does 1 through 10, inclusive, )
)
Defendants.
)
)

Case No.: 2:18-cv-03025 DDP (SSx)
District Judge: Hon. Dean D. Pregerson
Magistrate: Hon. Suzanne H. Segal
PROTECTIVE ORDER
Complaint Filed: April 10, 2018

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PROTECTIVE ORDER

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IT IS HEREBY STIPULATED AND AGREED by and between Plaintiffs,

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MALVIS CRISTAL SANCHEZ (Plaintiff(s)”), and Defendant(s) NUTRIBULLET,

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LLC, CAPITAL BRANDS, LLC, HOMELAND HOUSEWARES, LLC, CALL TO

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ACTION, LLC AND NUTRILIVING (“Defendants”) (collectively the Plaintiffs and
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PROTECTIVE ORDER

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Defendant(s) are referred to as the “Parties” and each individually as a “Party”),

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through their counsel, that this Stipulated Protective Order shall govern the handling of

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any information produced or disclosed by any Party or non-Party in the above captioned

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matter (“Action”), including documents, depositions, deposition exhibits, interrogatory

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responses, responses to requests for admission, and other pretrial proceedings.

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GOOD CAUSE STATEMENT:

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This action is likely to involve trade secrets and other valuable research,

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

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

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

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

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information, information regarding confidential business practices, or other confidential

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research, development, or commercial information (including information implicating

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

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

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

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

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

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

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

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

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

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information will not be designated as confidential for tactical reasons and that nothing

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be so designated without a good faith belief that it has been maintained in a

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

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the public record of this case.

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1. Any Party or non-Party may designate as confidential any documents,

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materials, or information which the designating Party considers in good faith to contain
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PROTECTIVE ORDER

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non-public, confidential or trade secret (information and which is disclosed through

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formal or informal discovery in this Action (hereinafter “Confidential Material”)

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including, but not limited to, any written response to interrogatories and requests for

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admission, documents produced in response to requests for production of documents or

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subpoenas, deposition transcripts including exhibits, and all information contained in

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those materials (collectively “Discovery Materials”). The Parties reserve their rights to

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jointly amend this Stipulation and to supplement the above list as additional categories

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of Confidential Materials arise through the course of discovery.

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2. Documents produced or written responses served in this Action in response to

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a request for production, or otherwise, relating to matters that the designating Party

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deems to be Confidential Material shall be designated as such at the time of production

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or service of the response(s).

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designated shall be marked with the word “Confidential.”

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Each document or page of a written response so

3. Any Party may designate certain Discovery Materials as “Confidential –

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Attorneys’ Eyes Only” (hereinafter, “Attorneys’ Eyes Only Material”).

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designation shall be limited to such Discovery Materials that the designating Party

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believes, in good faith, contain highly sensitive information, the disclosure of which is

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likely to cause harm to the competitive position of the designating Party or the broader

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disclosure of which would violate any Party or third parties’ constitutional right to

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financial privacy. All Attorneys’ Eyes Only Materials are included within the meaning

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of “Confidential” information as used in this Protective Order and, except with respect

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to the classes of individuals who may view Attorneys’ Eyes Only Materials, all the

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provisions set forth in the Protective Order that apply to Confidential Materials also

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apply to Attorneys’ Eyes Only Materials. Documents produced or written responses

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served in this Action in response to a request for production, or otherwise, relating to

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matters that the designating Party deems to be Attorneys’ Eyes Only Material shall be

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designated as such. Each document or page of a written response so designated shall be

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marked with the words “Confidential – Attorneys’ Eyes Only.”
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PROTECTIVE ORDER

This

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4. The production of any document, evidence or testimony not marked as

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Confidential or Confidential – Attorneys’ Eyes Only shall not constitute a waiver of any

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claim of confidentiality that may attach to the document and such materials.

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5. If any Party or non-Party inadvertently fails to designate any document(s) or

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written response(s) to a discovery request as Confidential or Attorneys’ Eyes Only

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Material at the time of production or service of the response, it may correct its error by

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notifying opposing counsel in writing and providing opposing counsel substitute copies

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of any document(s) or response(s) appropriately marked as Confidential or Confidential

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– Attorneys’ Eyes Only. Within ten (10) days of receipt of the substitute copies, the

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receiving Party shall return the previously unmarked items and all copies thereof.

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Similarly, if any Party inadvertently designates any document(s) or written response(s)

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as Confidential or Attorneys’ Eyes Only Material, it may correct its error by notifying

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opposing counsel in writing and providing opposing counsel with substitute copies of

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the document(s) or response(s) without the Confidential or Confidential – Attorneys’

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Eyes Only designation. Within ten (10) days of receipt of the substitute copies, the

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receiving Party shall return the previously marked items and all copies thereof.

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6. The receipt of any document, transcript, thing, or information designated

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Confidential or Confidential – Attorneys’ Eyes Only shall not be construed as an

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agreement by the receiving Party that any such document, transcript, thing, or

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information is in fact Confidential or Attorneys’ Eyes Only Material, and shall not

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operate as a waiver of the receiving Party’s right to challenge any such designation as

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provided herein.

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7. A Party may designate as Confidential or Attorneys’ Eyes Only Material, the

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whole or a portion of any deposition testimony, regardless by whom given, which

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contains or discloses Confidential or Attorneys’ Eyes Only Material.

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designating any portion of a deposition as Confidential or Attorneys’ Eyes Only

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Material may do so on the record at the deposition or shall serve a written statement on

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the Parties and court reporter specifying the portions of the deposition which are to be
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PROTECTIVE ORDER

The Party

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designated as Confidential or Attorneys’ Eyes Only Material within thirty (30) days

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after receipt of the deposition transcript. Except as otherwise designated on the record,

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the entire transcript shall be deemed Confidential prior to the expiration of the thirty-

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day period. If a document designated as Confidential or Attorneys’ Eyes Only Material

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is used as an exhibit at a deposition, that document and the deposition testimony

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concerning it shall be deemed Confidential or Attorneys’ Eyes Only Material regardless

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of whether a Party makes any formal designation thereof.

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8. A Party shall have the right to have the following persons excluded from a

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deposition before the taking of testimony designated as Confidential Material or before

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the introduction of documents or exhibits designated as Confidential Material: all

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persons except the court reporter, counsel of record, the Parties’ experts, the deponent

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and the Parties (or their representatives who are involved in the handling, prosecution or

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defense of this Action). Additionally, a Party shall have the right to exclude the Parties

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(or their representatives) before the taking of testimony designated as Attorneys’ Eyes

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Only or before introducing exhibits designated as Attorneys’ Eyes Only.

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9. Confidential Material may be disclosed, given, shown, made available, or

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communicated only to the following individuals and entities (and then only for purposes

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of mediation or the prosecution or defense of this Action):

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(a)

the Court and court personnel;

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(b)

mediators, referees, or other neutral designees of the Court or the Parties

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for the purpose of dispute resolution;

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(c)

court reporters who record depositions or other testimony in this action;

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(d)

outside counsel of record for the Parties, as well as their paralegals,

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secretarial and clerical assistants, and employees of such counsel who are

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actively working on this matter, including independent contractors

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providing copy services or litigation support for the Parties;

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(e)

the Parties and their employees and insurers who are actively involved in
the prosecution or defense of this Action;
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PROTECTIVE ORDER

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(f)

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independent experts that have been retained by the Parties in connection
with this Action;

(g)

any individual or entity expressly named in the particular Confidential

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Material as having authored or received the information contained in that

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Confidential Material; and

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(h)

any other person or Party upon the written agreement of the Party or non-

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party that designated the Confidential Material (which agreement may be

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recorded in a deposition or other transcript), or pursuant to court order after

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regularly-noticed motion.

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persons:
(a)

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Attorneys’ Eyes Only Material may be disclosed only to the following
the Court and court personnel in accordance with paragraph 19 herein
below;

(b)

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mediators, referees, or other neutral designees of the Court or the Parties
for the purpose of dispute resolution;

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(c)

court reporters who record depositions or other testimony in this action;

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(d)

outside counsel of record for the Parties, as well as their paralegals,

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secretarial and clerical assistants, and employees of such counsel who are

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actively working on this matter,

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(e)

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independent experts that have been retained by the Parties in connection
with this Action;

(f)

any individual or entity expressly named in the particular Confidential

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Material as having authored or received the information contained in that

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Confidential Material; and

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(g)

any other person or Party upon the written agreement of the Party or non-

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Party that designated the Attorneys’ Eyes Only Material (which agreement

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may be recorded in a deposition or other transcript), or pursuant to court

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order after regularly-noticed motion.
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PROTECTIVE ORDER

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11.

In the event of a disclosure of Confidential or Attorneys' Eyes Only

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Materials to a person not authorized to have had such disclosure made to him or her

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under the provisions of this Stipulation and Protective Order, and in the event the Party

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responsible for having made or allowed such disclosure becomes aware of such

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disclosure, that Party shall immediately (a) notify in writing, counsel for the Party

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whose Confidential or Attorneys' Eyes Only Material has thus been disclosed of all

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relevant information concerning the nature and circumstances of such disclosure (b) use

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its best efforts to retrieve all Confidential or Attorneys Eyes Only Materials (c) inform

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

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this Order and (d) request such person or persons to execute “Exhibit A” that is attached

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hereto. The responsible Party shall also take all reasonable measures promptly to

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ensure that no further or greater unauthorized disclosure of Confidential or Attorneys'

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Eyes Only Material is made by anyone.

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12.

Before Confidential or Attorneys’ Eyes Only Material may be disclosed

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to third-party consultants and independent experts that are being used or will be used in

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connection with this Action, such persons must execute a written Confidentiality

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Agreement, in the form set forth in Exhibit A attached hereto (“Confidentiality

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Agreement”), acknowledging and agreeing not to discuss or otherwise disclose any

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material designated Confidential or Confidential – Attorneys’ Eyes Only with or to any

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person except person permitted to receive such Discovery Materials pursuant hereto,

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who if appropriate, has executed a Confidentiality Agreement. In the event that the

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person executes the written agreement, the counsel disclosing the Confidential or

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Attorneys’ Eyes Only Materials shall maintain the executed written agreement.

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All Confidential or Attorneys’ Eyes Only Material provided in discovery

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or otherwise in connection with the above-captioned Action shall be used for the

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prosecution or defense of this Action, and for no other purpose.

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Attorneys’ Eyes Only Material shall not be used or disclosed for any business,

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commercial or competitive purpose.
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PROTECTIVE ORDER

Confidential or

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14.

Nothing herein shall prevent any of the Parties from using Confidential

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or Attorneys’ Eyes Only Material in any trial in this Action or from seeking further

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protection with respect to the use of any Confidential or Attorneys’ Eyes Only Material

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in any trial in this Action. Means to preserve the confidentiality of Confidential or

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Attorneys’ Eyes Only Material presented at any trial shall be considered and, to the

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extent reasonably possible, implemented in advance of such trial.

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15.

A Party shall not be obligated to challenge the designation of any

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documents or information as Confidential or Attorneys’ Eyes Only Material at the time

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the designation is made, and a failure to do so shall not preclude a subsequent challenge

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to the designation. In the event of a dispute with respect to the designation of any

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discovery material as Confidential or Attorneys’ Eyes Only Material, counsel shall

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attempt to resolve the dispute on an informal basis before presenting the matter to the

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Court for resolution. If a resolution cannot be reached, the Party challenging the

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Confidential or Confidential – Attorneys’ Eyes Only designation shall send a written

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notice to the designating Party identifying the challenged Confidential or Attorneys’

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Eyes Only Material, stating the reasons that the Confidential or Attorneys’ Eyes Only

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Material is being challenged, and giving notice that the Party will move the Court to

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remove the designation of such information as “Confidential” or “Confidential –

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Attorneys’ Eyes Only.” Until such time as the challenge is resolved, such Confidential

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or Attorneys’ Eyes Only Material shall be maintained in accordance with this Stipulated

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Protective Order.

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16.

Nothing in this Stipulation and Protective Order shall be deemed in any

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way to restrict the use of documents or information that are lawfully obtained or

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publicly available to a Party independently from discovery in this action, whether or not

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the same material has been obtained during the course of discovery in the action and

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whether or not such documents or information have been designated as Confidential or

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Confidential – Attorneys’ Eyes Only.

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17.

This Stipulated Protective Order may be modified at any time for good
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PROTECTIVE ORDER

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cause shown, and shall not preclude any application to the Court seeking greater or

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lesser protection for specific documents or seeking termination of the protection

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provided hereunder for specific material or information.

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18.

Nothing in this Stipulated Protective Order shall limit or affect the right

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of a Party to disclose or to authorize disclosure of Discovery Materials produced by that

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Party.

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19.

All documents, transcripts, pleadings, motions, and other Discovery

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Materials filed or lodged with the Court comprising, containing, or reflecting Attorneys’

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Eyes Only Material shall be filed or lodged under seal pursuant to the Federal Rules of

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Civil Procedure and or Local Rules, and shall designate the particular aspects of such

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filings or lodging that contain Attorneys' Eyes Only Material.

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20.

The Parties shall meet and confer regarding the procedures for use of

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any Confidential Materials or Attorney’s Eyes Only Materials at trial and shall move

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the Court for entry of an appropriate order.

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21.

No later than thirty (30) days from the unappealed or unappealable final

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resolution or settlement of this action, all Confidential and Attorneys’ Eyes Only

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Material, including copies, extracts, or summaries of such materials, within the

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possession, custody or control of counsel for a Party shall be delivered to counsel for

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the Party who produced the Confidential or Attorneys’ Eyes Only Material, or in lieu

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thereof, shall certify in writing that all Confidential or Attorneys’ Eyes Only Material

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has been destroyed. Notwithstanding the above, counsel of record may retain a set of

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pleadings, exhibits, and their own attorney and consultant work product for archival

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purposes, including portions of any such papers that contain or disclose Confidential or

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Attorneys’ Eyes Only Material. Any such archival copies that contain or constitute

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Confidential or Attorneys’ Eyes Only Material remain subject to this Stipulated

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Protective Order.

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22.

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Nothing in this Stipulated and Protective Order shall be deemed to limit,

prejudice, or waive any right of the Parties: (a) to resist discovery with respect to, or to
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PROTECTIVE ORDER

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seek to obtain additional or different protection for, material claimed to be protected

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work product or privileged under federal or California law, material as to which a Party

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claims a legal obligation not to disclose, or Material not required to be provided

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pursuant to federal or California law; (b) to seek to modify or obtain relief from any

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aspect of this Protective Order; (c) to object to the use, relevance or admissibility at trial

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or otherwise of any material, whether or not designated in whole or in part as

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Confidential Material governed by this Protective Order; or (d) otherwise to require that

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discovery be conducted according to governing laws and rules.

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23.

This Stipulated Protective Order shall survive the final conclusion of this

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Action and continue in full force and effect, and the Court shall retain jurisdiction to

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enforce this Stipulated Protective Order.

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By executing a copy of this Stipulated Protective Order, each of the attorneys

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named below and the Parties they represent undertake to abide by and be bound by its

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provisions.

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The Defendants shall file a fully executed copy this Stipulated Protective

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Order with the Court within five (5) court days of receipt of the executed Stipulated

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Protective Order from Plaintiffs.

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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DATED: January 7, 2020
YOKA & SMITH, LLP
By: /s/ ALICE CHEN SMITH
Walter M. Yoka
David T. McCann
R. Bryan Martin
Alice Chen Smith
Davida M. Frieman

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PROTECTIVE ORDER

Attorneys for Defendants,
Nutribullet, LLC; Capital Brands, LLC;
Homeland Housewares, LLC; Call To
Action, LLC; and Nutriliving, LLC

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DATED: January 7, 2020

ABIR COHEN TREYZON SALO, LLP
By:

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/s/ AARON LAVINE
Boris Treyzon
Douglas Rochen
Aaron Lavine
Attorneys for Plaintiff

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED

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DATED: January 7, 2020

_________________________________
Judge Dean Pregerson
United States District Judge

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PROTECTIVE ORDER

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EXHIBIT 4A

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ACKNOWLEDGMENT OF AGREEMENT TO BE BOUND BY STIPULATION

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AND PROTECTIVE ORDER

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

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____________________________________________________ [print or type full

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address], declare under penalty of perjury that I have read in its entirety and understand

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the Protective Order that was issued by the United States District Court for the Central

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District of California on ________________________[date] in the case of

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______________________________________________________

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No.:___________________________, I agree to comply with and to be bound by all

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the terms of this Protective Order, and I understand and acknowledge that failure to so

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comply could expose me to sanctions and punishment for contempt.

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promise that I will not disclose in any manner any information or item that is subject to

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this Protective Order to any person or entity except in strict compliance with this Order,

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even if such enforcement proceedings occur after termination of this action.

Case

I solemnly

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I hereby appoint ___________________________________ [print or type full

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name] of ______________________________________[print or type full address and

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

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action or any proceedings related to enforcement of this Order.

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Date:________________________

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City and State sworn and signed:____________________________________

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Printed Name:____________________________________

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Signature:_______________________________________

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PROTECTIVE ORDER