Klauber Brothers, Inc. v. P.J. Salvage et al

Filing 55

PROTECTIVE ORDER by Magistrate Judge Jean P. Rosenbluth.(NOTE: CHANGES MADE BY THE COURT): re Notice of Lodging 53 . (sbou)

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16

Paul M. Gelb (SBN 214439)
[e-mail]
Zoë K. Wilhelm (SBN 305932)
[e-mail]
DRINKER BIDDLE & REATH LLP
1800 Century Park East, Suite 1500
Los Angeles, California 90067-1517
Telephone: [phone]
Facsimile: [phone]

NOTE: CHANGES MADE BY THE COURT

Attorneys for Defendants
P.J. SALVAGE, WUNDIES ENTERPRISES,
INC., ANDRA GROUP L.P., BLUM’S
SWIMWEAR AND INTIMATE APPAREL,
CENTURY 21 DEPARTMENT STORES, LLC,
DILLARD’S INC., AND NORDSTROM, INC.
James W. Spertus (SBN 159825)
[e-mail]
Ezra D. Landes (SBN 253052)
[e-mail]
SPERTUS, LANDES & UMHOFER, LLP
1990 S. Bundy Drive, Suite 705
Los Angeles, California 90025
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendants
AMAZON.COM, INC., LORD & TAYLOR,
LLC, MACY’S INC., AND ZAPPOS IP, INC.

17

UNITED STATES DISTRICT COURT

18

CENTRAL DISTRICT OF CALIFORNIA

19
20
21
22
23
24
25
26
27
28

KLAUBER BROTHERS, INC., a New
York corporation,
Plaintiff,
v.
P.J. SALVAGE, a business entity of
form unknown; WUNDIES
ENTERPRISES, INC., a New Jersey
Corporation; ANDRA GROUP L.P.,
individually and doing business as
“HerRoom.com,” a Texas Limited
Partnership; AMAZON.COM, INC., a
Washington Corporation; BLUM’S
SWIMWEAR AND INTIMATE
APPAREL, a business entity of form

Case No. 2:18-cv-05470-MWF-JPR
STIPULATION AND
[PROPOSED] PROTECTIVE
ORDER REGARDING
CONFIDENTIAL DOCUMENTS
Magistrate Judge: Hon. Jean P.
Rosenbluth
Courtroom: Courtroom 690
Complaint Filed: June 19, 2018
First Amended Complaint Filed:
November 20, 2018

DRINKER BIDDLE &
REATH LLP
ATTORNEYS AT LAW
LOS ANGELES

STIPULATION AND [PROPOSED] PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS

1
2
3
4
5
6
7
8
9

unknown; THE BRA GENIE, a business
entity of form unknown; CENTURY 21
DEPARTMENT STORES, LLC, a New
York Limited Liability Company;
DILLARD’S INC., and Arkansas
Corporation; LORD & TAYLOR, LLC,
a Delaware Limited Liability Company;
MACY’S INC., individually and doing
business as “Bloomingdale’s”, a
Delaware Corporation; NORDSTROM,
INC., a Washington Corporation;
ZAPPOS IP, INC., individually and
doing business as “Zappos.com” and
“6pm.com,” and DOES 1 through 10,
Defendants.

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
DRINKER BIDDLE &
REATH LLP
ATTORNEYS AT LAW
LOS ANGELES

2
STIPULATION AND [PROPOSED] PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS

1

WHEREAS, Plaintiff Klauber Brothers, Inc. (“Plaintiff”) filed a lawsuit

2

against defendants P.J. Salvage, Wundies Enterprises, Inc., Andra Group L.P.,

3

Blum’s Swimwear and Intimate Apparel, Century 21 Department Stores, LLC,

4

Dillard’s Inc., Nordstrom, Inc., Amazon.com, Inc., Lord & Taylor, LLC, Macy’s

5

Inc., and Zappos IP, Inc. (“Defendants”) titled Klauber Brothers, Inc. v. P.J.

6

Salvage, et al., 2:18-cv-05470-MWF-JPR (the “Action”).

7
8
9
10

WHEREAS, Plaintiff, by and through counsel of record, has requested
copies of confidential records;
WHEREAS, the aforementioned documents contain sensitive and
proprietary confidential business information;

11

The following Stipulation and Protective Order is agreed to between the

12

Parties, by and through their counsel, regarding the production of confidential

13

information without prejudice to any party’s position concerning any issue:

14

1.

BINDING EFFECT

15

The following procedures shall govern the handling, examination, review and

16

use of Confidential information (as herein defined) during the course of the

17

proceedings in this Action. Furthermore, this stipulation shall take effect

18

immediately upon the parties’ joint execution of this stipulation, pending the

19

Court’s approval of the proposed protective order or an order of the same or similar

20

effect. Should the Court refuse or fail to enter such an order, the Plaintiff and

21

Defendants nonetheless agree to comply with the terms of this stipulation as to any

22

and all Confidential information disclosed or shared.

23

2.

24

As used herein, “Producing Party” shall refer to any person or entity

25

producing information or documents in connection with this litigation. As used

26

herein, “Confidential” information shall mean any information subject to the right

27

to privacy of any individual or entity, and designated as such by any Producing

28

Party as provided herein. Any testimony, information, document or thing produced

DRINKER BIDDLE &
REATH LLP
ATTORNEYS AT LAW
LOS ANGELES

CONFIDENTIAL INFORMATION

3
STIPULATION AND [PROPOSED] PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS

1

in connection with this litigation may be designated as “confidential” by such

2

Producing Party at the time such Producing Party produces or provides that

3

testimony, information, document or thing.

4
5
6

3.

ACCESS TO CONFIDENTIAL DOCUMENTS AND

INFORMATION BY COUNSEL AND PARTIES
As used herein, Plaintiff and Defendants are collectively referenced as the

7

“Parties” and Plaintiff and Defendants each is referenced as a “Party.” As used

8

herein, the term “Qualified Person” means: (a) the Court and necessary Court

9

personnel, including stenographic reporters engaged in such proceedings as are

10

necessary incident to preparation for trial, trial of the Action, or any appeal of the

11

Action; (b) counsel for any Party, and the paralegal, stenographic, clerical and

12

secretarial personnel employed by such counsel; (c) any Party; (d) non-Party

13

experts or consultants (together with their associates, consultants and clerical and

14

secretarial staff) retained in this Action to assist in prosecution, defense, settlement

15

or other disposition of the Action; (e) any other person to whom the Producing

16

Party has consented to disclosure in advance and in writing, on notice to each Party

17

hereto.

18

Confidential documents and information contained therein shall be made

19

available only to a Qualified Person as provided herein. No Qualified Person who

20

gains access to Confidential documents may disclose the contents or information

21

contained in them to any person not a Qualified Person, without the advance written

22

approval of the Parties, as provided by this Protective Order, or by order of this

23

Court after properly noticed motion. This protective order does not govern trial or

24

related proceedings. The parties must separately seek an order from the Court at

25

the appropriate time concerning the use of confidential material at trial.

26
27
28
DRINKER BIDDLE &
REATH LLP
ATTORNEYS AT LAW
LOS ANGELES

4.

ACCESS TO CONFIDENTIAL DOCUMENTS AND

INFORMATION BY EXPERTS AND CONSULTANTS
Independent expert witnesses who may testify at trial and/or nontestifying
4
STIPULATION AND [PROPOSED] PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS

1

experts retained by any party shall be informed by the party of the terms of this

2

Order and such party shall provide a copy thereof to the expert and request and

3

obtain the expert’s written consent to be bound by this Protective Order or any

4

protective order governing trial.

5
6

5.

DISCLOSURES TO PERSONS OTHER THAN “QUALIFIED

PERSONS”

7

In the event that a party desires to disclose to any person other than a

8

Qualified Person, any Confidential documents and information contained therein,

9

counsel for that party shall give at least fourteen (14) written days notice to the

10

designating party giving the identity, name, address and occupation of each person

11

to whom such disclosure is desired and the documents that would be disclosed.

12

The designated party may serve by facsimile a written objection to such disclosures

13

to requesting counsel, but failure to serve any objection does not constitute waiver

14

of right to object, nor does it tacitly imply agreement. Absent agreement, any such

15

objections shall be resolved by the Court, on properly noticed Motion under Local

16

Rule 37 by the party seeking production of the document to Non-Qualified Persons.

17

Upon any production to a Non-Qualified Person, whether by agreement, order or

18

otherwise, the party providing the Confidential documents or information contained

19

therein shall provide a copy of the Protective Order to said persons to whom

20

disclosure is made.

21

6.

USE OF CONFIDENTIAL DOCUMENTS AND INFORMATION

22

Confidential documents and information contained therein may be used

23

solely for the purposes of this Action and for no other purposes. The use of any

24

Confidential document or information contained therein at deposition in this lawsuit

25

is subject to all preceding and succeeding paragraphs, including, but not limited to,

26

that Confidential documents and information contained therein shall not be

27

provided at the deposition of a non-Qualified Person, unless by agreement of all

28

counsel, or Court Order, or other operation of this Agreement.

DRINKER BIDDLE &
REATH LLP
ATTORNEYS AT LAW
LOS ANGELES

5
STIPULATION AND [PROPOSED] PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS

1
2
3

7.

USE OF CONFIDENTIAL DOCUMENTS AND INFORMATION IN

THIS LAWSUIT.
Where Confidential documents and information contained therein are

4

permitted to be used at deposition, all portions of transcripts of such depositions

5

and exhibits thereto which refer or relate to such Confidential documents and

6

information contained therein shall themselves be considered as Confidential

7

documents and information. The parties shall take all necessary steps to insure

8

confidential portions of the transcripts and exhibits are preserved. In addition, the

9

deponent, whether or not a Qualified Person, shall be instructed by the producing

10

party, that he or she may not divulge any Confidential documents and information

11

except to Qualified Persons.

12

8.

13

All Confidential documents and information contained therein, which are

14

FILING AND SEALING

filed with the Court shall be filed in accordance with Local Rule 79-5.

15

9.

16

At the conclusion of the action, all Confidential documents and copies

17

thereof either (i) shall be returned to counsel for the designated party who produced

18

such documents and information, or (ii) shall be destroyed. If any such

19

Confidential documents or information contained therein are furnished to any

20

expert, consultant, or to any other person, in accordance with this Stipulation and

21

Protective Order, counsel for the party who provided such information to the

22

expert, consultant, or to the other person shall insure that all Confidential

23

documents and information be returned to counsel for the designated party to whom

24

the documents belong, or shall be destroyed. If destroyed, certification thereof shall

25

be provided to opposing counsel. Nothing in the Stipulation and Protective Order

26

shall require the return or destruction of pleadings, court papers or other documents

27

which are not Confidential documents and information which are in the public

28

domain.

DRINKER BIDDLE &
REATH LLP
ATTORNEYS AT LAW
LOS ANGELES

DISPOSAL AT THE CONCLUSION OF THE ACTION

6
STIPULATION AND [PROPOSED] PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS

1

10.

AMENDMENTS

2

Nothing in this Protective Order shall be construed to prohibit or prejudice

3

any party to this litigation from seeking amendments broadening or restricting the

4

rights of access to and use of Confidential documents and information, or from

5

contesting the designation of Confidential Document and information or the right of

6

a person to be treated as a Qualified Person as provided herein.

7

11.

NO WAIVER OF PRIVILEGE

8

All parties acknowledge that the speed by which these documents were

9

produced might result in the inadvertent production of documents that are subject to

10

the attorney-client and/or work product privileges. Accordingly, all of the parties

11

herein agree that no waiver of any privileges will result from the production of any

12

Confidential documents which are in fact privileged. If any privileged documents

13

were discovered, they would be returned to the producing party.

14
15
16

12.

NO RESTRICTIONS ON DOCUMENTS OR INFORMATION

FROM OTHER SOURCES
Nothing in this Protective Order shall be deemed to prevent any party from

17

using any documents or information contained therein for any purpose, if such

18

documents or information contained therein are in any manner identical, similar or

19

related to the documents produced pursuant to this Stipulation and Protective Order

20

as long as such documents or information was not obtained from the exchange of

21

documents set forth herein.

22

13.

DISPUTES REGARDING DESIGNATION

23

If a Party disputes the designation of Information as being Confidential, that

24

Party shall advise the other Parties in writing of the objection, and the Party

25

designating the Information as being Confidential shall within ten (10) days set

26

forth the basis in writing for the designation. If the dispute cannot be

27

resolved, the Party objecting to the Confidential designation shall bear the

28

burden of applying to the Court for the entry of an appropriate Order with the

DRINKER BIDDLE &
REATH LLP
ATTORNEYS AT LAW
LOS ANGELES

7
STIPULATION AND [PROPOSED] PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS

1

designating party bearing the burden of persuasion. All documents designated

2

Confidential shall remain so designated until they are redesignated by written

3

agreement of counsel or the issue is resolved by the Court.

4

[Signatures on the Following Page]

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
DRINKER BIDDLE &
REATH LLP
ATTORNEYS AT LAW
LOS ANGELES

8
STIPULATION AND [PROPOSED] PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS

1

Dated: January 31, 2019

Respectfully submitted,

2

DRINKER BIDDLE & REATH LLP

3

By:

4
5

/s/ Paul M. Gelb
Paul M. Gelb
Zoë K. Wilhelm

Attorneys for Defendants
P.J. SALVAGE, WUNDIES
ENTERPRISES, INC., ANDRA
GROUP L.P., BLUM’S SWIMWEAR
AND INTIMATE APPAREL,
CENTURY 21 DEPARTMENT
STORES, LLC, DILLARD’S INC.,
AND NORDSTROM, INC.

6
7
8
9
10
11

Dated: January 31, 2019

SPERTUS, LANDES & UMHOFER,
LLP

12
By:

13
14

/s/ Ezra D. Landes
James W. Spertus
Ezra D. Landes

Attorneys for Defendants
AMAZON.COM, INC., LORD &
TAYLOR, LLC, MACY’S INC., AND
ZAPPOS IP, INC.

15
16
17
18

Dated: January 31, 2019

DONIGER / BURROUGHS

19

By:

20
21
22

/s/ Trevor W. Barrett
Stephen M. Doniger
Scott Alan Burroughs
Trevor W. Barrett
Justin M. Gomes

Attorneys for Plaintiff
KLAUBER BROTHERS, INC.

23
24
25

IT IS SO ORDERED this 11th day of February, 2019.

26
27
28
DRINKER BIDDLE &
REATH LLP
ATTORNEYS AT LAW
LOS ANGELES

Honorable Jean P. Rosenbluth
United States Magistrate Judge
9
STIPULATION AND [PROPOSED] PROTECTIVE ORDER RE CONFIDENTIAL DOCUMENTS