Novelty Textile, Inc. v. White Mark Universal, Inc. et al

Filing 31

STIPULATED PROTECTIVE ORDER by Magistrate Judge Frederick F. Mumm re Stipulation for Protective Order 30 . (see document for details) (hr)

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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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NOVELTY TEXTILE, INC., a
California Corporation,

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Plaintiff,

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[PROPOSED] STIPULATED
PROTECTIVE ORDER

vs.

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Case No.: 2:18-cv-07142-JFW-FFM

WHITE MARK UNIVERSAL, INC.,
a
California Corporation; WALMART,
INC., a Delaware Corporation;
and DOES 1 through 10,
Defendants.

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1.

A. PURPOSES AND LIMITATIONS

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Discovery in this action is likely to involve production of confidential,

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proprietary, or private information for which special protection from public disclosure

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and from use for any purpose other than prosecuting this litigation may be warranted.

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Accordingly, the parties hereby stipulate to and petition the Court to enter the

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following Stipulated Protective Order. The parties acknowledge that this Order does

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not confer blanket protections on all disclosures or responses to discovery and that

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the protection it affords from public disclosure and use extends only to the limited

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information or items that are entitled to confidential treatment under the applicable

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legal principles. The parties further acknowledge, as set forth in Section 12.3, below,

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that this Stipulated Protective Order does not entitle them to file confidential

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

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

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the court to file material under seal.

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B. GOOD CAUSE STATEMENT

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It is the intent of the parties and the Court that information will not be

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designated as confidential for tactical reasons in this case and that nothing shall be

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designated without a good faith belief that there is good cause why it should not be

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part of the public record of this case. Examples of confidential information that the

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parties may seek to protect from unrestricted or unprotected disclosure include, but

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are not limited to:
(a)

confidentiality agreement or obligation;

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Information that is the subject of a non-disclosure or

(b)

The names, or other information tending to reveal the identity of
a party’s supplier, designer, distributor, or customer;

(c)

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Agreements with third-parties, including license agreements,
distributor agreements, manufacturing agreements, design

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agreements, development agreements, supply agreements, sales

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agreements, or service agreements;

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(d)

Research and development information;

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(e)

Proprietary engineering or technical information, including

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product design, manufacturing techniques, processing

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information, drawings, memoranda and reports;
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(f)

Information related to budgets, sales, profits, costs, margins,

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licensing of technology or designs, product pricing, or other

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internal financial/accounting information, including non-public

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information related to financial condition or performance and

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income or other non-public tax information;

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(g)

information;

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(h)
(i)

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Information related to past, current and future market analyses
and business and marketing development, including plans,

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Information related to past, current and future product
development;

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Information related to internal operations including personnel

strategies, forecasts and competition; and
(j)

Trade secrets (as defined by the jurisdiction in which the
information is located).

Unrestricted or unprotected disclosure of such confidential technical,

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commercial, financial, or personal information would result in prejudice or harm to

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the producing party by revealing the producing party’s competitive confidential

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information, which has been developed at the expense of the producing party and

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which represents valuable tangible and intangible assets of that party. Additionally,

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privacy interests must be safeguarded. Accordingly, the parties respectfully submit

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that there is good cause for the entry of this Order.

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The parties agree, subject to the Court’s approval, that the following terms

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and conditions shall apply to this civil action. The parties acknowledge that this

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Order does not confer blanket protections on all disclosures or responses to

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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
under the applicable legal principles. Nothing herein shall prevent any party from
withholding or redacting any documents and/or information that the party deems
privileged, irrelevant, or otherwise objectionable.

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2.

2.1

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Action: this pending federal lawsuit bearing Case No. 2:18-cv-07142-

JFW-FFM.
2.2

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DEFINITIONS

Challenging Party: a Party or Non-Party that challenges the

designation of information or items under this Order.
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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’

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EYES ONLY” Information or Items: information (regardless of how it is generated,

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stored or maintained) or tangible things that qualify for protection under Federal Rule

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of Civil Procedure 26(c), and as specified above in the Good Cause Statement.
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Counsel: Outside Counsel of Record and House Counsel (as well as their

support staff).
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Designating Party: a Party or Non-Party that designates information or

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

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY.”
2.6

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Designated Material: all items or information, regardless of the medium

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or manner in which it is generated, stored, or maintained (including, among other

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things, testimony, transcripts, and tangible things), that are produced or generated in

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disclosures or responses to discovery in this matter.
2.7

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Expert: a person with specialized knowledge or experience in a matter

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

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an expert witness or as a consultant in this Action.
2.8

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

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

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counsel.
2.9

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

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

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

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

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appeared in this Action on behalf of that party or are affiliated with a law firm which

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has appeared on behalf of that party, and includes support staff.

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2.11 Party: any party to this Action, including all of its officers, directors,

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employees, consultants, retained experts, and Outside Counsel of Record (and their

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support staffs).
2.12 Producing Party:

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a Party or Non-Party that produces Designated

Material in this Action.

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2.13 Professional Vendors: persons or entities that provide litigation support

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

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

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and their employees and subcontractors.

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2.14 Protected Material:

any Designated Material that is designated as

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY.”
2.15 Receiving Party: a Party that receives Designated Material from a

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Producing Party.

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3.

SCOPE

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The protections conferred by this Stipulation and Order cover not only

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Protected Material (as defined above), but also (1) any information copied or extracted

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from Protected Material; (2) all copies, excerpts, summaries, or compilations of

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Protected Material; and (3) any testimony, conversations, or presentations by Parties

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or their Counsel that might reveal Protected Material.
Any use of Protected Material at trial shall be governed by the orders of the

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trial judge. This Order does not govern the use of Protected Material at trial.

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4.

DURATION

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Even after final disposition of this litigation, the confidentiality obligations

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imposed by this Order shall remain in effect until a Designating Party agrees

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otherwise in writing or a court order otherwise directs. Final disposition shall be

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deemed to be the later of (1) dismissal of all claims and defenses in this Action, with

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or without prejudice; and (2) final judgment herein after the completion and

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exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,

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including the time limits for filing any motions or applications for extension of time

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pursuant to applicable law.

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5.

DESIGNATING PROTECTED MATERIAL
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Exercise of Restraint and Care in Designating Material for Protection.

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Each Party or Non-Party that designates information or items for protection under this

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Order must take care to limit any such designation to specific material that qualifies

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under the appropriate standards. The Designating Party must designate for protection

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only those parts of material, documents, items, or oral or written communications that

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qualify so that other portions of the material, documents, items, or communications

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for which protection is not warranted are not swept unjustifiably within the ambit of

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this Order.

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Mass, indiscriminate, or routinized designations are prohibited. Designations

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that are shown to be clearly unjustified or that have been made for an improper

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purpose (e.g., to unnecessarily encumber the case development process or to impose

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unnecessary expenses and burdens on other parties) may expose the Designating Party

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to sanctions.

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If it comes to a Designating Party’s attention that information or items that it

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designated for protection do not qualify for protection, that Designating Party must

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promptly notify all other Parties that it is withdrawing the inapplicable designation.

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5.2

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Manner and Timing of Designations. Except as otherwise provided in

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this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise

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stipulated or ordered, Designated Material that qualifies for protection under this

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Order must be clearly so designated before the material is disclosed or produced.
Designation in conformity with this Order requires:

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(a)

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For information in documentary form (e.g., paper or electronic

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

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

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY” (hereinafter “CONFIDENTIAL legend”), to each page so designated prior to

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production. If the first or cover page of a multi-page document bears the legend

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“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

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the entire document shall be deemed so designated, and the absence of marking each

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page shall not constitute a waiver of the terms of this Order. If the label affixed to a

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computer disk containing multiple files bears the legend “CONFIDENTIAL,”

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” the entire disk shall

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be deemed so protected, and the absence of marking of each file shall not constitute a

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waiver of the terms of this Order.

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” as to any item, thing

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or object that cannot otherwise be categorized as a document, shall be made: (1) by

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placing the legend “CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY” on the thing, object or container within which it is

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stored; or (2) by specifically identifying, in writing, the item and the level of

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confidentiality designation, where such labeling is not feasible. When a party wishes

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to

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ATTORNEYS’ EYES ONLY” materials produced by someone other than the

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Designating Party (a “Producing Party”), such designation shall be made within forty-

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five (45) business days from the date that the Designating Party receives copies of the

designate

as

A designation of ““CONFIDENTIAL,” or

“CONFIDENTIAL,”

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or

“HIGHLY

CONFIDENTIAL

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materials from the producing or disclosing entity and by notice to all parties to this

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Action and to the Producing Party, if such party is not a party to this Action,

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identifying the materials to be designated with particularity (either by production

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numbers or by providing other adequate identification of the specific material). Such

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notice shall be sent by email and regular mail. A Party shall be permitted to designate

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as “CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY” material produced by a Producing Party only where: (a) the material being

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produced was provided to or developed by such Producing Party (i) under a written

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confidentiality agreement with the Designating Party, or (ii) within a relationship with

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the Designating Party (or a party operating under the control thereof) in which

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confidentiality is imposed by law (including, but not limited, to the employment

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relationship and the vendor-customer relationship); or (b) the material being produced

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could be considered “CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY” material of the Designating Party if it were in the

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possession of the Designating Party. Upon notice of designation, all persons receiving

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notice of the requested designation of materials shall (1) make no further disclosure

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of such Designated Material or information contained therein, except as allowed in

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this Order, and (2) take reasonable steps to notify any persons known to have

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possession of or access to such Designated Materials of the effect of such designation

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under this Order.

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ATTORNEYS’ EYES ONLY” material or information contained therein is disclosed

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to any person other than those entitled to disclosure in the manner authorized by this

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Order, the party responsible for the disclosure shall, immediately upon learning of

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such disclosure, inform the Designating Party in writing of all pertinent facts relating

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to such disclosure, and shall make every effort to prevent further disclosure by the

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unauthorized person(s).

If “CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL –

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A Party or Non-Party that makes original documents available for inspection

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need not designate them for protection until after the inspecting Party has indicated
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which documents it would like copied and produced. During the inspection and before

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

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY.” After the inspecting Party has identified the documents it wants copied and

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produced, the Producing Party must determine which documents, or portions thereof,

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qualify for protection under this Order. Then, before producing the specified

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documents, the Producing Party must affix the “CONFIDENTIAL legend” to each

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page that contains Protected Material. If only a portion or portions of the material on

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a page qualifies for protection, the Producing Party also must clearly identify the

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protected portion(s) (e.g., by making appropriate markings in the margins).

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(b) For testimony given in depositions that the Designating Party identify

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the Designated Material on the record, before the close of the deposition all protected

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testimony, and have the court reporter identify the portion in the transcript as

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“CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY.” The designated testimony shall be bound in a separate volume and marked

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by the reporter accordingly. Where testimony is designated during the deposition, the

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Designating Party shall have the right to exclude, at those portions of the deposition,

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all persons not authorized by the terms of this Order to receive such Designated

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Material. Within sixty (60) days after a deposition transcript is certified by the court

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reporter, any party may designate pages of the transcript and/or its exhibits as

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Designated Material. During such sixty (60) day period, the transcript in its entirety

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shall be treated as “CONFIDENTIAL” (except for those portions identified earlier as

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” which shall be treated

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accordingly from the date of designation). If any party so designates such material,

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the parties shall provide written notice of such designation to all parties within the

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sixty (60) day period. Designated Material within the deposition transcript or the

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exhibits thereto may be identified in writing by page and line, or by underlining and

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marking such portions “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY” and providing such marked-up portions to all counsel.

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(c) For information produced in some form other than documentary and for

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

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exterior of the container or containers in which the information is stored the legend

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY.” If only a portion or portions of the information warrants protection, the

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Producing Party, to the extent practicable, shall identify the protected portion(s).

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5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent

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failure to designate qualified information or items does not, standing alone, waive the

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Designating Party’s right to secure protection under this Order for such material.

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Upon timely correction of a designation, the Receiving Party must make reasonable

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efforts to assure that the material is treated in accordance with the provisions of this

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Order.

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5.4

Legal Effect of Designation. The designation of any information or

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materials as “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’

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EYES ONLY” is intended solely to facilitate the conduct of this Action. Neither

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such designation nor treatment in conformity with such designation shall be

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construed in any way as an admission or agreement by any party that the Designated

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Material constitutes or contains any trade secret or confidential information. Except
as provided in this Order, no party to this action shall be obligated to challenge the
propriety of any designation, and a failure to do so shall not preclude a subsequent
attack on the propriety of such designation. Nothing herein in any way restricts the
ability of the receiving party to use “CONFIDENTIAL,” “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY” material produced to it in
examining or cross-examining any employee or consultant of the Designating Party.
The parties agree that the Plaintiff and Defendants White Mark Universal, Inc. and
Walmart, Inc. may be provided a summary of the alleged infringers’ full identities,

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revenues, and gross profits numbers. The information in summary format may be

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provided to Plaintiff and Defendants White Mark Universal, Inc. and Walmart, Inc.

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notwithstanding any party’s designation of documents showing such information as

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Plaintiff and

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Defendants White Mark Universal, Inc. and Walmart, Inc. may not disclose the

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information from such Designated Materials to any party other than the Designating
Party.

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6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges.

Any Party or Non-Party may challenge a

designation of confidentiality at any time that is consistent with the Court’s
Scheduling Order. By stipulating to the entry of this Order no party waives any right
it otherwise would have to object to disclosing or producing any information or item
on any ground not addressed in this Order. Similarly, no party waives any right to
object on any ground to use in evidence of any of the material covered by this Order.
Moreover, this Order shall not preclude or limit any party’s right to seek further and
additional protection against or limitation upon production of documents produced in
response to discovery. The parties reserve their rights to object to, redact or withhold
any information, including confidential, proprietary, or private information, on any
other applicable grounds permitted by law, including third-party rights and relevancy.
6.2

Meet and Confer. If the Parties cannot resolve a challenge without

court intervention, the Challenging Party shall file and serve a motion to challenge
confidentiality under Civil Local Rule 37-1 et seq. (and in compliance with Civil
Local Rule 79-5.1, if applicable) within twenty-one (21) days of the initial notice of
challenge or within fourteen (14) days of the parties agreeing that the meet and
confer process will not resolve their dispute, whichever is earlier. Each such motion

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must be accompanied by a competent declaration affirming that the movant has

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complied with the meet and confer requirements imposed in the preceding

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paragraph. In addition, the Designating Party may file a motion for a protective
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order preserving the confidential designation at any time if there is good cause for

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doing so. Any motion brought pursuant to this provision must be accompanied by a

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competent declaration affirming that the movant has complied with the meet and

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confer requirements imposed by the preceding paragraph. The burden of persuasion

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in any such challenge proceeding shall be on the Designating Party. Frivolous

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challenges and those made for an improper purpose (e.g., to harass or impose
unnecessary expenses and burdens on other parties) may expose the Challenging
Party to sanctions. Designations not made in good faith may expose the Designating
Party to sanctions. Any party claiming non-disclosure of material protected by the
attorney-client privilege or the attorney work-product doctrine shall prepare a
privilege log pursuant to Federal Rule of Civil Procedure 26(b)(5). The parties shall
meet and confer in writing or telephonically on how privileged materials should be
logged, including with respect to ESI and metadata. Upon receipt of a privilege

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log, the receiving party shall challenge in writing any contended deficiencies within

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fourteen (14) days of receipt by identifying (1) the materials for which it questions

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the claim of privilege, and (2) the reasons (including legal support) for its assertion

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that the materials are not privileged. Each party is entitled to a total of ten (10)

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challenges of deficiencies; the parties may meet and confer to amend the total

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number of challenges allotted. If the receiving party fails to challenge any FFM

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contended deficiencies within the fourteen (14) days of receipt, that party waives its

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right to make any challenges thereafter. Within fourteen (14) days of receiving a

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challenge of contended deficiencies in a privilege log, the party seeking to support

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the claim(s) of privilege shall provide a written response supporting the claim(s) of

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privilege (including legal support). The burden of persuasion in any challenge of

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contended deficiencies shall be on the party asserting the privilege or protection as
the parties meet and confer in resolving challenges of contended deficiencies. If an
agreement cannot be met after ten (10) days, any party may with Court approval
submit the material or materials under seal to the Court for a determination as to
privilege or protection. Unless the Designating Party has waived or withdrawn the

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confidentiality designation, all parties shall continue to afford the material in

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question the level of protection to which it is entitled under the Producing Party’s

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designation until the Court rules on the challenge.

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7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

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Basic Principles. A Receiving Party may use Protected Material that is

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disclosed or produced by another Party or by a Non-Party in connection with this

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Action only for prosecuting, defending, or attempting to settle this Action. Such

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Protected Material may be disclosed only to the categories of persons and under the

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

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Party must comply with the provisions of section 13 below (FINAL DISPOSITION).

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Protected Material must be stored and maintained by a Receiving Party at a

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

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authorized under this Order.
7.2

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Disclosure of “CONFIDENTIAL” Information or Items. Subject to the

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limitations set forth in this Order, Designated Material may be marked

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“CONFIDENTIAL” for the purpose of preventing the disclosure of information or

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materials that the designating party in good faith believes is confidential. Before

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designating any specific information or material “CONFIDENTIAL,” the

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Designating Party’s counsel shall make a good faith determination that the

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information warrants protection under Rule 26(c) of the Federal Rules of Civil of the

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Federal Rules of Civil Procedure. Such information may include, but is not limited

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to:

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(a)

Materials relating to any privileged, confidential, or nonpublic

information, including but not limited to trade secrets, research, design, development,
financial, technical, marketing, planning, personal, or commercial information, as
such terms are used in in the Federal Rules of Civil Procedure and any applicable case
law interpreting Rule 26(c)(1)(G);
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(b)

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Contracts; proprietary information; vendor agreements; personnel files;

claim/litigation information; or certain policies and procedures;
(c)

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Information which the Designating Party believes in good faith falls

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within the right to privacy guaranteed by the laws of the United States or California;

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and
(d)

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constitute, contain, reveal or reflect proprietary, financial, business, technical, or other
confidential information which is not otherwise protected as Highly Confidential.
(e)

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Unless otherwise ordered by the court or permitted in writing by the
Designating Party, a Receiving Party may disclose any information or item designated
“CONFIDENTIAL” only to:

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(a) Persons who appear on the face of Designated Materials marked
“CONFIDENTIAL” as an author, addressee, or recipient thereof;

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(b) Counsel to the parties in this Action, including any in-house counsel,
and their respective associates, clerks, legal assistants, stenographic, videographic and
support personnel, and other employees of such outside litigation attorneys, and
organizations retained by such attorneys to provide litigation support services in this
action and the employees of said organizations;

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(c) Experts (as defined in this Order) of the Receiving Party to whom
disclosure is reasonably necessary for this Action and who have signed the
“Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(d) A party’s officers and/or employees, which may include in-house
counsel;

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The fact that an item or category is listed as an example in this or other

sections of this Order does not, by itself, render the item or category discoverable.

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Information which the Designating Party believes in good faith to

(e) The Court, its clerks and secretaries, and any court reporter retained to
record proceedings before the Court;

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(f) professional jury or trial consultants, mock jurors, and Professional

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Vendors to whom disclosure is reasonably necessary for this Action and who have

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signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(h) during their depositions, witnesses ,and attorneys for witnesses, in the

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

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requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will

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not be permitted to keep any confidential information unless they sign the

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“Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise

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agreed by the Designating Party or ordered by the court. Pages of transcribed

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deposition testimony or exhibits to depositions that reveal Protected Material may be

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

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permitted under this Stipulated Protective Order; and

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(i) Any mediator or settlement officer, and their supporting personnel,

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

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mediator or settlement officer must sign a certification that he or she has read this

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Order, will abide by its provisions, and will submit to the jurisdiction of this Court

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regarding the enforcement of this Order’s provisions.

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7.3

Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY” Information or Items. Subject to the limitations in this Order, Designated

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Materials may be marked “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY” for the purpose of preventing the disclosure of information or materials

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which, if disclosed to the receiving party, might cause competitive harm to the

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Designating Party. Information and material that may be subject to this protection

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includes, but is not limited to, technical and/or research and development data,

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intellectual property, financial, marketing and other sales data, and/or information

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having strategic commercial value pertaining to the Designating Party’s trade or

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business. Nothing in paragraph 2.1 shall limit the information or material that can be

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designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” under this
15

1

paragraph.

2

CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” the Designating Party’s counsel

3

shall make a good faith determination that the information warrants such protection.

4

Such information may include, but is not limited to:
(a)

5

Before

designating

any

specific

information

“HIGHLY

The financial performance or results of the Designating Party,

6

including without limitation income statements, profit and loss statements, balance

7

sheets, cash flow analyses, budget projections, purchase and sale records and present

8

value calculations;
(b)

9
10
11

without limitation marketing plans, competitive intelligence reports, sales
projections and competitive strategy documents;
(c)

12
13

16

Names, addresses, and other information that would identify customers

or prospective customers, or the distributors or prospective distributors of the
Designating Party;

14
15

Corporate and strategic planning by the Designating Party, including

(d)

Information used by the Designating Party in or pertaining to its trade

or business, such as trade secrets, nonpublic research and development, pricing
formulas, inventory management programs and confidential business information

17

not generally known to the general public, which information the Designating Party

18

believes in good faith has competitive value, which is not generally known to others

19

and which the Designating Party would not normally reveal to third parties except in

20

confidence, or has undertaken with others to maintain in confidence; and

21

(e)

Customer-related protected data, which means and refers to any

22

information that the Designating Party believes in good faith to be subject to federal,

23

state or foreign data protection laws or other privacy obligations; such data

24

protection laws include but are not limited to The Gramm-Leach-Bliley Act, 15

25

U.S.C. § 6801 et seq. (financial information), and The Health Insurance Portability

26

and Accountability Act and the regulations thereunder, 45 C.F.R. Part 10 and

27

Subparts A and E of Part 164 (medical information).

28

///
16

1

Unless otherwise ordered by the court or permitted in writing by the

2

Designating Party, a Receiving Party may disclose any information or item designated

3

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to:

4

(a) Persons who appear on the face of Designated Materials marked

5

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” as an author,

6

addressee, or recipient thereof;

7

(b) Counsel to the parties in this Action, including any in-house counsel,

8

and their respective associates, clerks, legal assistants, stenographic, videographic and

9

support personnel, and other employees of such outside litigation attorneys, and

10

organizations retained by such attorneys to provide litigation support services in this

11

action and the employees of said organizations;

12

(c) Experts (as defined in this Order) of the Receiving Party to whom

13

disclosure is reasonably necessary for this Action and who have signed the

14

“Acknowledgment and Agreement to Be Bound” (Exhibit A);
(d) The Court, its clerks and secretaries, and any court reporter retained to

15
16

record proceedings before the Court;

17

(e) professional jury or trial consultants, mock jurors, and Professional

18

Vendors to whom disclosure is reasonably necessary for this Action and who have

19

signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

20

(f) Any mediator or settlement officer, and their supporting personnel,

21

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

22

mediator or settlement officer must sign a certification that he or she has read this

23

Order, will abide by its provisions, and will submit to the jurisdiction of this Court

24

regarding the enforcement of this Order’s provisions.

25
26

///

27

///

28

///
17

1

8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

2

OTHER LITIGATION

3

If a Party is served with a subpoena or a court order issued in other litigation

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

9

to 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 of

11

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.

14

If the Designating Party timely seeks a protective order, the Party served with

15

the 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 subpoena

17

or order issued, unless the Party has obtained the Designating Party’s permission. The

18

Designating Party shall bear the burden and expense of seeking protection in that court

19

of its confidential material and nothing in these provisions should be construed as

20

authorizing or encouraging a Receiving Party in this Action to disobey a lawful

21

directive from another court.

22
23

9.

A

NON-PARTY’S

PROTECTED

24

MATERIAL

SOUGHT

TO

BE

PRODUCED IN THIS LITIGATION

25

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

26

Non-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

///
18

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.

3

(b) In the event that a Party is required, by a valid discovery request, to

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:

7

(1) promptly notify in writing the Requesting Party and the Non-Party

8

that some or all of the information requested is subject to a confidentiality agreement

9

with a Non-Party;

10

(2) promptly provide the Non-Party with a copy of the Stipulated

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 Non-

13
14

Party, if requested.

15

(c) If the Non-Party fails to seek a protective order from this court within

16

14 days of receiving the notice and accompanying information, the Receiving Party

17

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

18

request. If the Non-Party timely seeks a protective order, the Receiving Party shall

19

not produce any information in its possession or control that is subject to the

20

confidentiality agreement with the Non-Party before a determination by the court.

21

Absent a court order to the contrary, the Non-Party shall bear the burden and expense

22

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 disclosed

26

Protected Material to any person or in any circumstance not authorized under this

27

Stipulated Protective Order, the Receiving Party must immediately (a) notify in

28

writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
19

1

to retrieve all unauthorized copies of the Protected Material, (c) inform the person or

2

persons to whom unauthorized disclosures were made of all the terms of this Order,

3

and (d) request such person or persons to execute the “Acknowledgment and

4

Agreement to Be Bound” that is attached hereto as Exhibit A.

5
6

11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

7

PROTECTED MATERIAL

8

When a Producing Party gives notice to Receiving Parties that certain

9

inadvertently produced material is subject to a claim of privilege or other protection,

10

the obligations of the Receiving Parties are those set forth in Federal Rule of Civil

11

Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure

12

may be established in an e-discovery order that provides for production without prior

13

privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the

14

parties reach an agreement on the effect of disclosure of a communication or

15

information covered by the attorney-client privilege or work product protection, the

16

parties may incorporate their agreement in the stipulated protective order submitted

17

to the court.

18
19
20
21

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.

22

12.2 Right to Assert Other Objections. By stipulating to the entry of this

23

Protective Order no Party waives any right it otherwise would have to object to

24

disclosing or producing any information or item on any ground not addressed in this

25

Stipulated Protective Order. Similarly, no Party waives any right to object on any

26

ground to use in evidence of any of the material covered by this Protective Order.

27

12.3 Filing Protected Material. Nothing in this Order shall vary the

28

requirements for filing under Seal imposed by the Federal Rules of Civil Procedure
20

1

or the Local Rules of this Court. If a party wishes to file with the Court any document,

2

transcript

3

“CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

4

ONLY” that party shall follow the procedures set forth in Local Rule 79-5.2.2 (which

5

sets out different procedures depending upon whether or not the party seeking to file

6
7

or

thing

containing

information

which

has

been

designated

material under seal is the same party which designated the material as confidential)
and ensure the materials are marked with the legend:

8
9
10
11
12

CONFIDENTIAL
IN

ACCORANCE

PROTECTIVE
CONTENTS

WITH

ORDER
OF

THIS

OF

THE
THE

STIPULATED
COURT,

ENVELOPE

SHALL

THE
BE

TREATED AS CONFIDENTIAL AND MUST NOT BE

13

SHOWN TO A PERSON OTHER THAN THE COURT,

14

ATTORNEYS IN THIS CASE, OR TO PERSONS

15

ASSISTING THOSE ATTORNEYS.

16
17

Filing the document under seal shall not bar any party from unrestricted use or

18

dissemination of those portions of the document that do not contain material

19

designated “CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL – ATTORNEYS’

20

EYES ONLY.” If a filing party fails to seek to file under seal items which a party in

21

good faith believes to have been designated as or to constitute “CONFIDENTIAL,”

22

or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” material, such

23

party may move the Court to file said information under seal within four (4) days of

24
25
26
27

service of the original filing. Notice of such designation shall be given to all parties.
Nothing in this provision relieves a party of liability for damages caused by failure to
properly seek the filing of Designated Material under seal in accordance with Local
Rule 79-5.2.2.

28
21

1

13.

FINAL DISPOSITION

2

Within sixty (60) days of settlement or final adjudication, including the

3

expiration or exhaustion of all rights to appeal or petitions for extraordinary writs,

4

each party or non-party to whom any materials were produced shall, without further

5

request or direction from the Producing Party, promptly destroy all Protected

6

Material. As used in this subdivision, “all Protected Material” includes all copies,

7

abstracts, compilations, summaries, and any other format reproducing or capturing

8

any of the Protected Material. Whether the Protected Material is returned or

9

destroyed, the Receiving Party must submit a written certification to the Producing

10

Party (and, if not the same person or entity, to the Designating Party) by the 60 day

11

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

12

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

13

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

14

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

15

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

16

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

17

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

18

product, even if such materials contain Protected Material. Any such archival copies

19

that contain or constitute Protected Material remain subject to this Protective Order

20

as set forth in Section 4 (DURATION).

21

14.

22

measures including, without limitation, contempt proceedings and/or monetary

23

sanctions.

Any violation of this Order may be punished by any and all appropriate

24
25

FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

26

DATED: March 12, 2019

/s/ FREDERICK F. MUMM
HON. FREDERICK F. MUMM
United States Magistrate Judge

27
28
22

1

EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3
4

1.

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 March 6, 2019 in the case of Novelty Textile, Inc. v. White Mark Universal, Inc.,

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23

et al., 2:18-cv-07142-JFW-FFM. 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 the purpose of 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: ______________________________________
City and State where sworn and signed: _________________________________

24
25

Printed name: _______________________________

26
27

Signature: __________________________________

28
23