Theragun, Inc. v. Complete Recovery et al

Filing 52

PROTECTIVE ORDER by Magistrate Judge Charles F. Eick re Stipulation for Protective Order 51 . (sp)

Download PDF
1 STANLEY M. GIBSON (Bar No. 162329) sgibson@jmbm.com 2 GREGORY S. CORDREY (Bar No. 190144) gcordrey@jmbm.com 3 REMI T. SALTER (Bar No. 316327) rsalter@jmbm.com 4 JEFFER MANGELS BUTLER & MITCHELL LLP 1900 Avenue of the Stars, 7th Floor 5 Los Angeles, California 90067-4308 Telephone: (310) 203-8080 6 Facsimile: (310) 203-0567 7 Attorneys for Plaintiff Theragun, Inc. 8 ALFRED SHAUMYAN (Bar No. 266908) 9 afred.shaumyan @bclplaw.com J. BENNETT CLARK (Admitted pro hac vice) 10 ben.clark@bclplaw.com ELLEN E. WHITEHORN (Admitted pro hac vice) 11 ellen.whitehorn@bclplaw.com MATTHEW G. MINDER (Admitted pro hac vice) 12 matt.minder@bclplaw.com BRYAN CAVE LEIGHTON PAISNER LLP 13 120 Broadway, Suite 300 Santa Monica, CA 90401-2386 14 Telephone: (310) 576-2100 Facsimile: (310) 576-2200 15 Attorneys for Defendants Complete 16 Recovery, Revolution Hustle LLC and Elevate Brands, LLC 17 18 UNITED STATES DISTRICT COURT 19 CENTRAL DISTRICT OF CALIFORNIA 20 THERAGUN, INC., a Delaware 21 corporation, [PROPOSED] STIPULATED PROTECTIVE ORDER Plaintiff, 22 23 Case No.: 2:20-cv-03821 TJH(Ex) v. 24 COMPLETE RECOVERY, et al, 25 Defendants. 26 27 28 1 STIPULATED PROTECTIVE ORDER Case No. 2:20-cv-03821 TJH(Ex) 1 1. PURPOSES AND LIMITATIONS 2 Disclosure and discovery activity in this action are likely to involve 3 production of confidential, proprietary, or private information for which special 4 protection from public disclosure and from use for any purpose other than 5 prosecuting, defending or attempting to settle this litigation may be warranted. This 6 Order does not confer blanket protections on all disclosures or responses to 7 discovery and the protection it affords from public disclosure and use extends only 8 to the limited information or items that are entitled to confidential treatment under 9 the applicable legal principles. As set forth in Section 12.4 below, this Protective 10 Order does not entitle the Parties to file confidential information under seal; the 11 Local Rules of this Court set forth the procedures that must be followed and the 12 standards that will be applied when a party seeks permission from the Court to file 13 material under seal. 14 2. DEFINITIONS 15 2.1 Challenging Party: a Party or Non-Party that challenges the designation 16 of information or items under this Order. 17 2.2 “CONFIDENTIAL” Information or Items: any information or material 18 that constitutes or includes, in whole or in part, confidential or proprietary 19 information or trade secrets of the Party or a Third Party to whom the Party 20 reasonably believes it owes an obligation of confidentiality with respect to such 21 information or material. 22 2.3 Counsel (without qualifier): Outside Counsel of Record and House 23 Counsel (as well as their support staff). 24 2.4 Designated House Counsel: House Counsel who seek access to 25 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information in this 26 matter. 27 2.5 Designating Party: a Party or Non-Party that designates information or 28 items that it produces in disclosures or in responses to discovery as 2 STIPULATED PROTECTIVE ORDER Case No. 2:20-cv-03821 TJH(Ex) 1 “CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL – ATTORNEYS' EYES 2 ONLY”. 3 2.6 Disclosure or Discovery Material: all items or information, regardless 4 of the medium or manner in which it is generated, stored, or maintained (including, 5 among other things, testimony, transcripts, and tangible things), that are produced or 6 generated in disclosures or responses to discovery in this matter. 7 2.7 Expert: a person with specialized knowledge or experience in a matter 8 pertinent to the litigation who (1) has been retained by a Party or its counsel to serve 9 as an expert witness or as a consultant in this action, (2) is not a past or current 10 employee of a Party or of a Party's competitor, and (3) at the time of retention, is not 11 anticipated to become an employee of a Party or of a Party's competitor. 12 2.8 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” 13 Information or Items: extremely sensitive “Confidential Information or Items,” 14 disclosure of which to another Party or Non-Party would create a substantial risk of 15 serious harm that could not be avoided by less restrictive means. 16 2.9 House Counsel: attorneys who are employees of a party to this action. 17 House Counsel does not include Outside Counsel of Record or any other outside 18 counsel. 19 2.10 Non-Party: any natural person, partnership, corporation, association, or 20 other legal entity not named as a Party to this action. 21 2.11 Outside Counsel of Record: attorneys who are not employees of a party 22 to this action but are retained to represent or advise a party to this action and have 23 appeared in this action on behalf of that party or are affiliated with a law firm which 24 has appeared on behalf of that party. 25 2.12 Party: any party to this action, including all of its officers, directors, 26 employees, consultants, retained experts, and Outside Counsel of Record (and their 27 support staffs). 28 2.13 Producing Party: a Party or Non-Party that produces Disclosure or 3 STIPULATED PROTECTIVE ORDER Case No. 2:20-cv-03821 TJH(Ex) 1 Discovery Material in this action. 2 2.14 Professional Vendors: persons or entities that provide litigation support 3 services (e.g., photocopying, videotaping, translating, preparing exhibits or 4 demonstrations, and organizing, storing, or retrieving data in any form or medium) 5 and their employees and subcontractors. 6 2.15 Protected Material: any Disclosure or Discovery Material that is 7 designated as “CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL – 8 ATTORNEYS’ EYES ONLY.” 9 2.16 Receiving Party: a Party that receives Disclosure or Discovery Material 10 from a Producing Party. 11 3. SCOPE 12 The protections conferred by this Order cover not only Protected Material (as 13 defined above), but also (1) any information copied or extracted from Protected 14 Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; 15 and (3) any testimony, conversations, or presentations by Parties or their Counsel 16 that might reveal Protected Material. However, the protections conferred by this 17 Order do not cover the following information: (a) any information that is in the 18 public domain at the time of disclosure to a Receiving Party or becomes part of the 19 public domain after its disclosure to a Receiving Party as a result of publication not 20 involving a violation of this Order, including becoming part of the public record 21 through trial or otherwise; and (b) any information known to the Receiving Party 22 prior to the disclosure or obtained by the Receiving Party after the disclosure from a 23 source who obtained the information lawfully and under no obligation of 24 confidentiality to the Designating Party. Any use of Protected Material at trial shall 25 be governed by a separate agreement or order. 26 4. DURATION 27 Even after final disposition of this litigation, the confidentiality obligations 28 imposed by this Order shall remain in effect until a Designating Party agrees 4 STIPULATED PROTECTIVE ORDER Case No. 2:20-cv-03821 TJH(Ex) 1 otherwise in writing or a court order otherwise directs. Final disposition shall be 2 deemed to be the later of (1) dismissal of all claims and defenses in this action, with 3 or without prejudice; and (2) final judgment herein after the completion and 4 exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, 5 including the time limits for filing any motions or applications for extension of time 6 pursuant to applicable law. 7 5. DESIGNATING PROTECTED MATERIAL 8 5.1 9 Each Party or Non-Party that designates information or items for protection Exercise of Restraint and Care in Designating Material for Protection. 10 under this Order must take care to limit any such designation to specific material 11 that qualifies under the appropriate standards. To the extent it is practical to do so, 12 the Designating Party must designate for protection only those parts of material, 13 documents, items, or oral or written communications that qualify – so that other 14 portions of the material, documents, items, or communications for which protection 15 is not warranted are not swept unjustifiably within the ambit of this Order. Mass, 16 indiscriminate, or routinized designations are prohibited. Designations that are 17 shown to be clearly unjustified or that have been made for an improper purpose 18 (e.g., to unnecessarily encumber or retard the case development process or to 19 impose unnecessary expenses and burdens on other parties) may expose the 20 Designating Party to sanctions. 21 If it comes to a Designating Party’s attention that information or items that it 22 designated for protection do not qualify for protection at all or do not qualify for the 23 level of protection initially asserted, that Designating Party must promptly notify all 24 other Parties that it is withdrawing the mistaken designation. 25 5.2 Manner and Timing of Designations. Except as otherwise provided in 26 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 27 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 28 5 STIPULATED PROTECTIVE ORDER Case No. 2:20-cv-03821 TJH(Ex) 1 under this Order must be clearly so designated before the material is disclosed or 2 produced. 3 Designation in conformity with this Order requires: 4 (a) for information in documentary form (e.g., paper or electronic documents, 5 but excluding transcripts of depositions or other pretrial or trial proceedings), that 6 the Producing Party affix the legend “CONFIDENTIAL,” or “HIGHLY 7 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” to each page that contains 8 protected material. If only a portion or portions of the material on a page qualifies 9 for protection, the Producing Party also must clearly identify the protected portion(s) 10 (e.g., by making appropriate markings in the margins) and must specify, for each 11 portion, the level of protection being asserted. 12 A Party or Non-Party that makes original documents or materials available for 13 inspection need not designate them for protection until after the inspecting Party has 14 indicated which material it would like copied and produced. During the inspection 15 and before the designation, all of the material made available for inspection shall be 16 deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” After the 17 inspecting Party has identified the documents it wants copied and produced, the 18 Producing Party must determine which documents, or portions thereof, qualify for 19 protection under this Order. Then, before producing the specified documents, the 20 Producing Party must affix the appropriate legend (“CONFIDENTIAL,” or 21 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”) to each page that 22 contains Protected Material. If only a portion or portions of the material on a page 23 qualifies for protection, the Producing Party also must clearly identify the protected 24 portion(s) (e.g., by making appropriate markings in the margins) and must specify, 25 for each portion, the level of protection being asserted. 26 (b) for testimony given in deposition or in other pretrial or trial proceedings, 27 that the Designating Party identify on the record, before the close of the deposition, 28 hearing, or other proceeding, all protected testimony and specify the level of 6 STIPULATED PROTECTIVE ORDER Case No. 2:20-cv-03821 TJH(Ex) 1 protection being asserted. When it is impractical to identify separately each portion 2 of testimony that is entitled to protection and it appears that substantial portions of 3 the testimony may qualify for protection, the Designating Party may invoke on the 4 record (before the deposition, hearing, or other proceeding is concluded) a right to 5 have up to 21 days to identify the specific portions of the testimony as to which 6 protection is sought and to specify the level of protection being asserted. Only those 7 portions of the testimony that are appropriately designated for protection within the 8 21 days shall be covered by the provisions of this Protective Order. Alternatively, 9 and subject to Section 5.1, a Designating Party may specify, at the deposition or up 10 to 21 days afterwards if that period is properly invoked, that the entire transcript 11 shall be treated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – 12 ATTORNEYS’ EYES ONLY.” 13 Transcripts containing Protected Material shall have an obvious legend on the 14 title page that the transcript contains Protected Material, and the title page shall be 15 followed by a list of all pages (including line numbers as appropriate) that have been 16 designated as Protected Material and the level of protection being asserted by the 17 Designating Party. The Designating Party shall inform the court reporter of these 18 requirements. Any transcript that is prepared before the expiration of a 21-day 19 period for designation shall be treated during that period as if it had been designated 20 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its entirety unless 21 otherwise agreed. After the expiration of that period, the transcript shall be treated 22 only as actually designated. 23 (c) for information produced in some form other than documentary and/or any 24 other tangible items, that the Producing Party affix in a prominent place on the 25 exterior of the container or containers in which the information or item is stored the 26 legend “CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ 27 EYES ONLY.” If only a portion or portions of the information or item warrant 28 7 STIPULATED PROTECTIVE ORDER Case No. 2:20-cv-03821 TJH(Ex) 1 protection, the Producing Party, to the extent practicable, shall identify the protected 2 portion(s) and specify the level of protection being asserted. 3 5.3 Inadvertent Failures to Designate. If corrected immediately upon 4 learning of an inadvertent failure to designate qualified information or items, such 5 inadvertency does not, standing alone, waive the Designating Party’s right to secure 6 protection under this Order for such material. Upon such an immediate correction of 7 a designation, the Receiving Party must make its best efforts to assure that the 8 material is treated in accordance with the provisions of this Order. 9 6. 10 CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 11 designation of confidentiality at any time. Unless a prompt challenge to a 12 Designating Party’s confidentiality designation is necessary to avoid foreseeable, 13 substantial unfairness, unnecessary economic burdens, or a significant disruption or 14 delay of the litigation, a Party does not waive its right to challenge a confidentiality 15 designation by electing not to mount a challenge promptly after the original 16 designation is disclosed. 17 6.2 Meet and Confer. The Challenging Party shall initiate the dispute 18 resolution process by providing written notice of each designation it is challenging 19 and describing the basis for each challenge. The parties shall attempt to resolve each 20 challenge in good faith and must begin the process by conferring directly (in voice 21 to voice dialogue; other forms of communication are not sufficient) within 14 days 22 of the date of service of notice. In conferring, the Challenging Party must explain 23 the basis for its belief that the confidentiality designation was not proper and must 24 give the Designating Party an opportunity to review the designated material, to 25 reconsider the circumstances, and, if no change in designation is offered, to explain 26 the basis for the chosen designation. A Challenging Party may proceed to the next 27 stage of the challenge process only if it has engaged in this meet and confer process 28 8 STIPULATED PROTECTIVE ORDER Case No. 2:20-cv-03821 TJH(Ex) 1 first or establishes that the Designating Party is unwilling to participate in the meet 2 and confer process in a timely manner. 3 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without 4 court intervention, the Designating Party shall file and serve a motion to retain 5 confidentiality in compliance with Local Rule 37 within 21 days of the initial notice 6 of challenge or within 14 days of the parties agreeing that the meet and confer 7 process will not resolve their dispute, whichever is earlier. Each such motion must 8 be accompanied by a competent declaration affirming that the movant has complied 9 with the meet and confer requirements imposed in the preceding paragraph. Failure 10 by the Designating Party to make such a motion including the required declaration 11 within 21 days (or 14 days, if applicable) shall automatically waive the 12 confidentiality designation for each challenged designation. The burden of 13 persuasion in any such challenge proceeding shall be on the Designating Party. 14 Frivolous challenges and those made for an improper purpose (e.g., to harass or 15 impose unnecessary expenses and burdens on other parties) may expose the 16 Challenging Party to sanctions. Unless the Designating Party has waived the 17 confidentiality designation by failing to file a motion to retain confidentiality as 18 described above, all parties shall continue to afford the material in question the level 19 of protection to which it is entitled under the Producing Party’s designation until the 20 court rules on the challenge. 21 7. ACCESS TO AND USE OF PROTECTED MATERIAL 22 7.1 Basic Principles. A Receiving Party may use Protected Material that is 23 disclosed or produced by another Party or by a Non-Party in connection with this 24 case only for prosecuting, defending, or attempting to settle this litigation. Such 25 Protected Material may be disclosed only to the categories of persons and under the 26 conditions described in this Order. When the litigation has been terminated, a 27 Receiving Party must comply with the provisions of section 13 below (FINAL 28 DISPOSITION). 9 STIPULATED PROTECTIVE ORDER Case No. 2:20-cv-03821 TJH(Ex) 1 Protected Material must be stored and maintained by a Receiving Party at a 2 location and in a secure manner that ensures that access is limited to the persons 3 authorized under this Order. 4 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 5 otherwise ordered by the court or permitted in writing by the Designating Party, a 6 Receiving Party may disclose any information or item designated 7 “CONFIDENTIAL” only to: 8 (a) the Receiving Party’s Outside Counsel of Record in this action, as well 9 as employees of said Outside Counsel of Record to whom it is reasonably necessary 10 to disclose the information for this litigation; 11 (b) the officers, directors, and employees (including House Counsel) of the 12 Receiving Party to whom disclosure is reasonably necessary for this litigation and 13 who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 14 (c) Experts (as defined in this Order) of the Receiving Party to whom 15 disclosure is reasonably necessary for this litigation and who have signed the 16 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 17 (d) the court and its personnel; 18 (e) court reporters and their staff, professional jury or trial consultants, 19 and Professional Vendors to whom disclosure is reasonably necessary for this 20 litigation and who agree to be bound by this Protective Order; 21 (f) during their depositions, witnesses in the action to whom disclosure is 22 reasonably necessary. Pages of transcribed deposition testimony or exhibits to 23 depositions that reveal Protected Material must be separately bound by the court 24 reporter and may not be disclosed to anyone except as permitted under this 25 Protective Order; 26 (g) the author or recipient of a document containing the information or a 27 custodian or other person who otherwise possessed or knew the information; and 28 (h) any other person with the prior written consent of the Designating 10 STIPULATED PROTECTIVE ORDER Case No. 2:20-cv-03821 TJH(Ex) 1 Party. 2 7.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 3 ONLY” and Information or Items. Unless otherwise ordered by the court or 4 permitted in writing by the Designating Party, a Receiving Party may disclose any 5 information or item designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ 6 EYES ONLY” only to: 7 (a) the Receiving Party’s Outside Counsel of Record in this action, as well 8 as employees of said Outside Counsel of Record to whom it is reasonably necessary 9 to disclose the information for this litigation; 10 (b) Experts of the Receiving Party (1) to whom disclosure is reasonably 11 necessary for this litigation, (2) who have signed the “Acknowledgment and 12 Agreement to Be Bound” (Exhibit A), and (3) as to whom the procedures set forth 13 in paragraph 7.4(a)(2), below, have been followed; 14 (c) the court and its personnel; 15 (d) court reporters and their staff, professional jury or trial consultants, 16 and Professional Vendors to whom disclosure is reasonably necessary for this 17 litigation and who agree to be bound by this Protective Order; 18 (e) the author or recipient of a document containing the information or a 19 custodian or other person who otherwise possessed or knew the information; and 20 (f) any other person with the prior written consent of the Designating 7.4 Procedures for Approving or Objecting to Disclosure of “HIGHLY 21 Party. 22 23 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items to 24 Experts. 25 (a) Unless otherwise ordered by the court or agreed to in writing by the 26 Designating Party, a Party that seeks to disclose to an Expert (as defined in this 27 Order) any information or item that has been designated “HIGHLY 28 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” pursuant to paragraph 7.3(c) 11 STIPULATED PROTECTIVE ORDER Case No. 2:20-cv-03821 TJH(Ex) 1 first must make a written request to the Designating Party that (1) identifies the 2 general categories of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 3 ONLY” information that the Receiving Party seeks permission to disclose to the 4 Expert, (2) sets forth the full name of the Expert and the city and state of his or her 5 primary residence, (3) attaches a copy of the Expert’s current resume, (4) identifies 6 the Expert’s current employer(s), (5) identifies each person or entity from whom the 7 Expert has received compensation or funding for work in his or her areas of 8 expertise in connection with a litigation, at any time during the preceding five 9 years,1 and (6) identifies (by name and number of the case, filing date, and location 10 of court) any litigation in connection with which the Expert has offered expert 11 testimony, including through a declaration, report, or testimony at a deposition or 12 trial, during the preceding five years. 13 (b) A Party that makes a request and provides the information specified in 14 the preceding respective paragraphs may disclose the subject Protected Material to 15 the identified Expert unless, within 14 days of delivering the request, the Party 16 receives a written objection from the Designating Party. Any such objection must 17 set forth in detail the grounds on which it is based. 18 (c) A Party that receives a timely written objection must meet and confer 19 with the Designating Party (through direct voice to voice dialogue) to try to resolve 20 the matter by agreement within seven days of the written objection. If no agreement 21 is reached, the Party seeking to make the disclosure the Expert may file a motion as 22 provided in the Local Rules of this Court seeking permission from the court to do 23 so. Any such motion must describe the circumstances with specificity, set forth in 24 detail the reasons why disclosure to the Expert is reasonably necessary, assess the 25 26 1 If the Expert believes any of this information is subject to a confidentiality obligation to a third party, the Expert should provide whatever information the 27 Expert believes can be disclosed without violating any confidentiality agreements, 28 and the Party seeking to disclose to the Expert shall make itself available to meet and confer with the Designating Party regarding any such engagement. Case No. 2:20-cv-03821 TJH(Ex) 12 STIPULATED PROTECTIVE ORDER 1 risk of harm that the disclosure would entail, and suggest any additional means that 2 could be used to reduce that risk. In addition, any such motion must be 3 accompanied by a competent declaration describing the parties’ efforts to resolve 4 the matter by agreement (i.e., the extent and the content of the meet and confer 5 discussions) and setting forth the reasons advanced by the Designating Party for its 6 refusal to approve the disclosure. 7 In any such proceeding, the Party opposing disclosure to the Expert shall 8 bear the burden of proving that the risk of harm that the disclosure would entail 9 (under the safeguards proposed) outweighs the Receiving Party’s need to disclose 10 the Protected Material to its Expert. 11 8. 12 PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION 13 If a Party is served with a subpoena or a court order issued in other litigation 14 that compels disclosure of any information or items designated in this action as 15 “CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 16 ONLY” that Party must: 17 (a) promptly notify in writing the Designating Party. Such notification 18 shall include a copy of the subpoena or court order; 19 (b) promptly notify in writing the party who caused the subpoena or order 20 to issue in the other litigation that some or all of the material covered by the 21 subpoena or order is subject to this Protective Order. Such notification shall include 22 a copy of this Protective Order; and 23 (c) cooperate with respect to all reasonable procedures sought to be 24 pursued by the Designating Party whose Protected Material may be affected.2 25 If the Designating Party timely seeks a protective order, the Party served with 26 2 The purpose of imposing these duties is to alert the interested parties to the existence of this Protective Order and to afford the Designating Party an opportunity 28 to try to protect its confidentiality interests in the court from which the subpoena or order issued. Case No. 2:20-cv-03821 TJH(Ex) 13 27 STIPULATED PROTECTIVE ORDER 1 the subpoena or court order shall not produce any information designated in this 2 action as “CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ 3 EYES ONLY” before a determination by the court from which the subpoena or 4 order issued, unless the Party has obtained the Designating Party’s permission. The 5 Designating Party shall bear the burden and expense of seeking protection in that 6 court of its confidential material – and nothing in these provisions should be 7 construed as authorizing or encouraging a Receiving Party in this action to disobey 8 a lawful directive from another court. 9 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 10 PRODUCED IN THIS LITIGATION 11 (a) The terms of this Order are applicable to information produced by a 12 Non-Party in this action and designated as “CONFIDENTIAL,” or “HIGHLY 13 CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Such information produced by 14 Non-Parties in connection with this litigation is protected by the remedies and relief 15 provided by this Order. Nothing in these provisions should be construed as 16 prohibiting a Non-Party from seeking additional protections. 17 (b) In the event that a Party is required, by a valid discovery request, to 18 produce a Non-Party’s confidential information in its possession, and the Party is 19 subject to an agreement with the Non-Party not to produce the Non-Party’s 20 confidential information, then the Party shall: 21 1. promptly notify in writing the Requesting Party and the Non- 22 Party that some or all of the information requested is subject to a 23 confidentiality agreement with a Non-Party; 24 2. promptly provide the Non-Party with a copy of the Protective 25 Order in this litigation, the relevant discovery request(s), and a reasonably 26 specific description of the information requested; and 27 28 3. make the information requested available for inspection by the Non-Party. 14 STIPULATED PROTECTIVE ORDER Case No. 2:20-cv-03821 TJH(Ex) 1 (c) If the Non-Party fails to object or seek a protective order from this 2 court within 14 days of receiving the notice and accompanying information, the 3 Receiving Party may produce the Non-Party’s confidential information responsive 4 to the discovery request. If the Non-Party timely seeks a protective order, the 5 Receiving Party shall not produce any information in its possession or control that 6 is subject to the confidentiality agreement with the Non-Party before a 7 determination by the court.3 Absent a court order to the contrary, the Non-Party 8 shall bear the burden and expense of seeking protection in this court of its Protected 9 Material. 10 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 11 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 12 Protected Material to any person or in any circumstance not authorized under this 13 Protective Order, the Receiving Party must immediately (a) notify in writing the 14 Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve 15 all unauthorized copies of the Protected Material, (c) inform the person or persons 16 to whom unauthorized disclosures were made of all the terms of this Order, and (d) 17 request such person or persons to execute the “Acknowledgment and Agreement to 18 Be Bound” that is attached hereto as Exhibit A. 19 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 20 PROTECTED MATERIAL 21 When a Producing Party gives notice to Receiving Parties that certain 22 inadvertently produced material is subject to a claim of privilege or other 23 protection, the obligations of the Receiving Parties are those set forth in Federal 24 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify 25 whatever procedure may be established in an e-discovery order that provides for 26 27 3 The purpose of this provision is to alert the interested parties to the existence of confidentiality rights of a Non-Party and to afford the Non-Party an opportunity to 28 protect its confidentiality interests in this court. Case No. 2:20-cv-03821 TJH(Ex) 15 STIPULATED PROTECTIVE ORDER 1 production without prior privilege review. Pursuant to Federal Rule of Evidence 2 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure 3 of a communication or information covered by the attorney-client privilege or work 4 product protection, the parties may incorporate their agreement in a stipulated 5 protective order submitted to the court. 6 12. MISCELLANEOUS 7 12.1 Right to Further Relief. Nothing in this Order abridges the right of any 8 person to seek its modification by the court in the future. 9 12.2 Right to Assert Other Objections. No Party waives any right it 10 otherwise would have to object to disclosing or producing any information or item 11 on any ground not addressed in this Protective Order. Similarly, no Party waives 12 any right to object on any ground to use in evidence of any of the material covered 13 by this Protective Order. 14 12.3 Export Control. Disclosure of Protected Material shall be subject to all 15 applicable laws and regulations relating to the export of technical data contained in 16 such Protected Material, including the release of such technical data to foreign 17 persons or nationals in the United States or elsewhere. The Producing Party shall be 18 responsible for identifying any such controlled technical data, and the Receiving 19 Party shall take measures necessary to ensure compliance. 20 12.4 Filing Protected Material. Without written permission from the 21 Designating Party or a court order secured after appropriate notice to all interested 22 persons, a Party may not file in the public record in this action any Protected 23 Material. A Party that seeks to file under seal any Protected Material must comply 24 with any applicable Local Rules. Protected Material may only be filed under seal 25 pursuant to a court order authorizing the sealing of the specific Protected Material 26 at issue. 27 13. FINAL DISPOSITION 28 Within 60 days after the final disposition of this action, as defined in Section 16 STIPULATED PROTECTIVE ORDER Case No. 2:20-cv-03821 TJH(Ex) 1 4, each Receiving Party must return all Protected Material to the Producing Party or 2 destroy such material. As used in this subdivision, “all Protected Material” includes 3 all copies, abstracts, compilations, summaries, and any other format reproducing or 4 capturing any of the Protected Material. Whether the Protected Material is returned 5 or destroyed, the Receiving Party must submit a written certification to the 6 Producing Party (and, if not the same person or entity, to the Designating Party) by 7 the 60 day deadline that affirms that the Receiving Party has not retained any 8 copies, abstracts, compilations, summaries or any other format reproducing or 9 capturing any of the Protected Material. Notwithstanding this provision, Counsel 10 are entitled to retain an archival copy of all pleadings, motion papers, trial, 11 deposition, and hearing transcripts, legal memoranda, correspondence, deposition 12 and trial exhibits, expert reports, attorney work product, and consultant and expert 13 work product, even if such materials contain Protected Material. Any such archival 14 copies that contain or constitute Protected Material remain subject to this Protective 15 Order as set forth in Section 4. 16 IT IS SO STIPULATED THROUGH COUNSEL OF RECORD. 17 DATED: September 10, 2020 STANLEY M. GIBSON GREGORY S. CORDREY 18 REMI SALTER JEFFER MANGELS BUTLER & MITCHELL LLP 19 20 21 By: /s/ Gregory S. Cordrey GREGORY S. CORDREY Attorneys for Plaintiff Theragun, Inc. 22 DATED: September 10, 2020 ALFRED SHAUMYAN J. BENNETT CLARK ELLEN E. WHITEHORN 24 MATTHEW G. MINDER BRYAN CAVE LEIGHTON PAISNER LLP 25 By: /s/ Alfred Shaumyan (with permission) 26 ALFRED SHAUMYAN 27 Attorneys for Defendants Complete Recovery, Revolution Hustle LLC and Elevate Brands, LLC 28 23 17 STIPULATED PROTECTIVE ORDER Case No. 2:20-cv-03821 TJH(Ex) 1 IT IS SO ORDERED. 2 DATED: 9/14/20 3 /S/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 STIPULATED PROTECTIVE ORDER Case No. 2:20-cv-03821 TJH(Ex) 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 4 I, [print or type full name], of [print or type full address], declare under penalty of 5 6 7 8 9 10 11 12 13 14 perjury that I have read in its entirety and understand the Stipulated Protective Order that was issued by the United State District Court for the Central District of California on Recovery, et al., Case No. 2:20-cv-03821 TJH(Ex). I agree to comply with and to be bound by all the term of tis 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 15 16 17 18 for the Central District of California for enforcing the terms of this Stipulated Protective Order, even if such enforcement proceeding occur after termination of this action. I hereby appoint 19 22 23 24 [print or type full name] of [print or type full address and telephone number] as 20 21 [date] in the case of Theragun, Inc. v. Complete my California agent for service of process in connection with this action or any proceeding related to enforcement of this Stipulated Protective Order. Date: City and State where sworn and signed: 25 26 Printed Name: 27 28 Signature: 2 STIPULATED PROTECTIVE ORDER Case No. 2:20-cv-03821 TJH(Ex)

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?