K2 Sports LLC v. Ride the Slopes LLC et al

Filing 28

STIPULATED PROTECTIVE ORDER by Magistrate Judge Rozella A. Oliver re Stipulation for Protective Order 27 (dml)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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K2 SPORTS, LLC dba RIDE
SNOWBOARDS, an Indiana limited
liability company,

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Plaintiff,

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Case No. 2:22-cv-02078-RGK-RAO
STIPULATED PROTECTIVE
ORDER1

vs.
RIDE THE SLOPES LLC, a California
limited liability company; and KENJI
BROOKS CHANDLER, an individual,

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Defendants.

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This Stipulated Protective Order is substantially based on the model protective order provided
under Magistrate Judge Rozella A. Oliver’s Procedures.

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A. PURPOSES AND LIMITATIONS
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

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disclosure and from use for any purpose other than prosecuting this litigation may

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be warranted. Accordingly, the parties hereby stipulate to and petition the Court to

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enter the following Stipulated Protective Order (this “Order”). The parties

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acknowledge that this Order does not confer blanket protections on all disclosures or

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responses to discovery and that the protection it affords from public disclosure and

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use extends only to the limited information or items that are entitled to confidential

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treatment under the applicable legal principles. The availability of protection

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pursuant to this Order does not preclude a party from withholding information

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protected by any applicable privilege.

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B. GOOD CAUSE STATEMENT

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This action is likely to involve disclosure of a Party or Non-Party’s (a)

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financial or accounting information, including but not limited to revenue, cost of

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goods sold, volume of sales, and profits; (b) commercially sensitive internal

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communications, information, business practices or policies; (c) business

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negotiations, transactions, and dealings with third parties; (d) information about

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intellectual property and confidential competitive or strategic initiatives; (e) third-

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party commercially sensitive and confidential information; and (f) information

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otherwise generally unavailable to the public, or which may be privileged or

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otherwise protected from disclosure under state or federal statutes, court rules, case

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decisions, or common law. Accordingly, to expedite the flow of information, to

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facilitate the prompt resolution of disputes over confidentiality of discovery

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materials, to adequately protect information the Parties and Non-Parties are entitled

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

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uses of such material in preparation for and in the conduct of trial, to address their
STIPULATED PROTECTIVE ORDER

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

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

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information will not be designated as confidential for tactical reasons and that

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nothing be so designated without a good faith belief that it has been maintained in a

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

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of the public record of this Action.

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C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL

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The parties further acknowledge, as set forth in Section 12.3, below, that this

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Order does not entitle them to file confidential information under seal; Local Civil

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Rule 79-5 sets forth the procedures that must be followed and the standards that will

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be applied when a party seeks permission from the court to file material under seal.

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There is a strong presumption that the public has a right of access to judicial

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proceedings and records in civil cases. In connection with non-dispositive motions,

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good cause must be shown to support a filing under seal. See Kamakana v. City and

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County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006); Phillips v. Gen. Motors

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Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002); Makar-Welbon v. Sony Electrics,

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Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders

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require good cause showing), and a specific showing of good cause or compelling

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reasons with proper evidentiary support and legal justification, must be made with

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respect to Protected Material that a party seeks to file under seal. The parties’ mere

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designation of Disclosure or Discovery Material as CONFIDENTIAL does not—

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without the submission of competent evidence by declaration, establishing that the

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material sought to be filed under seal qualifies as confidential, privileged, or

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otherwise protectable—constitute good cause.

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Further, if a party requests sealing related to a dispositive motion or trial, then

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compelling reasons, not only good cause, for the sealing must be shown, and the

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relief sought shall be narrowly tailored to serve the specific interest to be protected.
STIPULATED PROTECTIVE ORDER

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See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). For

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each item or type of information, document, or thing sought to be filed or introduced

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under seal in connection with a dispositive motion or trial, the party seeking

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protection must articulate compelling reasons, supported by specific facts and legal

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justification, for the requested sealing order. Again, competent evidence supporting

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the application to file documents under seal must be provided by declaration.

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Parties must protect confidential information by redacting confidential

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information that the Court does not need to consider in conjunction with the

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applicable filing. Any document that is not confidential, privileged, or otherwise

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protectable in its entirety will not be filed under seal if the confidential portions can

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be redacted. If documents can be redacted, then a redacted version for public

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viewing, omitting only the confidential, privileged, or otherwise protectable portions

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of the document shall be filed. Any application that seeks to file documents under

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seal in their entirety should include an explanation of why redaction is not feasible.

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2.

DEFINITIONS

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2.1

Action: this pending federal lawsuit.

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2.2

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

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designation of information or items under this Order.
2.3

“CONFIDENTIAL” Information or Items: information (regardless of

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how it is generated, stored or maintained) or tangible things that qualify for

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protection under Federal Rule of Civil Procedure 26(c), and as specified above in

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the Good Cause Statement.

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2.4

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.”
STIPULATED PROTECTIVE ORDER

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2.6

Disclosure or Discovery Material: all items or information, regardless

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of the medium or manner in which it is generated, stored, or maintained (including,

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among other things, testimony, transcripts, and tangible things) that are produced or

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generated in disclosures or responses to discovery in this matter.

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2.7

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.

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2.8

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

House Counsel does not include Outside Counsel of Record or any other outside
counsel.
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Non-Party: any natural person, partnership, corporation, association or

other legal entity not named as a Party to this action.
2.10 Outside Counsel of Record: attorneys who are not employees of a

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

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

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that 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, Experts, and Outside Counsel of Record (and their support

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staffs).

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2.12 Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this Action.

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2.13 Professional Vendors: persons or entities that provide litigation

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support 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 Disclosure or Discovery Material that is
designated as “CONFIDENTIAL.”

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STIPULATED PROTECTIVE ORDER

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2.15 Receiving Party: a Party that receives Disclosure or Discovery

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Material from a 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

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

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compilations of Protected Material; and (3) any testimony, conversations, or

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presentations by Parties, their Counsel, or Non-Parties that might reveal Protected

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Material.

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Any use of Protected Material at trial shall be governed by the orders of the
trial judge. This Order does not govern the use of Protected Material at trial.

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4.

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DURATION
Once a case proceeds to trial, information that was designated as

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CONFIDENTIAL or maintained pursuant to this Order used or introduced as an

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exhibit at trial becomes public and will be presumptively available to all members of

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the public, including the press, unless compelling reasons supported by specific

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factual findings to proceed otherwise are made to the trial judge in advance of the

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trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause” showing for

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sealing documents produced in discovery from “compelling reasons” standard when

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merits-related documents are part of court record). Accordingly, the terms of this

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Order do not extend beyond the commencement of the trial.

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5.

DESIGNATING PROTECTED MATERIAL
5.1

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

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this Order must take care to limit any such designation to specific material that
STIPULATED PROTECTIVE ORDER

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

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protection only those parts of material, documents, items or oral or written

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

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or communications for which protection is not warranted are not swept unjustifiably

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within the ambit of 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

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Party 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

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, Disclosure or Discovery Material that qualifies for protection

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under this Order must be clearly so designated before the material is disclosed or

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produced.

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Designation in conformity with this Order requires:

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(a) 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” (hereinafter “CONFIDENTIAL legend”), to each page that

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contains protected material. If only a portion of the material on a page qualifies for

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protection, the Producing Party also must clearly identify the protected portion(s)

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(e.g., by making appropriate markings on the page). With respect to documents

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containing Protected Material produced in native format, the Designating Party shall

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include the appropriate designation at the end of the filename for each document.
STIPULATED PROTECTIVE ORDER

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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

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

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deemed “CONFIDENTIAL.” After the inspecting Party has identified the

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documents it wants copied and produced, the Producing Party must determine which

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documents, or portions thereof, qualify for protection under this Order. Then,

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before producing the specified documents, the Producing Party must affix the

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“CONFIDENTIAL legend” to each page that contains Protected Material. If only a

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portion of the material on a page qualifies for protection, the Producing Party also

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must clearly identify the protected portion(s) (e.g., by making appropriate markings

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on the page).

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(b) for testimony given in depositions or in other pretrial proceedings, the

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Designating Party identifies the protected testimony on the record, during the

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deposition, hearing, or other proceeding, without prejudice to their right to so

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designate other testimony after reviewing the transcript. Any Party or Non-Party

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may, within 30 days after receiving the transcript of the deposition or other pretrial

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proceeding, designate portions of the transcript, or exhibits thereto, as confidential.

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Transcripts containing Protected Material shall have an obvious legend on the title

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page that the transcript contains Protected Material and the title page shall be

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followed by a list of all pages (including line numbers as appropriate) that have been

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designated as Protected Material and the level of protection being asserted by the

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Designating Party. The Designating Party shall inform the court reporter of these

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requirements. Any transcript that is prepared before the expiration of a 30-day

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period for designation shall be treated during that period as if it had been designated

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“CONFIDENTIAL” in its entirety, unless otherwise agreed.

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If a Party or Non-Party desires to protect confidential information at trial, the
issue should be addressed during the pre-trial conference.
STIPULATED PROTECTIVE ORDER

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

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

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

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legend “CONFIDENTIAL.” If only a portion or portions of the information

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warrants protection, the Producing Party, to the extent practicable, shall identify the

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protected portion(s).
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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

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the 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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6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges. Any Party or Non-Party may challenge a

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designation of confidentiality at any time that is consistent with the Court’s

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Scheduling Order.

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6.2

Meet and Confer. The Challenging Party shall initiate the dispute

resolution process under Local Rule 37.1 et seq.
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The burden of persuasion in any such challenge proceeding shall be on

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the Designating Party. Frivolous challenges, and those made for an improper

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purpose (e.g., to harass or impose unnecessary expenses and burdens on other

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parties) may expose the Challenging Party to sanctions. Unless the Designating

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Party has waived or withdrawn the confidentiality designation, all parties shall

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continue to afford the material in question the level of protection to which it is

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entitled under the Producing Party’s designation until the Court rules on the

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challenge.

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STIPULATED PROTECTIVE ORDER

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7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

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

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Receiving Party must comply with the provisions of section 13 below (FINAL

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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.

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7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless

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otherwise ordered by the court or permitted in writing by the Designating Party, a

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Receiving Party may disclose any information or item designated

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“CONFIDENTIAL” only to:

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(a) the Receiving Party’s Outside Counsel of Record in this Action, as

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well as employees of said Outside Counsel of Record to whom it is reasonably

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necessary to disclose the information for this Action;

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(b) the officers, directors, and employees (including House Counsel) of

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the Receiving Party to whom disclosure is reasonably necessary for this Action;

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

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

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

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(d) the court and its personnel;

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(e) court reporters and their staff;

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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);
STIPULATED PROTECTIVE ORDER

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(g) the author or recipient of a document containing the information or a

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custodian or other person who otherwise possessed or knew the information;

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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 A hereto; and (2) they

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will 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

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

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as permitted under this Order; and
(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.

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8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

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IN OTHER LITIGATION

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

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that compels disclosure of any information or items designated in this Action as

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“CONFIDENTIAL,” that Party must:

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(a) promptly notify in writing the Designating Party. Such notification
shall include a copy of the subpoena or court order;
(b) promptly notify in writing the party who caused the subpoena or order

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to issue in the other litigation that some or all of the material covered by the

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subpoena or order is subject to this Order. Such notification shall include a copy of

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this Order; and

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(c) cooperate with respect to all reasonable procedures sought to be
pursued by the Designating Party whose Protected Material may be affected.

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STIPULATED PROTECTIVE ORDER

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

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the subpoena or court order shall not produce any information designated in this

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action as “CONFIDENTIAL” before a determination by the court from which the

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subpoena or order issued, unless the Party has obtained the Designating Party’s

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permission. The Designating Party shall bear the burden and expense of seeking

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protection in that court of its confidential material and nothing in these provisions

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should be construed as authorizing or encouraging a Receiving Party in this Action

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to disobey a lawful directive from another court.

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9.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
PRODUCED IN THIS LITIGATION
(a) The terms of this Order are applicable to information produced by a

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Non-Party in this Action and designated as “CONFIDENTIAL.” Such information

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produced by Non-Parties in connection with this litigation is protected by the

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remedies and relief provided by this Order. Nothing in these provisions should be

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construed as prohibiting a Non-Party from seeking additional protections.

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

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produce a Non-Party’s confidential information in its possession, and the Party is

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subject to an agreement with the Non-Party not to produce the Non-Party’s

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confidential information, then the Party shall:

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

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

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agreement with a Non-Party;

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(2) promptly provide the Non-Party with a copy of this Order in this

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Action, the relevant discovery request(s), and a reasonably specific description of

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the information requested; and

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(3) make the information requested available for inspection by the
Non-Party, if requested.
STIPULATED PROTECTIVE ORDER

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

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

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

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

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

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

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

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expense of seeking protection in this court of its Protected Material.

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10.

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UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

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

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Order, the Receiving Party must immediately (a) notify in writing the Designating

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Party of the unauthorized disclosures, (b) use its best efforts to retrieve all

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

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whom unauthorized disclosures were made of all the terms of this Order, and (d)

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request such person or persons to execute the “Acknowledgment and Agreement to

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Be Bound” that is attached hereto as Exhibit A.

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11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

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PROTECTED MATERIAL

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When a Producing Party gives notice to Receiving Parties that certain

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

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

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

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procedure may be established in an e-discovery order that provides for production

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without prior privilege review. This Order invokes the protections afforded by Fed.

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R. Evid. 502(d). As provided under Fed. R. Evid. 502(d), the disclosure of
STIPULATED PROTECTIVE ORDER

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privileged material in connection with this Action will be deemed unintentional and

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inadvertent. Thus, any Disclosure or Discovery Material provided in this proceeding

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shall not, for the purposes of this Action or any other federal or state proceeding,

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constitute a waiver by the Producing Party of any privilege applicable to that

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Disclosure or Discovery Material, including the attorney-client privilege, attorney

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work-product protection, or any other privilege or protection recognized by law.

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12.

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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.

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

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Order, no Party waives any right it otherwise would have to object to disclosing or

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producing any information or item on any ground not addressed in this Order.

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Similarly, no Party waives any right to object on any ground to use in evidence of

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any of the material covered by this Order.

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12.3 Filing Protected Material. A Party that seeks to file under seal any

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Protected Material must comply with Local Civil Rule 79-5. Protected Material

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may only be filed under seal pursuant to a court order authorizing the sealing of the

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specific Protected Material at issue. If a Party’s request to file Protected Material

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under seal is denied by the court, then the Receiving Party may file the information

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in the public record unless otherwise instructed by the court.

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13.

FINAL DISPOSITION
After the final disposition of this Action, as defined in paragraph 4, within 60

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days of a written request by the Designating Party, each Receiving Party must return

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all Protected Material to the Producing Party or destroy such material. As used in

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this subdivision, “all Protected Material” includes all copies, abstracts, compilations,

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summaries, and any other format reproducing or capturing any of the Protected
STIPULATED PROTECTIVE ORDER

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Material. Whether the Protected Material is returned or destroyed, the Receiving

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Party must submit a written certification to the Producing Party (and, if not the same

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person or entity, to the Designating Party) by the 60 day deadline that (1) identifies

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(by category, where appropriate) all the Protected Material that was returned or

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destroyed and (2) affirms that the Receiving Party has not retained any copies,

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

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of the Protected Material. Notwithstanding this provision, Counsel are entitled to

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retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing

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transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert

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reports, attorney work product, and consultant and expert work product, even if such

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materials contain Protected Material. Any such archival copies that contain or

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constitute Protected Material remain subject to this Order as set forth in Section 4

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(DURATION).

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STIPULATED PROTECTIVE ORDER

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14.

VIOLATION

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Any violation of this Order may be punished by appropriate measures including,

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without limitation, contempt proceedings and/or monetary sanctions.

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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DATED: July 27, 2022
By:/s/ Scott R. Commerson
Scott R. Commerson (SBN 227460)
Joel L. Richert (SBN 327116)
DAVIS WRIGHT TREMAINE LLP
865 South Figueroa Street, Suite 2400
Los Angeles, CA 90017

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Xiang Li (SBN 291587)
DAVIS WRIGHT TREMAINE LLP
920 Fifth Avenue, Suite 3300
Seattle, WA 98104-1610

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Attorneys for Plaintiff
K2 Sports, LLC dba RIDE Snowboards

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By:/s/ Sarah K. O’Brien
Thomas F. Nowland (SBN 236824)
Daniel A. Brodnax (SBN 266822)
Sarah K. O’Brien (SBN 299408)
LAW OFFICES OF THOMAS F.
NOWLAND
20241 SW Birch Street, Suite 203
Newport Beach, CA 92660

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Attorneys for Defendants
RIDE THE SLOPES LLC and KENJI
BROOKS CHANDLER

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
DATED: July 29, 2022
_____________________________________
HON. ROZELLA A. OLIVER, United States Magistrate Judge
STIPULATED PROTECTIVE ORDER

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Pursuant to Civil L.R. 5-4.3.4(a)(2)(i), the filer attests that all other
signatories listed, and on whose behalf this filing is submitted, concur in the filing’s
content and have authorized the filing.

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STIPULATED PROTECTIVE ORDER

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, __________________________ [print or type full name], of _________________

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[print or type full address], declare under penalty of perjury that I have read in its

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entirety and understand the Stipulated Protective Order (this “Order”) that was

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issued by the United States District Court for the Central District of California on

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_________________________ [date] in the case of K2 Sports LLC v. Ride the

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Slopes LLC (Case No. 2:22-cv-02078-RGK-RAO). I agree to comply with and to

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be bound by all the terms of this Order and I understand and acknowledge that

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failure to so comply could expose me to sanctions and punishment in the nature of

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contempt. I solemnly promise that I will not disclose in any manner any

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information or item that is subject to this Order to any person or entity except in

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strict compliance with the provisions of this Order.

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I further agree to submit to the jurisdiction of the United States District Court for the

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Central District of California for enforcing the terms of this Order, even if such

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enforcement proceedings occur after termination of this action. I hereby appoint

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__________________________ [print or type full name] of

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_______________________________________ [print or type full address and

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

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this action or any proceedings related to enforcement of this Order.

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Date: ______________________________________

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City and State where sworn and signed: _________________________________

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Printed name: _______________________________

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Signature: __________________________________

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STIPULATED PROTECTIVE ORDER

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