AirDoctor, LLC v. Lonni, Inc. et al

Filing 76

PROTECTIVE ORDER by Magistrate Judge Alka Sagar re Stipulation for Protective Order 75 . (see document for details) (hr)

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EPSTEIN DRANGEL LLP
Peter J. Farnese (SBN 251204)
[e-mail]
700 South Flower Street, Suite 1000
Los Angeles, CA 90017
Telephone: [phone]
Facsimile: 310-388-1232
Ashly E. Sands (pro hac vice)
[e-mail]
Danielle Futterman (pro hac vice)
[e-mail]
60 East 42nd Street, Suite 1250
New York, NY 10165
Telephone: [phone]
Facsimile: 212-292-5391
Attorneys for Plaintiff
GLACIER LAW LLP
Tianyu Ju
[e-mail]
251 South Lake Avenue, Suite 910
Pasadena, CA 91101
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendants

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA
AIRDOCTOR, LLC
CASE NO. 2:23-cv-00353-GW (ASx)
Plaintiff

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v.

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LONNI, INC.,
SHENZHENSHIDAZHANPENGTUHULI
ANWANGYOUXIANGONGSI and JOBA
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Defendants
1. PURPOSES AND LIMITATIONS

PROTECTIVE ORDER

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

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or private information for which special protection from public disclosure and from

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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 the

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court to file material under seal.

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1.1 GOOD CAUSE STATEMENT

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This action is likely to involve trade secrets, customer and pricing lists and other

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valuable research, development, commercial, financial, technical and/or proprietary

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information for which special protection from public disclosure and from use for any

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purpose other than prosecution of this action is warranted. Such confidential and

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proprietary materials and information consist of, among other things, confidential

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business or financial information, information regarding confidential business

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practices, or other confidential research, development, or commercial information

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(including information implicating privacy rights of third parties), 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 are entitled to keep

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confidential, to ensure that the parties are permitted reasonable necessary uses of

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such material in preparation for and in the conduct of trial, to address their handling

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

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

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

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designated without a good faith belief that it has been maintained in a confidential,

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

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record of this case.

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Additionally, here, there is a need for a two-tiered, attorneys’ eyes only

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protective order that designates certain material as “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY”. See Elements Spirits, Inc. v. Iconic Brands, Inc., Civ.

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No. CV 15-02692 DDP(AGRx), 2016 WL 2642206, at *1–*2 (C.D. Cal. May 9,

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2016) (holding that protective order with attorneys’ eyes only designation was

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warranted to protect party’s confidential information) (citing Nutratech, Inc. v.

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Syntech Int’l, Inc., 242 F.R.D. 552, 555 (C.D. Cal. 2008); Brown Bag Software v.

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Symantec Corp., 960 F.2d 1465, 1470 (9th Cir. 1992)).

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2. DEFINITIONS

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2.1 Action: this pending federal lawsuit, AirDoctor, LLC v. Lonni, Inc. et al.,
Case No. 2:23-cv-00353-GW-AS.

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2.2 Challenging Party: a Party (as defined herein) or Non-Party (as defined

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herein) that challenges the designation of information or items under this

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Stipulated Protective Order.

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2.3 “CONFIDENTIAL” Information or Items: information (regardless of how it

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

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

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Good Cause Statement.

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2.4 “CONFIDENTIAL – AEO” Information or Items: information or items that

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is/are extremely confidential and/or sensitive, the disclosure of which to any
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other Party or Non-Party would create a substantial risk of serious harm,

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including competitive injury, that could not be avoided by less restrictive

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means.

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2.5 Counsel: Outside Counsel of Record (as defined herein) and In-House
Counsel (as defined herein), as well as their support staff.

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2.6 Designating Party: a Party or Non-Party that designates information or items

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that it produces in disclosures or in responses to discovery as

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“CONFIDENTIAL” or “CONFIDENTIAL - AEO”.

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2.7 Disclosure or Discovery Material: all items or information, regardless of the

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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

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produced or generated in disclosures or responses to discovery in this matter.

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2.8 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

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serve as an Expert or as a consultant in this Action.

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

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

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outside counsel.

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

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legal entity not named as a Party to this action, including support staff.

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2.11 Outside Counsel of Record: attorneys who are not employees of a Party to

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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

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law firm, which has appeared on behalf of that Party, including support staff.

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2.12 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

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(and their support staff).

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

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2.14 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

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medium) and their employees and subcontractors.

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2.15 Protected Material: any Disclosure or Discovery Material that is designated
as “CONFIDENTIAL” or “CONFIDENTIAL - AEO”.
2.16 Receiving Party: a Party that receives Disclosure or Discovery Material from
a Producing Party.
3. SCOPE

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The protections conferred by this Stipulated Protective 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 or information that is otherwise based in whole or in part on

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

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

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Counsel that might reveal Protected Material.

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Any use of Protected Material at trial shall be governed by the orders of the

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trial judge. This Stipulated Protective Order does not govern the use of Protected

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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 Stipulated Protective Order shall remain in effect until a Designating

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Party agrees otherwise in writing or a court order otherwise directs. Final disposition

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

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

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and 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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5.1 Exercise of Restraint and Care in Designating Material for Protection. Each

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

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this Stipulated Protective Order must take care to limit any such designation

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to specific material that qualifies under the appropriate standards. The

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Designating Party must designate for protection only those parts of material,

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documents, items or oral or written communications that qualify so that other

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portions of the material, documents, items or oral or written communications

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

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ambit of this Stipulated Protective Order.

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5.2 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

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improper purpose (e.g., to unnecessarily encumber the case development

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process or to impose unnecessary expenses and burdens on other parties) may

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expose the Designating Party to sanctions. If it comes to a Designating

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Party’s attention that information or items that it designated for protection do

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not qualify for protection, that Designating Party must promptly notify all

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other Parties that it is withdrawing the inapplicable designation.

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5.3 Manner and Timing of Designations. Except as otherwise provided in this

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Order (see, e.g., second paragraph of section 5.3.1 below), or as otherwise

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stipulated or ordered, Disclosure or Discovery Material that qualifies for

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protection under this Stipulated Protective Order must be clearly so

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designated before the material is disclosed or produced.

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Designation in conformity with this Order requires:

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5.3.1 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

“CONFIDENTIAL
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-

AEO”

(hereinafter

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“CONFIDENTIAL Legend”), to each page that contains protected material.

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If only a portion or portions of the material on a page qualifies for

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protection, the Producing Party also must clearly identify the protected

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

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

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inspection need not designate them for protection until after the inspecting

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Party has indicated which documents it would like copied and produced.

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During the inspection and before the designation, all of the material made

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available for inspection shall be deemed “CONFIDENTIAL.” After the

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inspecting Party has identified the documents it wants copied and produced,

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

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qualify for protection under this Stipulated Protective Order. Then, before

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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

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

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Party also must clearly identify the protected portion(s) (e.g., by making

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appropriate markings in the margins).

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5.3.3 for testimony given in depositions, that the Designating Party make the
designation of Protected Material before the close of the deposition.

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5.3.4 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

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

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stored the CONFIDENTIAL Legend. If only a portion or portions of the

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information warrants protection, the Producing Party, to the extent

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practicable, shall identify the protected portion(s).

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5.4 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure

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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 Stipulated
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Protective Order for such material. Upon timely correction of a designation,

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the Receiving Party must make reasonable efforts to assure that the material

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is treated in accordance with the provisions of this Stipulated Protective

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Order.

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6. CHALLENGING CONFIDENTIALITY DESIGNATIONS

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

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of Protected Material 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 informal dispute

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resolution process set forth in the Court's Procedures and Schedules. See

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http://www.cacd.uscourts.gov/honorable-alka-sagar.

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6.2.1 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

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improper purpose (e.g., to harass or impose unnecessary expenses and

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burdens on other parties) may expose the Challenging Party to sanctions.

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Unless the Designating Party has waived or withdrawn the confidentiality

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

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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

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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

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

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Such Protected Material may be disclosed only to the categories of persons

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and under the conditions described in this Stipulated Protective Order. When

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the Action has been terminated, a Receiving Party must comply with the

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provisions of section 13 below (FINAL DISPOSITION).

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7.1.1 Protected Material must be stored and maintained by a Receiving Party
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at a location and in a secure manner that ensures that access is limited to the

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persons authorized under this Stipulated Protective Order.

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7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

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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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the Receiving Party’s Outside Counsel of Record in this Action, as well

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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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7.2.2 the officers, directors, and employees (including In-House Counsel) of

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the Receiving Party to whom disclosure is reasonably necessary for this

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Action;

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7.2.3 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

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

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7.2.4 the Court and its personnel;

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7.2.5 Court reporters and their staff;

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7.2.6 professional jury or trial consultants, mock jurors, and Professional

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Vendors to whom disclosure is reasonably necessary for this Action and

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who have signed the “Acknowledgment and Agreement to Be Bound”

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(Exhibit A hereto);

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7.2.7 the author of the CONFIDENTIAL Information or Items or a custodian

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or other person who otherwise possessed or knew the CONFIDENTIAL

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Information or Items;

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7.2.8 during their depositions, witnesses, and attorneys for witnesses, in the

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

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deposing Party requests that the witness sign the “Acknowledgment and

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Agreement to Be Bound” form attached as Exhibit A hereto; and (2) they
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will not be permitted to keep any CONFIDENTIAL Information or Items

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unless they sign the “Acknowledgment and Agreement to Be Bound”

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form attached as Exhibit A hereto, unless otherwise agreed by the

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Designating Party or ordered by the Court. Pages of transcribed

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deposition testimony or exhibits to depositions that reveal Protected

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Material may be separately bound by the court reporter and may not be

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disclosed to anyone except as permitted under this Stipulated Protective

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Order;

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7.2.9 any mediator or settlement officer, and their supporting personnel,

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mutually agreed upon by any of the Parties engaged in settlement

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discussions; and

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7.2.10 any insurance carrier and/or its representatives to whom disclosure is

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reasonably necessary, provided that they sign the “Acknowledgment and

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Agreement to Be Bound” form attached as Exhibit A hereto.

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7.3 Disclosure of “CONFIDENTIAL - AEO” Information or Items. Unless

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

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Party, a Receiving Party may disclose “CONFIDENTIAL - AEO”

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Information or Items only to those individuals identified in 7.2.1, 7.2.3-7.2.7

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and 7.2.9-7.2.10, except that a Receiving Party may in good faith request that

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the Designating Party consent in writing to the disclosure of particular

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material designated “CONFIDENTIAL - AEO” Information or Items to one

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or more representatives of the Receiving Party to whom disclosure is

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reasonably necessary for this Action. The Receiving Party may seek leave of

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court to designate such representatives if the Receiving Party believes that

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the Designating Party has unreasonably withheld such consent. Before

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receiving any “CONFIDENTIAL - AEO” Information or Items, each

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designated representative shall sign the “Acknowledgment and Agreement to

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Be Bound” (Exhibit A).
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8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

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OTHER LITIGATION

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8.1 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 Protected Materials designated in this Action,

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that Party must:

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8.1.1 promptly notify in writing the Designating Party. Such notification shall
include a copy of the subpoena or court order;

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8.1.2 promptly notify in writing the party who caused the subpoena or order to

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

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the subpoena or order is subject to this Stipulated Protective Order. Such

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notification shall include a copy of this Stipulated Protective Order; and

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8.1.3 cooperate with respect to all reasonable procedures sought to be pursued

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by the Designating Party whose Protected Material may be affected.

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8.2 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 Protected Material before

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a determination by the court from which the subpoena or order issued, unless

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the Party has obtained the Designating Party’s permission. The Designating

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

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its Protected Material and nothing in these provisions should be construed as

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

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lawful directive from another court.

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9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED

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IN THIS LITIGATION

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9.1 The terms of this Stipulated Protective Order are applicable to information

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produced

by

a

Non-Party

in

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“CONFIDENTIAL” or “CONFIDENTIAL - AEO”. Such information

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

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remedies and relief provided by this Stipulated Protective Order. Nothing in
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this

Action

and

designated

as

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these provisions should be construed as prohibiting a Non-Party from seeking

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additional protections.

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9.2 In the event that a Party is required, by a valid discovery request, to produce

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a Non-Party’s CONFIDENTIAL Information or Items in its possession, and

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the Party is subject to an agreement with the Non-Party not to produce the

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Non-Party’s CONFIDENTIAL Information or Items, then the Party shall:

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9.2.1 promptly notify in writing the Requesting Party and the Non-Party that

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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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9.2.2 promptly provide the Non-Party with a copy of the Stipulated Protective

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Order in this Action, the relevant discovery request(s), and a reasonably

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specific description of the information requested; and

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9.2.3 make the information requested available for inspection by the NonParty, if requested.

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9.3 If the Non-Party fails to seek a protective order from the relevant court within

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14 days of receiving the notice and accompanying Information, the Receiving

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Party may produce the Non-Party’s CONFIDENTIAL Information or Items

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responsive to the discovery request. If the Non-Party timely seeks a protective

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order, the Receiving Party shall not produce any information in its possession

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or control that is subject to the confidentiality agreement with the Non-Party

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before a determination by the court. Absent a court order to the contrary, the

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Non-Party shall bear the burden and expense of seeking protection in this

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court of its Protected Material.

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10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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10.1 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

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

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notify in writing the Designating Party of the unauthorized disclosures, (b)
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use its best efforts to retrieve all unauthorized copies of the Protected

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Material, (c) inform the person or persons to whom unauthorized disclosures

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were made of all the terms of this Stipulated Protective Order, and (d) request

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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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11.1 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

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protection, the obligations of the Receiving Parties are those set forth in

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Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended

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to modify whatever procedure may be established in an e-discovery order that

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provides for production without prior privilege review. Pursuant to Federal

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Rule of Evidence 502(d) and (e), insofar as the Parties reach an agreement on

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the effect of disclosure of a communication or information covered by the

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attorney-client privilege or work product protection, the Parties may

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incorporate their agreement in the stipulated protective order submitted to the

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court.

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12. MISCELLANEOUS
12.1 Right to Further Relief. Nothing in this Stipulated Protective 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 Protective

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

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

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in this Stipulated Protective Order. Similarly, no Party waives any right to

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object on any ground to use in evidence of any of the material covered by this

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Stipulated Protective Order.

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12.3 Filing Protected Material. A Party that seeks to file under seal any Protected
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Material must comply with Civil Local Rule 79-5. Protected Material may

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

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

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Material under seal is denied by the Court, then the Receiving Party may file

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the information in the public record unless otherwise instructed by the Court.

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13.

FINAL DISPOSITION

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13.1 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

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return all Protected Material to the Producing Party or destroy such material.

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

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

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capturing any of the Protected Material. Whether the Protected Material is

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returned or destroyed, the Receiving Party must submit a written certification

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to the Producing Party (and, if not the same person or entity, to the

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Designating Party) by the 60 day deadline that (1) identifies (by category,

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where appropriate) all the Protected Material that was returned or destroyed

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

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

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the Protected Material. Notwithstanding this provision, Counsel are entitled

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

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and hearing transcripts, legal memoranda, correspondence, deposition and

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

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work product, even if such materials contain Protected Material. Any such

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archival copies that contain or constitute Protected Material remain subject

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to this Protective Order as set forth in Paragraph 4.

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14. Any violation of this Stipulated Protective Order may be punished by any and all

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

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monetary sanctions.
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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
Respectfully Submitted,

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EPSTEIN DRANGEL LLP

DATED: March 28, 2024

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BY: /s/Peter J. Farnese
Peter Farnese
Ashly E. Sands, pro hac vice
Attorneys for Plaintiff

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GLACIER LAW LLP

DATED: March 28, 2024

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BY: /s/Tianyu Ju
Tianyu Ju
Attorneys for Defendant

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

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DATED: March 28, 2024

/ s / Sagar
__________________________________
Honorable Alka Sagar
United States Magistrate Judge

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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[print

_____________________________

or

type

full

name],

of

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I,

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_________________ [print or type full address], declare under penalty of perjury that

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I have read in its entirety and understand the Stipulated Protective Order that was

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issued

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_______________ in the case of AirDoctor, LLC v. Lonni, Inc. et al., 2:23-

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cv-00353-GW(ASx), I agree to comply with and to be bound by all the terms of this

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Stipulated Protective Order and I understand and acknowledge that failure to so

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comply could expose me to sanctions and punishment in the nature of contempt. I

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solemnly promise that I will not disclose in any manner any information or item

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that is subject to this Stipulated Protective Order to any person or entity except in

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strict compliance with the provisions of this Order.

by

the

US

District

Court,

Central

District

of

California,

on

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I further agree to submit to the jurisdiction of the US District Court, Central District

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of California, for enforcing the terms of this Stipulated Protective Order, even if such

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

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__________________________

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_______________________________________ [print or type full address and

21

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

22

this action or any proceedings related to enforcement of this Stipulated Protective

23

Order.

24

Date: ______________________________________

25

City and State where sworn and signed: _________________________________

[print

or

26
27

Printed name: _______________________________

28

Signature: __________________________________
16

type

full

name]

of