Eric Doyle et al v. FKA Distributing Co. LLC et al

Filing 64

PROTECTIVE ORDER by Magistrate Judge Stephanie S. Christensen re Stipulation for Protective Order 63 (tsn)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ERIC DOYLE and GABRIEL
CONTRERAS, individually and
on behalf of all similarly situated
persons,

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Plaintiff(s),

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v.

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Case No. 2:23-cv-10807-SPG-SSC
STIPULATED PROTECTIVE
ORDER1

FKA DISTRIBUTING CO., LLC
d/b/a HOMEDICS LLC, a
Michigan limited liability
company; WALMART INC., a
Delaware corporation; and A&D
ENGINEERING INC., a
Michigan corporation,

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Defendant(s).

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1.

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INTRODUCTION
1.1

Purposes and Limitations. Good cause exists for the entry of this

pretrial protective order because the documents that will be sought by the parties

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This Stipulated Protective Order is substantially based on the model
protective order provided under Magistrate Judge Stephanie S.
Christensen’s Procedures as of 24 July 2023.

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in this breach of warranty, unfair competition, and fraud action (relating to

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defendants’ blood pressure monitors) largely comprise confidential technology,

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customer information, sales information, business records, and medical records

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for which the parties derive significant value from keeping such information

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from the public. Discovery in this action is likely to involve production of

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confidential, proprietary, or private information for which special

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protection from public disclosure and from use for any purpose other

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than prosecuting this litigation may be warranted. Accordingly, the

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parties hereby stipulate to and petition the court to enter the following

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Stipulated Protective Order. The parties acknowledge that this Order

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does not confer blanket protections on all disclosures or responses to

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discovery and that the protection it affords from public disclosure and

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

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confidential treatment under the applicable legal principles.
1.2

Good Cause Statement.

This action is likely to involve trade secrets, customer and pricing
lists and other valuable research, development, commercial, financial,
technical and/or proprietary information for which special protection
from public disclosure and from use for any purpose other than
prosecution of this action is warranted. Such confidential and
proprietary materials and information consist of, among other things,

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proprietary product technology, confidential business or financial

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information, information regarding confidential business practices, or

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other confidential research, development, or commercial information

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(including information implicating privacy rights of third parties),

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information otherwise generally unavailable to the public, or which may

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be privileged or otherwise protected from disclosure under state or
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federal statutes, court rules, case decisions, or common law. Accordingly,

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to expedite the flow of information, to facilitate the prompt resolution of

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disputes over confidentiality of discovery materials, to adequately protect

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information the parties are entitled to keep confidential, to ensure that

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the parties are permitted reasonable necessary uses of such material in

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

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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

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parties that information will not be designated as confidential for tactical

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reasons and that nothing be so designated without a good faith belief

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that it has been maintained in a confidential, non-public manner, and
there is good cause why it should not be part of the public record of this
case.
Further, good cause exists for a two-tiered, attorney-eyes-only
protective order that designates certain material as “Highly
Confidential” since this case involves allegations against direct
competitors relating to each of defendants’ proprietary technology that

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may require production of highly confidential product design, financial,

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customer, and supplier information, the disclosure of which to the other

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parties would damage the disclosing party.

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1.3

Acknowledgment of Procedure for Filing Under Seal. The

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

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Stipulated Protective Order does not entitle them to file confidential

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

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must be followed and the standards that will be applied when a party

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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
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to judicial proceedings and records in civil cases. In connection with

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non-dispositive motions, good cause must be shown to support a filing

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under seal. See Kamakana v. City and Cnty. of Honolulu, 447 F.3d

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1172, 1176 (9th Cir. 2006), Phillips ex rel. Ests. of Byrd v. Gen. Motors

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

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

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protective orders require good cause showing), and a specific showing of

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good cause or compelling reasons with proper evidentiary support and

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legal justification, must be made with respect to Protected Material that

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a party seeks to file under seal. The parties’ mere designation of

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Disclosure or Discovery Material as CONFIDENTIAL ” or “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY” does not—without the
submission of competent evidence by declaration, establishing that the
material sought to be filed under seal qualifies as confidential,
privileged, or otherwise protectable—constitute good cause.
Further, if a party requests sealing related to a dispositive motion
or trial, then compelling reasons, not only good cause, for the sealing

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must be shown, and the relief sought shall be narrowly tailored to serve

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the specific interest to be protected. See Pintos v. Pac. Creditors Ass’n,

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605 F.3d 665, 677–79 (9th Cir. 2010). For each item or type of

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information, document, or thing sought to be filed or introduced under

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

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protection must articulate compelling reasons, supported by specific

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facts and legal justification, for the requested sealing order. Again,

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competent evidence supporting the application to file documents under

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seal must be provided by declaration.

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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

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portions can be redacted. If documents can be redacted, then a redacted

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version for public viewing, omitting only the confidential, privileged, or

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otherwise protectable portions of the document, shall be filed. Any

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application that seeks to file documents under seal in their entirety

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should include an explanation of why redaction is not feasible.

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2.

DEFINITIONS
2.1

Action: The above-captioned pending federal lawsuit.

2.2

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

designation of information or items under this Order.
2.3

“CONFIDENTIAL” Information or Items: information

(regardless of how it is generated, stored or maintained) or tangible

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things that qualify for protection under Rule 26(c) of the Federal Rules of

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Civil Procedure, and as specified above in the Good Cause Statement.

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2.4

Counsel: Outside Counsel of Record and House Counsel (as

well as their support staff).
2.5

Designating Party: a Party or Non-Party that designates

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information or items that it produces in disclosures or in responses to

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discovery as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY.”

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2.6

Direct Competitors: FKA DISTRIBUTING CO., LLC d/b/a

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HOMEDICS LLC, a Michigan limited liability company, is a direct

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competitor of A&D ENGINEERING INC., a Michigan corporation, and

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vice versa.

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2.7

Disclosure or Discovery Material: all items or information,

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regardless of the medium or manner in which it is generated, stored, or

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maintained (including, among other things, testimony, transcripts, and

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tangible things), that are produced or generated in disclosures or

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responses to discovery in this matter.

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2.8

Expert: a person with specialized knowledge or experience in

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a matter pertinent to the litigation who has been retained by a Party or

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its counsel to serve as an expert witness or as a consultant in this Action.

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2.9

Final Disposition: the later of (1) dismissal of all claims and

defenses in this Action, with or without prejudice; and (2) final judgment
herein after the completion and exhaustion of all appeals, rehearings,
remands, trials, or reviews of this Action, including the time limits for
filing any motions or applications for extension of time pursuant to
applicable law.
2.10 In-House Counsel: attorneys who are employees of a party to
this Action. In-House Counsel does not include Outside Counsel of
Record or any other outside counsel.
2.11 Non-Party: any natural person, partnership, corporation,
association, or other legal entity not named as a Party to this action.
2.12 Outside Counsel of Record: attorneys who are not employees

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

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this Action and have appeared in this Action on behalf of that party or

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are affiliated with a law firm which has appeared on behalf of that party,

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and includes support staff.

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

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directors, employees, consultants, retained experts, and Outside Counsel

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of Record (and their support staffs).

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

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2.15 Professional Vendors: persons or entities that provide

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litigation- support services (e.g., photocopying, videotaping, translating,

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preparing exhibits or demonstrations, and organizing, storing, or

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retrieving data in any form or medium) and their employees and

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subcontractors.

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2.16 Protected Material: any Disclosure or Discovery Material that

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is designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY.”

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2.17 Receiving Party: a Party that receives Disclosure or Discovery
Material from a Producing Party.
2.18 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
Information or Items: extremely sensitive “CONFIDENTIAL Information
or Items,” disclosure of which to another Party or Nonparty would create
a substantial risk of serious harm that could not be avoided by less
restrictive means.

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3.

SCOPE

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The protections conferred by this Stipulation and Order cover not

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only Protected Material (as defined above), but also (1) any information

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

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

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testimony, conversations, or presentations by Parties or their Counsel

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that might reveal Protected Material.

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

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orders of the trial judge. This Stipulated Protective Order does not

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govern the use of Protected Material at trial.

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TRIAL AND DURATION
The terms of this Stipulated Protective Order apply through Final

Disposition of the Action.
Once a case proceeds to trial, unless ordered to the contrary by the
Court, information that was designated as CONFIDENTIAL ” or

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or

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maintained pursuant to this Stipulated Protective Order and used or

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introduced as an exhibit at trial becomes public and will be

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presumptively available to all members of the public, including the

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press, unless compelling reasons supported by specific factual findings

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to proceed otherwise are made to the trial judge in advance of the trial.

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See Kamakana, 447 F.3d at 1180–81 (distinguishing “good cause”

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showing for sealing documents produced in discovery from “compelling

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reasons” standard when merits-related documents are part of court

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record). Accordingly, for such materials, unless ordered to the contrary

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by the Court, the terms of this Stipulated Protective Order do not

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extend beyond the commencement of the trial.

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Even after Final Disposition of this litigation, the confidentiality
obligations imposed by this Stipulated Protective Order shall remain in
effect until a Designating Party agrees otherwise in writing or a court
order otherwise directs.

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5.

DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for

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Protection. Each Party or Non-Party that designates information or

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items for protection under this Order must take care to limit any such

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designation to specific material that qualifies under the appropriate

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standards. The Designating Party must designate for protection only

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those parts of material, documents, items, or oral or written
communications that qualify so that other portions of the material,
documents, items, or communications for which protection is not
warranted are not swept unjustifiably within the ambit of this Order.
Mass, indiscriminate, or routinized designations are prohibited.
Designations that are shown to be clearly unjustified or that have been
made for an improper purpose (e.g., to unnecessarily encumber the case

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development process or to impose unnecessary expenses and burdens on

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other parties) may expose the Designating Party to sanctions.

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

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items that it designated for protection do not qualify for protection, that

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Designating Party must promptly notify all other Parties that it is

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withdrawing the inapplicable designation.

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5.2

Manner and Timing of Designations. Except as otherwise

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provided in this Stipulated Protective Order (see, e.g., second paragraph

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of section 5.2(a) below), or as otherwise stipulated or ordered, Disclosure

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or Discovery Material that qualifies for protection under this Stipulated

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

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

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legend “CONFIDENTIAL” ” or “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY” to each page that contains protected

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material. If only a portion or portions of the material on a page

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qualifies for protection, the Producing Party also must clearly identify

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

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margins).
A Party or Non-Party that makes original documents available for
inspection need not designate them for protection until after the
inspecting Party has indicated which documents it would like copied
and produced. During the inspection and before the designation, all of
the material made available for inspection shall be deemed “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY”. After the inspecting
Party has identified the documents it wants copied and produced, the

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Producing Party must determine which documents, or portions thereof,

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qualify for protection under this Stipulated Protective Order. Then,

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before producing the specified documents, the Producing Party must

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affix the “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY” legend to each page that contains Protected

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

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qualifies for protection, the Producing Party also must clearly identify

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

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margins).

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(b) for testimony given in depositions that the Designating Party
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identify the Disclosure or Discovery Material on the record, before the

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close of the deposition all protected testimony. When it is impractical to

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identify separately each portion of testimony that is entitled to

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protection and it appears that substantial portions of the testimony may

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qualify for protection, the Designating Party may invoke on the record

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(before the deposition, hearing, or other proceeding is concluded) a right

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to have up to 30 days to identify the specific portions of the testimony as

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to which protection is sought. Only those portions of the testimony that

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are appropriately designated for protection within the 30 days shall be

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covered by the provisions of this Stipulated Protective Order.

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Parties shall give the other Parties notice if they reasonably
expect a deposition, hearing or other proceeding to include Protected
Material so that the other Parties can ensure that only authorized
individuals, e.g., who have signed the “Acknowledgment and Agreement
to Be Bound” (Exhibit A), are present at those proceedings. The use of a
document as an exhibit at a deposition shall not in any way affect its
designation as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY.” Transcripts containing Protected Material

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shall have an obvious legend on the title page that the transcript

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contains Protected Material, and the title page shall be followed by a list

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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

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asserted by the Designating Party. The Designating Party shall inform

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the court reporter of these requirements. Any transcript that is prepared

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before the expiration of the 30-day period for designation shall be treated

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during that period as if it had been designated “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its entirety unless
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otherwise agreed. After the expiration of that period, the transcript shall

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be treated only as actually designated. Counsel for any Party to this

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Order shall have the right to exclude from depositions, other than the

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deponent and the reporter, any person who is not authorized under this

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Order to receive Protected Material. Such right of exclusion shall be

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applicable only during periods of examination or testimony directed to

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Protected Material.

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(c) for information produced in some form other than

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documentary and for any other tangible items, that the Producing Party

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affix in a prominent place on the exterior of the container or containers
in which the information is stored the “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY” legend. If only a
portion or portions of the information warrants protection, the Producing
Party, to the extent practicable, shall identify the protected portion(s).
(d) For information produced solely in electronic form and that is not
rendered electronically as an image (such as, for example, a Microsoft Excel
file, an electronic audio file, or an electronic video file), the designation
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’
EYES ONLY” shall be added to the electronic file’s filename.
5.3

Inadvertent Failures to Designate. If timely corrected, an

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inadvertent failure to designate qualified information or items does not,

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standing alone, waive the Designating Party’s right to secure protection

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under this Order for such material. Upon timely correction of a

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designation, the Receiving Party must make reasonable efforts to assure

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that the material is treated in accordance with the provisions of this

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Stipulated Protective Order.

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6.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges. Any Party or Non-Party may

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challenge a designation of confidentiality at any time that is consistent

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with the court’s 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. and with
Section 2 of Judge Christensen’s Civil Procedures titled “Brief PreDiscovery Motion Conference.”2
6.3

The burden of persuasion in any such challenge proceeding

shall be on the Designating Party. Frivolous challenges, and those
made for an improper purpose (e.g., to harass or impose unnecessary
expenses and burdens on other parties) may expose the Challenging
Party to sanctions. Unless the Designating Party has waived or

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withdrawn the confidentiality designation, all parties shall continue to

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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

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the challenge.

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7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

Basic Principles. A Receiving Party may use Protected

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Material that is disclosed or produced by another Party or by a Non-

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Party in connection with this Action only for prosecuting, defending, or

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attempting to settle this Action. Such Protected Material may be

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disclosed only to the categories of persons and under the conditions

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2 Judge Christensen’s Procedures are available at

https://www.cacd.uscourts.gov/honorable-stephanie-s-christensen.
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described in this Order. When the Action reaches a Final Disposition, a

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Receiving Party must comply with the provisions of section 13 below.

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Protected Material must be stored and maintained by a Receiving

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Party at a location and in a secure manner that ensures that access is

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limited to the persons authorized under this Stipulated Protective

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Order.

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7.2

Disclosure of “CONFIDENTIAL” Information or Items.

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

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Designating Party, a Receiving Party may disclose any information or

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item designated “CONFIDENTIAL” only:
(a) to the Receiving Party’s Outside Counsel of Record in this
Action, as well as employees of said Outside Counsel of Record to whom
it is reasonably necessary to disclose the information for this Action;
(b) to the officers, directors, and employees (including House
Counsel) of the Receiving Party to whom disclosure is reasonably
necessary for this Action;
(c) to Experts (as defined in this Order) of the Receiving Party to

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whom disclosure is reasonably necessary for this Action and who have

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

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(d) to the court and its personnel;

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(e) to court reporters and their staff;

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

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Professional Vendors to whom disclosure is reasonably necessary for

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this Action and who have signed the “Acknowledgment and Agreement

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to Be Bound” (Exhibit A);

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(g) to the author or recipient of a document containing the
information or a custodian or other person who otherwise possessed or
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knew the information;

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(h) during their depositions, to witnesses, and attorneys for

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witnesses, in the Action to whom disclosure is reasonably necessary,

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provided: (1) the deposing party requests that the witness sign the

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“Acknowledgment and Agreement to Be Bound” (Exhibit A); and (2) the

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witness will not be permitted to keep any confidential information

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

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(Exhibit A), unless otherwise agreed by the Designating Party or

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ordered by the court. Pages of transcribed deposition testimony or

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exhibits to depositions that reveal Protected Material may be separately
bound by the court reporter and may not be disclosed to anyone except
as permitted under this Stipulated Protective Order; and
(i) to any mediator or settlement officer, and their supporting
personnel, mutually agreed upon by any of the parties engaged in
settlement discussions.
7.3

Disclosure of “HIGHLY CONFIDENTIAL –

ATTORNEYS’ EYES ONLY” Information or Items.

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Unless otherwise ordered by the court or permitted in writing by

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the Designating Party, a Receiving Party may disclose any information

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or item designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY” only to:

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(a) The Receiving Party’s Outside Counsel of Record in this

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action, as well as employees of said Outside Counsel of

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Record to whom it is reasonably necessary to disclose the

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information for this litigation;

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(b) Experts of the Receiving Party (1) to whom disclosure is
reasonably necessary for this litigation, (2) who have signed
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the “Acknowledgment and Agreement to Be Bound” (Exhibit

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A), and (3) as to whom the procedures set forth in paragraph

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7.4, below, have been followed;

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(c) The court and its personnel;

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(d) Court reporters and their staff,

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

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Professional Vendors to whom disclosure is reasonably

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necessary for this litigation and who have signed the

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

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(f) The author or lawful recipient of a document containing the

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information or a custodian or other person who otherwise

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possessed or knew the information; and
(g) Any mediator or settlement officer, and their supporting
personnel, mutually agreed upon by any of the parties

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engaged in settlement discussions.
7.4

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

ATTORNEYS’ EYES ONLY” information or items of the Designating

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Party may be disclosed by a Receiving Party to a Receiving Party’s

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Expert without prior disclosure of the identity of the Expert to the

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Designating Party provided that the Expert is not a current owner,

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shareholder, member, officer, director, agent, or employee of a Direct

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Competitor or any other competitor of a Party, or anticipated to become

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one. Otherwise, prior to the time that a Receiving Party discloses any

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Protected Material to the Receiving Party’s Expert, the Receiving Party

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must first serve on the Designating Party the Acknowledgment and

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Agreement to Be Bound (Exhibit A) signed by that Expert together with

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a copy of the Expert’s up-to-date CV; the Designating Party shall then
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have an opportunity to object to such disclosure with seven (7) days of

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service of the Acknowledgment, after which the parties shall meet and

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confer, within seven (7) days of the objection. If the matter cannot be

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resolved within that period or an alternative period agreed to by the

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parties, then the Designating Party shall file a motion to exclude the

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Expert from viewing the Designating Party’s Protected Material, within

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fourteen (14) days after the meeting confer was held. No disclosure to

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the Expert shall be made by the Receiving Party until which time that

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the Court rules on the motion and permits disclosure to the Expert. The

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Designating Party’s failure to file such a motion within the allotted time

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shall be deemed accent to disclosure to the Expert. Notwithstanding the
foregoing, the Designating Party may object to the Expert’s continued
access to the Protected Material in the event that the Expert, at a later
date, becomes an owner, shareholder, member, officer, director, agent,
or employee of a competitor of a Party.

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8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED

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PRODUCED IN OTHER LITIGATION

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

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other litigation that compels disclosure of any information or items

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designated in this Action as “CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” that Party must:

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(a) promptly notify in writing the Designating Party. Such

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notification shall include a copy of the subpoena or court order;
(b) promptly notify in writing the party who caused the
subpoena or order to issue in the other litigation that some or all of the
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material covered by the subpoena or order is subject to this Protective

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Order. Such notification shall include a copy of this Stipulated

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Protective Order; and

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(c) cooperate with respect to all reasonable procedures sought to

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be pursued by the Designating Party whose Protected Material may be

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affected.

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If the Designating Party timely seeks a protective order, the

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Party served with the subpoena or court order shall not produce any

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information designated in this action as “CONFIDENTIAL” or

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” before a
determination by the court from which the subpoena or order issued,
unless the Party has obtained the Designating Party’s permission. The
Designating Party shall bear the burden and expense of seeking
protection in that court of its confidential material and nothing in these
provisions should be construed as authorizing or encouraging a
Receiving Party in this Action to disobey a lawful directive from another
court.

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9.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

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PRODUCED IN THIS LITIGATION

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9.1

Application. The terms of this Stipulated Protective Order

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are applicable to information produced by a Non-Party in this Action and

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designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY.” Such information produced by Non-Parties

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in connection with this litigation is protected by the remedies and relief

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provided by this Order. Nothing in these provisions should be construed

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as prohibiting a Non-Party from seeking additional protections.
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9.2

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Notification. In the event that a Party is required, by a valid

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discovery request, to produce a Non-Party’s confidential information in

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its possession, and the Party is subject to an agreement with the Non-

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Party not to produce the Non-Party’s confidential information, then the

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Party shall:

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(a) promptly notify in writing the Requesting Party and the

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Non-Party that some or all of the information requested is subject to a

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confidentiality agreement with a Non-Party;

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(b) make the information requested available for inspection by
the Non-Party, if requested.

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9.3

Conditions of Production. If the Non-Party fails to seek a

protective order from this court within 14 days of receiving the notice
and accompanying information, the Receiving Party may produce the
Non-Party’s confidential information responsive to the discovery request
bearing one of the Protected Material designations, as appropriate. If
the Non-Party timely seeks a protective order, the Receiving Party shall
not produce any information in its possession or control that is subject to

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the confidentiality agreement with the Non-Party before a determination

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by the court. Absent a court order to the contrary, the Non-Party shall

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bear the burden and expense of seeking protection in this court of its

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Protected Material.

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10.

UNAUTHORIZED DISCLOSURE OF PROTECTED

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MATERIAL

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If a Receiving Party learns that, by inadvertence or otherwise, it

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has disclosed Protected Material to any person or in any circumstance

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not authorized under this Stipulated Protective Order, the Receiving

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Party must immediately (a) notify in writing the Designating Party of

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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

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persons to whom unauthorized disclosures were made of all the terms of

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this Order, and (d) request such person or persons to execute the

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

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11. INADVERTENT PRODUCTION OF PRIVILEGED OR
OTHERWISE PROTECTED MATERIAL

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When a Producing Party gives notice to Receiving Parties that

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certain inadvertently produced material is subject to a claim of privilege

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or other protection, the obligations of the Receiving Parties are those set

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forth in Rule 26(b)(5)(B) of the Federal Rules of Civil Procedure. This

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provision is not intended to modify whatever procedure may be

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

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prior privilege review. Pursuant to Rules 502(d) and (e) of the Federal

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Rules of Evidence, insofar as the parties reach an agreement on the

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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

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submitted to the court.

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12.

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MISCELLANEOUS
12.1 Right to Further Relief. Nothing in this Stipulated

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Protective Order abridges the right of any person to seek its

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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 Stipulated Protective Order no Party waives any right it
otherwise would have to object to disclosing or producing any
information or item on any ground not addressed in this Stipulated
Protective Order. Similarly, no Party waives any right to object on any
ground to use in evidence of any of the material covered by this
Stipulated Protective Order.
12.3 Filing Protected Material. A Party that seeks to file under

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seal any Protected Material must comply with Local Rule 79-5.

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Protected Material may only be filed under seal pursuant to a court

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order authorizing the sealing of the specific Protected Material at issue.

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If a Party's request to file Protected Material under seal is denied by the

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court, then the Receiving Party may file the information in the public

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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

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4, within 60 days of a written request by the Designating Party, each

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Receiving Party must return all Protected Material to the Producing

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Party or destroy such material. As used in this subdivision, “all
Protected Material” includes all copies, abstracts, compilations,
summaries, and any other format reproducing or capturing any of the
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1

Protected Material. Whether the Protected Material is returned or

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destroyed, the Receiving Party must submit a written certification to

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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

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category, where appropriate) all the Protected Material that was

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

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retained any copies, abstracts, compilations, summaries or any other

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format reproducing or capturing any of the Protected Material.

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Notwithstanding this provision, Outside Counsel of Record is entitled to

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

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and hearing transcripts, legal memoranda, correspondence, deposition
and trial exhibits, expert reports, attorney work product, and consultant
and expert work product, even if such materials contain Protected
Material. Any such archival copies that contain or constitute Protected
Material remain subject to this Protective Order as set forth in Section
4.

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14.

VIOLATION
Any violation of this Stipulated Protective Order may be punished

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by any and all appropriate measures including, without limitation,

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contempt proceedings and/or monetary sanctions.

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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DATED: March 5, 2025

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MILBERG COLEMAN BRYSON PHILLIPS
GROSSMAN, PLLC
By:____/s/ Alexander E. Wolf
ALEXANDER E. WOLF
Attorneys for Plaintiffs

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DATED: March 5, 2025

SAUL EWING, LLP

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By: ____/s/ Mark B. Mizrahi
Attorneys for Defendants, FKA
DISTRIBUTING CO., LLC d/b/a
HOMEDICS LLC and WALMART INC.

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DATED: March 5, 2025

SEGAL MCCAMBRIDGE SINGER &
MAHONEY,LTD.

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By: ____/s/ Joseph L. Kish
JOSEPH L. KISH
Attorneys for Defendant A&D
ENGINEERING, INC.

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

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DATED: March 6, 2025

_________________________________
STEPHANIE S. CHRISTENSEN
United States Magistrate Judge

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1

EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I,

________________________ [print or type full name], of

_________________ [print or type full address], declare under
penalty of perjury that I have read in its entirety and understand the
Stipulated Protective Order that was issued by the United States
District Court for the Central District of California on [date] in the
case of __________ [insert formal name of the case and the
number and initials assigned to it by the court]. I agree to

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comply with and to be bound by all the terms of this Stipulated

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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

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

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any information or item that is subject to this Stipulated Protective

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Order to any person or entity except in strict compliance with the

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provisions of this Order.

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I further agree to submit to the jurisdiction of the United States

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District Court for the Central District of California for the purpose of

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

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enforcement proceedings occur after termination of this action. I

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hereby appoint ________________________ [print or type full name]

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of _________ [print or type full address and telephone number] as

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my California agent for service of process in connection with this action

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or any proceedings related to enforcement of this Stipulated Protective

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Order.

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Date:

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City and State where sworn and

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signed:

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Printed name:

___________________________

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Signature:

___________________________

___________________________
___________________________

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