Out of the Box Enterprises LLC v. El Paseo Jewelry Exchange Inc et al

Filing 60

PROTECTIVE ORDER RE: CONFIDENTIALITY by Judge Virginia A. Phillips re Stipulation for Protective Order 59 (am)

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BUCHALTER NEMER
A Professional Corporation
Lawrence B. Steinberg (State Bar No. 101966)
LSteinberg buchalter.corn
Janet Nalban an (State Bar No. 235154)
jnalbandyan buchalter.corn
1000 Wilshire oulevard, Suite 1500
Los Angeles, CA 90017-2457
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiff and Counterdefendant
OUT OF THE BOX ENTERPRISES, LLC

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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OUT OF THE BOX ENTERPRISES,
LLC, a Texas limited liability company,
Plaintiff,

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Case No. EDCV 10-1858 VAP (DTBx)
PROTECTIVE ORDER
E: CONFIDENTIALITY

V S.

EL PASEO JEWELRY EXCHANGE,
INC., a Nevada corporation; EL PASEO
JEWELRY, INC.a California
corporation; RAJU MEHTA, an
individual; IVAN KALENSKY, an
individual,
Defendants.

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AND RELATED COUNTERCLAIMS.

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Having considered the STIPULATION RE: CONFIDENTIALITY executed

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on November 4, 2011 by plaintiff OUT OF THE BOX ENTERPRISES, LLC, on

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the one hand, and defendants EL PASEO JEWELRY EXCHANGE, INC., EL

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PASEO JEWELRY, INC., RAJU MEHTA and IVAN KALENSKY, on the other

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hand (individually, "a Party" and collectively, "the Parties"), by and through their

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undersigned counsel, the Court orders as follows:

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BUCHALTER NEMER
A PROFESSIONAL CORPORATIO,

LOS ANGEL ES

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IT IS ORDERED:

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1. This Order shall govern disclosure and use by the Parties of all

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documents, testimony and other materials and information produced in this Action

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by any party or non-party evidence required to give testimony and/or produce

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documents (a "Disclosing Party").

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2. All Confidential Material (as defined below) shall be used solely in

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connection with this Action. No person whose identity is revealed as a result of the

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disclosure of Confidential Material shall be contacted by any party except for the

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purpose of interviewing such persons as potential witnesses and/or arranging for the

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obtaining of evidence and testimony. Any person or entity in possession of

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Confidential Material as a result of the production of such materials in connection

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with this Action shall maintain those materials in a secure manner, so as to avoid

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disclosure of their contents. The restrictions provided in this Order with respect to

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the handling, disclosure and dissemination of Confidential Material shall also apply

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to notes, reports, documents or communications which summarize, reference,

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describe or discuss the Confidential Material in a way so as to disclose any portion

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of the Confidential Material.

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3. A Disclosing Party and/or any Party to may designate as "Confidential

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Material," any information or documents produced in discovery or pursuant to

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legal process if the person making the confidential designation reasonably believes,

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in good faith, that the material contains or constitutes non-public trade secrets or

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other non-public confidential business, financial, or commercial information. A

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Party may also designate, with the consent of the other Parties to this Action, any

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similar information exchanged informally between the Parties for purposes of

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settlement or any other purpose.

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4. The designation of Confidential Material shall be made at the time of

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production of documents or service of written discovery responses by placing the

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word "Confidential" on each page of the material so designated, or, in the case of

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deposition testimony, as provided below. Inadvertent failure to designate

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Confidential Material may be remedied by supplemental written notice. Effective

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upon the giving of any such supplemental written notice, the information,

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documents or testimony designated as Confidential Material in the supplemental

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notice shall be deemed subject to this Order.

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5. Any Party may designate as Confidential Material any portion(s) of a

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deposition transcript that the Designating Party, in good faith, reasonably believes

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to contain confidential information according to the criteria set forth in paragraph 3

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above. The Designating Party shall advise the court reporter and counsel at the

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beginning and end of the testimony being designated as Confidential Material,

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either orally at the deposition or in a writing sent to all Parties within a reasonable

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period of time after the transcript becomes available. The reporter shall mark

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"Confidential" on the face of the transcript and at the beginning and end of any

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portions thereof designated as Confidential Material and, if practical, shall

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separately bind the portions of the transcript containing Confidential Material.

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6. Confidential Material shall only be disclosed or shown to the following

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persons: a)the Court and necessary court personnel; b)the Parties (including their

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officers, directors, employees, and agents having responsibility for this Action); c)

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the Parties' attorneys (and employees of the attorneys' law firms); d)court reporters

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transcribing depositions or testimony in the Action; e)persons who are witnesses in

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the Action (including deposition witnesses), but only insofar as reasonably

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necessary for the prosecution and defense of the Action; f)persons shown on the

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face of a document as being an author, recipient, or copy recipient of the document,

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but only with respect to documents containing such persons' names and only on

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which insofar as reasonably necessary for the prosecution and defense of the

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Action; g)experts and consultants retained by a Party in connection with the Action

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(including persons working under the direction or control of such experts and

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consultants); h)outside photocopying, graphic production services, litigation

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support services, or investigators employed by the Parties or their counsel; and i)

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any other person agreed to in writing by the Designating Part(ies).

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7. All persons to whom Confidential Material is disclosed shall, before that

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disclosure, be advised that the Confidential Material is being disclosed pursuant to

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the terms of the Order.

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8. If any person seeks to file or lodge Confidential Material with any court in

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a manner so that, in the ordinary course, such Confidential Material will be placed

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in a publicly accessible court file, the person seeking to file or lodge such material

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shall take all reasonable steps under the rules of that court to cause the Confidential

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Material to be filed under seal, including, with respect to this Court, the procedures

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contained in Local Rule 79-5 and the procedures contained in this Court's Standing

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Order, which provide as follows:

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L.R. 79-5 Confidential Court Records
L.R. 79-5.1 Filing Under Seal - Procedures. Except
when authorized by statute or federal rule, or the Judicial
Conference of the United States, no case or document
shall be filed under seal without prior approval by the
Court. Where approval is required, a written application
and a proposed order shall be presented to the judge along
with the document submitted for filing under seal. The
proposed order shall address both the sealing of the
application and order itself, if appropriate. The original
and judge's copy of the document shall be sealed in
separate envelopes with a copy of the title page attached
to the front of each envelope. Conformed copies need not
be placed in sealed envelopes. Where under-seal filings
are authorized by statute or rule, the authority therefore
shall appear on the title page of the proposed filing.
Applications and Orders to Seal, along with the material
to be placed under seal, shall not be electronically filed
but shall be filed manually in the manner prescribed by
Local Rule 79-5. A Notice of Manual Filing shall also be
electronically filed identifying materials being manually
filed.

BUCHALTER NEMER
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STANDING ORDER:

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Applications to File Under Seal. Parties are reminded
that court proceedings are presumptively public, and no
document shall be filed under seal without request for a
court order that is narrowly tailored to cover only the
document, the particular portion of the document, or
category of documents for which good cause exists for
filing under seal. To that end, if a party wishes to file a
document under seal, that party shall first file a written
request for a sealing order setting forth the good cause
and accompanied by a proposed order that is narrowly
tailored as specified above.

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If the sole ground for the sealing order is that the
opposing party (or non-party) has designated the
document as confidential, the opposing party (or nonparty) shall file a declaration establishing good cause for
the sealing along with a proposed order, or shall withdraw
the designation. The declaration shall be filed within five
days of service on the opposing party (or non-party) of the
request for a sealing order. If the declaration is not filed as
required, the Court may order that the document be filed
in the public record.
Use of Sealed Documents in Motion Papers: The Court
cautions parties that documents designated as confidential
that are attached as exhibits to case-dispositive motions,
or redacted portions of case-dispositive briefs that contain
confidential information, must meet the high "compelling
reasons" threshold. See Kamakana v. City of Honolulu,
447 F.3d 1172 (9th Cir. 2006). A good cause showing,
without more, will not satisfy a compelling reasons test,
but will only suffice to maintain the confidentiality of
documents attached to non dispositive motions.
Documents designated as confidential in conjunction with
case-dispositive motions or briefs that do not satisfy the
compelling reasons test may accordingly be redesignated
as public information upon proper request. See Foltz v.
State Farm Mut. Automobile Ins. Co., 331 F.3d 1122 (9th
Cir. 2003).
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BUCHALTER NEMER
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Use of Sealed or Confidential Documents at Trial:
Notwithstanding any provision of a protective order to the
contrary, any document, whether previously designated
confidential or previously sealed, will be unsealed and
will lose its confidential status if offered as an exhibit at
trial, absent a showing of the "most compelling" reasons.
See Manual for Complex Litigation § 21.432; Foltz, 331
F.3d at 1135-36. Any party believing that a document,
portions thereof, or witness testimony should remain
confidential or sealed during trial must request in advance
of trial that the court take extraordinary measures, such as
closing the courtroom to the public or sealing the trial
transcript, to protect the confidentiality of that
information. The request must be made in writing and
filed no later than the date on which pretrial papers are
due.
If previously sealed documents are ordered unsealed for
use at trial, counsel for the party offering the document as
evidence shall, within two business days of the conclusion
of the trial, identify which entries on the docket represent
the exhibits actually received. Counsel are required to
cooperate with the deputy clerk in order to complete the
unsealing process in cases involving voluminous sealed
documents.

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9. If at any time any Confidential Material is subpoenaed by any person or
entity purporting to have authority to require the production thereof, the person to
whom the subpoena is directed shall promptly give written notice, and include a
copy of the subpoena or request, to all Parties and, if applicable, to the Disclosing
Party. The person to whom the subpoena is directed shall make all reasonable good
faith efforts to provide the Disclosing Party a reasonable period of time in which to
seek to quash the subpoena, or to move for any protection for the Confidential
Material, before the person to whom the subpoena is directed takes any action to
comply with the subpoena.

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BUCHALTER NEMER
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01:1,61110S

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10. If, at any time, a Party objects to a designation of material as

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Confidential Material, the objecting Party shall send a written notice to the person

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who designated the Confidential Material (with a copy sent to all Parties) and, in

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such notice, shall identify the material subject to the objection and specify in

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reasonable detail the reasons for the objection. Upon receipt of any such objection,

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the Parties, the Disclosing Party (if applicable) and the objecting Party shall

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promptly meet and confer in an effort to resolve their differences. If the

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disagreement cannot be resolved, the objecting Party may file, within a reasonable

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time, an application or motion with the Court for relief from designation of the

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material as being Confidential Material. The Party who designated the Confidential

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Material shall have the burden of showing, on such application or motion, that the

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material being objected to was appropriately designated as Confidential Material.

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The material subject to the objection shall be maintained as Confidential Material

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until such time as the objecting Party's motion for relief has been ruled on.

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11. Within forty-five (45) days after entry of an order or judgment finally

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terminating the Action, including all related court proceedings and appeals,

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Confidential Material in a Party's possession, including all paper and electronic

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copies thereof (except for Confidential Material designated by that Party) shall

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either be destroyed or returned to the person who originally produced or provided

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the Confidential Material. Counsel shall certify in writing that all Confidential

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Material in its possession has either been destroyed or returned. The provisions of

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this paragraph 11 shall not apply to pleadings, motions, briefs, affidavits, attorney

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notes, transcripts, or Court opinions and orders.

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12. This Order shall not be construed to affect in any way the admissibility
of any document, testimony, or other evidence at trial or hearing of this Action.
13. Each Party shall have the responsibility, through counsel, to advise the

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Party designating Confidential Material of any losses or compromises of the

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confidentiality of material so designated. It shall be the responsibility of the Party

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that lost or compromised the Confidential Material to take reasonable measures to

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limit the loss or unauthorized disclosure.

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14. Nothing in this Order shall: be construed to limit any Party's use or

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disclosure of its own documents, materials, or information designated hereto as

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Confidential Material; prevent or in any way limit disclosure, use, or dissemination

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of any information or documents that are publicly available, publicly known or

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available from some source other than in connection with this Action; prejudice the

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rights of any Party to introduce into evidence at trial any document, testimony, or

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other evidence, or the right of any Party to object to the authenticity or admissibility

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into evidence of any document, testimony, or other evidence.
15. Any Party may apply to the Court for further or additional protective
orders or for the modification of this Order.

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DATED: November 4, 2011

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BUCHALTER NEMER
A iNRCITERAION AI CORPORATION

Los ANGELES
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PROPOSED] PROTECTIVE ORDER RE: CONFIDENTIALITY

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EXHIBIT A

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CERTIFICATION

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I certify my understanding that Confidential Material is being provided or

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may be provided to me pursuant to the terms and restrictions of the July

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Confidentiality Order in the above-captioned case. I further certify that I have

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received and read the Confidentiality Order, and I agree to be bound by the terms

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thereof.

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BUCHALTER NEME,R
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, 2011