Solar Sun Rings, Inc. v. Secard Pools et al

Filing 96

PROTECTIVE ORDER by Magistrate Judge Kenly Kiya Kato re Stipulation for Protective Order 95 (See Order for details) (dts)

Victor de Gyarfas (SBN 171950)
email: [e-mail]
2 FOLEY & LARDNER LLP
555 South Flower Street, Suite 3500
3 Los Angeles, CA 90071-2411
Telephone: [phone]
4 Facsimile: 213-486-0065
1

Attorneys for Defendants
SECARD POOLS; JOE SECARD;
6 EDMUND SECARD; PINCH A PENNY,
POOL SUPPLY UNLIMITED; SUN
7 WHOLESALE SUPPLY; WAYFAIR, LLC;
WAL-MART STORES, INC.
5

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

EASTERN DIVISION (RIVERSIDE)

11
12

SOLAR SUN RINGS, INC., a California
13 Corporation
14

Plaintiff,

15

v.
16
17
18

SECARD POOLS, et al.,
Defendants.

19
20
21
22
23
24
25
26
27
28

4833-1555-1016.1

And Related Counterclaim

Case No: 5:14-edcv-02417-PSG (KKx)
STIPULATED PROTECTIVE ORDER

1
2
3
4

In response to the Court’s August 14, 2015 Order, the parties jointly submit this
proposed protective order. Among other things, this protective order:
- Makes clear that “Any use of Protected Material at trial shall be governed by the
orders of the trial judge.” (Section 3)

5

- Provides a statement of good cause in Section 1.B.

6

- Revises previous ¶¶ 6.3 and 7.4(c) to make clear that any motion challenging a

7

party’s designation of material as Confidential Information or Highly Confidential –

8

ATTORNEYS’ EYES ONLY Information or seeking to modify or amend the proposed

9

Protective Order must be brought in strict compliance with Local Rules 37-1 and 37-2

10
11
12
13
14

(including the Joint Stipulation requirement).
- The parties have modeled this protective order after the sample stipulated
protective order on the Court’s website.
In response to the Court’s September 4, 2015 Order, the “Action” has been
identified properly in section 2.1.

15

1.

16

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

17

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

18

for any purpose other than prosecuting this litigation may be warranted. Accordingly, the

19

parties hereby stipulate to and petition the Court to enter the following Stipulated

20

Protective Order. The parties acknowledge that this Order does not confer blanket

21

protections on all disclosures or responses to discovery and that the protection it affords

22

from public disclosure and use extends only to the limited information or items that are

23

entitled to confidential treatment under the applicable legal principles.

24

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

25

Order does not entitle them to FILE CONFIDENTIAL INFORMATION UNDER SEAL;

26

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

27

that will be applied when a party seeks permission from the court to file material under

28

4833-1555-1016.1

A.

PURPOSES AND LIMITATIONS

The parties

1

seal.

2

B.

3

This action will involve trade secrets, customer and pricing lists and other valuable

4

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

5

for which special protection from public disclosure and from use for any purpose other

6

than prosecution of this action is warranted. Such confidential and proprietary materials

7

and information consist of, among other things, confidential business or financial

8

information, information regarding confidential business practices, or other confidential

9

research, development, or commercial information (including information implicating

10

privacy rights of third parties), information otherwise generally unavailable to the public,

11

or which may be privileged or otherwise protected from disclosure under state or federal

12

statutes, court rules, case decisions, or common law. Accordingly, to expedite the flow

13

of information, to facilitate the prompt resolution of disputes over confidentiality of

14

discovery materials, to adequately protect information the parties are entitled to keep

15

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

16

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

17

of the litigation, and serve the ends of justice, a protective order for such information is

18

justified in this matter.

19

designated as confidential for tactical reasons and that nothing be so designated without a

20

good faith belief that it has been maintained in a confidential, non-public manner, and

21

there is good cause why it should not be part of the public record of this case.

22

2.

23
24
25
26
27
28

4833-1555-1016.1

GOOD CAUSE STATEMENT

It is the intent of the parties that information will not be

DEFINITIONS
2.1

Action: The Action is this pending lawsuit, Case No. 5:14-edcv-02417-PSG

(KKx).
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

1

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

2

Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause

3

Statement. “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY:” Information

4

or Items: extremely sensitive “Confidential Information or Items,” disclosure of which to

5

another Party or Non-Party would create a substantial risk of serious harm that could not

6

be avoided by less restrictive means and that qualify for protection under Federal Rule of

7

Civil Procedure 26(c), and as specified above in the Good Cause Statement..

8

2.4

Counsel (without qualifier): Outside Counsel of Record and House Counsel

9

(as well as their support staff). Designated House Counsel: House Counsel who seek

10

access to “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information in

11

this matter.

12

2.5

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

13

items that it produces in disclosures or in responses to discovery as “CONFIDENTIAL”

14

or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”.

15

2.6

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

16

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

17

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

18

disclosures or responses to discovery in this matter.

19

2.7

Expert: a person with specialized knowledge or experience in a matter

20

pertinent to the litigation who has been retained by a Party or its counsel to serve as an

21

expert witness or as a consultant in this Action.

22
23
24
25

2.8

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

House Counsel does not include Outside Counsel of Record or any other outside counsel.
2.9

Non-Party:

any natural person, partnership, corporation, association, or

other legal entity not named as a Party to this action.

26

2.10 Outside Counsel of Record: attorneys who are not employees of a party to

27

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

28

4833-1555-1016.1

1

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

2

appeared on behalf of that party, and includes support staff.
2.11 Party:

3

any party to this Action, including all of its officers, directors,

4

employees, consultants, retained experts, and Outside Counsel of Record (and their

5

support staffs).
2.12 Producing Party:

6
7

Discovery Material in this Action.
2.13 Professional Vendors: persons or entities that provide litigation support

8
9

a Party or Non-Party that produces Disclosure or

services

(e.g.,

photocopying,

videotaping,

translating,

preparing

exhibits

or

10

demonstrations, and organizing, storing, or retrieving data in any form or medium) and

11

their employees and subcontractors.

12

2.14 Protected Material: any Disclosure or Discovery Material that is designated

13

as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

14

ONLY.”
2.15 Receiving Party: a Party that receives Disclosure or Discovery Material

15
16

from a Producing Party.

17

3.

SCOPE

18

The protections conferred by this Stipulation and Order cover not only Protected

19

Material (as defined above), but also (1) any information copied or extracted from

20

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

21

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

22

Counsel that might reveal Protected Material.
Any use of Protected Material at trial shall be governed by the orders of the trial

23
24

judge. This Order does not govern the use of Protected Material at trial.

25

4.

DURATION

26

Even after final disposition of this litigation, the confidentiality obligations

27

imposed by this Order shall remain in effect until a Designating Party agrees otherwise in

28

4833-1555-1016.1

1

writing or a court order otherwise directs. Final disposition shall be deemed to be the

2

later of (1) dismissal of all claims and defenses in this Action, with or without prejudice;

3

and (2) final judgment herein after the completion and exhaustion of all appeals,

4

rehearings, remands, trials, or reviews of this Action, including the time limits for filing

5

any motions or applications for extension of time pursuant to applicable law.

6

5.

7

DESIGNATING PROTECTED MATERIAL
5.1

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

8

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

9

must take care to limit any such designation to specific material that qualifies under the

10

appropriate standards. The Designating Party must designate for protection only those

11

parts of material, documents, items, or oral or written communications that qualify so that

12

other portions of the material, documents, items, or communications for which protection

13

is not warranted are not swept unjustifiably within the ambit of this Order.

14

Mass, indiscriminate, or routinized designations are prohibited. Designations that

15

are shown to be clearly unjustified or that have been made for an improper purpose (e.g.,

16

to unnecessarily encumber the case development process or to impose unnecessary

17

expenses and burdens on other parties) may expose the Designating Party to sanctions.

18

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

19

designated for protection do not qualify for protection, that Designating Party must

20

promptly notify all other Parties that it is withdrawing the inapplicable designation.

21

5.2

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

22

Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or

23

ordered, Disclosure or Discovery Material that qualifies for protection under this Order

24

must be clearly so designated before the material is disclosed or produced.

25
26
27
28

4833-1555-1016.1

Designation in conformity with this Order requires:
(a)

for information in documentary form (e.g., paper or electronic

documents, but excluding transcripts of depositions or other pretrial or trial proceedings),

1

that the Producing Party affix at a minimum, the legend “CONFIDENTIAL” or

2

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” as applicable (hereinafter

3

“CONFIDENTIAL legend”), to each page that contains protected material. If only a

4

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

5

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

6

in the margins).

7

A Party or Non-Party that makes original documents available for inspection need

8

not designate them for protection until after the inspecting Party has indicated which

9

documents it would like copied and produced. During the inspection and before the

10

designation, all of the material made available for inspection shall be deemed ““HIGHLY

11

CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” After the inspecting Party has

12

identified the documents it wants copied and produced, the Producing Party must

13

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

14

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

15

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

16

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

17

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

18

in the margins).

19

(b)

for testimony given in depositions that the Designating Party identify

20

the Disclosure or Discovery Material on the record, before the close of the deposition all

21

protected testimony.

22

(c)

for information produced in some form other than documentary and

23

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

24

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

25

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,”

26

as applicable. If only a portion or portions of the information warrants protection, the

27

Producing Party, to the extent practicable, shall identify the protected portion(s).

28

4833-1555-1016.1

5.3

1

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

2

to designate qualified information or items does not, standing alone, waive the

3

Designating Party’s right to secure protection under this Order for such material. Upon

4

timely correction of a designation, the Receiving Party must make reasonable efforts to

5

assure that the material is treated in accordance with the provisions of this Order.

6

6.

6.1

7
8

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

of confidentiality at any time that is consistent with the Court’s Scheduling Order.
6.2

9
10

CHALLENGING CONFIDENTIALITY DESIGNATIONS

Meet and Confer. The Challenging Party shall initiate the dispute resolution

process under Local Rule 37.1 et seq.
6.3

11

The burden of persuasion in any such challenge proceeding shall be on the

12

Designating Party. Frivolous challenges, and those made for an improper purpose (e.g.,

13

to harass or impose unnecessary expenses and burdens on other parties) may expose the

14

Challenging Party to sanctions. Unless the Designating Party has waived or withdrawn

15

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

16

the level of protection to which it is entitled under the Producing Party’s designation until

17

the Court rules on the challenge. Any motion challenging a party’s designation of

18

material as Confidential Information or Highly Confidential – ATTORNEYS’ EYES

19

ONLY Information or seeking to modify or amend the proposed Protective Order must

20

be brought in strict compliance with Local Rules 37-1 and 37-2 (including the Joint

21

Stipulation requirement).

22

7.

23

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

Basic Principles. A Receiving Party may use Protected Material that is

24

disclosed or produced by another Party or by a Non-Party in connection with this Action

25

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

26

Material may be disclosed only to the categories of persons and under the conditions

27

described in this Order. When the Action has been terminated, a Receiving Party must

28

4833-1555-1016.1

1

comply with the provisions of section 13 below (FINAL DISPOSITION).

2

Protected Material must be stored and maintained by a Receiving Party at a

3

location and in a secure manner that ensures that access is limited to the persons

4

authorized under this Order.

5

7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

6

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

7

may disclose any information or item designated “CONFIDENTIAL” only to:

8
9
10
11
12
13

(a)

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)

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

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

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

14

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

15

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

16

(d)

the court and its personnel;

17

(e)

court reporters and their staff;

18

(f)

professional jury or trial consultants, mock jurors, and Professional

19
20
21
22

Vendors to whom disclosure is reasonably necessary for this Action;
(g)

the author or recipient of a document containing the information or a

custodian or other person who otherwise possessed or knew the information;
(h)

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

23

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

24

requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will not

25

be permitted to keep any confidential information unless they sign the “Acknowledgment

26

and Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the Designating

27

Party or ordered by the court. Pages of transcribed deposition testimony or exhibits to

28

4833-1555-1016.1

1

depositions that reveal Protected Material may be separately bound by the court reporter

2

and may not be disclosed to anyone except as permitted under this Stipulated Protective

3

Order; and
(i)

4
5

any mediator or settlement officer, and their supporting personnel,

mutually agreed upon by any of the parties engaged in settlement discussions.

6
7

7.3

Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

8

ONLY” Information or Items. Unless otherwise ordered by the court or permitted in

9

writing by the Designating Party, a Receiving Party may disclose any information or item

10

designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to:

11

(a) the Receiving Party’s Outside Counsel of Record in this action;

12

(b) Experts of the Receiving Party (1) to whom disclosure is reasonably necessary

13

for this litigation, (2) who have signed the “Acknowledgment and Agreement to Be

14

Bound” (Exhibit A), and (3) as to whom the procedures set forth in paragraph 7.4(a)(2),

15

below, have been followed];

16

(c) the court and its personnel;

17

(d) Professional Vendors and their staff, professional jury or trial consultants, and

18

Professional Vendors to whom disclosure is reasonably necessary for this litigation; and

19
20
21

(e) the author or recipient of a document containing the information or a custodian
or other person who otherwise possessed or knew the information.
Notwithstanding any provision in this Protective Order, Designated Material

22

designated as “CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL – ATTORNEYS’

23

EYES ONLY” by a Defendant or Non-Party may not be disclosed to House Counsel or

24

business representatives of any other Defendant or Non-Party (including in-house counsel

25

for any affiliates of that Defendant) without written consent of the Producing Party.

26
27
28

4833-1555-1016.1

7.4 Procedures for Approving or Objecting to Disclosure of “HIGHLY

1
2

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items to Designated

3

House Counsel or Experts.
(a)(1) Unless otherwise ordered by the court or agreed to in writing by the

4
5

Designating Party, a Party that seeks to disclose to Designated House Counsel any

6

information or item that has been designated “HIGHLY CONFIDENTIAL –

7

ATTORNEYS’ EYES ONLY” pursuant to paragraph 7.3(b) first must make a written

8

request to the Designating Party that (1) sets forth the full name of the Designated House

9

Counsel and the city and state of his or her residence, and (2) describes the Designated

10

House Counsel’s current and reasonably foreseeable future primary job duties and

11

responsibilities in sufficient detail to determine if House Counsel is involved, or may

12

become involved, in any competitive decision-making.

13

(a)(2) Unless otherwise ordered by the court or agreed to in writing by the

14

Designating Party, a Party that seeks to disclose to an Expert (as defined in this Order)

15

any information or item that has been designated “HIGHLY CONFIDENTIAL –

16

ATTORNEYS’ EYES ONLY” pursuant to paragraph 7.3(c) first must make a written

17

request to the Designating Party that (1) identifies the general categories of “HIGHLY

18

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information that the Receiving Party

19

seeks permission to disclose to the Expert, (2) sets forth the full name of the Expert and

20

the city and state of his or her primary residence, (3) attaches a copy of the Expert’s

21

current resume, (4) identifies the Expert’s current employer(s), (5) identifies each person

22

or entity from whom the Expert has received compensation or funding for work in his or

23

her areas of expertise or to whom the expert has provided professional services, including

24

in connection with a litigation, at any time during the preceding five years,1 and (6)

25

1

If the Expert believes any of this information is subject to a confidentiality obligation to
a third-party, then the Expert should provide whatever information the Expert believes
can be disclosed without violating any confidentiality agreements, and the Party seeking
27 to disclose to the Expert shall be available to meet and confer with the Designating Party
regarding any such engagement.
26

28

4833-1555-1016.1

1

identifies (by name and number of the case, filing date, and location of court) any

2

litigation in connection with which the Expert has offered expert testimony, including

3

through a declaration, report, or testimony at a deposition or trial, during the preceding

4

five years.2
(b) A Party that makes a request and provides the information specified in the

5
6

preceding respective paragraphs may disclose the subject Protected Material to the

7

identified Designated House Counsel or Expert unless, within 14 days of delivering the

8

request, the Party receives a written objection from the Designating Party. Any such

9

objection must set forth in detail the grounds on which it is based.

10

(c) A Party that receives a timely written objection must meet and confer with the

11

Designating Party (through direct voice to voice dialogue) to try to resolve the matter by

12

agreement within seven days of the written objection. If no agreement is reached, the

13

Party seeking to make the disclosure to Designated House Counsel or the Expert may file

14

a motion as provided in Civil Local Rule 37-4 through 37-4, seeking permission from the

15

court to do so. Any such motion must describe the circumstances with specificity, set

16

forth in detail the reasons why the disclosure to Designated House Counsel or the Expert

17

is reasonably necessary, assess the risk of harm that the disclosure would entail, and

18

suggest any additional means that could be used to reduce that risk. In addition, any such

19

motion must be accompanied by a competent declaration describing the parties’ efforts to

20

resolve the matter by agreement (i.e., the extent and the content of the meet and confer

21

discussions) and setting forth the reasons advanced by the Designating Party for its

22

refusal to approve the disclosure.

23

In any such proceeding, the Party opposing disclosure to Designated House

24

Counsel or the Expert shall bear the burden of proving that the risk of harm that the

25
2

It may be appropriate in certain circumstances to restrict the Expert from undertaking
certain limited work prior to the termination of the litigation that could foreseeably result
27 in an improper use of the Designating Party’s “HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY” information.
26

28

4833-1555-1016.1

1

disclosure would entail (under the safeguards proposed) outweighs the Receiving Party’s

2

need to disclose the Protected Material to its Designated House Counsel or Expert.

3

Any motion challenging a party’s designation of material as Confidential

4

Information or Highly Confidential – ATTORNEYS’ EYES ONLY Information or

5

seeking to modify or amend the proposed Protective Order must be brought in strict

6

compliance with Local Rules 37-1 and 37-2 (including the Joint Stipulation requirement).

7

8.

8

OTHER LITIGATION

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

9

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

10

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

11

“CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,”

12

as applicable, that Party must:

13
14
15

(a)

promptly notify in writing the Designating Party. Such notification

shall include a copy of the subpoena or court order;
(b)

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

16

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

17

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

18

Stipulated Protective Order; and

19
20

(c)

cooperate with respect to all reasonable procedures sought to be

pursued by the Designating Party whose Protected Material may be affected.

21

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

22

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

23

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,”

24

as applicable, before a determination by the court from which the subpoena or order

25

issued, unless the Party has obtained the Designating Party’s permission.

26

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

27

its confidential material and nothing in these provisions should be construed as

28

4833-1555-1016.1

The

1

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

2

from another court.

3

9.

4

IN THIS LITIGATION

5

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

(a)

The terms of this Order are applicable to information produced by a

6

Non-Party in this Action and designated as “CONFIDENTIAL” or “HIGHLY

7

CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” as applicable, or such information

8

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

9

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

10
11

prohibiting a Non-Party from seeking additional protections.
(b)

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

12

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

13

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

14

information, then the Party shall:
(1)

15

promptly notify in writing the Requesting Party and the Non-

16

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

17

agreement with a Non-Party;
(2)

18

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

19

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

20

specific description of the information requested; and
(3)

21
22
23

make the information requested available for inspection by the

Non-Party, if requested.
(c)

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

24

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

25

produce the Non-Party’s confidential information responsive to the discovery request. If

26

the Non-Party timely seeks a protective order, the Receiving Party shall not produce any

27

information in its possession or control that is subject to the confidentiality agreement

28

4833-1555-1016.1

1

with the Non-Party before a determination by the court. Absent a court order to the

2

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

3

court of its Protected Material.

4

10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

5

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

6

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

7

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

8

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

9

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

10

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

11

such person or persons to execute the “Acknowledgment and Agreement to Be Bound”

12

that is attached hereto as Exhibit A.

13

11.

14

PROTECTED MATERIAL

INADVERTENT

PRODUCTION

OF

PRIVILEGED

OR

OTHERWISE

15

When a Producing Party gives notice to Receiving Parties that certain inadvertently

16

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

17

the Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B).

18

This provision is not intended to modify whatever procedure may be established in an e-

19

discovery order that provides for production without prior privilege review. Pursuant to

20

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

21

effect of disclosure of a communication or information covered by the attorney-client

22

privilege or work product protection, the parties may incorporate their agreement in the

23

stipulated protective order submitted to the court.

24

12.

25
26
27
28

4833-1555-1016.1

MISCELLANEOUS
12.1 Right to Further Relief. Nothing in this Order abridges the right of any

person to seek its modification by the Court in the future.
12.2 Right to Assert Other Objections.

By stipulating to the entry of this

1

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

2

or producing any information or item on any ground not addressed in this Stipulated

3

Protective Order. Similarly, no Party waives any right to object on any ground to use in

4

evidence of any of the material covered by this Protective Order.

5

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

6

Material must comply with Civil Local Rule 79-5. Protected Material may only be filed

7

under seal pursuant to a court order authorizing the sealing of the specific Protected

8

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

9

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

10

otherwise instructed by the court.

11

13.

FINAL DISPOSITION

12

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

13

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

14

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

15

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

16

summaries, and any other format reproducing or capturing any of the Protected Material.

17

Whether the Protected Material is returned or destroyed, the Receiving Party must submit

18

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

19

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

20

appropriate) all the Protected Material that was returned or destroyed and (2) affirms that

21

the Receiving Party has not retained any copies, abstracts, compilations, summaries or

22

any other format reproducing or capturing any of the Protected Material.

23

Notwithstanding this provision, Counsel are entitled to retain an archival copy of all

24

pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda,

25

correspondence, deposition and trial exhibits, expert reports, attorney work product, and

26

consultant and expert work product, even if such materials contain Protected Material.

27

Any such archival copies that contain or constitute Protected Material remain subject to

28

4833-1555-1016.1

1

this Protective Order as set forth in Section 4 (DURATION).

2

14.

3

including, without limitation, contempt proceedings and/or monetary sanctions.

4

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

Any violation of this Order may be punished by any and all appropriate measures

5
6
7
8
9
10

Dated: September 9, 2015

By: /s/ Victor de Gyarfas
VICTOR DE GYARFAS
FOLEY & LARDNER LLP
Attorneys for Defendants SECARD
POOLS; JOE SECARD; EDMOND
SECARD; PINCH A PENNY, POOL
SUPPLY UNLIMITED; SUN
WHOLESALE SUPPLY; WAYFAIR,
LLC; WAL-MART STORES, INC.

11
12
13
14
15

/s/ Sepehr Daghighian
SEPEHR DAGHIGHIAN, ESQ.
LAW OFFICES OF SEPEHR
DAGHIGHIAN, P.C.
Attorney for Plaintiff/Counterclaim
Defendants SOLAR SUN RINGS, INC.,
LORA ROSENE, RICHARD ROSENE,
DAVID BARTOLI

16
17
18
19
20
21
22
23
24
25
26
27
28

4833-1555-1016.1

/s/ Ronnie Casey Hull
RONNIE CASEY HULL, ESQ.
Attorney for Defendants LOWE’S HOME
CENTERS, LLC, OVERSTOCK.COM,
INC., HOME DEPOT, U.S.A., INC, AND
SEARS HOLDINGS MANAGEMENT
CORPORATION

ATTESTATION CLAUSE

1
2

Pursuant to L.R. 5-4.3.4(a)(2)(i), I hereby attest that all other signatories listed, and

3

on whose behalf the filing is submitted, concur in the filing’s content and have authorized

4

the filing.

5

Dated: September 9, 2015

6
7
8
9

By: /s/ Victor de Gyarfas
VICTOR DE GYARFAS
FOLEY & LARDNER LLP
Attorneys for Defendants SECARD
POOLS; JOE SECARD; EDMOND
SECARD; PINCH A PENNY, POOL
SUPPLY UNLIMITED; SUN
WHOLESALE SUPPLY; WAYFAIR,
LLC; WAL-MART STORES, INC.

10
11
12

PURSUANT TO STIPULATION, IT IS SO ORDERED.

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

4833-1555-1016.1

DATED: Septemer 10, 2015

_______________________________
Hon. Kenly Kiya Kato
United States Magistrate Judge

EXHIBIT A

1
2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
3
4

I, _________________________________________________________________

5

[print or type full name], of _____________________________________________

6

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

7

and understand the Stipulated Protective Order that was issued by the United States

8

District Court for the Central District of California on [date] in the case of Solar Sun

9

Rings, Inc. v. Secard Pools, Case No. 14-cv-02417 PSG-KK. I agree to comply with and

10

to be bound by all the terms of this Stipulated Protective Order and I understand and

11

acknowledge that failure to so comply could expose me to sanctions and punishment in

12

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

13

information or item that is subject to this Stipulated Protective Order to any person or

14

entity except in strict compliance with the provisions of this Order.

15

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

16

Central District of California for the purpose of enforcing the terms of this Stipulated

17

Protective Order, even if such enforcement proceedings occur after termination of this

18

action. I hereby appoint ________________________________________________

19

[print or type full name] of ______________________________________________

20

[print or type full address and telephone number] as my California agent for service of

21

process in connection with this action or any proceedings related to enforcement of this

22

Stipulated Protective Order.

23

Date: ___________________________________

24

City and State where sworn and signed: __________________

25

Printed name: ____________________________

26

signature: _______________________________

27
28

4833-1555-1016.1

PROOF OF SERVICE

1

I am employed in the County of Los Angeles, State of California. I am over the age of 18 and
not a party to this action; my current business address is 555 South Flower Street, Suite 3500,
3 Los Angeles, CA 90071-2411.
2

4

On March 21, 2014, I served the foregoing document(s) described as: MASTER CAPTION -PLEASE DUPE!!! on the interested parties in this action as follows:

5

Sepehr Daghighian
[e-mail]
Nathan Talei
[e-mail]
LAW OFFICES OF SEPEHR DAGHIGHIAN, P.C.
7 433 North Camden Drive, Fourth Floor
Beverly Hills, CA 90210
8 Telephone: [phone]
Facsimile: [phone]
6

BY MAIL
I am readily familiar with the firm’s practice of collection and processing
correspondence for mailing with the United States Postal Service; the firm
deposits the collected correspondence with the United States Postal Service that
same day, in the ordinary course of business, with postage thereon fully prepaid,
at Los Angeles, California. I placed the envelope(s) for collection and mailing
on the above date following ordinary business practices.

9
10
11
12
13
14

BY E-MAIL
I served the foregoing document via e-mail to the addressees above at the e-mail
addresses listed therein.

15

BY HAND DELIVERY. I delivered the envelope(s) by hand to addressee(s).

16

BY EXPRESS SERVICE CARRIER (Via Overnight Courier Service)

17

I am readily familiar with the firm’s practice for collection and processing of
correspondence for delivery by Click and Type Name of Courier : collected
packages are picked up by an express carrier representative on the same day,
with the Airbill listing the account number for billing to sender, at Los Angeles,
California, in the ordinary course of business. I placed the envelope(s) in an
envelope or package designated by the express service carrier for collection and
processing for express service delivery on the above date following ordinary
business practices.

18
19
20
21
22

X

23

X

Executed on September 9, 2015, at Los Angeles, California.
I declare that I am employed in the office of a member of the bar of this court at
whose direction the service was made.

24
25
26
27
28

4833-1555-1016.1

Click and Type Name