Advanced Visual Image Design LLC v. Exist Inc et al

Filing 61

PROTECTIVE ORDER by Magistrate Judge Kenly Kiya Kato re Stipulation for Protective Order 59 (SEE ORDER FOR DETAILS) (dts)

1
2
3
4
5
6
7
8
9
10

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No.:
11 ADVANCED VISUAL IMAGE DESIGN, Honorable 2:14-cv-02525-JGB-KK
Kenly Kiya Kato Presiding
LLC, dba AVID INK, a California Limited
12 Liability Company,
[DISCOVERY MATTER]
13
Plaintiff,
(PROPOSED) PROTECTIVE
14
ORDER FOR CONFIDENTIAL
TREATMENT OF DOCUMENTS
15
AND INFORMATION
16 v.
17 EXIST, INC., et al.,
18
19 Defendants.

NOTE CHANGES MADE BY THE COURT

20
21 All related counter-claims.
22
23

Having considered the parties’ pleadings on file to date, and the parties’

24 jointly submitted Stipulated Protective Order for Confidential Treatment of
25 Documents and Information to govern the handling of information and materials
26 produced in the course of discovery or filed with the Court in this action, the Court
27 determines and orders as follows:
28

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

1. INTRODUCTION
1.1 PURPOSES AND LIMITATIONS
Discovery in this action is likely to involve production of confidential,
proprietary, or private information for which special protection from public
disclosure and from use for any purpose other than prosecuting this litigation may
be warranted. Accordingly, the parties hereby stipulate to and petition the Court to
enter the following Stipulated Protective Order. The parties acknowledge that
this Order does not confer blanket protections on all disclosures or responses to
discovery and that the protection it affords from public disclosure and use
extends only to the limited information or items that are entitled to confidential
treatment under the applicable legal principles. The parties further acknowledge,
as set forth in Section 13.3, below, that this Stipulated Protective Order does not
entitle them to file confidential information under seal; Civil Local Rule 79-5
sets forth the procedures that must be followed and the standards that will be
applied when a party seeks permission from the court to file material under seal.
1.2 GOOD CAUSE STATEMENT
This Action involves claims for copyright infringement under the
Copyright Act of 1976, Title 17 U.S.C., § 101 et seq. The parties, who are
various manufacturers, licensors and vendors of textile designs, and apparel
distributors and retailers, are direct and/or indirect competitors of each other. In
order to establish their claims and defenses, the parties intend to seek discovery
requesting sales, vendor, customer, import and export practice, other financial
information, and potentially other commercially and competitively sensitive
information.
There will also potentially be multiple depositions of the parties'
employees or agents and third party vendors, customers, licensees or clients

27

and such persons will likely be asked to answer questions on these
-1-

28

(PROPOSED) PROTECTIVE ORDER FOR CONFIDENTIAL TREATMENT OF DOCUMENTS AND
INFORMATION

1 potentially sensitive subject areas. Information regarding the parties' vendors,
2 customers, licensees and clients is confidential and/or proprietary information
3 which cannot be disclosed to other parties and/or the public at large. A
4 protective order ("Protective Order" or "Order") is therefore necessary to
5 avoid any prejudice or harm which would likely result if such information
6 was disclosed in the absence of the protections set forth herein. This Order
7 is also necessary for the orderly management of this litigation. Without this
8 Order, the exchange of party information, as well as information needed from
9 enter the following Stipulated Protective Order. The parties acknowledge that
10 this Order does not confer blanket protections on all disclosures or responses to
11 discovery and that the protection it affords from public disclosure and use
12 extends only to the limited information or items that are entitled to confidential
13 treatment under the applicable legal principles. The parties further acknowledge,
14 as set forth in Section 13.3, below, that this Stipulated Protective Order does not
15 entitle them to file confidential information under seal; Civil Local Rule 79-5
16 sets forth the procedures that must be followed and the standards that will be
17 applied when a party seeks permission from the court to file material under seal.
18 2.
19

DEFINITIONS
2.1 Action: This pending federal lawsuit, Advanced Visual Image Design,

20 Inc. dba Avid Ink v. Exist, Inc., Central District of California Case No. 1421 CV- 02525-JGB-KK (filed December 8, 2014).
22

2.2 Challenging Party: a Party or Non-Party that challenges the designation of

23 information or items under this Order.
24
2.3 "CONFIDENTIAL" Information or Items: as used herein, means all
25 information that is not otherwise publicly available (regardless of how it is
26 generated, stored or maintained) or tangible things that qualify for protection
27
-228

(PROPOSED) PROTECTIVE ORDER FOR CONFIDENTIAL TREATMENT OF DOCUMENTS AND
INFORMATION

1 under Federal Rule of Civil Procedure 26(c), and as specified above in the
2 Good Cause Statement, and
3

(a) is protected under the Uniform Trade Secrets Act, California Civil

4 Code section 3426, et. seq., in that such information derives independent economic
5 value, actual or potential, from not being generally known to, and not being
6 readily ascertainable by proper means, by other persons who can obtain
7 economic value from its disclosure or use; and
8

(b) is the

subject

of efforts

that

are

reasonable under

the

9 circumstances to maintain its secrecy; and
(c) is otherwise regarded by a party as being confidential, private, or
10
11 proprietary in nature.
12

2.4

Counsel: Outside Counsel of Record (as well as their support staff).

13

2.5 Designating Party: a Party or Non-Party that designates information or
14 items that it produces m disclosures or in responses to discovery as
15 "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL-ATTORNEYS' EYES
16 ONLY".
2.6
17

Disclosure or Discovery Material: all items or information,

18 regardless of the medium or manner in which it is generated, stored, or
19 maintained (including, among other things, testimony, transcripts, and tangible
20 things), that are produced or generated in disclosures or responses to discovery
21 in this matter.
22
2.7 Expert: a person with specialized knowledge or experience in a
23 matter pertinent to the litigation who has been retained by a Party or its counsel
24 to serve as an expert witness or as a consultant in this Action.
25

2.8

"HIGHLY CONFIDENTIAL - ATTORNEYS' EYES

26 ONLY'' Information or Items: CONFIDENTIAL Information or Items as
27
-328

(PROPOSED) PROTECTIVE ORDER FOR CONFIDENTIAL TREATMENT OF DOCUMENTS AND
INFORMATION

1 defined in paragraph 2.3 above, that contains highly sensitive business or
2 personal information, the disclosure of which is highly likely to cause
3 significant harm to an individual or to the business or competitive position
4 of the designating party. Any party to this litigation or third party covered
5 by this Order that produces or discloses any Attorneys' Eyes Only
6 Information shall mark the same with the following, or a substantially
7 similar, legend: "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES
8 ONLY".
9
10
11
12
13
14
15
16
17
18
19
20
21
22

2.9

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.
2.10 Non-Party: any natural person, partnership, corporation,
association, or other legal entity not named as a Party to this action.
2.11 Outside Counsel of Record: attorneys who are not employees of a
party to this Action but are retained to represent or advise a party to this Action
and have appeared in this Action on behalf of that party or are affiliated with a law
firm which has appeared on behalf of that party, and includes support staff.
2.12 Party: any party to this Action, including all of its officers, directors,
employees, consultants, retained experts, and Outside Counsel of Record (and their
support staffs).
2.13 Producing Party: a Party or Non-Party that produces Disclosure or

23 Discovery Material in this Action.
24
25

2.14 Professional Vendors: persons or entities that provide litigation
support services (e.g., photocopying, videotaping, translating, preparing

26
27

-4-

28

(PROPOSED) PROTECTIVE ORDER FOR CONFIDENTIAL TREATMENT OF DOCUMENTS AND
INFORMATION

1 exhibits or demonstrations, and organizing, storing, or retrieving data in any
2 form or medium) and their employees and subcontractors.
2.15 Protected Material: any Disclosure or Discovery Material that is

3

4 designated as "CONFIDENTIAL"
5 ATTORNEYS' EYES ONLY."

or

"HIGHLY

CONFIDENTIAL

2.16 Receiving Party: a Party that receives Disclosure or Discovery Material

6

7 from a Producing Party.
SCOPE
8 3.
The protections conferred by this Stipulation and Order cover not only

9
10
11
12
13

Protected Material (as defined above), but also (1) any information copied or
extracted from Protected Material; (2) all copies, excerpts, summaries, or
compilations of Protected Material; and (3) any testimony, conversations, or
presentations by Parties or their Counsel that might reveal Protected Material.

14

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

15 trial judge. This Order does not govern the use of Protected Material at trial.
16 4.

DURATION

17

Even after final disposition of this litigation, the confidentiality obligations

18 imposed by this Order shall remain in effect until a Designating Party agrees
19 otherwise in writing or a court order otherwise directs. Final disposition shall be
20 deemed to be the later of ( l) dismissal of all claims and defenses in this Action,
21 with or without prejudice; and (2) final judgment herein after the completion and
22 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,
23 including the time limits for filing any motions or applications for extension of time
24 pursuant to applicable law.
25
26 5.

DESIGNATING PROTECTED MATERIAL

27

-5-

28

(PROPOSED) PROTECTIVE ORDER FOR CONFIDENTIAL TREATMENT OF DOCUMENTS AND
INFORMATION

1

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

2 Each Party or Non-Party that designates information or items for protection
3 under this Order must take care to limit any such designation to specific
4 material that qualifies under the appropriate standards. The Designating Party
5 must designate for protection only those parts of material, documents, items, or
6 oral or written communications that qualify so that other portions of the
7 material, documents, items, or communications for which protection is not
8 warranted are not swept unjustifiably within the ambit of this Order.
9

Mass, indiscriminate, or routinized designations are prohibited. Designations

10 that are shown to be clearly unjustified or that have been made for an improper
11 purpose (e.g., to unnecessarily encumber the case development process or to
12 impose unnecessary expenses and burdens on other parties) may expose the
13 Designating Party to sanctions and the payment of attorneys' fees incurred by a
14 successful Challenging Party.
15

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

16 it designated for protection do not qualify for protection, that Designating Party
17 must promptly notify all other Parties that it is withdrawing the inapplicable
18 designation.
19
5.2 Manner and Timing of Designations. Except as otherwise provided in
20
this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
21
stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
22
under this Order must be clearly so designated before the material is disclosed or
23
produced.
24
Designation in conformity with this Order requires:
25
(a) for information in documentary form (e.g., paper or electronic
26 documents, but excluding transcripts of depositions or other pretrial or trial
27

-6-

28

(PROPOSED) PROTECTIVE ORDER FOR CONFIDENTIAL TREATMENT OF DOCUMENTS AND
INFORMATION

1 proceedings), that the Producing Party affix at a minimum, the legend
2 "CONFIDENTIAL" (hereinafter "CONFIDENTIAL legend") or "HIGHLY
3 CONFIDENTIAL-ATTORNEYS' EYES ONLY" (hereinafter "HIGHLY
CONFIDENTIAL - ATTORNEYS' EYES ONLY legend"), to each page
4
that contains protected material. If only a portion or portions of the material on a
5
page qualifies for protection, the Producing Party also must clearly identify the
6
protected portion(s) (e.g., by making appropriate markings in the margins).
7
8

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

9 need not designate them for protection until after the inspecting Party has indicated
10 which documents it would like copied and produced. During the inspection and
11 before the designation, all of the material made available for inspection shall be
12 deemed "CONFIDENTIAL." After the inspecting Party has identified the
13 documents it wants copied and produced, the Producing Party must determine
14 which documents, or portions thereof, qualify for protection under this Order as
15 "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL-ATTORNEYS' EYES
16 ONLY". Then, before producing the specified documents, the Producing Party must
17 affix the "CONFIDENTIAL legend" or "HIGHLY CONFIDENTIAL 18 ATTORNEYS' EYES ONLY legend" to each page that contains Protected
19 Material. If only a portion or portions of the material on a page qualifies for
20 protection, the Producing Party also must clearly identify the protected
21 portion(s) (e.g., by making appropriate markings in the margins).
22

(b)

for testimony given in depositions that the Designating Party identify

23 the Disclosure or Discovery Material on the record, before the close of the
24 deposition all protected testimony.
25

(c)

for information produced in some form other than documentary and for

26 any other tangible items, that the Producing Party affix in a prominent place on the
27
-728

(PROPOSED) PROTECTIVE ORDER FOR CONFIDENTIAL TREATMENT OF DOCUMENTS AND
INFORMATION

1 exterior of the container or containers in which the information is stored the legend
2 "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL-ATTORNEYS' EYES
3 ONLY". If only a portion or portions of the information warrants protection, the
4 Producing Party, to the extent practicable, shall identify the protected portion(s).
5
6
7
8
9
10

5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
failure to designate qualified information or items does not, standing alone,
waive the Designating Party's right to secure protection under this Order for such
material. Upon timely correction of a designation, the Receiving Party must make
reasonable efforts to assure that the material is treated in accordance with the
provisions of this Order.

11 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1 Timing of Challenges. Any Party or Non-Party may challenge a
12
13 designation of confidentiality at any time that is consistent with the Court's
14 Scheduling Order.
15

6.2 Meet and Confer. A n y c h a l l e n g e h e r e u n d e r mu s t b e ma d e i n

16 s t ri c t c o mp l i an c e wi th Loc a l R ul es 3 7 -1 and 3 7 -2 ( i n cl ud ing t he
17 J o i n t S t i p u l a t i o n r e qu i r e m e n t ) . A C h a l l e n g i n g P a r t y m a y

a l s o KK

18 a p p l y f o r relief on an expedited or ex parte basis if warranted under the
19 circumstances. In making or opposing any motion relating to the designation of
20 CONFIDENTIAL

Information

or

HIGHLY

CONFIDENTIAL

-

21 ATTORNEYS' EYES ONLY Information, the party seeking to maintain a
22 document under the Protective Order

as CONFIDENTIAL or HIGHLY

23 CONFIDENTIAL - ATTORNEYS' EYES ONLY shall bear the burden of
24 showing specific prejudice or harm if the information sought to be protected is
25 disclosed to the public. See e.g., Phillips ex rel. Byrd v. General Motors Corp.,
26 307 F.3d 1206, 1210-1211 (9th Cir. 2002). Frivolous challenges, and those
27 made for an improper purpose (e.g., to harass
-828

(PROPOSED) PROTECTIVE ORDER FOR CONFIDENTIAL TREATMENT OF DOCUMENTS AND
INFORMATION

1 or impose unnecessary expenses and burdens on other parties) may expose the
2 Challenging Party to sanctions.
3

Unless the Designating Party has waived or withdrawn the confidentiality

4 designation, all parties shall continue to afford the material in question the level of
5 protection to which it is entitled under the Producing Party's designation until the
6 Court rules on the challenge.
7 7.
8

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1 Basic Principles. A Receiving Party may use Protected Material that

9 disclosed or produced by another Party or by a Non-Party in connection with this
10 Action only for prosecuting, defending, or attempting to settle this Action. Such
11 Protected Material may be disclosed only to the categories of persons and under
12 the conditions described in this Order. When the Action has been terminated, a
13 Receiving Party must comply with the provisions of section 13 below (FINAL
14 DISPOSITION).
15

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

16 location and in a secure manner that ensures that access is limited to the persons
17 authorized under this Order.
18

7.2 Disclosure of "CONFIDENTIAL" Information or Items. Unless

19 otherwise ordered by the court or permitted in writing by the Designating Party,
20 a Receiving Party may disclose any information or item designated
21 "CONFIDENTIAL" only to:
22
(a) the Receiving Party's Outside Counsel of Record in this Action, as
23
well as employees of said Outside Counsel of Record to whom it is reasonably
24
necessary to disclose the information for this Action;
25
(b) the officers, directors, and employees (including In-House Counsel) of
26
the Receiving Party to whom disclosure is reasonably necessary for this Action;
27
-928

(PROPOSED) PROTECTIVE ORDER FOR CONFIDENTIAL TREATMENT OF DOCUMENTS AND
INFORMATION

1

(c)

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

2 whom disclosure is reasonably necessary for this Action and who have
3 signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A);
4

(d)

the Court and its personnel;

5

(e)

court reporters and their staff;

6

(f)

professional jury or trial consultants, mock jurors, and Professional

7 Vendors to whom disclosure is reasonably necessary for this Action and who have
8 signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A);
9

(g)

the author or recipient of a document containing the information

10 or a custodian or other person who otherwise possessed or knew the information;
11

(h)

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

12 the Action to whom disclosure is reasonably necessary provided: (1) the deposing
13 party requests that the witness sign the form attached as Exhibit A hereto; and
14 (2) they will not be permitted to keep any CONFIDENTIAL information unless
15 they sign the "Acknowledgment and Agreement to Be Bound" (Exhibit A),
16 unless otherwise agreed by the Designating Party or ordered by the court.
17 Pages of transcribed deposition testimony or exhibits to depositions that reveal
18 Protected Material may be separately bound by the court reporter and may not be
19 disclosed to anyone except
20 as permitted under this Stipulated Protective Order; and
21

(i) any mediator or settlement officer, and their supporting personnel,

22 mutually agreed upon by any of the parties engaged in settlement discussions.
23

7.3 Disclosure of " HIGHLY CONFIDENTIAL- ATTORNEYS'

24 EYES ONLY" Information or Items. Where a Designating Party has
25 designated information as "Highly Confidential - Attorneys' Eyes Only," other
26
27

-10-

28

(PROPOSED) PROTECTIVE ORDER FOR CONFIDENTIAL TREATMENT OF DOCUMENTS AND
INFORMATION

1 persons subject to this Order may disclose such information only to the
2 following persons:
3

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

4 well as employees of said Outside Counsel of Record to whom it is reasonably
5 necessary to disclose the information for this Action;
6

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

7 whom disclosure is reasonably necessary for this Action

and who have

8 signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A);
9

(c) the Court and its personnel;

10

(d) court reporters and their staff;

11

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

12 Professional Vendors to whom disclosure is reasonably necessary for this Action
13 and who have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit
14 A);
15

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

16 or a custodian or other person who otherwise possessed or knew the information;
17

(g) during their depositions, witnesses, and attorneys for witnesses, in

18 the Action to whom disclosure is reasonably necessary provided: (1) the deposing
19 party requests that the witness sign the form attached as Exhibit A hereto; and
20 (2) they will not be permitted to keep any HIGHLY CONFIDENTIAL21 ATTORNEYS' EYES ONLY information unless they sign the "Acknowledgment
22 and Agreement to Be Bound" (Exhibit A), unless otherwise agreed by the
23 Designating Party or ordered by the court. Pages of transcribed deposition
24 testimony or exhibits to depositions that reveal Protected Material may be
25 separately bound by the court reporter and may not be disclosed to anyone except
26 as permitted under this Stipulated Protective
27

-11-

28

(PROPOSED) PROTECTIVE ORDER FOR CONFIDENTIAL TREATMENT OF DOCUMENTS AND
INFORMATION

1
2
3
4

Order; and
(h) any mediator or settlement officer, and their supporting personnel,
mutually agreed upon by any of the parties engaged in settlement discussions.
7.4 The Parties agree that each of the Parties may be provided by

5 their respective Outside Counsel of Record a summary document, or oral
6 summary, setting forth the alleged infringers' full identities (limited to company
7 name and address only), total revenues for each alleged infringing
8 product/service, total gross profits numbers, total number of units (or the
9 equivalents for a service) produced, provided, and/or sold of the allegedly
10 infringing product(s) and/or service at issue disseminated by the alleged
11 infringers of the design(s) at issue in this litigation notwithstanding any party's
12 designation of documents showing such information as HIGHLY
13 CONFIDENTIAL - ATTORNEYS' EYES ONLY.
14

7.5 The Party making the disclosure of information marked "HIGHLY

15 CONFIDENTIAL-ATTORNEYS' EYES ONLY" shall keep a record of the
16 HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY Information disclosed
17 to such person.
18

7.6 If an Expert, as defined herein, is a direct competitor of a

19 Designating Party, or is affiliated with any enterprise that is in a position to
20 commercially exploit information designated as CONFIDENTIAL or HIGHLY
21 CONFIDENTIAL - ATTORNEYS EYES' ONLY, (hereinafter "Expert
22 Competitor")

then

the Party seeking

to disclose information marked

23 CONFIDENTIAL or HIGHLY CONFIDENTIAL - ATTORNEYS EYES'
24 ONLY to the Expert Competitor must deliver written notice to the Designating
25 Party of its desire to do so at least five (5) business days before making
26 disclosure to the Expert Competitor. During this period, the recipient of such
27

-12-

28

(PROPOSED) PROTECTIVE ORDER FOR CONFIDENTIAL TREATMENT OF DOCUMENTS AND
INFORMATION

1 notice may object to the disclosure of all or any portion of the information
marked CONFIDENTIAL or HIGHLY CONFIDENTIAL - ATTORNEYS
2
EYES' ONLY to the Expert Competitor. In the event of such objection, the
3
Designating Party and the Party seeking to disclose information to an Expert
4
Competitor shall attempt in good faith to negotiate a stipulation to delineate
5
what information marked CONFIDENTIAL or HIGHLY CONFIDENTIAL 6
ATTORNEYS EYES' ONLY may be disclosed to the particular Expert
7
Competitor and the circumstances under which such disclosure may be
8
made. If they cannot agree, the Party seeking to disclose information marked
9 CONFIDENTIAL or HIGHLY CONFIDENTIAL - ATTORNEYS EYES'
10 ONLY to the Expert Competitor shall not do so without first obtaining Court
11 approval pursuant to the applicable Local Rules. In determining whether to
12 categorize a person as an Expert Competitor for purposes of this paragraph,
13 Counsel shall exercise reasonable judgment as to whether any enterprise with
14 which such person is known to be affiliated
15 commercially

exploit

information

is

in

a

position

to

marked CONFIDENTIAL or HIGHLY

16 CONFIDENTIAL -ATTORNEYS EYES' ONLY.
17

7.7 In-House counsel shall be precluded from access to any documents

18 marked "HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY," without
19 first obtaining court authorization or written authorization by the Designating
20 Party.
21 8.
Nothing contained herein shall preclude a party from (a) using or
22 disseminating its own CONFIDENTIAL Information or HIGHLY
23 CONFIDENTIAL-ATTORNEYS' EYES ONLY Information in any way; (b)
24 disclosing information taken from a document marked "CONFIDENTIAL" or
25 " HIGHLY CONFIDENTIAL" to any person who on the face of that
26 document is shown as having previously received the document; (c)
27

-13-

28

(PROPOSED) PROTECTIVE ORDER FOR CONFIDENTIAL TREATMENT OF DOCUMENTS AND
INFORMATION

1 disclosing CONFIDENTIAL Information or HIGHLY CONFIDENTIALATTORNEYS' EYES ONLY Information of the party that designated the
2
information as such to an officer, director, or manager of that Designating
3
party, or to other witnesses designated by that Designating party pursuant to
4
Rule 30(b)(6), F.R.Civ.P.; (d) disclosing information which, at the time of
5
disclosure, was already in the recipient's possession or available to it from any
6
other source having no obligation to the party or nonparty witness which is the
7
source of said information or which is, or at any time hereafter becomes,
8
available to the public or which, after access is gained through disclosure in
9
this action, is at any time obtained by the recipient from any other person,
10
firm or company having no obligation to or relationship with the source of
11
said information; or (e) intentionally waiving in writing any provision in this
12
Order with respect to any CONFIDENTIAL Information or HIGHLY
13 CONFIDENTIAL-ATTORNEYS' EYES ONLY Information designated by it
14 without further order of the Court.
15
9.
PROTECTED
MATERIAL
SUBPOENAED
PRODUCEDIN OTHER LITIGATION
16
17

OR

ORDERED

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

18 that compels disclosure of any information or items designated in this Action as
19 "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL" that Party must:
20

(a)

promptly notify in writing the Designating Party. Such notification

21 shall include a copy of the subpoena or court order;
22
(b) promptly notify in writing the party who caused the subpoena or
23 order to issue in the other litigation that some or all of the material covered by the
24 subpoena or order is subject to this Protective Order. Such notification shall
25 include a copy of this Stipulated Protective Order; and
26
27

-14-

28

(PROPOSED) PROTECTIVE ORDER FOR CONFIDENTIAL TREATMENT OF DOCUMENTS AND
INFORMATION

(c)

1

cooperate with respect to all reasonable procedures sought to be

2 pursued by the Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served
3
4 with the subpoena or court order shall not produce any information designated in
5 this action as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL" before a
6 determination by the court from which the subpoena or order issued, unless the
7 Party has obtained the Designating Party's permission. The Designating Party shall
8 bear the burden and expense of seeking protection in that court of its confidential
9 material and nothing in these provisions should be construed as authorizing or
10 encouraging a Receiving Party in this Action to disobey a lawful directive from
11 another court.
12 10.
13
14
15
16
17
18
19
20
21

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

Party in this Action and designated as "CONFIDENTIAL" or "HIGHLY
CONFIDENTIAL." Such information produced by Non-Parties in connection
with this litigation is protected by the remedies and relief provided by this Order.
Nothing in these provisions should be construed as prohibiting a Non-Party from
seeking additional protections.
(b) In the event that a Party is required, by a valid discovery request,

a
Non-Party's
CONFIDENTIAL
Information
or
22 to produce
23 HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY Information in its
24 possession, and the Party is subject to an agreement with the Non-Party not to
CONFIDENTIAL Information or HIGHLY
25 produce the Non- Party's
26 CONFIDENTIAL- ATTORNEYS' EYES ONLY Information, then the Party shall:
27

-15-

28

(PROPOSED) PROTECTIVE ORDER FOR CONFIDENTIAL TREATMENT OF DOCUMENTS AND
INFORMATION

1

(1)

promptly notify in writing the Requesting Party and the

2 Non- Party that some or all of the information requested
3 confidentiality agreement with a Non-Party;
4

(2)

promptly

provide

the Non-Party

with

is subject to a

a

copy

of the

5 Stipulated Protective Order in this Action, the relevant discovery request(s), and a
6 reasonably specific description of the information requested; and
7

(3)

make the information requested available for inspection by

8 the Non-Party, if requested.
9

(c)

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

10

this court within

11

accompanying information, the Receiving Party may

12

the Non-Party's

13

CONFIDENTIAL-ATTORNEYS'

14

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

15

a protective

16

information in its possession or control that is subject to the

17

confidentiality

18

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

19

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

20

this court of its Protected Material.

14 days

of receiving

CONFIDENTIAL

order, the

the

Information

EYES

ONLY

notice

and

produce

or HIGHLY
Information

Receiving Party shall not produce any

agreement

with

the

Non-Party

before

a

21
22 11.
23

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

24 disclosed Protected Material to any person or in any circumstance not
25 authorized under this Stipulated Protective Order, the Receiving Party must
26 immediately (a) notify in writing the Designating Party of the unauthorized
27

-16-

28

(PROPOSED) PROTECTIVE ORDER FOR CONFIDENTIAL TREATMENT OF DOCUMENTS AND
INFORMATION

1 disclosures, (b) use its best efforts to retrieve all unauthorized copies of the
2 Protected Material, (c) inform the person or persons to whom unauthorized
3 disclosures were made of all the terms of this Order, and (d) request such person
4 or persons to execute the "Acknowledgment and Agreement to Be Bound" that is
5 attached hereto as Exhibit A.
6 12.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

7

PROTECTED MATERIAL

8

When a Producing Party gives notice to Receiving Parties that certain

9 inadvertently produced material is subject to a claim of privilege or other
10 protection, the obligations of the Receiving Parties are those set forth in Federal
11 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify
12 whatever procedure may be established in an e-discovery order that provides
13 for production without prior privilege review. Pursuant to Federal Rule of
14 Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of
15 disclosure of a communication or information covered by the attorney-client
16 privilege or work product protection, the parties may incorporate their agreement
17 in the stipulated protective order submitted to the court.
18
13. MISCELLANEOUS
19
13.1 Right to Further Relief. Nothing in this Order abridges the right of any
20
person to seek its modification by the Court in the future. Any application seeking
21
modification must be made in strict compliance with Local Rules 37-1 and 37-2
22
(including the Joint Stipulation requirement).
23
13.2 Right to Assert Other Objections. By stipulating to the entry of this
24
25 Protective Order no Party waives any right it otherwise would have to object to
26 disclosing or producing any information or item on any ground not addressed in this
27

-17-

28

(PROPOSED) PROTECTIVE ORDER FOR CONFIDENTIAL TREATMENT OF DOCUMENTS AND
INFORMATION

1 Stipulated Protective Order. Similarly, no Party waives any right to object on any
2 ground to use in evidence of any of the material covered by this Protective Order.
3

13.3 Filing Protected Material. Protected Material may only be filed under

4 seal pursuant to a Court Order authorizing the sealing of the specific Protected
5 Material at issue. Any Party seeking to file any Protected Material under seal must
6 comply with Civil Local Rule 79-5. If a Party's request to file Protected Material
7 under seal is denied by the Court, then the Receiving Party may file the information
8 in the public record unless otherwise instructed by the Court. If the Court grants a
9 Party’s motion to file Protected Under seal, the Protected Material shall be
10 maintained under seal with the United States District Court for the Central District
11 of California, pursuant to this Order, or as otherwise ordered by this Court. All such
12 Protected Material will be filed in a sealed envelope that contains an indication of
13 the general nature of the contents of the envelope, and has endorsed thereon the title
14 and docket number of this action and a boldface label conspicuously placed on the
15 front of the said envelope stating:
16 THIS ENVELOPE CONTAINS DOCUMENTS, THINGS, OR TESTIMONY
17 WHICH ARE 'CONFIDENTIAL" (OR "HIGHLY CONFIDENTIAL
18 ATTORNEYS' EYES ONLY AND SUBJECT TO THE TERMS OF A
19 PROTECTIVE ORDER OF THE UNITED STATES DISTRICT COURT,
20 CENTRAL DISTRICT OF CALIFORNIA. IT IS NOT TO BE OPENED OR THE
21 CONTENTS DISPLAYED OR REVEALED EXCEPT TO THIS COURT AND
22 ITS STAFF.
23
24

To the extent practicable, designated items or the substance of designated

25 items shall be filed separately or in severable portions of filed papers, so that non26 designated items may be freely disseminated.
27
-1828

(PROPOSED) PROTECTIVE ORDER FOR CONFIDENTIAL TREATMENT OF DOCUMENTS AND
INFORMATION

1

13.4 In the event that information designated as Protected Material is

2 contemplated to be used at trial, the Receiving Party seeking to use such information
3 shall give notice to the Court and the Designating Party of its intention to use the
4 Protected Material at trial sufficiently in advance of its contemplated use so that the
5 Court can have the matter heard. The Designating Party continues to bear the burden
6 of showing to the Court that there is good cause to keep the materials sought to be
7 used at trial as subject to and treated under the terms of this Protective Order so that
8 the Court may keep the Protected Material exempt from public disclosure even
9 though the Protected Material is used at trial.
10 14.

FINAL DISPOSITION

11

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

12 days of a written request by the Designating Party, each Receiving Party must return
13 all Protected Material to the Producing Party or destroy such material. As used in
14 this subdivision, "all Protected Material" includes all copies, abstracts, compilations,
15 summaries, and any other format reproducing or capturing any of the Protected
16 Material. Whether the Protected Material is returned or destroyed, the Receiving
17 Party must submit a written certification to the Producing Party ( and, if not the
18 same person or entity, to the Designating Party) by the 60 day deadline that (1)
19 identifies (by category, where appropriate) all the Protected Material that was
20 returned or destroyed and (2)affirms that the Receiving Party has not retained any
21 copies, abstracts, compilations, summaries or any other format reproducing or
22 capturing any of the Protected Material. Notwithstanding this provision, Counsel are
23 entitled to retain an archival copy of all pleadings, motion papers, trial, deposition,
24 and hearing transcripts, legal memoranda, correspondence, deposition and trial
25 exhibits, expert reports, attorney work product, and consultant and expert work
26 product, even if such materials contain Protected Material. Any such archival copies
27

-19-

28

(PROPOSED) PROTECTIVE ORDER FOR CONFIDENTIAL TREATMENT OF DOCUMENTS AND
INFORMATION

1 that contain or constitute Protected Material remain subject to this Protective Order
2 as set forth in Section 4 (DURATION).
3 15. Any violation of this Order may be punished by any and all appropriate
4 measures including, without limitation, contempt proceedings and/or monetary
5 sanctions.
6
7
8 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
9
10 Dated:__________ , 2015
August 12

______________________
Hon. Kenly Kiya Kato
United States Magistrate Judge

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

-20-

28

(PROPOSED) PROTECTIVE ORDER FOR CONFIDENTIAL TREATMENT OF DOCUMENTS AND
INFORMATION