Continental Appliances Inc v. SHM International Corporation et al

Filing 65

STIPULATED PROTECTIVE ORDER by Magistrate Judge Jean P Rosenbluth. IT IS HEREBY STIPULATED AND AGREED by and between the parties to this civil action, through their respective attorneys, as follows: (See Order for details.) (wr)

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Michael K. Friedland (SBN 157,217)
[e-mail]
Lauren Keller Katzenellenbogen (SBN 223,370)
[e-mail]
Charles Duan (SBN 257,263)
[e-mail]
KNOBBE, MARTENS, OLSON & BEAR, LLP
2040 Main Street, Fourteenth Floor
Irvine, CA 92614
Phone: [phone]
Facsimile: [phone]
Attorneys for Plaintiff
CONTINENTAL APPLIANCES, INC.
L. Clint Crosby (Pro Hac Vice)
[e-mail]
Dorian B. Kennedy (Pro Hac Vice)
[e-mail]
BAKER, DONELSON, BEARMAN,
CALDWELL & BERKOWITZ, P.C.
3414 Peachtree Road NE, Suite 1600
Atlanta, GA 30326
Phone: [phone]
Facsimile: [phone]
Attorneys for Defendants
SURE HEAT MANUFACTURING, INC. and
SHM INTERNATIONAL CORPORATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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SOUTHERN DIVISION

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CONTINENTAL APPLIANCES,
INC., a California corporation,

)
)
)
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Plaintiff,
)
)
v.
)
)
SHM INTERNATIONAL
)
CORPORATION, a Georgia
)
corporation, and SURE HEAT
)
MANUFACTURING, INC.,
)
a Georgia corporation,
)
)
Defendants.
)
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AND RELATED COUNTERCLAIMS )

Case No. SACV 11-01544-JVS (JPRx)
STIPULATED PROTECTIVE
ORDER

Honorable Jean P. Rosenbluth

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IT IS HEREBY STIPULATED AND AGREED by and between the
parties to this civil action, through their respective attorneys, as follows:

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I. APPLICABILITY AND SCOPE OF STIPULATION
1.

As used herein, CONFIDENTIAL INFORMATION refers to

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information that a producing party claims, reasonably and in good faith, to be its

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trade secret or other confidential research, development, financial, technical,

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sales or commercial information within the meaning of Rule 26(c)(1)(G) of the

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Federal Rules of Civil Procedure.

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Stipulation and Protective Order as CONFIDENTIAL INFORMATION shall

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Information to be treated under this

include:
a.

Information set forth in documents produced pursuant to a

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party’s initial disclosure obligations under Fed. R. Civ. P.

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26(a), or in responses to discovery requests made under Fed.

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R. Civ. P. 31, 33 or 36, or in documents produced for

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inspection and/or copying or otherwise under Fed. R. Civ. P.

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33(d) or 34, or pursuant to a subpoena under Fed. R. Civ. P.

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45, provided that, prior to delivery to the receiving party, the

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responses or copies of documents are marked by the

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producing party with substantially the following legend:

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CONFIDENTIAL INFORMATION
SUBJECT TO PROTECTIVE ORDER

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Alternatively, documents produced pursuant to a party’s

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initial disclosure obligations under Fed. R. Civ. P. 26(a), for

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inspection and/or copying or otherwise under Fed. R. Civ. P.

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33(d) or 34, or pursuant to a subpoena under Fed. R. Civ. P.

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45, may instead use a conspicuous legend consisting of

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“CONFIDENTIAL”

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INFORMATION.”
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or

“CONFIDENTIAL

b.

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Information revealed by inspection of things or premises

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under Fed. R. Civ. P. 34 under terms to be agreed upon by

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the parties through good-faith negotiations in connection

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with any such inspection.
c.

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Information revealed during a deposition upon oral

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examination under Fed. R. Civ. P. 30, for thirty (30) days

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following receipt of the transcript by counsel for the

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producing party, but not thereafter unless, before the thirty-

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day period has expired, counsel for the producing party

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notifies counsel for the receiving party in writing that

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CONFIDENTIAL INFORMATION is set forth in the

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transcript and specifies in writing the portions of the

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transcript that disclose CONFIDENTIAL INFORMATION,

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in which case such portions shall be appropriately marked

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with a confidentiality notice.
d.

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Information produced in the form of computer disks, video

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tapes, or other tangible things in electronic, magnetic, or

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other stored form, to the extent that each such item produced

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is marked by the producing party with a confidentiality

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notice. If such items are printed out by the receiving party,

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the receiving party must mark each page of the printed

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version with the confidentiality notice.

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2.

The types of information identified in paragraphs 1(a), (b), (c), and

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(d) may alternatively be designated as “HIGHLY CONFIDENTIAL -

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ATTORNEYS EYES ONLY,” and shall bear the same legend as above in

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Paragraph

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CONFIDENTIAL - ATTORNEYS EYES ONLY.” The designation “HIGHLY

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CONFIDENTIAL - ATTORNEYS EYES ONLY” shall be used only for

1(a),

except

changing

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“CONFIDENTIAL”

to

“HIGHLY

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information that the producing party determines, reasonably and in good faith,

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to consist of:

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information, including but not limited to internal financial statements, financial

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and marketing forecasts, marketing plans, and market assessments; (2) highly

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sensitive and non-public technical or business information relating to research

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for, or development or manufacturing of, current products; (3) highly sensitive

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and non-public technical or research and development information regarding

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future products; (4) non-public agreements or dealings with any vendor,

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distributor or customer or with any competitor of a Party to this lawsuit; or

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(5) information containing pricing or other sensitive or confidential data.

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Hereafter, CONFIDENTIAL INFORMATION and HIGHLY CONFIDENTIAL

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- ATTORNEYS EYES ONLY INFORMATION may be referred to, separately

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and collectively, as “PROTECTED INFORMATION.”

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3.

(1) highly sensitive and non-public financial and marketing

PROTECTED

INFORMATION

and

all

other

information

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disclosed by a producing party to a receiving party pursuant to discovery in this

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action shall be used solely for purposes of this action, including any appeals in

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connection therewith.

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4.

Access to CONFIDENTIAL INFORMATION shall be limited to

the following persons:
a.

employees, attorneys, or Rule 30(b)(6) designees;

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The producing party, and any of its present officers, agents,

b.

A witness who authored or received the CONFIDENTIAL

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INFORMATION prior to its production to the receiving

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party, provided that the witness will not be permitted to

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retain any CONFIDENTIAL INFORMATION unless the

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witness is otherwise authorized to do so;

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c.

Outside Counsel of record for a receiving party and
stenographic, clerical, and legal assistant employees, and
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agents of those counsel whose functions require access to

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CONFIDENTIAL INFORMATION;

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d.

In-house counsel for a receiving party and stenographic,

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clerical, and legal assistant employees, and agents of those

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counsel whose functions require access to CONFIDENTIAL

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INFORMATION;

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e.

The officers and employees of any party, whose assistance is

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reasonably necessary in the preparation of such party’s case,

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and stenographic, clerical, and legal assistant employees, and

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agents of those officers and employees whose functions

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require access to CONFIDENTIAL INFORMATION;

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f.

Outside experts, whether testifying or not, or consultants,

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whether testifying or not, (and their stenographic and clerical

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personnel) who are not officers, directors, employees, or

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consultants of a receiving party, of a competitor of a

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receiving party or of any affiliates of either provided that

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disclosure to such experts or consultants and their

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stenographic and clerical personnel shall be made only on

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the following conditions:

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i.

Counsel

desiring

to

disclose

CONFIDENTIAL

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INFORMATION to such experts or consultants shall

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first obtain a signed Agreement To Be Bound By

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Protective Order in the form of Exhibit A attached

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hereto from each such expert or consultant who would

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require access to CONFIDENTIAL INFORMATION,

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and counsel shall retain in his/her file the original of

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each such signed Agreement To Be Bound By

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Protective Order.
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ii.

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No CONFIDENTIAL INFORMATION shall be

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disclosed to such expert or consultant until after the

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expiration of a ten (10) day period commencing with

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the receipt by counsel for the producing party of a

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copy of the expert’s or consultant’s signed Agreement

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To Be Bound By Protective Order and a curriculum

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vitae (if available) of the expert or consultant.

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Counsel for the producing party may object to such

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disclosure only for good cause, e.g., a business

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conflict, and only during the ten (10) day period after

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such receipt. In the event of any such objection, there

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shall

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INFORMATION to such expert or consultant, except

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by express agreement of the parties or order of the

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Court.
g.

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be

no

disclosure

of

CONFIDENTIAL

Non-technical trial consultants and graphics or design

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services retained by outside trial counsel for the purpose of

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preparing demonstrative or other exhibits;
h.

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Any court reporters and videographers who record and/or
transcribe deposition or other testimony in this action; and

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i.

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The Court and its authorized staff and any Special Master

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appointed by the Court and his/her staff, and any person

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whom the parties have agreed will serve as mediator in this

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action.

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5.

Access to HIGHLY CONFIDENTIAL - ATTORNEYS EYES

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ONLY INFORMATION shall be limited to those individuals outlined in

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Paragraphs 4(a), (b), (c), (f), (g), (h), and (i) above on the same terms as outlined

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in those provisions for CONFIDENTIAL INFORMATION.
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6.

PROTECTED INFORMATION shall not be made public by the

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receiving party, shall be used only by persons permitted access to it under

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Paragraphs 4-5 and shall be disclosed only to persons as specified in Paragraphs

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4-5, absent a Court Order to the contrary.

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7.

The recipient of any CONFIDENTIAL material or HIGHLY

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CONFIDENTIAL - ATTORNEYS EYES ONLY INFORMATION material

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that is provided under this Stipulation and Protective Order shall maintain such

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information in a secure and safe area, shall take appropriate measures to ensure

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the continued confidentiality of such material, and shall exercise at least the

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same standard of due and proper care with respect to the storage, custody, use

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and/or dissemination of such information as is exercised by the recipient with

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respect to its own proprietary and highly confidential or competitively sensitive

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information.

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8.

PROTECTED INFORMATION of the producing party shall not be

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kept on any of the premises of the receiving party, except that (a) PROTECTED

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INFORMATION filed or served in the litigation (including briefs, declarations,

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deposition transcripts, interrogatory responses, and exhibits to the foregoing)

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may be kept in a secure location in the offices of those individuals designated in

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or pursuant to Paragraphs 4-5 entitled to receive such information; (b)

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PROTECTED INFORMATION may be kept in the custody of outside counsel

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of record for the parties; and (c) PROTECTED INFORMATION may be kept in

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the custody of outside experts or consultants for a receiving party, provided that

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the experts and consultants segregate the PROTECTED INFORMATION from

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other information and maintain the PROTECTED INFORMATION in a secure

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location.

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9.

If PROTECTED INFORMATION is to be filed with the Court in

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connection with any proceedings herein, it shall be filed in accordance with

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Local Rule 79-5.
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10.

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This Stipulation and Protective Order shall not prevent a party from

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attempting to examine, at depositions or at trial, persons who are not authorized

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to receive PROTECTED INFORMATION, as identified herein, so long as such

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examination concerns PROTECTED INFORMATION to which the witness

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previously had authorized access or of which the witness has prior knowledge,

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as demonstrated by foundation testimony during the deposition or trial, or there

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exists a reasonable basis for inquiry regarding the person’s knowledge of

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Protected Information or the relationship of Protected Information to the

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person’s testimony. This Stipulation and Protective Order shall not prevent

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counsel from examining a witness to determine whether he or she has prior

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knowledge of PROTECTED INFORMATION, so long as such examination is

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done in a manner that does not disclose the details of the PROTECTED

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INFORMATION. Such discussion shall not constitute disclosure in violation of

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this Stipulation and Protective Order.
11.

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Subject to the provisions of this Stipulation and Protective Order

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and any further Order regarding confidentiality as this Court may enter,

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PROTECTED INFORMATION may be used to prepare for and conduct

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discovery, to support or oppose any motion, and to prepare for trial and appeal,

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and also may be used at depositions, but may not be used for any other purpose

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or disclosed to any other person or entity by the receiving party unless otherwise

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agreed to beforehand in writing by the Producing Party or if the Court so orders.
12.

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Nothing in this Order shall bar or otherwise restrict any attorney

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from rendering advice to a party-client in this action and in the course thereof,

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relying upon such attorney’s examination of PROTECTED INFORMATION;

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provided, however, that in rendering such advice and in otherwise

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communicating with such client, the attorney shall not disclose the content or

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source of any PROTECTED INFORMATION to unauthorized persons.

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13.

The acceptance of PROTECTED INFORMATION by the parties

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shall not constitute an admission or concession or permit an inference that the

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PROTECTED INFORMATION is in fact confidential, or of the level of

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confidentiality designated by the producing party.

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Protective Order shall not foreclose any party from moving for an Order that

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documents or other items designated PROTECTED INFORMATION are not, in

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fact, confidential, or of the level of confidentiality designated by the producing

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party. Prior to bringing such a motion, the receiving party shall first request in

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writing that the producing party change its designation of certain specifically-

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enumerated information. If the producing party refuses to agree within ten (10)

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days, the receiving party may file a motion for an Order changing or removing

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the designation. On such a motion, the producing party shall have the burden of

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proving that the PROTECTED INFORMATION embodies its trade secrets or

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other confidential research, development, or commercial information within the

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meaning of Fed. R. Civ. P. 26(c)(1)(G). Any motion brought pursuant to this

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paragraph must be made in compliance with Local Rules 37-1 and 37-2.

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14.

This Stipulation and

If a Party determines that it has inadvertently produced documents

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or materials without the designation required by Paragraph 1, the producing

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party shall inform the receiving party of the inadvertent production in writing,

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the producing party shall provide properly marked documents and the receiving

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Party shall take reasonable steps to ensure that all known unmarked copies of

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any such documents are returned promptly to the producing Party.

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15.

If a Party determines that it has inadvertently failed to designate

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documents or materials as “CONFIDENTIAL” material or “HIGHLY

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CONFIDENTIAL” material, it may do so by giving written notice to all Parties

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or their counsel of the new designation as being either “CONFIDENTIAL”

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material or “HIGHLY CONFIDENTIAL” material. All persons who are in

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possession of such after-production designated or re-designated materials and
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who are not within a category of persons who may possess such materials

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pursuant to Paragraphs 4 and 6 hereof shall promptly return all known copies of

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any such documents to the producing party or to a person who is within a

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category of persons who may possess such materials. Such after-production

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designated or re-designated materials shall be treated pursuant to the provisions

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of this Order as having been designated prior to production.
16.

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Should any PROTECTED INFORMATION be disclosed, through

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inadvertence or otherwise, by the receiving party to any person or party not

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authorized under this Stipulation and Protective Order, then the receiving party

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shall (a) use its best efforts to obtain the return of any such PROTECTED

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INFORMATION and to bind such person to the terms of this Stipulation and

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Protective Order; (b) within three (3) business days of the discovery of such

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disclosure, inform such person of all provisions of this Stipulation and

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Protective Order; (c) within five (5) business days of the discovery of such

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disclosure, identify such person to the producing party; and (d) within five (5)

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business days of the discovery of such disclosure, request such person to sign

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the Agreement To Be Bound By Protective Order in the form attached hereto as

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Exhibit A. The executed agreement shall be served upon counsel of record for

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the producing party within five (5) business days of its receipt by the receiving

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party.

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17.

Nothing in this Stipulation and Protective Order shall require

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disclosure of information that counsel contends is protected from disclosure by

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the attorney-client privilege or the attorney work-product immunity.

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18.

If information subject to a claim of attorney-client privilege or

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work product immunity is inadvertently or unintentionally produced, such

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production shall in no way prejudice or otherwise constitute a waiver of, or

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estoppel as to, any claim of privilege or work-product immunity for such

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information.

If a party has inadvertently or unintentionally produced
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information subject to a claim of immunity or privilege, the information for

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which a claim of inadvertent or unintentional production is made shall be

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returned to the producing party within three (3) business days of the producing

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party’s request. Moreover, any notes or summaries referring or relating to any

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such inadvertently- or unintentionally-produced information shall be destroyed.

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In the event that any such information is contained in a produced document, all

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copies of that document, and any notes or summaries relating thereto that may

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have been made, shall be destroyed to the extent practicable. Nothing herein

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shall prevent the party returning such information from moving the Court for an

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Order compelling production of such information, but the unintentional or

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inadvertent production of that information shall not be a basis for such a motion.

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19.

The restrictions and obligations set forth in this Stipulation and

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Protective Order relating to PROTECTED INFORMATION shall not apply to

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any information that: (a) the parties agree, or the Court rules, is already public

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knowledge; (b) the parties agree, or the Court rules, has become public

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knowledge other than as a result of disclosure by the receiving party; or (c) has

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come or hereafter comes into the receiving party’s legitimate possession

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independently of the producing party without obligation of confidentiality.

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Such restrictions and obligations shall not be deemed to prohibit discussions

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with any person regarding any PROTECTED INFORMATION if said person

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already has legitimate possession thereof.

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20.

In the event that a party desires to provide access to or disseminate

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PROTECTED INFORMATION to any person not entitled to access under

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Paragraphs 4-5, it may move the Court for an order that such person be given

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access thereto. In the event that the motion is granted, or by agreement of the

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parties, such person may have access to PROTECTED INFORMATION after

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first signing an undertaking in the form of Exhibit A attached hereto, a copy of

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which shall be forwarded promptly thereafter to opposing counsel.
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21.

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from applying to the Court for further or additional protective orders.
22.

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4

This Stipulation and Protective Order shall not prevent any party

This Stipulation and Protective Order shall survive the termination

of this action.
23.

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After final termination of this action, trial counsel for the receiving

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party may retain one archival copy of deposition transcripts, deposition exhibits,

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Court transcripts, Court exhibits, documents and other submissions to the Court

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or to opposing counsel, and PROTECTED INFORMATION to the extent it

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includes or reflects attorney’s work product.

Within 30 days after final

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termination of this action including any appeals, depending on the preference of

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the party who has provided such PROTECTED INFORMATION, counsel for

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the receiving party either shall return all additional PROTECTED

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INFORMATION in its possession, custody, or control or in the custody of any

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authorized agents, outside experts, and consultants retained or utilized by

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counsel for the receiving party to counsel for the party who has provided such

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PROTECTED INFORMATION in discovery or shall certify destruction thereof

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to such counsel.

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24.

If a third party provides discovery to any party in connection with

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this action, the provisions of this Stipulation and Protective Order shall apply to

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such discovery as if such discovery were being provided by a party. Under such

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circumstances, the third party shall have the same rights and obligations under

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this Stipulation and Protective Order as held by the parties to this action.

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Should any third party wish to produce information that it considers

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PROTECTED INFORMATION under any circumstances other than those

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provided in this Stipulation and Protective Order, the third party shall be

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required to obtain agreement to such terms for production from each party to the

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action or to seek relief from the Court.

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25.

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The purpose of this Order is to protect the confidentiality of

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information and documents produced or disclosed in this litigation.

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provision of this Order restricts or otherwise affects the right of each party to

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permit disclosure of its own information and documents.
26.

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6

No

Nothing in this Order shall be construed as authorizing a party to

disobey a lawful subpoena issued in another action.

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II. GOOD CAUSE EXISTS TO ENTER INTO THE STIPULATED

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PROTECTIVE ORDER
1.

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Good cause exists for this Court to enter the Stipulated Protective

10

Order, because disclosure of any Confidential Information would harm the

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parties financially and allow competitors to gain unfair advantage. Competitors

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will gain an unfair advantage over the parties if they learn the parties’

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Confidential Information, such as their financial information, accounting

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information, customer lists, vendor lists, costs or profit structure, sales

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information and sources, vendor sources, retail channels, product lines, business

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and marketing strategy, or information concerning distribution or operations.

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The Confidential Information should be protected, because it reveals the parties’

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current

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opportunities and efforts, the quality of the products, the manufacturing times

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and sources, and retail prices and costs. This information will give others an

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unfair price and time advantage and allow them to unfairly compete in the

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market and usurp the parties’ business opportunities, to the detriment of the

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parties.

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///

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///

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///

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///

financial

status,

business

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strategy,

business

structure,

future

1

2.

Good cause further exists in that this Stipulation would allow for

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both parties to disclose documents required for the litigation of this matter

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without suffering from both an economic and business detriment that would

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result from the disclosure of Confidential Information to their competitors

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and/or to the public.

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8

Dated: July 26, 2012
The Honorable Jean P. Rosenbluth

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Respectfully submitted,

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KNOBBE, MARTENS, OLSON & BEAR, LLP

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Dated: July 24, 2012

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By: /s/ Lauren Keller Katzenellenbogen
Michael K. Friedland
Lauren Keller Katzenellenbogen
Charles Duan
Attorneys for Plaintiff, CONTINENTAL
APPLIANCES, INC.

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BAKER, DONELSON, BEARMAN,
CALDWELL & BERKOWITZ, P.C.

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Dated: July 24, 2012

By: /s/ Clint Crosby (with permission)
L. Clint Crosby
Dorian B. Kennedy
Attorneys for Defendants, SURE HEAT
MANUFACTURING, INC. and SHM
INTERNATIONAL CORPORATION

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1

EXHIBIT A

2

AGREEMENT TO BE BOUND BY PROTECTIVE ORDER

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I, _________________________________________, do solemnly swear

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and agree that I am fully familiar with the terms of the Protective Order entered

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in Continental Appliances, Inc. v. SHM International Corporation, et al. Case

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No. SACV 11-01544-JVS (JPRx), which is pending in the United States District

7

Court for the Central District of California, Southern Division, a copy of which

8

has been provided to me, and I hereby agree to comply with and be bound by

9

the terms and conditions of that Order unless and until modified by further

10

Order of this Court. Further, to the extent that I receive Confidential Material or

11

Attorneys’ Eyes Only Material in connection with this litigation, including the

12

information contained therein, I agree that I will hold that material and

13

information in confidence in accordance with the terms of the Order. I agree to

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use Confidential Material or Attorneys’ Eyes Only Material only for the purpose

15

of the prosecution or defense of this action, and for no other purpose.

16

understand that I am to retain all copies of the materials that I receive that have

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been designated as Confidential Material or Attorneys’ Eyes Only Material in a

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container, cabinet, drawer, room, or other safe place in a manner consistent with

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the Order, and that all copies are to remain in my custody until I have completed

20

my assigned or legal duties. I will return all confidential documents and things

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that come into my possession, or that I have prepared relating to such

22

documents and things, to counsel for the party by whom I am employed or

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retained. I acknowledge that such return or the subsequent destruction of such

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materials shall not relieve me from any of the continuing obligations imposed

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on me by the Order. I hereby consent to the jurisdiction of this Court for

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purposes of enforcing this Order.

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Dated:

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Signed:

13633457

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I