QS Wholesale Inc et al v. Rox Volleyball Inc et al

Filing 23

STIPULATED PROTECTIVE ORDER by Magistrate Judge Jean P. Rosenbluth re: Stipulation for Protective Order 22 . (See Order for details.) (wr)

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Michael G. Yoder (S.B. #83059)
Molly J. Magnuson (S.B. #229444)
Jean-Paul Cart (S.B. #267516)
O’MELVENY & MYERS LLP
610 Newport Center Drive, 17th Floor
Newport Beach, California 92660-6429
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]
[e-mail]
Attorneys for Plaintiffs
QS Wholesale, Inc. and Quiksilver, Inc.
IRELL & MANELLA LLP
A. Matthew Ashley (198235)
[e-mail]
Lisa S. Glasser (223406)
[e-mail]
840 Newport Center Drive, Suite 400
Newport Beach, California 92660-6324
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendants
Rox Volleyball, Inc. and 1st Place
Team Sales, Inc.

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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SOUTHERN DIVISION

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QS WHOLESALE, INC., a California
corporation; QUIKSILVER, INC., a
Delaware corporation,
Plaintiffs,

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v.
ROX VOLLEYBALL, INC., a Florida
corporation; 1ST PLACE TEAM
SALES, INC., a Florida corporation,

Case No. SACV 13-00512-AG-JPRx
STIPULATED PROTECTIVE
ORDER
Honorable Andrew J. Guilford

Defendants.

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STIPULATED PROTECTIVE ORDER SACV 13-00512AG-JPRX

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PROTECTIVE ORDER
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PURPOSE AND LIMITS OF THIS ORDER
Discovery in this action is likely to involve confidential, proprietary, or

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private information requiring special protection from public disclosure and from

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use for any purpose other than this litigation. Thus, the Court enters this Protective

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Order. This Order does not confer blanket protections on all disclosures or

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responses to discovery, and the protection it gives from public disclosure and use

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extends only to the specific material entitled to confidential treatment under the

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applicable legal principles. This Order does not automatically authorize the filing

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under seal of material designated under this Order. Instead, the parties must comply

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with L.R. 79-5.1 if they seek to file anything under seal. This Order does not

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govern the use at trial of material designated under this Order.

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2.

DESIGNATING PROTECTED MATERIAL
2.1

Over-Designation Prohibited. Any party or non-party who designates

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information or items for protection under this Order as “CONFIDENTIAL” or

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“HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY” (a “designator”) must

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only designate specific material that qualifies under the appropriate standards.

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Designation of material as CONFIDENTIAL under this Order is allowed only if the

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designating party reasonably and in good faith believes that the designation is

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necessary to protect material that, if disclosed to persons not authorized to view it,

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would cause competitive or other recognized harm. Material may not be designated

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if it has been made public, or if designation is otherwise unnecessary to protect a

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secrecy interest. With respect to confidential information that will be designated as

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subject to the more restrictive confidentiality designation allowed herein, HIGHLY

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CONFIDENTIAL - ATTORNEY EYES ONLY, the Parties will use that more

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restrictive designation only if the disclosing party reasonably and in good faith

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believes that the material being designated HIGHLY CONFIDENTIAL -1-

STIPULATED PROTECTIVE ORDER SACV 13-00512AG-JPRX

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ATTORNEY EYES ONLY contains: (a) trade secrets; or (b) highly confidential,

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non-public, personal or proprietary business information, the disclosure of which

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would be especially detrimental or harmful to the producing party if disclosed

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beyond the limited class of permitted recipients delineated herein. To the extent

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practicable, only those parts of documents, items, or oral or written

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communications that legitimately require protection shall be designated as

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CONFIDENTIAL or as HIGHLY CONFIDENTIAL - ATTORNEY EYES ONLY.

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Designations with a higher confidentiality level when a lower level would suffice

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

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Unjustified designations expose the designator to sanctions, including the Court’s

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striking all confidentiality designations made by that designator. If a designator

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learns that information or items that it designated for protection do not qualify for

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protection at all or do not qualify for the level of protection initially asserted, that

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designator must promptly notify all parties that it is withdrawing the mistaken

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designation.

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2.2

Manner and Timing of Designations. Designation under this Order

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requires the designator to affix the applicable legend (“CONFIDENTIAL” or

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“HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY”) to each page that

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contains protected material. For testimony given in deposition or other proceeding,

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the designator shall specify all protected testimony and the level of protection being

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asserted. It may make that designation during the deposition or proceeding itself, or,

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alternatively, may do so within 21 days from receipt of the final transcript of the

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deposition or proceeding.

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2.2.1 A party or non-party that makes original documents or materials

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available for inspection need not designate them for protection until after the

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inspecting party has identified which material it would like copied and

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produced. During the inspection and before the designation, all material shall

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be treated as HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY.
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STIPULATED PROTECTIVE ORDER SACV 13-00512AG-JPRX

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After the inspecting party has identified the documents it wants copied and

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produced, the producing party must designate the documents, or portions

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thereof, that qualify for protection under this Order.

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2.2.2 Parties shall give advance notice if they expect a deposition or

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other proceeding to include designated material so that the other parties can

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ensure that only authorized individuals are present at those proceedings when

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such material is disclosed or used. The use of a document as an exhibit at a

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deposition shall not in any way affect its designation. Transcripts containing

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designated material shall have a legend on the title page noting the presence

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of designated material, and the title page shall be followed by a list of all

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pages (including line numbers as appropriate) that have been designated, and

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the level of protection being asserted. The designator shall inform the court

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reporter of these requirements. Prior to the expiration of the 21-day period

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for designation, a transcript shall be treated during that period as if it had

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been designated HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY

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unless otherwise agreed. After the expiration of the 21-day period, the

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transcript shall be treated only as actually designated.

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2.3

Inadvertent Failures to Designate. An inadvertent failure to

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designate does not, standing alone, waive protection under this Order. Upon timely

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assertion or correction of a designation, all recipients must make reasonable efforts

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to ensure that the material is treated according to this Order.

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3.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
All challenges to confidentiality designations shall proceed under L.R. 37-1

through L.R. 37-4.

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4.

ACCESS TO DESIGNATED MATERIAL
4.1

Basic Principles. A receiving party may use designated material only
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STIPULATED PROTECTIVE ORDER SACV 13-00512AG-JPRX

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for this litigation. Designated material may be disclosed only to the categories of

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persons and under the conditions described in this Order.

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4.2

Disclosure of CONFIDENTIAL Material Without Further

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Approval. Unless otherwise ordered by the Court or permitted in writing by the

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designator, a receiving party may disclose any material designated

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CONFIDENTIAL only to:

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4.2.1 The receiving party’s outside counsel of record in this action

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and employees of outside counsel of record to whom disclosure is reasonably

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necessary;

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4.2.2 The officers, directors, and employees of the receiving party to

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whom disclosure is reasonably necessary, and who have signed the

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Agreement to Be Bound (Exhibit A);

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4.2.3 Experts retained by the receiving party’s outside counsel of

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record to whom disclosure is reasonably necessary, and who have signed the

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Agreement to Be Bound (Exhibit A);

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4.2.4 The Court and its personnel;

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4.2.5 Outside court reporters and their staff, professional jury or trial

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consultants, and professional vendors to whom disclosure is reasonably

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necessary, and who have signed the Agreement to Be Bound (Exhibit A);

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4.2.6 During their depositions, witnesses in the action to whom

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disclosure is reasonably necessary and who have signed the Agreement to Be

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Bound (Exhibit A);

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4.2.7 The author or recipient of a document containing the material, or

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a custodian or other person who otherwise possessed or knew the

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information; and

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4.2.8 To the extent reasonably necessary, any employees or attorneys

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of any insurance company which is or may be required to defend and/or

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indemnify any party in this lawsuit who have signed the Agreement to be
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STIPULATED PROTECTIVE ORDER SACV 13-00512AG-JPRX

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Bound (Exhibit A).

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4.3

Disclosure of HIGHLY CONFIDENTIAL – ATTORNEY EYES

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ONLY Material Without Further Approval. Unless permitted in writing by the

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designator, a receiving party may disclose material designated HIGHLY

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CONFIDENTIAL – ATTORNEY EYES ONLY without further approval only to:

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4.3.1 The receiving party’s outside counsel of record in this action

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and employees of outside counsel of record to whom it is reasonably

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necessary to disclose the information;

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4.3.2 The Court and its personnel;

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4.3.3 Outside court reporters and their staff, professional jury or trial

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consultants, and professional vendors to whom disclosure is reasonably

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necessary, and who have signed the Agreement to Be Bound (Exhibit A);

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4.3.4 The author or recipient of a document containing the material, or

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a custodian or other person who otherwise possessed or knew the

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information; and

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4.3.5 To the extent reasonably necessary, any employees or attorneys

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of any insurance company which is or may be required to defend and/or

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indemnify any party in this lawsuit who have signed the Agreement to be

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Bound (Exhibit A).

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4.4

Procedures for Approving or Objecting to Disclosure of HIGHLY

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CONFIDENTIAL – ATTORNEY EYES ONLY Material to In-House Counsel

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or Experts. Unless agreed to in writing by the designator:

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4.4.1 A party seeking to disclose to in-house counsel any material

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designated HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY must

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first make a written request to the designator providing the full name of the

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in-house counsel, the city and state of such counsel’s residence, and such

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counsel’s current and reasonably foreseeable future primary job duties and

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responsibilities in sufficient detail to determine present or potential
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STIPULATED PROTECTIVE ORDER SACV 13-00512AG-JPRX

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involvement in any competitive decision-making.

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4.4.2 A party seeking to disclose to an expert retained by outside

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counsel of record any information or item that has been designated HIGHLY

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CONFIDENTIAL – ATTORNEY EYES ONLY must first make a written

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request to the designator that (1) identifies the general categories of HIGHLY

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CONFIDENTIAL – ATTORNEY EYES ONLY information that the

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receiving party seeks permission to disclose to the expert, (2) sets forth the

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full name of the expert and the city and state of his or her primary residence,

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(3) attaches a copy of the expert’s current resume, (4) identifies the expert’s

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current employer(s), (5) identifies each person or entity from whom the

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expert has received compensation or funding for work in his or her areas of

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expertise (including in connection with litigation) in the past five years, and

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

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court) any litigation where the expert has offered expert testimony, including

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by declaration, report, or testimony at deposition or trial, in the past five

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years. If the expert believes any of this information at (4) - (6) is subject to a

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confidentiality obligation to a third party, then the expert should provide

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whatever information the expert believes can be disclosed without violating

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any confidentiality agreements, and the party seeking to disclose the

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information to the expert shall be available to meet and confer with the

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designator regarding any such confidentiality obligations.

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4.4.3 A party that makes a request and provides the information

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specified in paragraphs 4.4.1 or 4.4.2 may disclose the designated material to

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the identified in-house counsel or expert unless, within seven days of

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delivering the request, the party receives a written objection from the

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designator providing detailed grounds for the objection.

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4.4.4 All challenges to objections from the designator shall proceed
under L.R. 37-1 through L.R. 37-4.
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STIPULATED PROTECTIVE ORDER SACV 13-00512AG-JPRX

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5.

PROTECTED MATERIAL SUBPOENAED OR ORDERED

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PRODUCED IN OTHER LITIGATION

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5.1

Subpoenas and Court Orders. This Order in no way excuses non-

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compliance with a lawful subpoena or court order. The purpose of the duties

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described in this section is to alert the interested parties to the existence of this

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Order and to give the designator an opportunity to protect its confidentiality

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interests in the appropriate court.

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5.2

Notification Requirement. If a party is served with a subpoena or a

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court order issued in other litigation that compels disclosure of any information or

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items designated in this action as CONFIDENTIAL or HIGHLY CONFIDENTIAL

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– ATTORNEY EYES ONLY, that party must:

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5.2.1 Promptly notify the designator in writing. Such notification shall

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include a copy of the subpoena or court order;

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5.2.2 Promptly notify in writing the party who caused the subpoena or

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

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by the subpoena or order is subject to this Order. Such notification shall

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include a copy of this Order; and

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5.2.3 Cooperate with all reasonable procedures sought by the

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designator whose material may be affected.

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6.

UNAUTHORIZED DISCLOSURE OF DESIGNATED MATERIAL

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If a receiving party learns that, by inadvertence or otherwise, it has disclosed

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designated material to any person or in any circumstance not authorized under this

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Order, it must immediately (1) notify in writing the designator of the unauthorized

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disclosures, (2) use its best efforts to retrieve all unauthorized copies of the

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designated material, (3) inform the person or persons to whom unauthorized

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disclosures were made of all the terms of this Order, and (4) use reasonable efforts
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STIPULATED PROTECTIVE ORDER SACV 13-00512AG-JPRX

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to have such person or persons execute the Agreement to Be Bound (Exhibit A).

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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

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PROTECTED MATERIAL

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When a producing party gives notice that certain inadvertently produced

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

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receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B).

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

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an e-discovery order that provides for production without prior privilege review

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under Federal Rule of Evidence 502(d) and (e).

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8.

FILING UNDER SEAL
Without written permission from the designator or a Court order, a party may

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not file in the public record in this action any designated material. A party seeking

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to file under seal any designated material must comply with L.R. 79-5.1. Filings

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may be made under seal only according to a court order authorizing the sealing of

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the specific material at issue. The fact that a document has been designated under

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this Order is insufficient to justify filing under seal. Instead, parties must explain

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the basis for confidentiality of each document sought to be filed under seal.

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Because a party other than the designator will often be seeking to file designated

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material, cooperation between the parties in preparing, and in reducing the number

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and extent of, requests for under seal filing is essential. If a receiving party’s

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request to file designated material under seal under L.R. 79-5.1 is denied by the

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Court, then the receiving party may file the material in the public record unless (1)

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the designator seeks reconsideration within four days of the denial, or (2) as

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otherwise instructed by the Court.

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STIPULATED PROTECTIVE ORDER SACV 13-00512AG-JPRX

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FINAL DISPOSITION
Within 60 days after the final disposition of this action, each party shall

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return all designated material to the designator or destroy such material, including

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all copies, abstracts, compilations, summaries, and any other format reproducing or

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capturing any designated material. The receiving party must submit a written

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certification to the designator by the 60-day deadline that (1) identifies (by

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category, where appropriate) all the designated material that was returned or

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destroyed, and (2) affirms that the receiving party has not retained any copies,

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abstracts, compilations, summaries, or any other format reproducing or capturing

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any of the designated material. This provision shall not prevent counsel from

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retaining an archival copy of all pleadings, motion papers, trial, deposition, and

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hearing transcripts, legal memoranda, correspondence, deposition and trial exhibits,

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expert reports, attorney work product, and consultant and expert work product, even

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if such materials contain designated material. Any such archival copies remain

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subject to this Order.

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IT IS SO ORDERED.

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DATED: December 19, 2013

Hon. Jean P. Rosenbluth
United States Magistrate Judge

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STIPULATED PROTECTIVE ORDER SACV 13-00512AG-JPRX

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EXHIBIT A

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AGREEMENT TO BE BOUND

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I, _____________________________ [print or type full name], of

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_________________ [print or type full address], declare under penalty of perjury

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that I have read in its entirety and understand the Protective Order that was issued

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by the United States District Court for the Central District of California on _______

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[date] in the case of ___________ [insert formal name of the case and the number

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and initials assigned to it by the court]. I agree to comply with and to be bound by

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all the terms of this Protective Order, and I understand and acknowledge that failure

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to so comply could expose me to sanctions and punishment for contempt. I

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solemnly promise that I will not disclose in any manner any information or item

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that is subject to this Protective Order to any person or entity except in strict

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compliance with this Order.

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

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for the Central District of California for the purpose of enforcing this Order, even if

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such enforcement proceedings occur after termination of this action.

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I hereby appoint __________________________ [print or type full name] of

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_______________________________________ [print or type full address and

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telephone number] as my California agent for service of process in connection with

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this action or any proceedings related to enforcement of this Order.

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Date:

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City and State where sworn and signed:

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Printed name:

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[printed name]
Signature:
[signature]

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STIPULATED PROTECTIVE ORDER SACV 13-00512AG-JPRX