Starbuzz Tobacco, Inc. v. Samba Premium Tobacco et al

Filing 24

PROTECTIVE ORDER GOVERNING DISCLOSURE OF CONFIDENTIAL INFORMATION by Magistrate Judge Jay C. Gandhi re Stipulation for Protective Order 23 . (kh)

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

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
STARBUZZ TOBACCO, INC., a
California corporation,

)
)
)
Plaintiff,
)
)
vs.
)
)
SAMBA PREMIUM TOBACCO, a
)
business entity form unknown; SASHA )
JOSEF FRIWAT, an individual;
)
LEBANUSHI CORPORATION, a
)
California corporation; IHAB ELZEINI, )
an individual; and DOES 1-10,
)
inclusive,
)
)
Defendant
)
)
)

Case No.: 8:16−cv−00939−JVS−JCG
Honorable James V. Selna
PROTECTIVE ORDER
GOVERNING DISCLOSURE OF
CONFIDENTIAL INFORMATION

23
24
25
26
27
28

WHEREAS, Plaintiff STARBUZZ TOBACCO, INC. (“STARBUZZ”) and
Defendant SAMBA PREMIUM TOBACCO (“SAMBA”), Defendant SASHA
JOSEF FRIWAT (“FRIWAT”), Defendant LEBANUSHI CORPORATION
(“LEBANUSHI”), and Defendant IHAB ELZEINI (“ELZEINI”) (all of the above
being, collectively, the “Parties) believe that in the course of this action certain
1

Protective Order Governing Disclosure of Confidential Information

1

information, documents, and testimony likely to be disclosed and produced

2

through discovery may constitute or incorporate confidential commercial

3

information, research or development and/or trade secrets within the meaning of

4

Federal Rule of Civil Procedure 26(c); and

5

WHEREAS, the Parties believe that entry of a protective order pursuant to

6

Federal Rule of Civil Procedure 26(c) would best protect their interests while

7

facilitating discovery in this action; and

8

WHEREAS, the Court finds good cause exists for the entry of this Protective

9

Order in this action pursuant to Federal Rule of Civil Procedure 26(c) in order to

10

protect confidential commercial information, research and development, and/or

11

trade secrets.

12

IT IS HEREBY ORDERED, pursuant to Federal Rule of Civil Procedure

13

26(c), that this Protective Order shall govern the treatment and handling of any

14

information produced or disclosed by any Party or non-Party (“the Producing

15

Party”) to this action, including without limitation, Rule 26 disclosures,

16

documents, depositions, deposition exhibits, interrogatory responses, responses to

17

requests for admission, and testimony (such information and/or documents shall

18

hereinafter be referred to as “Confidential Material”) provided it is designated (or,

19

within the appropriate time limitation, is pending designation) as being

20

Confidential Material as required by this Protective Order.

21

It is further ordered that:

22

1.

Any Producing Party may designate any Confidential Material as

23

“CONFIDENTIAL” if such producing party in good faith believes that such

24

Confidential Material contains confidential or proprietary information, including

25

information in written, oral, electronic, graphic, pictorial, audiovisual, or other

26

form, whether it is a document, information contained in a document, item

27

produced for inspection, information revealed during a deposition, information

28

revealed in an interrogatory answer, or otherwise.
2

Protective Order Governing Disclosure of Confidential Information

1

2.

Any Producing Party may designate any Confidential Material as

2

“CONFIDENTIAL—ATTORNEYS’ EYES ONLY” if such producing party in

3

good faith believes that such Confidential Material contains confidential,

4

commercially sensitive, or proprietary information related to any of the following:

5

technical data, research and development information, marketing or other business

6

plans, product or service information, customer information, trade secrets,

7

competitive information, or financial information of the Producing Party,

8

including, without limitation, sales and cost information or any other information

9

of such sensitivity to warrant “Confidential—Attorneys’ Eyes Only” treatment,

10

including, information in written, oral, electronic, graphic, pictorial, audiovisual, or

11

other form, whether it is a document, information contained in a document, item

12

produced for inspection, information revealed during a deposition, information

13

revealed in an interrogatory answer, or otherwise.

14

3.

A Producing Party may designate any document or other tangible

15

information or thing as “Confidential” or “Confidential—Attorneys’ Eyes Only”

16

by stamping a conspicuous place thereof with the legend CONFIDENTIAL or

17

CONFIDENTIAL—ATTORNEYS’ EYES ONLY, respectively. For example, in

18

the case of a document, a producing party may so mark the first page of a

19

multipage document and each page thereafter that actually contains Confidential

20

Material. In the case of other tangible items, a producing party may so mark any

21

appropriate location. For example, in the case of a computer disk, a producing

22

party may so mark the disk cover.

23

4.

The terms of this Protective Order are applicable to Confidential

24

Material produced by a non-party and designated “CONFIDENTIAL” or

25

“CONFIDENTIAL—ATTORNEYS EYES ONLY” only when the producing non-

26

party has a proprietary interest or other right in such Confidential Material, or

27

where the producing non-party is contractually obligated to maintain the

28

confidentiality of such Confidential Material. A producing party may designate
3

Protective Order Governing Disclosure of Confidential Information

1

documents, information, or things disclosed at a deposition of a producing party or

2

one of its present or former officers, directors, employees, agents, or independent

3

experts retained for purposes of this litigation as “Confidential” or “Confidential—

4

Attorneys’ Eyes Only” on the record during the deposition; or by notifying all

5

parties in writing of the specific item so designated, within twenty one (21) days

6

of receiving a copy of the deposition transcript, of the specific exhibits or lines and

7

pages of the transcript that are believed in good faith to contain Confidential

8

Material.

9

a.

If a producing party designates such materials as “Confidential”

10

or “Confidential—Attorneys’ Eyes Only” on the record, the court reporter

11

shall indicate on the cover page of the transcript that the transcript includes

12

Confidential or Confidential—Attorneys’ Eyes Only information, shall list

13

the pages and lines numbers and/or exhibits of the transcript on or in which

14

such information is contained, and shall bind the transcript in separate

15

portions containing Confidential, Confidential—Attorneys’ Eyes Only, and

16

non-Confidential material. Further, during the period in which such

17

Confidential or Confidential—Attorneys’ Eyes Only information is

18

discussed during the deposition, any person present during the deposition

19

who is not a Qualified Person, as defined below, or the court reporter, shall

20

be excluded from that portion of the deposition.

21

b.

A deposition transcript and the exhibits thereto shall be

22

presumed Confidential—Attorneys’ Eyes Only in their entirety until twenty

23

one (21) days after receipt of the transcript by the producing party. If, after

24

the deposition is taken, the producing party designates any portion of the

25

deposition transcript or exhibits as “Confidential” or “Confidential—

26

Attorneys’ Eyes Only” by giving written notice as described above, all

27

persons receiving notice of such designation shall affix the same to the face

28

of their copy or copies of the transcript. At the expiration of the twenty one
4

Protective Order Governing Disclosure of Confidential Information

1

(21) day period, the transcript and exhibits shall automatically revert to non-

2

Confidential status, except those portions that have been designated on the

3

record or in writing as “Confidential” or “Confidential—Attorneys’ Eyes

4

Only.” Nothing in this paragraph is intended to restrict any Party’s right to

5

attend depositions pursuant to paragraph 7 hereof.

6

c.

A non-producing party may designate documents, information,

7

or things disclosed at a deposition as “Confidential” or “Confidential—

8

Attorneys’ Eyes Only” in the same manner as a producing party if it has a

9

good faith basis for claiming a proprietary interest or other right in the

10

Confidential Material.

11

5.

Material designated as confidential under this Protective Order, the

12

information contained therein, and any summaries, copies, abstracts, or other

13

documents derived in whole or in part from material designated as confidential

14

(hereinafter “Confidential Material”) shall be used only for the purpose of the

15

prosecution, defense, or settlement of this action, and for no other purpose, except

16

that a Party may seek permission from another court to use Confidential Material

17

produced under this Protective Order provided said Party gives advance notice to

18

the parties whose materials are sought to be used and provided no disclosure of

19

such Confidential Material is made until such other court grants the request for

20

permission. The restrictions contained in this paragraph No. 5 may be modified by

21

written agreement of the parties, but such modifications will not be considered part

22

of this order unless approved by the Court. Nothing in this paragraph shall operate

23

to bar motions in limine or similar motion to exclude the use of any document in

24

any action between the Parties on any appropriate and available basis.

25

6.

Confidential Material produced pursuant to this Protective Order may

26

be disclosed or made available only to the Court, to counsel for a Party (including

27

the paralegal, clerical, and secretarial staff employed by such counsel), and to the

28

“qualified persons” designated below:
5

Protective Order Governing Disclosure of Confidential Information

1
2

a.

FRIWAT in her individual capacity, and as officer or director

of SAMBA, and Josef Friwat in his capacity as an employee of SAMBA;

3

b.

4

LEBANUSHI;

5

c.

ELZEINI in his individual capacity, and as officer or director of
three officers or directors of STARBUZZ, or full-time

6

employees designated in writing as a representative of STARBUZZ who has

7

supervisory responsibility for this matter and is necessary to the prosecution,

8

defense, or settlement of this action, namely: Wael Elhalwani, Majda

9

Haddoudi, and Ghassan ElSaadi;

10

d.

experts or consultants (together with their clerical staff) retained

11

by such counsel to assist in the prosecution, defense, or settlement of this

12

action, including outside photocopying, imaging, data base, graphics or

13

design services retained by outside counsel in connection with this action;

14

e.

court reporter(s) employed in this action; and

15

f.

any other person as to whom the parties in writing agree.

16

Prior to receiving any Confidential Material, each “qualified person” defined

17

in (a), (b), (c), (d) and (e) above shall be provided with a copy of this Protective

18

Order and shall execute and be bound by this Protective Order by signing a

19

nondisclosure agreement in the form annexed hereto as Exhibit A, a copy of which

20

shall be provided forthwith to counsel for each other party.

21

7.

Subject to the Federal Rules of Civil Procedure and applicable law,

22

depositions may be taken in the presence of any persons, including Parties, but any

23

Party may request that (a) non-qualified persons leave the room for responses

24

containing any Confidential Material; and (b) Parties leave the room for responses

25

containing CONFIDENTIAL – ATTORNEY’S EYES ONLY information. No

26

Party shall be entirely excluded from any deposition. This Order does not affect

27

applicable law regarding the attendance of depositions by non-party persons,

28

including potential witnesses.
6

Protective Order Governing Disclosure of Confidential Information

1

8.

Material designated “CONFIDENTIAL – ATTORNEY’S EYES

2

ONLY” and the information contained therein, shall be disclosed only to the Court,

3

to outside counsel for the Parties (including the paralegal, clerical, and secretarial

4

staff employed by such counsel) and to the “qualified persons” listed in

5

subparagraphs 6(d) through (f) above, but shall not be disclosed to a Party, or to an

6

officer, director or employee or a Party, except as provided above or unless

7

otherwise agreed in writing or ordered by the Court. If disclosure of Attorney’s

8

Eyes Only Material is made pursuant to this paragraph, all other provisions in this

9

order with respect to confidentiality shall also apply.

10

9.

Copies of Confidential or Confidential—Attorneys’ Eyes Only

11

material may be submitted to the Court in connection with any proceedings,

12

motions or hearings, provided that such materials are filed along with an

13

application to have those materials filed under seal. The application must

14

show good cause for the under seal filing. To the extent possible, only those

15

portions of a filing with the Court that contain material designated as

16

“Confidential” or “Confidential—Attorneys’ Eyes Only” shall be filed under seal.

17

To the extent that no Confidential or Confidential—Attorneys’ Eyes Only

18

information is disclosed, the parties may refer to, and quote from, documents

19

designated as “Confidential” or “Confidential—Attorneys’ Eyes Only” in

20

pleadings, motions, briefs, affidavits, or exhibits filed with the Court, without the

21

need to file such pleadings, motions, briefs, affidavits, or exhibits under seal. A

22

Party’s counsel shall not unilaterally decide that material that the other Party

23

designated as “Confidential” or “Confidential—Attorneys’ Eyes Only” does not

24

contain any Confidential or Confidential—Attorneys’ Eyes Only information. If a

25

Party’s counsel disagrees with a designation, that counsel shall follow the

26

procedures described in paragraph 11 of this Order to challenge the designation.

27
28
7

Protective Order Governing Disclosure of Confidential Information

1

10.

In the event that any Confidential Material is used in any court

2

proceeding in this action, the Party using such material shall take all steps

3

reasonably available to protect its confidentiality during such use.

4

11.

At any stage of these proceedings, should any party object to a

5

designation of any information, documents, or things as “Confidential” or

6

“Confidential—Attorneys’ Eyes Only,” the Party shall provide written notice of its

7

objection with the designation. The parties and/or the producing party shall first

8

attempt to resolve such objection in good faith on informal basis. If the objection

9

is not thereby resolved, the objecting Party may apply for a ruling from the Court

10

pursuant to Local Rule 37 determining whether the materials in question are

11

properly designated under the terms of this Protective Order. Until the Court

12

makes such determination, all material designated as “Confidential” or

13

“Confidential—Attorneys’ Eyes Only” shall be treated as such.

14
15
16

12.

Nothing in this Protective Order shall preclude any party to the

lawsuit or their attorneys from:
a.

Showing materials designated as “Confidential” or

17

“Confidential—Attorneys’ Eyes Only” to an individual who either prepared

18

or reviewed the document prior to the filing of this action, or is shown by the

19

document to have received the document;

20

b.

Disclosing or using, in any manner or for any purpose, any

21

information, documents, or things from the Party’s own files that the Party

22

itself designated as “Confidential” or “Confidential—Attorneys’ Eyes

23

Only”;

24

c.

Disclosing or using, in any manner or for any purpose, any

25

information, documents, or things that were obtained from a source other

26

than discovery or to which a Party has a right of access independent of

27

discovery, or that were already known to such Party by lawful means, prior

28

to obtaining from or disclosure by, the other Party in the action, provided,
8

Protective Order Governing Disclosure of Confidential Information

1

however, that the alternate source of such information, documents or things

2

was not under an obligation of confidentiality (as evidenced by a writing) to

3

a Party in the litigation at the time such information, documents or things

4

were obtained; or

5

d.

Disclosing or using, in any manner or for any purpose, any

6

information, document, or thing that is at the time of production or

7

disclosure, or subsequently becomes, through no wrongful act or failure to

8

act on the part of the receiving party, generally available to the relevant

9

public through publication or otherwise or is already rightfully in the

10

possession of the receiving party at the time of production; or

11

13.

If either party is served with a subpoena or similar process, from any

12

entity whatsoever, directing that Party to produce any materials designated as

13

“Confidential” or “Confidential—Attorneys’ Eyes Only” not so designated by that

14

Party, the counsel for that Party shall immediately give counsel for the designating

15

party written notice, by hand delivery or facsimile transmission, of the fact of such

16

service so that the designating Party may seek a protective order or otherwise act to

17

protect the confidentiality of the designated materials.

18

14.

This Protective Order is entered solely for the purpose of facilitating

19

the exchange of documents and information between the parties to this action

20

without involving the Court unnecessarily in the process. Nothing in this

21

Protective Order nor the production of any information or document under the

22

terms of this Protective Order nor any proceedings pursuant to this Protective

23

Order shall be deemed to have the effect of an admission or waiver by either Party

24

or of altering the confidentiality or non-confidentiality of any such document or

25

information or altering any existing obligation of any Party or the absence thereof.

26

15.

This Protective Order shall survive the final termination of this action,

27

to the extent that the information contained in Confidential Material is not or does

28

not become known to the public, and the Court shall retain jurisdiction to resolve
9

Protective Order Governing Disclosure of Confidential Information

1

any dispute concerning the use of information disclosed hereunder. Within thirty

2

(30) days of the conclusion of this action, including any appeals, counsel for the

3

parties shall assemble and return to each other all documents, material and

4

deposition transcripts designated as confidential and all copies of same, or shall

5

certify the destruction thereof. Notwithstanding this provision, Counsel are

6

entitled to retain an archival copy of all pleadings, motion papers, transcripts, legal

7

memoranda, correspondence or attorney work product, even if such material

8

contain Confidential Material, for the period of one (1) year. Any such archival

9

copies that contain or constitute Confidential Material remain subject to this

10

Protective Order.

11

16.

The inadvertent or unintentional disclosure by the Producing Party of

12

attorney-client privileged information or attorney work-product, either by way of

13

document production or deposition testimony, shall not be deemed a waiver of

14

privilege for such information, provided that the Producing Party promptly makes

15

a good-faith representation that such production was inadvertent or mistaken and

16

takes prompt remedial action to withdraw the disclosure. Within three (3) business

17

days of receiving a written request to do so from the Producing Party, the

18

Receiving Party shall return to the Producing Party any documents or tangible

19

items that the Producing Party represents are covered by a claim of attorney-client

20

privilege or work product immunity and were inadvertently or mistakenly

21

produced. The receiving party shall also destroy any extra copies or summaries of,

22

or notes relating to, any such inadvertently or mistakenly produced information,

23

and certifying compliance with this provision; provided, however, that this

24

Protective Order shall not preclude the Party returning such information from

25

making a motion to compel production of the returned information pursuant to

26

Local Rule 37. The Producing Party shall retain copies of all returned documents

27

and tangible items for further disposition and, if such a motion is filed, shall

28

provide copies to the Court of the documents, item or information which is the
10

Protective Order Governing Disclosure of Confidential Information

1

subject of the motion. In the event that a Producing Party discovers in a

2

deposition, inadvertently or unintentionally disclosed documents containing

3

attorney-client privileged information or attorney work-product, the Producing

4

Party may make a request on the record for the receiving party to return the

5

documents or tangible items that the Producing Party represents 1) are covered by

6

a claim of attorney-client privilege or work product immunity and 2) were

7

inadvertently or mistakenly produced; in which event, the receiving party shall be

8

precluded from deposing a witness with respect to such inadvertently or mistakenly

9

produced documents, other than to explore the basis for a claim of privilege or

10
11

work product.
17.

The inadvertent or unintentional disclosure by the Producing Party of

12

“CONFIDENTIAL” and/or “CONFIDENTIAL-ATTORNEYS’ EYES ONLY”,

13

information either by way of document production or deposition testimony,

14

regardless of whether the information was so designated at the time of disclosure,

15

shall not be deemed a waiver in whole or in part of a Party’s claim of

16

confidentiality as to the information disclosed. Any such inadvertently or

17

unintentionally disclosed “CONFIDENTIAL” and/or “CONFIDENTIAL-

18

ATTORNEYS’ EYES ONLY” information, not designated as such pursuant to

19

paragraph 1 or 2, shall be designated as “CONFIDENTIAL” or

20

“CONFIDENTIAL-ATTORNEYS’ EYES ONLY”, as soon as reasonably possible

21

after the Producing Party becomes aware of the inadvertent or unintentional

22

disclosure and provides written notice to the Receiving Parties. The Receiving

23

Party shall thereafter mark and treat the materials as “CONFIDENTIAL” or

24

“CONFIDENTIAL-ATTORNEYS’ EYES ONLY” as appropriate, and such

25

materials shall be fully subject to this Protective Order as if they had been initially

26

so designated.

27
28

18.

This Protective Order is without prejudice to the right of any

interested party to apply to the Court for an order permitting the disclosure of any
11

Protective Order Governing Disclosure of Confidential Information

1

“CONFIDENTIAL” and/or “CONFIDENTIAL-ATTORNEYS’ EYES ONLY”

2

information, or to apply for an order modifying or limiting this Protective Order in

3

any respect.

4
5

GOOD CAUSE STATEMENT
19.

In discovery in this case, the parties will be required to exchange

6

competitively sensitive information about the opposing parties’ business activities

7

to which they and third parties would not otherwise have access, including

8

information regarding the parties’ business proprietary and/or confidential

9

information. Allowing the parties or third parties to use such competitively

10

sensitive information would cause harm to the competitive position of the

11

disclosing party. The parties seek the entry of this Protective Order to prevent the

12

unauthorized use or dissemination of confidential information produced in

13

discovery during this action by competitors.

14

a.

No document, information, or thing shall be designated

15

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

16

unless good cause exists for such designation under the standards set forth in

17

Phillips v. G.M. Corp., 307 F.2d 1206, 1209 (9th Cir. 2002) and other

18

relevant authority. Good cause exists for the designation of information as

19

“CONFIDENTIAL – ATTORNEYS’ EYES ONLY” when the information

20

has not been made public and falls into one of the categories identified in

21

paragraph 2 hereof.

22

b.

Good cause exists for the designation of information as

23

“CONFIDENTIAL” when the information has not been revealed to the

24

public and the information falls into one of the categories identified in

25

paragraph 1 hereof.

26

c.

The Parties shall use reasonable efforts to minimize the amount

27

of material designated as “CONFIDENTIAL” or “CONFIDENTIAL –

28

ATTORNEYS’ EYES ONLY.”
12

Protective Order Governing Disclosure of Confidential Information

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
27
28

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
STARBUZZ TOBACCO, INC., a
) Case No.: 8:16−cv−00939−JVS−JCG
California corporation,
) Honorable James V. Selna
)
Plaintiff,
) NON-DISCLOSURE
) AGREEMENT IN RE
vs.
) PROTECTIVE ORDER
) GOVERNING DISCLOSURE OF
SAMBA PREMIUM TOBACCO, a
) CONFIDENTIAL INFORMATION
business entity form unknown; SASHA )
JOSEF FRIWAT, an individual;
)
LEBANUSHI CORPORATION, a
)
California corporation; IHAB ELZEINI, )
an individual; and DOES 1-10,
)
inclusive,
)
)
Defendant
)
)
)
DECLARATION
I, _____________________________, declare:
1.

I reside at ____________________________________________

I am employed as [state position] ________________________________ by [name and
address of employer]

.

1

Non-Disclosure Agreement In Re Protective Order Governing Disclosure of Confidential Information

1

2.

I am aware that an Protective Order dated ________________ 2017 has

2

been entered in Case No. 8:16−cv−00939−JVS−JCG in the United States District Court

3

for the Central District of California. A copy of that Protective Order has been given to

4

me.

5

3.

I hereby certify that I am one of the persons allowed under paragraphs 6 or

6

8 of the Protective Order to receive access to information, documents, or things

7

designated “CONFIDENTIAL” or “CONFIDENTIAL-ATTORNEYS’ EYES ONLY,”

8

respectively. I also agree to be bound by the terms of the Protective Order, specifically

9

including the requirement that information, documents, and things I may receive that are

10

designated as “CONFIDENTIAL” and/or “CONFIDENTIAL-ATTORNEYS’ EYES

11

ONLY,” and all copies, notes, summaries, and other records made regarding such

12

information, documents, and things, shall be disclosed to no one other than persons

13

specifically allowed by paragraphs 6 or 8 of the Protective Order, respectively, to have

14

access to such information.

15
16
17

4.

I agree to act in good faith in carrying out my duties under the Protective

5.

I understand that any use or disclosure by me which is contrary to my

Order.

18

undertakings in this declaration will constitute a violation of the Protective Order and

19

may subject me to sanctions by the Court for contempt.

20
21
22

6.

I hereby consent the Court’s continuing exercise of jurisdiction over me for

the purpose of enforcing the Protective Order.
I declare under penalty of perjury that the foregoing is true and correct.

23
24

Dated: ______________

25
26
27
28
2

Non-Disclosure Agreement In Re Protective Order Governing Disclosure of Confidential Information