Corey Wilson v. Athleisure, Inc. et al

Filing 32

PROTECTIVE ORDER by Magistrate Judge Suzanne H. Segal re Stipulation for Protective Order 31 . ***NOTE CHANGES MADE BY THE COURT*** (mr)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

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CORY WILSON,an individual,

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Plaintiff,

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vs.

Case No.: 16-cv-01586-DOC-SS
Honorable David O. Carter Presiding
Referred to Magistrate Judge Suzanne H. Segal

ATHLEISURE,INC., d/b/a Sun Diego, a [DISCOVERY MATTER]
California Corporation; OCEANSIDE
[p
]PROTECTIVE
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AUTO COUNTRY,INC., d/b/a Toyota
ORDER
17 Carlsbad, a California Corporation; TRY
`J' ADVERTISING,INC., aCalifornia
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oa
Corporation; DOES 1-10, inclusive,
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Defendants.

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The Court, having read and considered the parties Stipulation for Protective
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Order and good cause appearing therefor:

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[
PROPOSED]PROTECTIVE ORDER
DWT 27196149v3 0049264-000043

Case 8:16-cv-01586-DOC-SS Document 31-1 Filed 02/08/17 Page 2 of 11 Page ID #:139
PROTECTIVE ORDER
WHEREAS documents, things, and information may be furnished or disclosed
31 in this action which contain or constitute confidential, proprietary, or trade secret
information; and
WHEREAS Plaintiff Corey Wilson ("Plaintiff'), on the one hand, and
Defendants Athleisure, Inc., dba Sun Diego ("Athleisure"), Oceanside Auto Country,
Inc., dba Toyota Carlsbad, and Try `J' Advertising, Inc.("TJA"),(collectively
referred to as "Defendants"), on the other hand, agree that, pursuant to Rule 26(c) of
the Federal Rules of Civil Procedure, this Protective Order is needed to prevent the
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unnecessary disclosure or dissemination ofsuch confidential, proprietary or trade
secret information;

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IT IS HEREBY STIPULATED AND AGREED by and between the parties

13 herein, through their undersigned counsel, as follows:
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1.

Good cause statement: The parties to this case may need to produce or

15 rely upon trade secrets, confidential agreements, and/or sensitive financial, customer,
16 pricing, technical, or other proprietary information, among other things. While such
17 material may be relevant to this litigation, it may be damaging if competitors,
18 licensees, or others had full access to it. The terms of this Order ensure the
19 confidentiality of important and proprietary business information while placing a
2 minimal burden on the flow of discovery. The parties thus believe that there is good
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cause supporting such an Order.
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Except as otherwise expressly defined in this Order, the following

23 definitions apply:
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( "Confidential." Information (regardless of how generated, stored, or
a)
maintained) or tangible things that constitute trade secrets, proprietary, confidential

26 or competitively sensitive business, commercial, research, development or financial
information.

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STIPULATED PROTECTIVE ORDER

Case 8:16-cv-01586-DOC-SS Document 31-1 Filed 02/08/17 Page 3 of 11 Page ID #:140

(b)
"AEO." Information (regardless of how generated, stored, or

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aintained) or tangible things that is "Confidential," and disclosure of which would

3 reate a substantial risk of injury that could not be avoided by less restrictive means.
3.

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(a)

A party may designate any documents, material, or information as

5 "Confidential" or"AEO" when it is produced by affixing the legend
6 "CONFIDENTIAL" or "AEO" to each page containing any "Confidential" or
7 "AEO" documents, material or information. Affixing the legend
8 "CONFIDENTIAL" or "AEO" on the cover of any multipage document which is
9 bound, stapled, or otherwise securely attached shall designate all pages ofthe
10 document as "Confidential" or "AEO," unless otherwise indicated by the producing
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party.
(b)

A party or third party may designate information disclosed during

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a deposition or in response to written discovery as "Confidential" or "AEO" by so

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indicating in the responses or on the record at the deposition and requesting the

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preparation of a separate transcript ofsuch material. Additionally, a party or third

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party may designate in writing, within ten(10)business days after receipt of

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discovery responses or of a deposition transcript for which the designation is

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proposed, that specific pages of the transcript and/or specific responses be treated as

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"Confidential" or "AEO." Any other party may object to such proposal, in writing

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or on the record. If an objection is made, the parties shall follow the procedures

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described in Paragraph 14 below. After any designation is made according to the

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procedure set forth in this Paragraph, the designated documents or information shall

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be treated according to the designation until the matter is resolved according to the

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procedures described in Paragraph 14 below, and counsel for all parties shall be

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responsible for marking all previously unmarked copies of the designated material i

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their possession or control with the specified designation.

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(a)

If at any deposition in the action any document, material or

information designated as "Confidential" or "AEO" is marked as an exhibit, inquired
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STIPULATED PROTECTIVE ORDER

Case 8:16-cv-01586-DOC-SS Document 31-1 Filed 02/08/17 Page 4 of 11 Page ID #:141

about or otherwise used, the portion ofthe deposition transcript that relates to such
documents, material or information shall be automatically treated as if it had been so
designated under the terms of this Stipulation and Protective Order.
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The inadvertent production by any of the undersigned parties of any

"Confidential" or "AEO" document, material or information during discovery in this
Action without an appropriate designation, or any other inadvertent production by
such party of any document, material or information in discovery in this Action, shall
be without prejudice to any claim that such material is "Confidential" or "AEO" or is
privileged in any respect or protected from discovery as work product or as trial
preparation material, and such party shall not be held to have waived any rights by
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such inadvertent production. In the event that such production occurs, counsel for

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the producing party shall re-designate the appropriate level of confidentiality, which

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shall thereafter apply to such document, material or information subject to the terms

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of this Stipulation and Protective Order, but the receiving party shall have no liability
f any disclosures made prior to such designation. Counsel for the producing party
or
will also re-produce the documents with the appropriate confidentiality designation.
In the event that any document that is subject to a claim of privilege or that is

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protected from discovery as work product or as trial preparation material is

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inadvertently produced, the party that inadvertently received the document shall

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return the document together with all copies ofthe document to counsel for the

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producing party promptly after it receives a written notice from counsel for the
producing party that the document was produced inadvertently.

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5.

The parties' treatment of designated documents or information in

conformity with the indicated designation shall not be an admission or agreement by
251 any party that the designated information, in fact or in law, constitutes or contains

any proprietary and/or confidential information of any other party. The designation
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of documents as confidential shall not affect any party's burden of proof imposed by
relevant substantive law. Notwithstanding the foregoing, to the extent that any party
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STIPULATED PROTECTIVE ORDER

Case 8:16-cv-01586-DOC-SS Document 31-1 Filed 02/08/17 Page 5 of 11 Page ID #:142

designates a document as "Confidential" or "AEO," the party making that
designation shall not challenge the authenticity of the document for which they have
made such a designation.
6.

All documents and information produced or exchanged in the course of

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this case shall be used by the party or parties to whom the information is produced

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solely for the purpose of this case. This restriction does not apply to documents

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and/or information that are publicly available.

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Except with the prior written consent of the other parties, or upon prior

order ofthis Court obtained upon notice to opposing counsel, information designated

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as "Confidential" shall not be disclosed to any person other than the following

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person(s):

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(a)

counsel for the respective parties to this litigation, including co-

counsel and in-house counsel for Defendants and/or their parent companies;
(
b)

employees ofsuch counsel deemed necessary by counsel for the

prosecution or defense of this litigation;
(
c)

Plaintiff, Defendants, and any officer or employee of Defendants

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and/or their parent companies, to the extent deemed necessary by counsel for the

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prosecution or defense of this litigation;
(
d)

consultants or expert witnesses retained for the prosecution or

defense of this litigation, including without limitation non-technical jury or trial
211 consulting services retained by counsel for a party, and graphics or design services
retained by counsel for a party for the purposes of preparing demonstrative or other
exhibits for deposition, trial, or other court proceedings in this action, provided that
each such person or service shall execute a copy ofthe Certification attached to this
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Order before being shown or given any information designated "Confidential."

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Copies of all Certifications shall be retained by counsel for the party so disclosing t~

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information designated "Confidential" and made available for inspection by opposir

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STIPULATED PROTECTIVE ORDER

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counsel during the pendency or after the termination ofthe action, upon order ofthe

2 Court for good cause shown;
(e)

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any authors or original recipients, if any, of the information

4 designated "Confidential";
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the Court, Court personnel, court reporters and videographers

6 (whether in court or at a deposition);
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(g)

any mediator or arbitrator that the parties engage in this matter or

the Court appoints; and
(h)

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witnesses. Except in cases where the witness is an author or

l0 original recipient of the document in question, a witness shall sign the Certification
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before being shown a document designated as "Confidential." Information

12 designated "Confidential" may be disclosed to a witness who will not sign the
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Certification only in a deposition at which the party who designated the information

14 is represented or has been given notice that information produced by the party may
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be used. Witnesses affiliated with a party to this action and nonparty witnesses

16 appearing for deposition pursuant to a subpoena shall be notified of and given a copy
17 of this Stipulation and Order and shall be bound by its terms. At the request of any
18 party, the portion of the deposition transcript involving such information shall be
19 designated "Confidential" pursuant to Paragraph 3 above. Witnesses shown
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information designated "Confidential" shall not be allowed to retain copies.
8.

Any persons receiving information designated "Confidential" shall not

22 reveal or discuss such information with any person who is not entitled to receive such
23 information, except as set forth in this Stipulation and Protective Order.
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9.

Except with the prior written consent ofthe other parties, or upon prior

25 order ofthis Court obtained upon notice to opposing counsel, information designated
26 as "AEO" shall not be disclosed to any person other than the following person(s):
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STIPULATED PROTECTIVE ORDER

Case 8:16-cv-01586-DOC-SS Document 31-1 Filed 02/08/17 Page 7 of 11 Page ID #:144

(
a)

counsel of record for the respective parties to this litigation,

including in-house counsel for Defendants and/or their parent companies, and
31 employees of counsel deemed necessary for the legal defense of this action;
(
b)

independent consultants or expert witnesses, which persons may

51 not be a former or current officer or employee of a party, who are retained for the
prosecution or defense of this litigation, including without limitation non-technical
jury or trial consulting services retained by counsel for a party, and graphics or
design services retained by counsel for a party for the purposes of preparing
demonstrative or other exhibits for deposition, trial, or other court proceedings in this
10 action, provided that each such person or service shall execute a copy ofthe
Certification attached to this Order before being shown or given any information
12 designated "AEO." Copies of all Certifications shall be retained by counsel for the
13 party so disclosing information designated "AEO" and made available for inspection
14 by opposing counsel during the pendency or after the termination ofthe action, upon
15 order of the Court for good cause shown;
(
c)

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the Court, Court personnel, court reporters and videographers

whether in court or at a deposition);
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(
d)

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any mediator or arbitrator that the parties engage in this matter or

19 the Court appoints; and
(
e)

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any authors or recipients, if any, ofthe information designated

AEO."
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10.

Any persons receiving information designated "AEO" shall not reveal

23 discuss such information with any person who is not entitled to receive such
24 information, except as set forth in this Stipulation and Protective Order.
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1 1.

Notwithstanding anything to the contrary herein, the parties agree that

26 the parties may be provided by their counsel a summary document, or oral summary,
27 setting forth the alleged infringers' full identities, revenues, and gross profits
28 numbers, license fees, or other similar financial information, notwithstanding any

STIPULATED PROTECTIVE ORDER

Case 8:16-cv-01586-DOC-SS Document 31-1 Filed 02/08/17 Page 8 of 11 Page ID #:145

party's designation of documents showing such information as "AEO" The parties
urther agree that Plaintiff is free to name revealed alleged infringers as defendants it
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a lawsuit.

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12.

If any party desires to submit information designated "Confidential" or

AEO" to the Court for any purpose, that party will comply with Central District of
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California Local Rule 79-5.
13.

Any party may voluntarily disclose to others without restriction any

information designated by that party as "Confidential" or "AEO," although a
document may lose its confidential status if it is made public.
14.

If a party contends that any specific document or information is not

entitled to confidential treatment, such party may at any time give written notice to
121 the party who designated the document or information as "Confidential" or "AEO."
The parties shall first try to resolve the dispute in good faith on an informal basis. If
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dispute cannot be so resolved, the party challenging the designation may apply to
Court for an order determining that the material is not properly designated as

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ial" or "AEON The party who designated the material as "Confidential"
"
AEO" shall have the burden of establishing that the document or information is
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with its designation while any motion or application concerning its confidential status

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to protection. The material shall be treated as confidential in accordance

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is pending before the Court. A party shall not be obligated to challenge the propriety
of any confidentiality designation at the time made, and failure to do so shall not
preclude a later challenge to the designation or constitute an admission that such
designation was proper. All applications or challenges made to the Court regarding
this protective order, must made in conformity with procedures set forth in Local

251 Rule 37.

15.
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Notwithstanding any challenge to the designation of information as

"Confidential" or "AEO," all documents shall be treated as such and shall be subject

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STIPULATED PROTECTIVE ORDER

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to the provisions of this Stipulation and Protective Order unless and until one ofthe

ollowing occurs:
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(
a)

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the party who has designated the information "Confidential" or

AEO" withdraws such designation in writing; or
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(
b)

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the Court rules the information should not be designated as

Confidential" or "AEO" under this Stipulation and Protective Order.
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16.

All provisions of this Order restricting the communication or use of

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information designated "Confidential" or "AEO" shall continue to be binding after

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the conclusion of this action, unless otherwise agreed or ordered. Upon conclusion

t0 ofthe litigation, a party in the possession of information designated "Confidential" o
AEO" shall destroy such documents and any materials incorporating, quoting from,
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or otherwise incorporating information from such documents, and certify in writing

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no later than sixty (60)days after conclusion of this action that the destruction has

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been completed.

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17.

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The terms of this Order do not preclude, limit, restrict, or otherwise

apply to the use of documents at court hearings or trial.
18.

Nothing in this Stipulation and Protective Order shall be deemed to

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waive any applicable privilege or work product protection, or to affect the ability of

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party to seek relief for an inadvertent disclosure of material protected by privilege or

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work product protection.

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19.

Any witness or other person, firm or entity from which discovery is

sought may be informed of and may obtain the protection of this Order.
20.

Any party receiving a subpoena duces tecum or other lawful process or

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order of any court, administrative body, tribunal or other public authority requiring

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the production and disclosure of documents, or the disclosure of information

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designated by another party as confidential and subject to this Order, shall notify the

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designating party in writing of receipt of the process or order within five(5)business
days ofthe receipt thereof, and shall not produce the information until the

STIPULATED PROTECTIVE ORDER

Case 8:16-cv-01586-DOC-SS Document 31-1 Filed 02/08/17 Page 10 of 11 Page ID #:147

designating party has had reasonable time to object or take other appropriate steps to
protect the information.
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21.

This stipulation may be executed in counterparts, all of which taken

together shall constitute one and the same instrument.
22.

The parties and their counsel of record agree to be bound by all the

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confidentiality provisions set forth in this Stipulation once the Stipulation is fully

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executed by the parties, even if the Court does not enter this Order.

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SO ORDERED.
Date:
Hon. SuzannI .Segal
U.S. District agistrat~

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Suzanne N. Segal
U.S. Magistrate Judge

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STIPULATED PROTECTIVE ORDER

Case 8:16-cv-01586-DOC-SS Document 31-1 Filed 02/08/17 Page 11 of 11 Page ID #:148

CERTIFICATION
I hereby certify my understanding that material designated as "Confidential" o
AEO"(collectively "Confidential Information") is being provided to me pursuant tc
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the terms and restrictions ofthe Protective Order dated
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, in the

case entitled Wilson v. Athleisure, Inc., et al., United States District Court for the

6 Central District of California Case Number 16-CV-Ol 586-DOC-SS. I have been
7 given a copy of that Order and read it. I agree to be bound by the Order. I will not
8 reveal the Confidential Information to anyone, except as allowed by the Order. I wil
maintain all such Confidential Information —including copies, notes, or other
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transcriptions made therefrom — in a secure manner to prevent unauthorized access tc

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it. No later than sixty (60)days after the conclusion of this action, I will return the

12 Confidential Information — including copies, notes, or other transcriptions made
rom, quoting from, or otherwise incorporating any portion of that information — to
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14 the counsel who provided me with the Confidential Information. I hereby consent to
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the jurisdiction ofthe United States District Court for the Central District of

16 California, for the purpose of enforcing the Protective Order.
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18 DATED:
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Print Name

Signature

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STIPULATED PROTECTIVE ORDER