Live Fit Apparel, LLC v. Catapult Fit, LLC

Filing 26

STIPULATED PROTECTIVE ORDER by Magistrate Judge Jay C. Gandhi re Stipulation for Protective Order 25 . (kh)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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655 North Central Avenue
Suite 2300
Glendale, CA 91203-1445

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LIVE FIT APPAREL, LLC
Plaintiff,

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vs.

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CATAPULT FIT, LLC A.K.A.
LIVE FIT, LLC, D.B.A. LIVE FIT
NUTRITION,

Case No. 8:17-cv-00019-JVS (JCGx)
STIPULATED PROTECTIVE
ORDER
[DISCOVERY DOCUMENT:
REFERRED TO MAGISTRATE
JUDGE JAY C. GANDHI]

Defendant.

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A. PURPOSES AND LIMITATIONS

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Discovery in this action is likely to involve production of confidential,

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proprietary, or private information for which special protection from public

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disclosure and from use for any purpose other than prosecuting this litigation may

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be warranted. Accordingly, the parties hereby stipulate to and petition the Court

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to enter the following Stipulated Protective Order. The parties acknowledge that

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this Order does not confer blanket protections on all disclosures or responses to

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discovery and that the protection it affords from public disclosure and use extends

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only to the limited information or items that are entitled to confidential treatment

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under the applicable legal principles. The parties further acknowledge, as set forth
101226515_1

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in Section 12.3, below, that this Stipulated Protective Order does not entitle them

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to file confidential information under seal; Civil Local Rule 79-5 sets forth the

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procedures that must be followed and the standards that will be applied when a

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party seeks permission from the court to file material under seal.
B.

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This action is likely to involve customer lists and other valuable

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commercial, financial and/or proprietary information for which special protection

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from public disclosure and from use for any purpose other than prosecution of

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this action is warranted. Such confidential and proprietary materials and

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information consist of, among other things, confidential business or financial

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655 North Central Avenue
Suite 2300
Glendale, CA 91203-1445

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information, information regarding confidential business practices, or other

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confidential personal or commercial information (including information

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implicating privacy rights of third parties), information otherwise generally

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unavailable to the public, or which may be privileged or otherwise protected from

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disclosure under state or federal statutes, court rules, case decisions, or common

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law. Accordingly, to expedite the flow of information, to facilitate the prompt

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resolution of disputes over confidentiality of discovery materials, to adequately

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protect information the parties are entitled to keep confidential, to ensure that the

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parties are permitted reasonable necessary uses of such material in preparation for

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and in the conduct of trial, to address their handling at the end of the litigation,

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and serve the ends of justice, a protective order for such information is justified in

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this matter. It is the intent of the parties that information will not be designated as

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confidential for tactical reasons and that nothing be so designated without a good

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faith belief that it has been maintained in a confidential, non-public manner, and

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there is good cause why it should not be part of the public record of this case.

GOOD CAUSE STATEMENT

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2.

DEFINITIONS
2.1

Action: Live Fit Apparel, LLC v. Catapult Fit, LLC Case No. 8:17-

cv-00019 JVS (JCGx).
2.2

Challenging Party:

a Party or Non-Party that challenges the

designation of information or items under this Order.
2.3

CONFIDENTIAL Information or Items: information (regardless of

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how it is generated, stored or maintained) or tangible things that qualify for

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protection under Federal Rule of Civil Procedure 26(c), and as specified above in

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the Good Cause Statement.

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2.4

HIGHLY CONFIDENTIAL - AEO Information or Items:

655 North Central Avenue
Suite 2300
Glendale, CA 91203-1445

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information (regardless of how it is generated, stored or maintained) or tangible

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things that qualify for protection under Federal Rule of Civil Procedure 26(c), and

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as specified above in the Good Cause Statement.

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CONFIDENTIAL – AEO designation is limited to material that is so

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commercially sensitive that a party would be at a severe economic disadvantage if

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its competitors were able to review the material.

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CONFIDENTIAL – AEO material include, but are not limited to customer lists

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and trade secrets.

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2.5

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The HIGHLY

Examples of HIGHLY

Counsel: Outside Counsel of Record and House Counsel (as well as

their support staff).
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Designating Party: a Party or Non-Party that designates information

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or items that it produces in disclosures or in responses to discovery as

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“CONFIDENTIAL.”

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2.7

Disclosure or Discovery Material:

all items or information,

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regardless of the medium or manner in which it is generated, stored, or

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maintained (including, among other things, testimony, transcripts, and tangible

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things), that are produced or generated in disclosures or responses to discovery in

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this matter.
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2.8

Expert: a person with specialized knowledge or experience in a

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matter pertinent to the litigation who has been retained by a Party or its counsel to

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serve as an expert witness or as a consultant in this Action.

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2.9

House Counsel: attorneys who are employees of a party to this

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Action. House Counsel does not include Outside Counsel of Record or any other

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outside counsel.

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2.10 Non-Party: any natural person, partnership, corporation, association,
or other legal entity not named as a Party to this action.
2.11 Outside Counsel of Record: attorneys who are not employees of a

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party to this Action but are retained to represent or advise a party to this Action

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655 North Central Avenue
Suite 2300
Glendale, CA 91203-1445

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and have appeared in this Action on behalf of that party or are affiliated with a

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law firm which has appeared on behalf of that party, and includes support staff.

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2.12 Party: any party to this Action, including all of its officers, directors,

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employees, consultants, retained experts, and Outside Counsel of Record (and

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their support staffs).

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2.13 Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this Action.
2.14 Professional Vendors:

persons or entities that provide litigation

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support services (e.g., photocopying, videotaping, translating, preparing exhibits

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or demonstrations, and organizing, storing, or retrieving data in any form or

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medium) and their employees and subcontractors.

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2.15 Protected Material: any Disclosure or Discovery Material that is
designated as CONFIDENTIAL or HIGHLY CONFIDENTIAL - AEO
2.16 Receiving Party:

a Party that receives Disclosure or Discovery

Material from a Producing Party.

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3.

SCOPE

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The protections conferred by this Stipulation and Order cover not only

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Protected Material (as defined above), but also (1) any information copied or

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extracted from Protected Material; (2) all copies, excerpts, summaries, or

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compilations of Protected Material; and (3) any testimony, conversations, or

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presentations by Parties or their Counsel that might reveal Protected Material.

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Any use of Protected Material at trial shall be governed by the orders of the
trial judge. This Order does not govern the use of Protected Material at trial.

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4.

DURATION

655 North Central Avenue
Suite 2300
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Even after final disposition of this litigation, the confidentiality obligations

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imposed by this Order shall remain in effect until a Designating Party agrees

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otherwise in writing or a court order otherwise directs. Final disposition shall be

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deemed to be the later of (1) dismissal of all claims and defenses in this Action,

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with or without prejudice; and (2) final judgment herein after the completion and

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exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,

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including the time limits for filing any motions or applications for extension of

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time pursuant to applicable law.

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5.

DESIGNATING PROTECTED MATERIAL
5.1

Exercise

of

Restraint

and

Care

in

Designating

Material

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for Protection. Each Party or Non-Party that designates information or items for

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protection under this Order must take care to limit any such designation to

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specific material that qualifies under the appropriate standards. The Designating

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Party must designate for protection only those parts of material, documents,

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items, or oral or written communications that qualify so that other portions of the

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material, documents items, or communications for which protection is not

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warranted are not swept unjustifiably within the ambit of this Order.
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Mass,

indiscriminate,

or

routinized

designations

are

prohibited.

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Designations that are shown to be clearly unjustified or that have been made for

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an improper purpose (e.g., to unnecessarily encumber the case development

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process or to impose unnecessary expenses and burdens on other parties) may

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expose the Designating Party to sanctions.

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

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it designated for protection do not qualify for protection, that Designating Party

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must promptly notify all other Parties that it is withdrawing the inapplicable

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designation.

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5.2

Manner and Timing of Designations. Except as otherwise provided

655 North Central Avenue
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Glendale, CA 91203-1445

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in this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise

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stipulated or ordered, Disclosure or Discovery Material that qualifies for

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protection under this Order must be clearly so designated before the material is

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disclosed or produced.

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Designation in conformity with this Order requires:

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(a)

for information in documentary form (e.g., paper or electronic

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documents, but excluding transcripts of depositions or other pretrial or trial

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proceedings), that the Producing Party affix at a minimum, the legend

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CONFIDENTIAL to each page that contains protected material.

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

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inspection need not designate them for protection until after the inspecting Party

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has indicated which documents it would like copied and produced. During the

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inspection and before the designation, all of the material made available for

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inspection shall be deemed HIGHLY CONFIDENTIAL – AEO. After the

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inspecting Party has identified the documents it wants copied and produced, the

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Producing Party must determine which documents, or portions thereof, qualify for

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protection under this Order. Then, before producing the specified documents, the

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Producing Party must affix CONFIDENTIAL or HIGHLY CONFIDENTIAL –

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AEO as appropriate to each page that contains Protected Material.

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(b)

for testimony given in depositions that the Designating Party identify

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the Disclosure or Discovery Material on the record, before 30 days after the close

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of the deposition all protected testimony.

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(c)

for information produced in some form other than documentary and

for any other tangible items, that the Producing Party affix in a prominent place

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on the exterior of the container or containers in which the information is stored

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the legend CONFIDENTIAL or HIGHLY CONFIDENTIAL – AEO as

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appropriate. If only a portion or portions of the information warrants protection,

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655 North Central Avenue
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Glendale, CA 91203-1445

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the Producing Party, to the extent practicable, shall identify the protected

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portion(s).

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5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent

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failure to designate qualified information or items does not, standing alone, waive

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the Designating Party’s right to secure protection under this Order for such

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material. Upon timely correction of a designation, the Receiving Party must make

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reasonable efforts to assure that the material is treated in accordance with the

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provisions of this Order.

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6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges. Any Party or Non-Party may challenge a

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designation of confidentiality at any time that is consistent with the Court’s

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Scheduling Order.

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6.2

Meet and Confer. The Challenging Party shall initiate the dispute

resolution process under Local Rule 37.1 et seq.
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The burden of persuasion in any such challenge proceeding shall be

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on the Designating Party. Frivolous challenges, and those made for an improper

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purpose (e.g., to harass or impose unnecessary expenses and burdens on other
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parties) may expose the Challenging Party to sanctions. Unless the Designating

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Party has waived or withdrawn the confidentiality designation, all parties shall

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continue to afford the material in question the level of protection to which it is

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entitled under the Producing Party’s designation until the Court rules on the

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challenge.

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7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

Basic Principles. A Receiving Party may use Protected Material that

is disclosed or produced by another Party or by a Non-Party in connection with

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this Action only for prosecuting, defending, or attempting to settle this Action.

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655 North Central Avenue
Suite 2300
Glendale, CA 91203-1445

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Such Protected Material may be disclosed only to the categories of persons and

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under the conditions described in this Order. When the Action has been

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terminated, a Receiving Party must comply with the provisions of section 13

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below (FINAL DISPOSITION).

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

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location and in a secure manner that ensures that access is limited to the persons

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authorized under this Order.

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7.2

Disclosure of CONFIDENTIAL Information or Items. Unless

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otherwise ordered by the court or permitted in writing by the Designating Party, a

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Receiving

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CONFIDENTIAL only to:

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(a)

Party

may

disclose

any

information

or

item

designated

the Receiving Party’s Outside Counsel of Record in this Action, as

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well as employees of said Outside Counsel of Record to whom it is reasonably

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necessary to disclose the information for this Action;

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(b)

the officers, directors, and employees (including House Counsel) of

the Receiving Party to whom disclosure is reasonably necessary for this Action;
(c)

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

disclosure is reasonably necessary for this Action and who have signed the
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“Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(d)

the court and its personnel;

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(e)

court reporters and their staff;

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(f)

professional jury or trial consultants, mock jurors, and Professional

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Vendors to whom disclosure is reasonably necessary for this Action and who

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have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(g)

the author or recipient of a document containing the information or a

custodian or other person who otherwise possessed or knew the information;
(h)

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

the Action to whom disclosure is reasonably necessary provided: (1) the deposing

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655 North Central Avenue
Suite 2300
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party requests that the witness sign the form attached as Exhibit 1 hereto; and (2)

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they will not be permitted to keep any confidential information unless they sign

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the “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless

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otherwise agreed by the Designating Party or ordered by the court. Pages of

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transcribed deposition testimony or exhibits to depositions that reveal Protected

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Material may be separately bound by the court reporter and may not be disclosed

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to anyone except as permitted under this Stipulated Protective Order; and

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(i)

any mediator or settlement officer, and their supporting personnel,

mutually agreed upon by any of the parties engaged in settlement discussions.
7.3

Disclosure of HIGHLY-CONFIDENTIAL - AEO Information or

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Items. Unless otherwise ordered by the court or permitted in writing by the

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Designating Party, a Receiving Party may disclose any information or item

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designated HIGHLY CONFIDENTIAL - AEO only to:

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(a)

the Receiving Party’s Outside Counsel of Record in this Action, as

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well as employees of said Outside Counsel of Record to whom it is reasonably

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necessary to disclose the information for this Action;

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(b)

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

disclosure is reasonably necessary for this Action and who have signed the
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“Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(c)

the court and its personnel;

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(d)

court reporters and their staff;

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(e)

professional jury or trial consultants, mock jurors, and Professional

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Vendors to whom disclosure is reasonably necessary for this Action and who

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have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(f)

the author or recipient of a document containing the information or a

custodian or other person who otherwise possessed or knew the information;

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(g)

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

the Action to whom disclosure is reasonably necessary provided: (1) the deposing

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655 North Central Avenue
Suite 2300
Glendale, CA 91203-1445

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party requests that the witness sign the form attached as Exhibit 1 hereto; and (2)

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they will not be permitted to keep any confidential information unless they sign

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the “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless

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otherwise agreed by the Designating Party or ordered by the court. Pages of

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transcribed deposition testimony or exhibits to depositions that reveal Protected

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Material may be separately bound by the court reporter and may not be disclosed

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to anyone except as permitted under this Stipulated Protective Order; and
(h)

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any mediator or settlement officer, and their supporting personnel,

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

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8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

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IN OTHER LITIGATION

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

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litigation that compels disclosure of any information or items designated in this

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Action as CONFIDENTIAL, or HIGHLY CONFIDENTIAL - AEO that Party

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must:

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(a)

promptly notify in writing the Designating Party. Such notification

shall include a copy of the subpoena or court order;
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(b)

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 by the

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

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include a copy of this Stipulated Protective Order; and

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(c)

cooperate with respect to all reasonable procedures sought to be

pursued by the Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served

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with the subpoena or court order shall not produce any information designated in

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this action as CONFIDENTIAL or HIGHLY CONFIDENTIAL - AEO before a

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determination by the court from which the subpoena or order issued, unless the

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Party has obtained the Designating Party’s permission. The Designating Party

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shall bear the burden and expense of seeking protection in that court of its

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confidential material and nothing in these provisions should be construed as

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authorizing or encouraging a Receiving Party in this Action to disobey a lawful

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directive from another court.

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9.

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PRODUCED IN THIS LITIGATION

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A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

(a)

The terms of this Order are applicable to information produced by a

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Non-Party in this Action and designated as CONFIDENTIAL or HIGHLY

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CONFIDENTIAL - AEO. Such information produced by Non-Parties in

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connection with this litigation is protected by the remedies and relief provided by

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this Order. Nothing in these provisions should be construed as prohibiting a Non-

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Party from seeking additional protections.

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(b)

In the event that a Party is required, by a valid discovery request, to

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produce a Non-Party’s confidential information in its possession, and the Party is

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subject to an agreement with the Non-Party not to produce the Non-Party’s

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confidential information, then the Party shall:
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(1)

promptly notify in writing the Requesting Party and the Non-

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Party that some or all of the information requested is subject to a confidentiality

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agreement with a Non-Party;

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(2)

promptly provide the Non-Party with a copy of the Stipulated

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Protective Order in this Action, the relevant discovery request(s), and a

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reasonably specific description of the information requested; and

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(3)

make the information requested available for inspection by the

Non-Party, if requested.

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(c)

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

within 14 days of receiving the notice and accompanying information, the

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655 North Central Avenue
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Receiving Party may produce the Non-Party’s confidential information

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

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order, the Receiving Party shall not produce any information in its possession or

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control that is subject to the confidentiality agreement with the Non-Party before

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a determination by the court. Absent a court order to the contrary, the Non-Party

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shall bear the burden and expense of seeking protection in this court of its

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Protected Material.

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10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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If a Receiving Party learns that, by inadvertence or otherwise, it has

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disclosed Protected Material to any person or in any circumstance not authorized

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under this Stipulated Protective Order, the Receiving Party must immediately

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(a) notify in writing the Designating Party of the unauthorized disclosures, (b) use

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its best efforts to retrieve all unauthorized copies of the Protected Material,

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(c) inform the person or persons to whom unauthorized disclosures were made of

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all the terms of this Order, and (d) request such person or persons to execute the

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“Acknowledgment and Agreement to Be Bound” that is attached hereto as

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Exhibit A.
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PROTECTED MATERIAL

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

When a Producing Party gives notice to Receiving Parties that certain

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inadvertently produced material is subject to a claim of privilege or other

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protection, the obligations of the Receiving Parties are those set forth in

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Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to

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modify whatever procedure may be established in an e-discovery order that

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provides for production without prior privilege review. Pursuant to Federal Rule

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of Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect

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of disclosure of a communication or information covered by the attorney-client

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privilege or work product protection, the parties may incorporate their agreement

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in the stipulated protective order submitted to the court.

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12.

MISCELLANEOUS
12.1 Right to Further Relief. Nothing in this Order abridges the right of

any person to seek its modification by the Court in the future.

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12.2 Right to Assert Other Objections. By stipulating to the entry of this

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Protective Order no Party waives any right it otherwise would have to object to

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disclosing or producing any information or item on any ground not addressed in

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this Stipulated Protective Order. Similarly, no Party waives any right to object on

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any ground to use in evidence of any of the material covered by this

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Protective Order.

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12.3 Filing Protected Material. A Party that seeks to file under seal any

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Protected Material must comply with Civil Local Rule 79-5. Protected Material

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may only be filed under seal pursuant to a court order authorizing the sealing of

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the specific Protected Material at issue. If a Party's request to file Protected

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Material under seal is denied by the court, then the Receiving Party may file the

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information in the public record unless otherwise instructed by the court.
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13.

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

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60 days of a written request by the Designating Party, each Receiving Party must

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return all Protected Material to the Producing Party or destroy such material.

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As used in this subdivision, “all Protected Material” includes all copies, abstracts,

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compilations, summaries, and any other format reproducing or capturing any of

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the Protected Material. Whether the Protected Material is returned or destroyed,

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the Receiving Party must submit a written certification to the Producing Party

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(and, if not the same person or entity, to the Designating Party) by the 60 day

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deadline that (1) identifies (by category, where appropriate) all the Protected

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Material that was returned or destroyed and (2) affirms that the Receiving Party

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has not retained any copies, abstracts, compilations, summaries or any other

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format reproducing or capturing any of the Protected Material. Notwithstanding

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this provision, Counsel are entitled to retain an archival copy of all pleadings,

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motion papers, trial, deposition, and hearing transcripts, legal memoranda,

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correspondence, deposition and trial exhibits, expert reports, attorney work

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product, and consultant and expert work product, even if such materials contain

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Protected Material. Any such archival copies that contain or constitute Protected

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Material remain subject to this Protective Order as set forth in Section 4

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(DURATION).

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14.

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measures including, without limitation, contempt proceedings and/or monetary

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sanctions.

Any violation of this Order may be punished by any and all appropriate

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
DATED

May 19, 2017

/s/Drew Wilson
Attorneys for Plaintiff
Live Fit Apparel, LLC

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DATED

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/s/Uleses C. Henderson, Jr.
Attorneys for Defendants
Catapult Fit, LLC

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May 19, 2017

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L.R. 5-4.3.4(a)(2)(i) Certification:
Uleses C. Henderson, Jr. concurs in the
filing's content and has authorized
the ECF filing of same.
By: /s/Drew Wilson
Drew Wilson

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

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DATED:

May 24, 2017

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Jay C. Gandhi
United States Magistrate Judge

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
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 Stipulated Protective Order that

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was issued by the United States District Court for the Central District of

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California on [date] in the case of Live Fit Apparel, LLC v. Catapult Fit, LLC

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Case No. 8:17-cv-00019 JVS (JCGx). I agree to comply with and to be bound by

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all the terms of this Stipulated Protective Order and I understand and

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acknowledge that failure to so comply could expose me to sanctions and

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655 North Central Avenue
Suite 2300
Glendale, CA 91203-1445

3

punishment in the nature of contempt. I solemnly promise that I will not disclose

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in any manner any information or item that is subject to this Stipulated Protective

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Order to any person or entity except in strict compliance with the provisions of

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this Order.

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

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Court for the Central District of California for the purpose of enforcing the terms

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of this Stipulated Protective Order, even if such enforcement proceedings occur

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after termination of this action. I hereby appoint __________________________

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[print or type full name] of _______________________________________

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[print or type full address and telephone number] as my California agent for

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service of process in connection with this action or any proceedings related to

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enforcement of this Stipulated Protective 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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Signature:

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-16101226515_1