Starbuzz Tobacco, Inc. v. Star Hookah, Inc. et al

Filing 32

PROTECTIVE ORDER GOVERNING DISCLOSURE OF CONFIDENTIAL INFORMATION by Magistrate Judge Douglas F. McCormick re Stipulation for Protective Order 31 . (twdb)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
)
)
)
)
Plaintiff,
)
vs.
)
STAR HOOKAH, INC., a California )
)
Corporation; STAR HOOKAH
)
LOUNGE, INC., a California
)
Corporation; STAR HOOKAH
)
HOLLYWOOD, INC., a California
Corporation; NATHAN MADANI, an )
individual; and DOES 1-10, inclusive, )
)
)
Defendants.
)
)
)
)
)
)
)
)
)
STARBUZZ TOBACCO, INC., a
California Corporation,

Case No.: 8:17−cv−0798 CJC (DFMx)

PROTECTIVE ORDER
GOVERNING DISCLOSURE OF
CONFIDENTIAL INFORMATION
[Discovery Document:
Referred to Magistrate Judge
Douglas F. McCormick]

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-1Protective Order Governing Disclosure of Confidential Information

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WHEREAS, Plaintiff STARBUZZ TOBACCO, INC. (“STARBUZZ”), on

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the one hand, and Defendants STAR HOOKAH, INC., STAR HOOKAH

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LOUNGE, INC., and STAR HOOKAH HOLLYWOOD, INC. (collectively, the

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“STAR ENTITIES”), along with Defendant NATHAN MADANI (“MADANI”),

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on the other hand (all of the above being, collectively, the “Parties), believe that in

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the course of this action certain information, documents, and testimony likely to be

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disclosed and produced through discovery may constitute or incorporate

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confidential commercial information, research or development and/or trade secrets

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within the meaning of Federal Rule of Civil Procedure 26(c);

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

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

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facilitating discovery in this action; and

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

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

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

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trade secrets.

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

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

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

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

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

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

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

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

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Confidential Material as required by this Protective Order.

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It is further ordered that:

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1.

Any Producing Party may designate any Confidential Material as

“CONFIDENTIAL” if such producing party in good faith believes that such
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Confidential Material contains confidential or proprietary information, including

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

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

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produced for inspection, information revealed during a deposition, information

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revealed in an interrogatory answer, or otherwise.

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2.

Any Producing Party may designate any Confidential Material as

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

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good faith believes that such Confidential Material contains confidential,

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

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

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

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competitive information, or financial information of the Producing Party,

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

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

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

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

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produced for inspection, information revealed during a deposition, information

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revealed in an interrogatory answer, or otherwise.

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3.

A Producing Party may designate any document or other tangible

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

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by stamping a conspicuous place thereof with the legend CONFIDENTIAL or

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

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

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multipage document and each page thereafter that actually contains Confidential

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

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

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party may so mark the disk cover.

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-3Protective Order Governing Disclosure of Confidential Information

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4.

The terms of this Protective Order are applicable to Confidential

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

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

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

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

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confidentiality of such Confidential Material. A producing party may designate

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

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

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

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

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

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

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

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Material.

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a.

If a producing party designates such materials as “Confidential”

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

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

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

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

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

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

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

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Confidential or Confidential—Attorneys’ Eyes Only information is

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discussed during the deposition, any person present during the deposition

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

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be excluded from that portion of the deposition.

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b.

A deposition transcript and the exhibits thereto shall be

presumed Confidential—Attorneys’ Eyes Only in their entirety until twenty
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one (21) days after receipt of the transcript by the producing party. If, after

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

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

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

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

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

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

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

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

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

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attend depositions pursuant to paragraph 7 hereof.
c.

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A non-producing party may designate documents, information,

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

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

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

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Confidential Material.

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5.

Material designated as confidential under this Protective Order, the

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

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

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

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

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

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

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

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

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

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

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of this order unless approved by the Court. Nothing in this paragraph shall operate
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to bar motions in limine or similar motion to exclude the use of any document in

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

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6.

Confidential Material produced pursuant to this Protective Order may

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

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

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“qualified persons” designated below:

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a.

MADANI in his individual capacity, and as officer or director

of the STAR ENTITIES;
b.

two officers or directors of STARBUZZ, or full-time

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employees designated in writing as a representative of STARBUZZ who

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have supervisory responsibility for this matter and is necessary to the

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

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and Majda Haddoudi;

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c.

experts or consultants (together with their clerical staff) retained

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

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

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design services retained by outside counsel in connection with this action

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who have signed the “Acknowledgement and Agreement to be Bound” that

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is attached hereto as Exhibit A;

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d.

court reporter(s) employed in this action; and

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e.

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

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have signed the “Acknowledgement and Agreement to be Bound” that is

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attached hereto as Exhibit A.

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

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

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

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

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provided forthwith to counsel for each other party.
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7.

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

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

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

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

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containing CONFIDENTIAL – ATTORNEYS’ EYES ONLY information. No

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

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

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including potential witnesses.

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8.

Material designated “CONFIDENTIAL – ATTORNEYS’ EYES

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

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

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

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

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

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

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

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order with respect to confidentiality shall also apply.

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9.

Copies of Confidential or Confidential—Attorneys’ Eyes Only

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

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

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

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

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a filing with the Court that contain material designated as “Confidential” or

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“Confidential—Attorneys’ Eyes Only” shall be filed under seal. To the extent that

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no Confidential or Confidential—Attorneys’ Eyes Only information is disclosed,

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the parties may refer to, and quote from, documents designated as “Confidential”

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or “Confidential—Attorneys’ Eyes Only” in pleadings, motions, briefs, affidavits,

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or exhibits filed with the Court, without the need to file such pleadings, motions,
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briefs, affidavits, or exhibits under seal. A Party’s counsel shall not unilaterally

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decide that material that the other Party designated as “Confidential” or

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“Confidential—Attorneys’ Eyes Only” does not contain any Confidential or

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Confidential—Attorneys’ Eyes Only information. If a Party’s counsel disagrees

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with a designation, that counsel shall follow the procedures described in paragraph

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11 of this Order to challenge the designation.

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10.

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

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

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reasonably available to protect its confidentiality during such use.

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

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

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

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

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

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

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

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

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

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

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12.

Nothing in this Protective Order shall preclude any party to the

lawsuit or their attorneys from:
a.

Showing materials designated as “Confidential” or

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

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

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document to have received the document;

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b.

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

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

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-8Protective Order Governing Disclosure of Confidential Information

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

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Only”;
c.

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

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

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

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

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

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

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

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

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were obtained; or
d.

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

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

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

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

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public through publication or otherwise or is already rightfully in the

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

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13.

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

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

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

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

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

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

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protect the confidentiality of the designated materials.

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14.

This Protective Order is entered solely for the purpose of facilitating

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

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

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Protective Order nor the production of any information or document under the
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terms of this Protective Order nor any proceedings pursuant to this Protective

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

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

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

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15.

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

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

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

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

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

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

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

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certify the destruction thereof. Notwithstanding this provision, Counsel are

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

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

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

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copies that contain or constitute Confidential Material remain subject to this

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Protective Order.

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16.

The inadvertent or unintentional disclosure by the Producing Party of

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

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

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

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

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

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

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

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

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privilege or work product immunity and were inadvertently or mistakenly

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produced. The receiving party shall also destroy any extra copies or summaries of,
-10Protective Order Governing Disclosure of Confidential Information

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

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

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Protective Order shall not preclude the Party returning such information from

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

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

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

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

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

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deposition, inadvertently or unintentionally disclosed documents containing

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

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

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

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

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

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

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

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work product.

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17.

The inadvertent or unintentional disclosure by the Producing Party of

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

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information either by way of document production or deposition testimony,

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

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

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confidentiality as to the information disclosed. Any such inadvertently or

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unintentionally disclosed “CONFIDENTIAL” and/or “CONFIDENTIAL-

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

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

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

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after the Producing Party becomes aware of the inadvertent or unintentional
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disclosure and provides written notice to the Receiving Parties. The Receiving

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

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

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

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so designated. The party who made such inadvertent or unintentional disclosure

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shall request said person to which an inadvertent or unintentional disclosure was

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made to execute the “Acknowledgement and Agreement to be Bound” that is

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attached hereto as Exhibit A.
18.

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For documents produced pursuant to subpoena or subpoena duces

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tecum or in other proceedings outside of open court or trial, that any party or non-

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party believes should be designated “CONFIDENTIAL” or “CONFIDENTIAL-

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ATTORNEY’S EYES ONLY”, that Designating Party shall have a right up to

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twenty-one (21) days to designate the document to which protection is sought. The

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twenty-one (21) day period shall run from the date the documents are produced by

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the third party. During the initial fourteen (14) day period documents produced by

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a third party shall be treated as “CONFIDENTIAL-ATTORNEY’S EYES ONLY”

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until the twenty-one (21) day designation period has expired. Only those

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documents that are appropriately designated for protection within the twenty-one

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(21) days shall be covered by the provisions of this Protective Order.

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Designating Party shall be required to provide notice detailing those documents

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that

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ATTORNEY’S EYES ONLY.”

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are
19.

being

designated

“CONFIDENTIAL”

or

The

“CONFIDENTIAL-

This Protective Order is without prejudice to the right of any

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

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

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

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any respect.

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GOOD CAUSE STATEMENT
20.

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

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competitively sensitive information about the opposing parties’ business activities

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

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information regarding the parties’ business proprietary and/or confidential

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

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sensitive information would cause harm to the competitive position of the

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

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unauthorized use or dissemination of confidential information produced in

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discovery during this action by competitors.
a.

No document, information, or thing shall be designated

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

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

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

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

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“CONFIDENTIAL – ATTORNEYS’ EYES ONLY” when the information

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

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paragraph 2 hereof.

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b.

Good cause exists for the designation of information as

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

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

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paragraph 1 hereof.

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c.

The Parties shall use reasonable efforts to minimize the amount

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of material designated as “CONFIDENTIAL” or “CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY.”

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d.

This Protective Order applies to such “CONFIDENTIAL” and

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“CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information furnished

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in this litigation regardless of the form in which it is transmitted and
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regardless whether the information is furnished by a party or third party.

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Such information may be contained in documents, written discovery

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responses, declarations, deposition testimony, exhibits, and other materials

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or deposition testimony provided by any Party.

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IT IS SO ORDERED at Santa Ana, California this 12th day of October 2017.

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___________________________
DOUGLAS F. McCORMICK
United States Magistrate Judge

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EXHIBIT A

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ACKNOWLEDGEMENT AND AGREEMENT TO BE BOUND

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

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_____________________________________ [print or type full address], declare

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under penalty of perjury that I have read in its entirety and understand the

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Protective Order that was issued by the District Court for the Central District of

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California in the case of Starbuzz Tobacco, Inc. v. Star Hookah, Inc., et al., Case

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No. 8:17−cv−0798 CJC-DFMx. I agree to comply with and to be bound by all the

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terms of this Protective Order and I understand and acknowledge that failure to

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so comply could expose me to sanctions and punishment in the nature of

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contempt.

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

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

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compliance with the provisions of this Order.

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I further agree to submit to the jurisdiction of the District Court for the

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

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Protective Order, even if such enforcement proceedings occur after termination of

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this action.

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I hereby appoint ___________________________ [print or type full name]

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of _________________________________________________________ [print or

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type full address and telephone number] as my California agent for service of

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

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this Protective Order.

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Date:

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Printed Name:

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Signature:

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