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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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 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] 28 -1Protective Order Governing Disclosure of Confidential Information 1 WHEREAS, Plaintiff STARBUZZ TOBACCO, INC. (“STARBUZZ”), on 2 the one hand, and Defendants STAR HOOKAH, INC., STAR HOOKAH 3 LOUNGE, INC., and STAR HOOKAH HOLLYWOOD, INC. (collectively, the 4 “STAR ENTITIES”), along with Defendant NATHAN MADANI (“MADANI”), 5 on the other hand (all of the above being, collectively, the “Parties), believe that in 6 the course of this action certain information, documents, and testimony likely to be 7 disclosed and produced through discovery may constitute or incorporate 8 confidential commercial information, research or development and/or trade secrets 9 within the meaning of Federal Rule of Civil Procedure 26(c); 10 WHEREAS, the Parties believe that entry of a protective order pursuant to 11 Federal Rule of Civil Procedure 26(c) would best protect their interests while 12 facilitating discovery in this action; and 13 WHEREAS, the Court finds good cause exists for the entry of this Protective 14 Order in this action pursuant to Federal Rule of Civil Procedure 26(c) in order to 15 protect confidential commercial information, research and development, and/or 16 trade secrets. 17 IT IS HEREBY ORDERED, pursuant to Federal Rule of Civil Procedure 18 26(c), that this Protective Order shall govern the treatment and handling of any 19 information produced or disclosed by any Party or non-Party (“the Producing 20 Party”) to this action, including without limitation, Rule 26 disclosures, 21 documents, depositions, deposition exhibits, interrogatory responses, responses to 22 requests for admission, and testimony (such information and/or documents shall 23 hereinafter be referred to as “Confidential Material”) provided it is designated (or, 24 within the appropriate time limitation, is pending designation) as being 25 Confidential Material as required by this Protective Order. 26 It is further ordered that: 27 28 1. Any Producing Party may designate any Confidential Material as “CONFIDENTIAL” if such producing party in good faith believes that such -2Protective Order Governing Disclosure of Confidential Information 1 Confidential Material contains confidential or proprietary information, including 2 information in written, oral, electronic, graphic, pictorial, audiovisual, or other 3 form, whether it is a document, information contained in a document, item 4 produced for inspection, information revealed during a deposition, information 5 revealed in an interrogatory answer, or otherwise. 6 2. Any Producing Party may designate any Confidential Material as 7 “CONFIDENTIAL—ATTORNEYS’ EYES ONLY” if such producing party in 8 good faith believes that such Confidential Material contains confidential, 9 commercially sensitive, or proprietary information related to any of the following: 10 technical data, research and development information, marketing or other business 11 plans, product or service information, customer information, trade secrets, 12 competitive information, or financial information of the Producing Party, 13 including, without limitation, sales and cost information or any other information 14 of such sensitivity to warrant “Confidential—Attorneys’ Eyes Only” treatment, 15 including, information in written, oral, electronic, graphic, pictorial, audiovisual, or 16 other form, whether it is a document, information contained in a document, item 17 produced for inspection, information revealed during a deposition, information 18 revealed in an interrogatory answer, or otherwise. 19 3. A Producing Party may designate any document or other tangible 20 information or thing as “Confidential” or “Confidential—Attorneys’ Eyes Only” 21 by stamping a conspicuous place thereof with the legend CONFIDENTIAL or 22 CONFIDENTIAL—ATTORNEYS’ EYES ONLY, respectively. For example, in 23 the case of a document, a producing party may so mark the first page of a 24 multipage document and each page thereafter that actually contains Confidential 25 Material. In the case of other tangible items, a producing party may so mark any 26 appropriate location. For example, in the case of a computer disk, a producing 27 party may so mark the disk cover. 28 -3Protective Order Governing Disclosure of Confidential Information 1 4. The terms of this Protective Order are applicable to Confidential 2 Material produced by a non-party and designated “CONFIDENTIAL” or 3 “CONFIDENTIAL—ATTORNEYS EYES ONLY” only when the producing non- 4 party has a proprietary interest or other right in such Confidential Material, or 5 where the producing non-party is contractually obligated to maintain the 6 confidentiality of such Confidential Material. A producing party may designate 7 documents, information, or things disclosed at a deposition of a producing party or 8 one of its present or former officers, directors, employees, agents, or independent 9 experts retained for purposes of this litigation as “Confidential” or “Confidential— 10 Attorneys’ Eyes Only” on the record during the deposition; or by notifying all 11 parties in writing of the specific item so designated, within twenty one (21) days 12 of receiving a copy of the deposition transcript, of the specific exhibits or lines and 13 pages of the transcript that are believed in good faith to contain Confidential 14 Material. 15 a. If a producing party designates such materials as “Confidential” 16 or “Confidential—Attorneys’ Eyes Only” on the record, the court reporter 17 shall indicate on the cover page of the transcript that the transcript includes 18 Confidential or Confidential—Attorneys’ Eyes Only information, shall list 19 the pages and lines numbers and/or exhibits of the transcript on or in which 20 such information is contained, and shall bind the transcript in separate 21 portions containing Confidential, Confidential—Attorneys’ Eyes Only, and 22 non-Confidential material. Further, during the period in which such 23 Confidential or Confidential—Attorneys’ Eyes Only information is 24 discussed during the deposition, any person present during the deposition 25 who is not a Qualified Person, as defined below, or the court reporter, shall 26 be excluded from that portion of the deposition. 27 28 b. A deposition transcript and the exhibits thereto shall be presumed Confidential—Attorneys’ Eyes Only in their entirety until twenty -4Protective Order Governing Disclosure of Confidential Information 1 one (21) days after receipt of the transcript by the producing party. If, after 2 the deposition is taken, the producing party designates any portion of the 3 deposition transcript or exhibits as “Confidential” or “Confidential— 4 Attorneys’ Eyes Only” by giving written notice as described above, all 5 persons receiving notice of such designation shall affix the same to the face 6 of their copy or copies of the transcript. At the expiration of the twenty one 7 (21) day period, the transcript and exhibits shall automatically revert to non- 8 Confidential status, except those portions that have been designated on the 9 record or in writing as “Confidential” or “Confidential—Attorneys’ Eyes 10 Only.” Nothing in this paragraph is intended to restrict any Party’s right to 11 attend depositions pursuant to paragraph 7 hereof. c. 12 A non-producing party may designate documents, information, 13 or things disclosed at a deposition as “Confidential” or “Confidential— 14 Attorneys’ Eyes Only” in the same manner as a producing party if it has a 15 good faith basis for claiming a proprietary interest or other right in the 16 Confidential Material. 17 5. Material designated as confidential under this Protective Order, the 18 information contained therein, and any summaries, copies, abstracts, or other 19 documents derived in whole or in part from material designated as confidential 20 (hereinafter “Confidential Material”) shall be used only for the purpose of the 21 prosecution, defense, or settlement of this action, and for no other purpose, except 22 that a Party may seek permission from another court to use Confidential Material 23 produced under this Protective Order provided said Party gives advance notice to 24 the parties whose materials are sought to be used and provided no disclosure of 25 such Confidential Material is made until such other court grants the request for 26 permission. The restrictions contained in this paragraph No. 5 may be modified by 27 written agreement of the parties, but such modifications will not be considered part 28 of this order unless approved by the Court. Nothing in this paragraph shall operate -5Protective Order Governing Disclosure of Confidential Information 1 to bar motions in limine or similar motion to exclude the use of any document in 2 any action between the Parties on any appropriate and available basis. 3 6. Confidential Material produced pursuant to this Protective Order may 4 be disclosed or made available only to the Court, to counsel for a Party (including 5 the paralegal, clerical, and secretarial staff employed by such counsel), and to the 6 “qualified persons” designated below: 7 8 9 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 10 employees designated in writing as a representative of STARBUZZ who 11 have supervisory responsibility for this matter and is necessary to the 12 prosecution, defense, or settlement of this action, namely: Wael Elhalwani, 13 and Majda Haddoudi; 14 c. experts or consultants (together with their clerical staff) retained 15 by such counsel to assist in the prosecution, defense, or settlement of this 16 action, including outside photocopying, imaging, data base, graphics or 17 design services retained by outside counsel in connection with this action 18 who have signed the “Acknowledgement and Agreement to be Bound” that 19 is attached hereto as Exhibit A; 20 d. court reporter(s) employed in this action; and 21 e. any other person as to whom the parties in writing agree who 22 have signed the “Acknowledgement and Agreement to be Bound” that is 23 attached hereto as Exhibit A. 24 Prior to receiving any Confidential Material, each “qualified person” defined 25 in (a), (b), (c), and (d) above shall be provided with a copy of this Protective Order 26 and shall execute and be bound by this Protective Order by signing a nondisclosure 27 agreement in the form annexed hereto as Exhibit A, a copy of which shall be 28 provided forthwith to counsel for each other party. -6Protective Order Governing Disclosure of Confidential Information 1 7. Subject to the Federal Rules of Civil Procedure and applicable law, 2 depositions may be taken in the presence of any persons, including Parties, but any 3 Party may request that (a) non-qualified persons leave the room for responses 4 containing any Confidential Material; and (b) Parties leave the room for responses 5 containing CONFIDENTIAL – ATTORNEYS’ EYES ONLY information. No 6 Party shall be entirely excluded from any deposition. This Order does not affect 7 applicable law regarding the attendance of depositions by non-party persons, 8 including potential witnesses. 9 8. Material designated “CONFIDENTIAL – ATTORNEYS’ EYES 10 ONLY” and the information contained therein, shall be disclosed only to the Court, 11 to outside counsel for the Parties (including the paralegal, clerical, and secretarial 12 staff employed by such counsel) and to the “qualified persons” listed in 13 subparagraphs 6(c) through (e) above, but shall not be disclosed to a Party, or to an 14 officer, director or employee or a Party, except as provided above or unless 15 otherwise agreed in writing or ordered by the Court. If disclosure of Attorneys’ 16 Eyes Only Material is made pursuant to this paragraph, all other provisions in this 17 order with respect to confidentiality shall also apply. 18 9. Copies of Confidential or Confidential—Attorneys’ Eyes Only 19 material may be submitted to the Court in connection with any proceedings, 20 motions or hearings, provided that such materials are filed along with an 21 application to have those materials filed under seal. The application must show 22 good cause for the under seal filing. To the extent possible, only those portions of 23 a filing with the Court that contain material designated as “Confidential” or 24 “Confidential—Attorneys’ Eyes Only” shall be filed under seal. To the extent that 25 no Confidential or Confidential—Attorneys’ Eyes Only information is disclosed, 26 the parties may refer to, and quote from, documents designated as “Confidential” 27 or “Confidential—Attorneys’ Eyes Only” in pleadings, motions, briefs, affidavits, 28 or exhibits filed with the Court, without the need to file such pleadings, motions, -7Protective Order Governing Disclosure of Confidential Information 1 briefs, affidavits, or exhibits under seal. A Party’s counsel shall not unilaterally 2 decide that material that the other Party designated as “Confidential” or 3 “Confidential—Attorneys’ Eyes Only” does not contain any Confidential or 4 Confidential—Attorneys’ Eyes Only information. If a Party’s counsel disagrees 5 with a designation, that counsel shall follow the procedures described in paragraph 6 11 of this Order to challenge the designation. 7 10. In the event that any Confidential Material is used in any court 8 proceeding in this action, the Party using such material shall take all steps 9 reasonably available to protect its confidentiality during such use. 10 11. At any stage of these proceedings, should any party object to a 11 designation of any information, documents, or things as “Confidential” or 12 “Confidential—Attorneys’ Eyes Only,” the Party shall provide written notice of its 13 objection with the designation. The parties and/or the producing party shall first 14 attempt to resolve such objection in good faith on informal basis. If the objection 15 is not thereby resolved, the objecting Party may apply for a ruling from the Court 16 pursuant to Local Rule 37 determining whether the materials in question are 17 properly designated under the terms of this Protective Order. Until the Court 18 makes such determination, all material designated as “Confidential” or 19 “Confidential—Attorneys’ Eyes Only” shall be treated as such. 20 21 22 12. Nothing in this Protective Order shall preclude any party to the lawsuit or their attorneys from: a. Showing materials designated as “Confidential” or 23 “Confidential—Attorneys’ Eyes Only” to an individual who either prepared 24 or reviewed the document prior to the filing of this action, or is shown by the 25 document to have received the document; 26 27 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 28 -8Protective Order Governing Disclosure of Confidential Information 1 itself designated as “Confidential” or “Confidential—Attorneys’ Eyes 2 Only”; c. 3 Disclosing or using, in any manner or for any purpose, any 4 information, documents, or things that were obtained from a source other 5 than discovery or to which a Party has a right of access independent of 6 discovery, or that were already known to such Party by lawful means, prior 7 to obtaining from or disclosure by, the other Party in the action, provided, 8 however, that the alternate source of such information, documents or things 9 was not under an obligation of confidentiality (as evidenced by a writing) to 10 a Party in the litigation at the time such information, documents or things 11 were obtained; or d. 12 Disclosing or using, in any manner or for any purpose, any 13 information, document, or thing that is at the time of production or 14 disclosure, or subsequently becomes, through no wrongful act or failure to 15 act on the part of the receiving party, generally available to the relevant 16 public through publication or otherwise or is already rightfully in the 17 possession of the receiving party at the time of production; or 18 13. If either party is served with a subpoena or similar process, from any 19 entity whatsoever, directing that Party to produce any materials designated as 20 “Confidential” or “Confidential—Attorneys’ Eyes Only” not so designated by that 21 Party, the counsel for that Party shall immediately give counsel for the designating 22 party written notice, by hand delivery or facsimile transmission, of the fact of such 23 service so that the designating Party may seek a protective order or otherwise act to 24 protect the confidentiality of the designated materials. 25 14. This Protective Order is entered solely for the purpose of facilitating 26 the exchange of documents and information between the parties to this action 27 without involving the Court unnecessarily in the process. Nothing in this 28 Protective Order nor the production of any information or document under the -9Protective Order Governing Disclosure of Confidential Information 1 terms of this Protective Order nor any proceedings pursuant to this Protective 2 Order shall be deemed to have the effect of an admission or waiver by either Party 3 or of altering the confidentiality or non-confidentiality of any such document or 4 information or altering any existing obligation of any Party or the absence thereof. 5 15. This Protective Order shall survive the final termination of this action, 6 to the extent that the information contained in Confidential Material is not or does 7 not become known to the public, and the Court shall retain jurisdiction to resolve 8 any dispute concerning the use of information disclosed hereunder. Within thirty 9 (30) days of the conclusion of this action, including any appeals, counsel for the 10 parties shall assemble and return to each other all documents, material and 11 deposition transcripts designated as confidential and all copies of same, or shall 12 certify the destruction thereof. Notwithstanding this provision, Counsel are 13 entitled to retain an archival copy of all pleadings, motion papers, transcripts, legal 14 memoranda, correspondence or attorney work product, even if such material 15 contain Confidential Material, for the period of one (1) year. Any such archival 16 copies that contain or constitute Confidential Material remain subject to this 17 Protective Order. 18 16. The inadvertent or unintentional disclosure by the Producing Party of 19 attorney-client privileged information or attorney work-product, either by way of 20 document production or deposition testimony, shall not be deemed a waiver of 21 privilege for such information, provided that the Producing Party promptly makes 22 a good-faith representation that such production was inadvertent or mistaken and 23 takes prompt remedial action to withdraw the disclosure. Within three (3) business 24 days of receiving a written request to do so from the Producing Party, the 25 Receiving Party shall return to the Producing Party any documents or tangible 26 items that the Producing Party represents are covered by a claim of attorney-client 27 privilege or work product immunity and were inadvertently or mistakenly 28 produced. The receiving party shall also destroy any extra copies or summaries of, -10Protective Order Governing Disclosure of Confidential Information 1 or notes relating to, any such inadvertently or mistakenly produced information, 2 and certifying compliance with this provision; provided, however, that this 3 Protective Order shall not preclude the Party returning such information from 4 making a motion to compel production of the returned information pursuant to 5 Local Rule 37. The Producing Party shall retain copies of all returned documents 6 and tangible items for further disposition and, if such a motion is filed, shall 7 provide copies to the Court of the documents, item or information which is the 8 subject of the motion. In the event that a Producing Party discovers in a 9 deposition, inadvertently or unintentionally disclosed documents containing 10 attorney-client privileged information or attorney work-product, the Producing 11 Party may make a request on the record for the receiving party to return the 12 documents or tangible items that the Producing Party represents 1) are covered by 13 a claim of attorney-client privilege or work product immunity and 2) were 14 inadvertently or mistakenly produced; in which event, the receiving party shall be 15 precluded from deposing a witness with respect to such inadvertently or mistakenly 16 produced documents, other than to explore the basis for a claim of privilege or 17 work product. 18 17. The inadvertent or unintentional disclosure by the Producing Party of 19 “CONFIDENTIAL” and/or “CONFIDENTIAL-ATTORNEYS’ EYES ONLY”, 20 information either by way of document production or deposition testimony, 21 regardless of whether the information was so designated at the time of disclosure, 22 shall not be deemed a waiver in whole or in part of a Party’s claim of 23 confidentiality as to the information disclosed. Any such inadvertently or 24 unintentionally disclosed “CONFIDENTIAL” and/or “CONFIDENTIAL- 25 ATTORNEYS’ EYES ONLY” information, not designated as such pursuant to 26 paragraph 1 or 2, shall be designated as “CONFIDENTIAL” or 27 “CONFIDENTIAL-ATTORNEYS’ EYES ONLY”, as soon as reasonably possible 28 after the Producing Party becomes aware of the inadvertent or unintentional -11Protective Order Governing Disclosure of Confidential Information 1 disclosure and provides written notice to the Receiving Parties. The Receiving 2 Party shall thereafter mark and treat the materials as “CONFIDENTIAL” or 3 “CONFIDENTIAL-ATTORNEYS’ EYES ONLY” as appropriate, and such 4 materials shall be fully subject to this Protective Order as if they had been initially 5 so designated. The party who made such inadvertent or unintentional disclosure 6 shall request said person to which an inadvertent or unintentional disclosure was 7 made to execute the “Acknowledgement and Agreement to be Bound” that is 8 attached hereto as Exhibit A. 18. 9 For documents produced pursuant to subpoena or subpoena duces 10 tecum or in other proceedings outside of open court or trial, that any party or non- 11 party believes should be designated “CONFIDENTIAL” or “CONFIDENTIAL- 12 ATTORNEY’S EYES ONLY”, that Designating Party shall have a right up to 13 twenty-one (21) days to designate the document to which protection is sought. The 14 twenty-one (21) day period shall run from the date the documents are produced by 15 the third party. During the initial fourteen (14) day period documents produced by 16 a third party shall be treated as “CONFIDENTIAL-ATTORNEY’S EYES ONLY” 17 until the twenty-one (21) day designation period has expired. Only those 18 documents that are appropriately designated for protection within the twenty-one 19 (21) days shall be covered by the provisions of this Protective Order. 20 Designating Party shall be required to provide notice detailing those documents 21 that 22 ATTORNEY’S EYES ONLY.” 23 are 19. being designated “CONFIDENTIAL” or The “CONFIDENTIAL- This Protective Order is without prejudice to the right of any 24 interested party to apply to the Court for an order permitting the disclosure of any 25 “CONFIDENTIAL” and/or “CONFIDENTIAL-ATTORNEYS’ EYES ONLY” 26 information, or to apply for an order modifying or limiting this Protective Order in 27 any respect. 28 -12Protective Order Governing Disclosure of Confidential Information 1 2 GOOD CAUSE STATEMENT 20. In discovery in this case, the parties will be required to exchange 3 competitively sensitive information about the opposing parties’ business activities 4 to which they and third parties would not otherwise have access, including 5 information regarding the parties’ business proprietary and/or confidential 6 information. Allowing the parties or third parties to use such competitively 7 sensitive information would cause harm to the competitive position of the 8 disclosing party. The parties seek the entry of this Protective Order to prevent the 9 unauthorized use or dissemination of confidential information produced in 10 11 discovery during this action by competitors. a. No document, information, or thing shall be designated 12 “CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” 13 unless good cause exists for such designation under the standards set forth in 14 Phillips v. G.M. Corp., 307 F.2d 1206, 1209 (9th Cir. 2002) and other 15 relevant authority. Good cause exists for the designation of information as 16 “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” when the information 17 has not been made public and falls into one of the categories identified in 18 paragraph 2 hereof. 19 b. Good cause exists for the designation of information as 20 “CONFIDENTIAL” when the information has not been revealed to the 21 public and the information falls into one of the categories identified in 22 paragraph 1 hereof. 23 c. The Parties shall use reasonable efforts to minimize the amount 24 of material designated as “CONFIDENTIAL” or “CONFIDENTIAL – 25 ATTORNEYS’ EYES ONLY.” 26 d. This Protective Order applies to such “CONFIDENTIAL” and 27 “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information furnished 28 in this litigation regardless of the form in which it is transmitted and -13Protective Order Governing Disclosure of Confidential Information 1 regardless whether the information is furnished by a party or third party. 2 Such information may be contained in documents, written discovery 3 responses, declarations, deposition testimony, exhibits, and other materials 4 or deposition testimony provided by any Party. 5 IT IS SO ORDERED at Santa Ana, California this 12th day of October 2017. 6 7 8 9 ___________________________ DOUGLAS F. McCORMICK United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -14Protective Order Governing Disclosure of Confidential Information 1 EXHIBIT A 2 ACKNOWLEDGEMENT AND AGREEMENT TO BE BOUND 3 I, _____________________________________ [print or type full name], of 4 _____________________________________ [print or type full address], declare 5 under penalty of perjury that I have read in its entirety and understand the 6 Protective Order that was issued by the District Court for the Central District of 7 California in the case of Starbuzz Tobacco, Inc. v. Star Hookah, Inc., et al., Case 8 No. 8:17−cv−0798 CJC-DFMx. I agree to comply with and to be bound by all the 9 terms of this Protective Order and I understand and acknowledge that failure to 10 so comply could expose me to sanctions and punishment in the nature of 11 contempt. 12 I solemnly promise that I will not disclose in any manner any information or 13 item that is subject to the Protective Order to any person or entity except in strict 14 compliance with the provisions of this Order. 15 I further agree to submit to the jurisdiction of the District Court for the 16 Central District of California for the purpose of enforcing the terms of this 17 Protective Order, even if such enforcement proceedings occur after termination of 18 this action. 19 I hereby appoint ___________________________ [print or type full name] 20 of _________________________________________________________ [print or 21 type full address and telephone number] as my California agent for service of 22 process in connection with this action or any proceedings related to enforcement of 23 this Protective Order. 24 25 Date: 26 Printed Name: 27 Signature: 28 -15Protective Order Governing Disclosure of Confidential Information

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