The Schwartz E Liquid et al v. TSJ Simply Naked, LLC

Filing 29

STIPULATED PROTECTIVE ORDER by Magistrate Judge Frederick F. Mumm re Stipulation for Protective Order 28 . (see order for details) (hr)

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ALLAN E. ANDERSON(SBN 133672)
allan.anderson arentfox.com
DAVID BAYL S(SBN 208112)
david.ba les arentfox.com
AREN~FO LLP
555 West Fifth Street, 48th Floor
Los Angeles, California 90013-1065
Telephone: [phone]
Facsimile: 213.629.7401

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Attorneys for Defendant
TSJ Simply Naked,LLC

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iJ1VITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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THE SCHWARTZ E LIQUID,a
California Corporation, and THUY
NGUYEN,an individual,

Case No. 8:18-cv-00692 CJC(FFN~)
ROTECTI

STIPULATED
ORDER

Plaintiffs,

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v.

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TSJ SIMPLY NAKED,LLC,a
California Limited Liability
Com~pa~ny;~ A~ /K/A SIMPLY NAKED
THC; A/K/A NAKED THC; and
DOES 1 through 10, inclusive.,

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Judge:

Hon. Cormac J. Carney

Defendants.

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1.

PURPOSES AND LIMITATIONS
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 to

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

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

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f confidential information under seal; Civil Local Rule 79-5 sets forth the
ile

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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.

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B. GOOD CAUSE STATEMENT

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This action is likely to involve trade secrets, customer and pricing lists and
other valuable research, development, commercial, financial and/or technical

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information for which special protection from public disclosure and from use for

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any purpose other than prosecution of this action is warranted. Such confidential

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materials and information consist of, among other things, confidential business or

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inancial information, information regarding purchase and sale prices of materials

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by suppliers, manufacturers, importers or distributors, information regarding

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business practices, information regarding the creation, purchase or sale of consumer

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products, or other confidential commercial information (including information

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implicating privacy rights ofthird parties), information generally unavailable to the

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public, or which may be privileged or otherwise protected from disclosure under

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state of federal rules, court rules, case decisions, or common law. Accordingly, to

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expedite the flow of information, to facilitate the prompt resolution of disputes over

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confidentiality of discovery materials, to adequately protect information the parties

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are entitled to keep confidential, to ensure that the parties are permitted reasonable

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necessary uses of such material in preparation for and in the conduct of trial, to

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address their handling at the end ofthe litigation, and serve the ends ofjustice, a

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protective order for such information is justified in this matter. It is the intent ofthe

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parties that information will not be designated as confidential for tactical reasons

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and that nothing be so designated without a good faith belief that it has been

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maintained in a confidential, non-public manner, and there is good cause why it

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should not be part ofthe public record ofthis case.

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STIPULATED PROTECTIVE ORDER

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DEFINITIONS

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Action: This pending federal law suit.

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Challengin~y: a Party or Non-Party that challenges the

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designation of information or items under this Order.
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"CONFIDENTIAL" Information or Items: information (regardless of

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

7 I 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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"ATTORNEYS EYES ONLY"Information or Items: information

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regardless of how it is generated, stored or maintained) or tangible things that
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qualify for protection under Federal Rule of Civil Procedure 26(c), and as specified

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above in the Good Cause Statement that, due to the inherent trade secret nature and

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competitive advantage maintained by one or both parties is only viewable by

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counsel for the parties and other persons specified below.

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

their support staff.
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Designatin~Party: a Party or Non-Party that designates information or

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

CONFIDENTIAL" or "ATTORNEYS EYES ONLY."
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Disclosure or Discovery Material: all items or information, regardless

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ofthe medium or manner in which it is generated, stored, or maintained (including,

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among other things, testimony, transcripts, and tangible things), that are produced

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or generated in disclosures or responses to discovery in this matter.

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Expert: a person with specialized knowledge or experience in a matter

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

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an expert witness or as a consultant in this Action.

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House Counsel: attorneys who are employed as in-house counsel to a

party to this Action. House Counsel does not include Outside Counsel of Record or

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STIPULATED PROTECTIVE ORDER

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any other outside counsel.
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.10 Non-Party: any natural person, partnership, corporation, association, or

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other legal entity not named as a Party to this action.
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.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 and

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

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which has appeared on behalf ofthat party, and includes support staff.
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.12 Pte: 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 their
support staffs).
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.13 Producing Party: a Party or Non-Party that produces Disclosure or

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12 ~ Discovery Material in this Action.
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.14 Professional Vendors: persons or entities that provide litigation

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support services (e.g., photocopying, videotaping, translating, preparing e~ibits or

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

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and their employees and subcontractors.
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.15 Protected Material: any Disclosure or Discovery Material that is

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designated as "CONFIDENTIAL" or "ATTORNEYS EYES ONLY."
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.16 Receiving Party: a Party that receives Disclosure or Discovery

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2 ~ 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 ofProtected Material; and(3)any testimony, conversations, or
presentations by Parties or their Counsel that might reveal Protected Material.
Any use ofProtected Material at trial shall be governed by the orders ofthe

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trial judge. This Order does not govern the use ofProtected Material at trial.

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STIPULATED PROTECTIVE ORDER

4.

DURATION
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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e~austion 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 time

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pursuant to applicable law.

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5.

DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Desi ng atin~ Material for Protection.

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Each Party or Non-Party that designates information or items for protection under

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this Order must take care to limit any such designation to specific material that

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qualifies under the appropriate standards. The Designating Party must designate for

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protection only those parts of material, documents, items, or oral or written

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communications that qualify so that other portions ofthe material, documents,

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items, or communications for which protection is not warranted are not swept

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unjustifiably within the ambit ofthis Order.

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Mass, indiscriminate, or routinized designations are prohibited. Designations

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

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purpose (e.g., to unnecessarily encumber the case development process or to

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impose unnecessary expenses and burdens on other parties) may expose the

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Designating Party to sanctions.

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

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

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promptly notify all other Parties that it is withdrawing the inapplicable designation.

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5.2

Manner and Timing of Designations. Except as otherwise provided in

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

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STIPULATED PROTECTIVE ORDER

stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
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under this Order must be clearly so designated before the material is disclosed or

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produced.

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Designation in conformity with this Order requires:
( for information in documentary form (e.g., paper or electronic
a)

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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
CONFIDENTIAL"(hereinafter "CONFIDENTIAL legend") or the legend
"

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ATTORNEYS EYES ONLY"(hereinafter "ATTORNEYS EYES ONLY
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legend"), to each page that contains protected material. If only a portion or portions

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ofthe material on a page qualifies for protection, the Producing Party also must

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clearly identify the protected portions)(e.g., by making appropriate markings in

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the margins).

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

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need not designate them for protection until after the inspecting Party has indicated

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which documents it would like copied and produced. During the inspection and

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before the designation, all ofthe material made available for inspection shall be

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deemed "CONFIDENTIAL" or "ATTORNEYS EYES ONLY." 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 the "CONFIDENTIAL legend" or the "ATTORNEYS

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EYES ONLY legend" to each page that contains Protected Material. If only a

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portion or portions ofthe material on a page qualifies for protection, the Producing

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Party also must clearly identify the protected portions)(e.g., by making

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appropriate markings in the margins).

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( for testimony given in depositions that the Designating Party identify the
b)
Disclosure or Discovery Material on the record, before the close ofthe deposition

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STIPULATED PROTECTIVE ORDER

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all protected testimony.

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( for information produced in some form other than documentary and
c)

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f any other tangible items, that the Producing Party affix in a prominent place on
or

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the exterior ofthe container or containers in which the information is stored the

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legend "CONFIDENTIAL" or "ATTORNEYS EYES ONLY." If only a portion or

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portions ofthe information warrants protection, the Producing Party, to the extent

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practicable, shall identify the protected portion(s).
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Inadvertent Failures to Desi~.Iftimely corrected, an inadvertent

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ailure 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 ofthis Order.

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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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Meet and Confer. The Challenging Party shall initiate the dispute

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resolution process under Local Rule 37.1, et sec.Any discovery motion must

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strictly comply with the procedures set forth in Local Rules 37-1, 37-2, and 37-3.

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6.3

Burden. The burden of persuasion in any such challenge proceeding

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

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improper purpose (e.g., to harass or impose unnecessary expenses and burdens on

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other parties) may expose the Challenging Party to sanctions. Unless the

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Designating Party has waived or withdrawn the confidentiality designation, all

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parties shall continue to afford the material in question the level of protection to

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which it is entitled under the Producing Party's designation until the Court rules on

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the challenge.

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STIPULATED PROTECTIVE ORDER

7.
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ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

Basic Principles. A Receiving Party may use Protected Material that is

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

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

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

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conditions described in this Order. When the Action has been terminated, a

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Receiving Party must comply with the provisions of section 13 below(FINAL

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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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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 Party may disclose any information or item designated

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CONFIDENTIAL" only to:
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( the Receiving Party's Outside Counsel of Record in this Action, as well
a)

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

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to disclose the information for this Action;

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( the officers, directors, and employees (including House Counsel) ofthe
b)
Receiving Party to whom disclosure is reasonably necessary for this Action;
( Experts(as defined in this Order) ofthe Receiving Party to whom
c)
disclosure is reasonably necessary for this Action and who have signed the

Acknowledgment and Agreement to Be Bound"(Exhibit A);
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( the court and its personnel;
d)

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( court reporters and their staff;
e)

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( 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 have

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signed the "Acknowledgment and Agreement to Be Bound"(E~ibit A);

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STIPULATED PROTECTIVE ORDER

(g)the author or recipient of a document containing the information or a
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custodian or other person who otherwise possessed or knew the information;

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( during their depositions, witnesses, and attorneys for witnesses, in the
h)

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

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

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

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"
Acknowledgment and Agreement to Be Bound"(Exhibit A), unless otherwise

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agreed by the Designating Party or ordered by the court. Pages oftranscribed

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deposition testimony or exhibits to depositions that reveal Protected Material may

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be separately bound by the court reporter and may not be disclosed to anyone

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except as permitted under this Stipulated Protective Order; and

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( any mediator or settlement officer, and their supporting personnel,
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mutually agreed upon by any ofthe parties engaged in settlement discussions.
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Disclosure of"ATTORNEYS EYES ONLY"Information or Items.

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Unless otherwise ordered by the court or permitted in writing by the Designating

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

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"
ATTORNEYS EYES ONLY" only to:

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( the Receiving Party's Outside Counsel of Record in this Action;
a)

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( Experts(as defined in this Order) ofthe Receiving Party to whom
b)

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

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( the court and its personnel;
c)

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( court reporters and their staff;
d)

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( professional jury or trial consultants, mock jurors, and Professional
e)

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

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signed the "Acknowledgment and Agreement to Be Bound"(E~ibit A);

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( the author or recipient of a document containing the information or a
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custodian or other person who otherwise possessed or knew the information;

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STIPULATED PROTECTIVE ORDER

(g)any mediator or settlement officer, and their supporting personnel,
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mutually agreed upon by any ofthe parties engaged in settlement discussions.

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8.

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IN OTHER LITIGATION
If a Party is served with a subpoena or a court order issued in other litigation

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PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

that compels disclosure of any information or items designated in this Action as

CONFIDENTIAL" or "ATTORNEYS EYES ONLY," that Party must:
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( promptly notify in writing the Designating Party. Such notification shall
a)

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include a copy ofthe subpoena or court order;

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( promptly notify in writing the party who caused the subpoena or order to
b)

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issue in the other litigation that some or all ofthe material covered by the subpoena

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or order is subject to this Protective Order. Such notification shall include a copy of

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this Stipulated Protective Order; and
( cooperate with respect to all reasonable procedures sought to be pursued
c)

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by the Designating Party whose Protected Material may be affected. Ifthe

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Designating Party timely seeks a protective order, the Party served with the

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subpoena or court order shall not produce any information designated in this action

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as"CONFIDENTIAL" or "ATTORNEYS EYES ONLY" before a determination

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by the court from which the subpoena or order issued, unless the Party has obtained

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the Designating Party's permission. The Designating Party shall bear the burden

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and expense of seeking protection in that court of its confidential material and

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nothing in these provisions should be construed as authorizing or encouraging a

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Receiving Party in this Action to disobey a lawful directive from another court.

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PRODUCED IN THIS LITIGATION

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ANON-PARTY'S PROTECTED MATERIAL SOUGHT TO BE

( The terms ofthis Order are applicable to information produced by a Nona)

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Party in this Action and designated as "CONFIDENTIAL" or "ATTORNEYS

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EYES ONLY." Such information produced by Non-Parties in connection with this

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STIPULATED PROTECTIVE ORDER

litigation is protected by the remedies and relief provided by this Order. Nothing in
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these provisions should be construed as prohibiting allon-Party from seeking

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additional protections.
( In the event that a Party is required, by a valid discovery request, to
b)

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produce allon-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:
( promptly notify in writing the Requesting Party and the Non-Party
1)

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that some or all ofthe information requested is subject to a confidentiality
agreement with allon-Party;
( promptly provide the Non-Party with a copy ofthe Stipulated
2)

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

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specific description of the information requested; and
( make the information requested available for inspection by the
3)

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Non-Party, if requested.

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( Ifthe Non-Party fails to seek a protective order from this court within
c)

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14 days of receiving the notice and accompanying information, the Receiving Party

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may produce the Non-Party's confidential information responsive to the discovery

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request. If the Non-Party timely seeks a protective order, the Receiving Party shall

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not produce any information in its possession or control that is subject to the

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confidentiality agreement with the Non-Party before a determination by the court.

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Absent a court order to the contrary, the Non-Party shall bear the burden and

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expense of seeking protection in this court of its Protected Material.

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10.

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UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

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Protected Material to any person or in any circumstance not authorized under this

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Stipulated Protective Order, the Receiving Party must immediately (a) notify in

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writing the Designating Party of the unauthorized disclosures,(b) use its best

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STIPULATED PROTECTIVE ORDER

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efforts to retrieve all unauthorized copies ofthe Protected Material,(c)inform the

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person or persons to whom unauthorized disclosures were made of all the terms of

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this Order, and (d)request such person or persons to execute the "Acknowledgment

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and Agreement to Be Bound" that is attached hereto as E~iibit A.

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1 1.

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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 Federal

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

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

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production without prior privilege review. Pursuant to Federal Rule ofEvidence

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

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of a communication or information covered by the attorney-client privilege or work

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product protection, the parties may incorporate their agreement in the stipulated

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protective order submitted to the court.

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12.

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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.
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 ofthe material covered by this Protective

25

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 ofthe

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STIPULATED PROTECTIVE ORDER

1

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

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

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in the public record unless otherwise instructed by the court.

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6 ~ 13.

FINAL DISPOSITION

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After the final disposition ofthis Action, as defined in paragraph 4, within 60

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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. As

10

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 ofthe

12

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

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Receiving Party must submit a written certification to the Producing Party(and, if

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not the same person or entity, to the Designating Party) by the 60 day deadline that

15 ( identifies (by category, where appropriate) all the Protected Material that was
1)
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returned or destroyed and (2)affirms that the Receiving Party has not retained any

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copies, abstracts, compilations, summaries or any other format reproducing or

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capturing any ofthe Protected Material. Notwithstanding this provision, Counsel

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are entitled to retain an archival copy of all pleadings, motion papers, trial,

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deposition, and hearing transcripts, legal memoranda, correspondence, deposition

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and trial e~ibits, expert reports, attorney work product, and consultant and expert

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work product, even if such materials contain Protected Material. Any such archival

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copies that contain or constitute Protected Material remain subject to this Protective

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4

Order as set forth in Section 4(DUR.ATION).

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///

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///

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///

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///

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STIPULATED PROTECTIVE ORDER

14.
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Any violation of this Order may be punished by any and all appropriate

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

3 I I sanctions.
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IT IS SO STIPULATED,THROUGH COUNSEL OF RECORD.

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Dated: September 27, 2018

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RUTAN &TUCKER,LLP
MICHAEL D. ADAMS
MEREDITH L. WILLIAMS
SETH M. JESSEE
By:

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Dated: September 27, 2018

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/Michael D. Adams/
Michael D. Adams
Attorneys for Plaintiffs THE
SCHWARTZ E LIQUID and THUY
NGUYEN

ARENT FOX LLP
ALLAN E. ANDERSON
DAVID G. BAYLES

13

By:

/David G. Bayles/
Allan e. Anderson
David G. Bayles
Attorneys for Defendant TSJ
SIMPLY NAKED,LLC

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I hereby attest that all signatories listed above, on whose behalf this document
is being submitted, concur in the filing's content and have authorized the filing.

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Dated: September 27, 2018
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ARENT FOX LLP
ALLAN E. ANDERSON
DAVID G. BAYLES

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By:

/David G. Bayles/
Allan e. Anderson
David G. Bayles
Attorne s for Defendant TSJ
SIMPL~ NAKED,LLC

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IT IS SO ORDERED.

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Dated:

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Hon. Frederick F. Mumm
United States Magistrate Judge

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AaeNT Fox LLP
A TTORNEYS Ai LAW
LOS ANGELES

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STIPULATED PROTECTIVE ORDER

~Vi7TDTT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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[print or type full name], of

I,

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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 California

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on [date] in the case of The Schwartz E Liquid et al. v. TS.ISimply Naked, LLC.

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:18-cv-00692 CJC(FFMx). I agree to comply with and to be bound by all the
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terms ofthis Stipulated Protective Order and I understand and acknowledge that

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

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contempt. I solemnly promise that I will not disclose in any manner any

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information or item that is subject to this Stipulated Protective Order to any person

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or entity except in strict compliance with the provisions ofthis Order.
I further agree to submit to the jurisdiction ofthe United States District Court

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

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Stipulated Protective Order, even if such enforcement proceedings occur after

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termination ofthis action. I hereby appoint

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or type full name] of

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

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connection with this action or any proceedings related to enforcement ofthis

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Stipulated Protective Order.

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Date:

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City and State where sworn and signed:

[print
[print or type

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Printed name:

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Signature:

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ArzeNT Fox LLP
ATroarvErs AT LAw
Los ANGeLES

- 1S -

STIPULATED PROTECTIVE ORDER