Folkens v. Wyland, et al

Filing 27

ORDER signed by Magistrate Judge Carolyn K. Delaney on 12/3/2015 ORDERING 26 that the parties Stipulated Protective Order is APPROVED. (Reader, L)

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SEDGWICK LLP
ROBERT F. HELFING Bar No. 90418
[e-mail]
CAROLINE H. MANKEY Bar No. 187302
[e-mail]
ERICA R. GRAVES, Bar No. 301785
erica,[e-mail]
801 South Figueroa Street, 19th Floor
Los Angeles, California 90017-5556
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendants
WYLAND, WYLAND WORLDWIDE, LLC,,
WYLAND GALLERIES, INC. and
SIGNATURE GALLERY GROUP, INC.

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SACRAMENTO DIVISION

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PIETER AREND FOLKENS, dba A
HIGHER PORPOISE DESIGN GROUP,

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CASE NO. 2:14-cv-02197-GEB-CKD

Plaintiff,

ORDER GRANTING
STIPULATED PROTECTIVE ORDER

v.
WYLAND (NFN), aka ROBERT THOMAS
WYLAND, et al.,
Defendants.

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Subject to the approval of the Court, all documents, material or information produced or

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created by a party or non-party (“Source”) to a party in this action (“Receiving Party”)

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containing information which the Source or a party believes in good faith to be confidential or

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trade secret information, shall be designated as CONFIDENTIAL, CONFIDENTIAL

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SETTLEMENT INFORMATION, or CONFIDENTIAL—ATTORNEYS’ EYES ONLY by the

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Source or a party and maintained by the Receiving Party(ies) pursuant to the terms of this Order.

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STIPULATED PROTECTIVE ORDER

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I.

GOOD CAUSE STATEMENT

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A.

Factual Background

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It is the intent of the parties and the Court that information will not be designated as

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confidential in this case for tactical reasons, and that nothing shall be designated without a good

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faith belief that there is good cause why it should not be part of the public record. The parties

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are both artists whose work depicts ocean scenes and who sell their work directly to the public or

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via third parties. Because of the parties’ status as competitors or potential competitors, business

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information such as supplier lists, customer lists, cost-of-goods sold, pricing, manufacturing

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agreements, and other, similar information are confidential and must be protected from

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disclosure, and with highly sensitive information, safeguards are necessary to limit the disclosure

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of such information to opposing parties and/or other competitors in the market so as to avoid

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competitive harm.

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Further, the threshold issues in the complaint center on copyright infringement and

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breach of contract allegations. Resolution of the copyright issues and damages analysis

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necessarily require evidence of, without limitation, customer lists, cost of manufacture, supplier

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lists, sales data, and channels of trade. Resolution of the breach of contract issues necessarily

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involves evidence of a prior settlement agreement between the parties which was subject to a

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confidentiality clause.

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Examples of confidential information that the parties may seek to protect from
unrestricted or unprotected public disclosure include:
(a)

Information that is the subject of a contractual non-disclosure or confidentiality

agreement or obligation;
(b)

The names, or other information tending to reveal the identity of a party’s

supplier, distributor, or manufacturer;
(c)

Agreements with third parties, including license agreements, distributor

agreements, manufacturing agreements, gallery or consignment agreements, supply agreements,

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STIPULATED PROTECTIVE ORDER

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sales agreements, or service agreements;
(d)

Information related to budgets, sales, profits, costs, margins, licensing, product

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pricing, or other internal financial/accounting information, including non-public information

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related to financial condition or performance and income or other non-public tax information;

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(e)

Information related to internal operations including personnel information;

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(f)

Trade secrets (as defined by the jurisdiction in which the information is located).

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B.

The Proposed Protective Order Focuses on the Protection of Commercially

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Sensitive Business Information
Federal Rule Civil Procedure Rule 26(c)(7) and Local Rules 141 and 141.1 permit the

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grant of a protective order upon a showing of good cause, and provides that the protection of a

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trade secret or other confidential commercial information is a proper basis for the issuance of a

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protective order. The party seeking such an order must demonstrate a particular and specific

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need for the protective order. Gary v. Rodewald, 133 F.R.D. 39, 40 (N.D. Cal. 1990).

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A protective order that focuses on preventing disclosure of particular information, e.g.

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confidential business information, where disclosure would “likely cause serious harm,” is

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supported by good cause. Hayden v. Siemens Medical Systems, Inc., 106 F.R.D. 551, 556,

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(S.D.N.Y. 1985). To support a showing of good cause, however, a protective order must be

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sufficiently tailored in the information it seeks to protect, e.g., by designating certain classes or

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types of information. Id.

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A “blanket” protective order, as opposed to a broader “umbrella” protective order,

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“permits the parties to protect the documents that they in good faith believe contain trade secrets

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or other confidential commercial information. Such protective orders are routinely agreed to by

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the parties and approved by the courts in commercial litigation, especially in cases between

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direct competitors.” Bayer AG and Miles Inc. v. Barr Laboratories, Inc., 162 F.R.D. 456, 465,

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(S.D.N.Y. 1995).

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Finally, the parties to this action entered into a previous settlement agreement that is
confidential under its own terms and cannot be publicly disclosed by either party without

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STIPULATED PROTECTIVE ORDER

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breaching the agreement.

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As competitors, the parties’ proposed protective order is drafted to protect the

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confidentiality and disclosure of each party’s confidential business information and to provide

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extra precautions on the disclosure of highly sensitive business information, as defined below,

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and as balanced against the need and use for such information to prosecute and defend this

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action.

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C.

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Based on the foregoing demonstration of good cause in support of the [Proposed]

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Conclusion

Protective Order, this Order should be granted by the Court to protect that parties’ confidential
business information.

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STIPULATION AND ORDER

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In accordance with Rule 26(c) Federal Rules of Civil Procedure and Local Rules 141 and

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141.1 the parties stipulate and agree, through their respective counsel, to the entry of a protective

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order governing the disclosure during pretrial discovery and the subsequent handling of trade

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secret information, proprietary information, other confidential commercial, financial or personal

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information, and documents containing any such information as follows:

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1.

INITIAL DESIGNATION.

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1.1

Confidential Information. In connection with discovery and trial in this action,

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the parties may designate materials, including electronic files, documents, things, and testimony,

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as “CONFIDENTIAL” or "CONFIDENTIAL ATTORNEYS' EYES ONLY" under the terms of

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this Stipulated Protective Order (“Order”).

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a.

Documents designated CONFIDENTIAL or CONFIDENTIAL

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ATTORNEYS' EYES ONLY is information that has not been made public and which concerns

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or relates to the processes, operations, type or work, or apparatus, or to the production, sales,

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shipments, purchases, transfers, identification of customers and suppliers, inventories, blueprints,

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amount or source of any income, profits, losses, or expenditures of any persons, firm,

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partnership, corporation or other organization, the disclosure of which information may have the

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STIPULATED PROTECTIVE ORDER

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effect of causing harm to the competitive position of the person, firm, partnership, corporation or

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to the organization from which the information was obtained, and, to the extent not already

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encompassed in the preceding definition, trade secrets as defined in California Civil Code

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§ 426.1.

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b.

The parties may designate discovery material or testimony that disclose

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the terms of the settlement agreement entered into by the parties on October 5, 2001 (“Settlement

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Agreement”) as CONFIDENTIAL in the manner described in paragraph 1 above. The parties

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agree that the Settlement Agreement itself is confidential under its own terms and may not be

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disclosed, except as provided by the Settlement Agreement itself and according to paragraph 3.3

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below. Nothing contained in this Order shall constitute a waiver of the confidentiality of the

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terms of the Settlement Agreement.

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c.

By designating a document, thing, material, testimony or other

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information derived therefrom as CONFIDENTIAL under the terms of this Order, the party

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making the designation is certifying to the court that there is a good faith basis both in law and in

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fact for the designation within the meaning of Federal Rules of Civil Procedure 26(g). Material

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designated as confidential under the Order, the information contained therein, and any

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

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confidential under its own term\ (“CONFIDENTIAL \”) shall only be used for the prosecution,

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

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1.2

Produced Documents. A party producing documents that it believes constitute

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or contain CONFIDENTIAL material shall produce copies bearing a label designating such

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material CONFIDENTIAL or CONFIDENTIAL ATTORNEYS' EYES ONLY. For material

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designated CONFIDENTIAL ATTORNEYS' EYES ONLY, the producing party shall provide

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to all parties in this matter the identity of the document and a statement as to the basis of the

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claimed CONFIDENTIAL ATTORNEYS' EYES ONLY nature of the said document . The

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Settlement Agreement is confidential under its own terms and requires no such designation. As

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used herein, the term “documents” includes all writings or other media on which information is

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recorded and other electronic files and tangible things subject to production under the Federal

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STIPULATED PROTECTIVE ORDER

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Rules of Civil Procedure. Any and all documents, information, or materials provided by a party

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for the sole purpose of settlement discussion prior to the entry of this Order by the Court shall be

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deemed CONFIDENTIAL .Notwithstanding any other provisions of this Order, no such

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documents, information, or materials may be disclosed, shared, or otherwise used during any part

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of this case unless introduced again by the same providing party under this Order.

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1.3

Interrogatory Answers. If a party answering an interrogatory believes in good

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faith under the criteria set forth in Paragraph 1.1 above that its answer contains

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CONFIDENTIAL information, it shall set forth its answer in a separate document that is

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produced and designated as CONFIDENTIAL in the same manner as a produced document

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under subparagraph 1.2. The answers to interrogatories should make reference to the separately

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produced document containing the answer, but such document should not be attached to the

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interrogatories.

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1.4

Inspections of Documents. In the event a party elects to produce files and

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records for inspection and the requesting party elects to inspect them, no designation of

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confidentiality need be made in advance of the inspection. If the inspecting party selects

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specified documents to be copied, the producing party shall designate its confidentiality in

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accordance with subparagraph 1.2 at the time the copies are produced or within ten (10) days

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after the producing party is provided with copies of said documents.

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1.5

Deposition Transcripts. Portions of testimony taken at a deposition or

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conference and any corresponding exhibits may be designated as CONFIDENTIAL, by making a

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statement to that effect on the record at the deposition or other proceeding. Arrangements shall

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be made with the court reporter transcribing such proceeding to separately bind such portions of

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the transcript containing information designated as CONFIDENTIAL, and label such portions

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appropriately.

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1.6

Multi-page Documents. A party may designate all pages of an integrated, multi-

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page document, including a deposition transcript, interrogatory answers and responses to

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document requests, as confidential by placing the label specified in subparagraph 1.2 on the first

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STIPULATED PROTECTIVE ORDER

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page of the document. If a party wishes to designate only certain portions of an integrated,

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multi-page document as confidential, it should designate such portions immediately below the

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label on the first page of the document and place the label specified in subparagraph 1.2 on each

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page of the document containing the confidential information.

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1.7

Later Designations. A party may also designate information disclosed at a

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deposition or otherwise as CONFIDENTIAL, by notifying all parties in writing, of the

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document, interrogatory response, the specific pages and lines of deposition transcript, or the

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document produced to be designated as such.

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2.

DESIGNATIONS BY ANOTHER PARTY. If a third party produces

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documents that any party reasonably believes should be protected under this Order, within

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fourteen (14) days of the production, said party to this action shall advise all counsel of its

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designation of such document, and shall affix the appropriate stamp on such documents. The

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third party shall be served with a copy of this Order with the Subpoena and such third party itself

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may designate documents or testimony as appropriately as provided herein. All parties shall

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cooperate to effectuate affixing the necessary stamp and the party designating the documents as

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CONFIDENTIAL shall follow procedures outlined in section 1.2.

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3.

HANDLING PRIOR TO TRIAL.

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3.1

Authorized Disclosures of Confidential Material. Discovery Material

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designated as CONFIDENTIAL or information derived therefrom may be disclosed, shown, or

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made available, or communicated in any way only to the following persons:

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a.

The parties and employees of the parties, but only to the extent necessary to

participate in, assist in and monitor the progress of this action and for no other purpose;
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Qualified persons taking testimony involving CONFIDENTIAL material, and

necessary stenographic, videographic, and clerical personnel thereof;
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Consultants or experts and their staff who are employed for the purposes of this

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litigation, provided that the provisions of Paragraph 3.3 of this Stipulation are complied with

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prior to any disclosure of any CONFIDENTIAL MATERIAL to such an expert or consultant;

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STIPULATED PROTECTIVE ORDER

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d.

The Court, and the Court’s staff, pursuant to Paragraph 3.6 of this Stipulation;

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e.

Attorneys for the parties to this litigation and/or the insurance carriers for the

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parties to the litigation, including persons working solely in secretarial, clerical, and paralegal

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capacities, and who are providing assistance to counsel in this action, and/or claims

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representatives and/or claims adjustors, upon the condition that such CONFIDENTIAL material

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not be used in policy issuance determinations and be immediately destroyed by the insurance

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carriers upon completion of the instant litigation;

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f.

Third-parties specifically retained to assist outside counsel in copying, imaging,

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and/or coding of documents but for that purpose only, provided that all such CONFIDENTIAL

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material is kept and maintained in a separate and secure place and that the third party retained to

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copy, image, or code confidential documents is not currently performing any services, either as

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an employee, consultant, or otherwise for any competitor of either party to this action or for one

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having any interest adverse to either party to this action;

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g.

The author, addressees and recipients of the documents or any person who would

have had access to such information by virtue of his /her employment; and,

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h.

Any other person as to whom the parties previously agree in writing.

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Such disclosures are authorized only to the extent necessary to prosecute or defend this

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litigation. There will be no disclosure of CONFIDENTIAL material to any person or entity who

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is a manufacturer or retail competitor (or an employee of a manufacturer or retail competitor) of

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a party. There will be no disclosure of CONFIDENTIAL material to any distributor or supplier

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(or an employees of a distributor or supplier) of a party unless within 14 days of written notice

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by the party wishing disclosure, either the parties agree to the terms of disclosure or the party

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seeking to make a disclosure files a motion for an order permitting the disclosure and the court

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so orders.

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AEO Disclosure. Material or documents designated as CONFIDENTIAL-ATTORNEYS’

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EYES ONLY may be shown to a “qualified person” listed in subparagraphs 3.1(b) through (h).

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Attorneys’ Eyes Only Material shall not be disclosed to any party or to any officer, in-house

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counsel, director or employee of any party unless agreed in writing by the parties, ordered by the

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STIPULATED PROTECTIVE ORDER

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Court, or at the trial or appeal of this case.
3.2

Confidential Settlement Information Disclosure. Material which discloses the

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terms of the Settlement Agreement, as set forth in paragraph 1.1.b, may only be disclosed to the

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parties; attorneys for the party and the attorneys’ staff; and the Court to which this matter is

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assigned, as prescribed in paragraph 3.6; and mediators or arbitrators to whom this matter is

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assigned.

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3.3

Procedure. Except for persons described in Paragraph 3.1.d, 3.1.e or 3.1.f of this

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Stipulation, all persons to whom CONFIDENTIAL material is disclosed or by whom

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CONFIDENTIAL material is used, including parties, non-parties, and their representatives, shall

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be informed of and agree to be bound by the terms of this Stipulation and the Protective Order

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and shall take all necessary precautions to prevent any disclosure or use of CONFIDENTIAL

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material other than as authorized by this Stipulation.

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Individuals who are authorized to review CONFIDENTIAL material pursuant to this

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Stipulation shall hold the CONFIDENTIAL material and its contents in confidence and shall not

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divulge the CONFIDENTIAL material or its contents, either verbally or in writing, except as

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expressly permitted by this Stipulation, unless authorized to do so by a further Order of this

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Court or as specifically required by law.

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3.4

Unauthorized Disclosures. In the event of disclosure of CONFIDENTIAL

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material other than as authorized in this Order, counsel for the party responsible for the

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disclosure shall notify all parties of all pertinent facts, and shall make every effort to prevent

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further disclosure, including retrieving disclosed materials and copies of such materials. In

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accordance with Local Rule 141 and 141.1, the Court may order such further and additional

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relief as it deems necessary and just.

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3.5

Court Filings. The parties acknowledge the procedures for filing under seal

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outlined by Local Rule 141. If CONFIDENTIAL material, including any portion of a deposition

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transcript designated as CONFIDENTIAL, is included in any of the papers to be filed with the

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Court, the CONFIDENTIAL material or any portions of the pleadings which contain

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CONFIDENTIAL material shall be lodged under seal, and shall be accompanied by a written

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STIPULATED PROTECTIVE ORDER

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application and proposed order to file the CONFIDENTIAL material under seal to the judge to

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whom the papers are directed, until further order of the Court. Each submission to be lodged

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under seal shall afford the Court the opportunity to determine whether the standard for filing

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material under seal has been satisfied. The proposed order shall address both the sealing of the

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application and the order itself. A “Notice of Manual Filing” shall be electronically filed

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identifying materials being manually filed.

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4.

HANDLING DURING TRIAL. Materials designated as CONFIDENTIAL

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which are subject to this order may be marked and used as trial exhibits by either party, and

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shown to the jury subject to terms and conditions as imposed by the trial court upon application

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by the designating party.
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HANDLING AFTER TRIAL. This Order shall survive the final termination of

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this action and shall protect all retained materials that have remained confidential through final

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termination of the case. Upon final termination of this case, including time for appeals, counsel

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for the parties may each retain one copy of the pleadings, transcripts of any hearings or trials,

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transcripts of depositions, and exhibits from any hearings, trials or depositions. Counsel shall

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destroy or assemble and return to each other materials designated as confidential and all copies

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or summaries thereof.

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6.

RESTRICTIONS. Nothing herein shall impose any restriction on the use or

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disclosure by a party of material: (1) obtained lawfully by a party hereto other than through

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discovery in this action, from a person who, to the best of such party’s knowledge, was not at the

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time such materials were obtained by such party under a duty (contractual or otherwise) to

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maintain such materials in confidence; (2) that is public knowledge or became public knowledge

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after disclosure under this Order (other than through an act or omission or a person receiving

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material under this Order).

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7.

OTHER REQUESTS. The Order shall be without prejudice to the right of any

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party: (i) to request re-designation of material as CONFIDENTIAL; (ii) upon written stipulation,

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in accordance with Local Rules 141 and 141.1, to request the Court’s ruling on whether a

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STIPULATED PROTECTIVE ORDER

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document or information is CONFIDENTIAL, or whether its use should be restricted; (iii) to

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present a motion to the Court under FRCP 26(c) for a separate protective order as to any

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document or information, including restrictions differing from those specified herein. The Order

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shall not be deemed to prejudice the parties in any way in any future application for modification

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of this Order.

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8.

CUSTODY. Recipients of CONFIDENTIAL material under this Order shall

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maintain such material secured and shall exercise the same standard of care with respect to

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storage, custody, use and dissemination of the material as they exercise for their own proprietary

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information, but in no event shall the standard be less than that of a reasonable person.

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This order shall be binding on the parties when signed regardless of whether and when
this Court endorses this Order.
IT IS SO STIPULATED.

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Dated: December 3, 2015

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SEDGWICK LLP
By:
Robert F. Helfing
Caroline H. Mankey
Erica R. Graves
Attorneys for Defendants
WYLAND, WYLAND WORLDWIDE, LLC,,
WYLAND GALLERIES, INC. and SIGNATURE
GALLERY GROUP, INC.

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Dated: December 3, 2015

GIZZI & REEP, LLP

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By:
Scott D. Reep
Attorneys for Plaintiff
PIETER AREND FOLKENS dba A HIGHER
PORPOISE DESIGN GROUP

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STIPULATED PROTECTIVE ORDER

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ORDER
IT IS SO ORDERED

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Dated: December 3, 2015

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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STIPULATED PROTECTIVE ORDER