Balanced Body, Inc. v. Teague Pilates, Inc

Filing 26

ORDER Granting 25 Stipulation FOR PROTECTIVE ORDER. Signed by Judge Claudia Wilken on 9/19/2011. (ndr, COURT STAFF) (Filed on 9/19/2011)

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Gordon E. R. Troy, Esq., Pro hac vice
GORDON E. R. TROY, PC
PO Box 368
Charlotte, VT 05445
Telephone: [phone]
Facsimile: 802 425-9061
Email: [e-mail]

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PATRICK McCARTHY, State Bar No. 108079
[e-mail]
LAW OFFICES OF PATRICK McCARTHY
7041 Koll Center Parkway, Suite 160
Pleasanton, CA 94566
Telephone: [phone]
Facsimile: [phone]

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Attorney for Plaintiff Balanced Body, Inc.

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
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BALANCED BODY, INC.,

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Plaintiff,

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- against -

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TEAGUE PILATES, INC.
Defendant.

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Case No. : C 11-01528 - CW
STIPULATED PROTECTIVE
ORDER

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The parties stipulate, subject to the approval of the Court and pursuant to Federal Rule of
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Civil Procedure 26(c), that the following provisions shall govern the production and handling of
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documents, answers, responses, depositions, pleadings, exhibits, and all other information
exchanged by the parties throughout the proceedings in this action.
1.

Any confidential information produced by any party or non-party as part of

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discovery in this action may be designated by the producing party as “Confidential” or

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“Confidential – Attorneys’ Eyes Only.” As general guidelines, a document may be designated
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“Confidential” when it contains confidential, technical, financial, business or other information

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that may be reviewed by the receiving party’s designated representatives and technical experts

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but must be protected against disclosure to third parties; or “Confidential – Attorneys’ Eyes

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Only” when disclosure could put the disclosing party at a competitive disadvantage with the non-

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disclosing party.

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2.

Information designated “Confidential” or “Confidential – Attorneys’ Eyes Only”

may be used only in connection with this action and not for any other purpose. Such information
may not be disclosed to anyone except as provided in this Order.

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3.

a.

Any party or non-party wishing to come within the provisions of this

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Order may designate in writing the documents (as defined in Federal Rule of Civil Procedure 34
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and Federal Rule of Evidence 1001), interrogatory answers, responses to requests for admission,
any other written discovery response or disclosure, or any portions thereof, which it considers
confidential at the time the documents, answers, or responses are produced.

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b.

In the instance of deposition testimony, the witness under deposition

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and/or his or her counsel shall invoke the provisions of this Order during the deposition or at any

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time within thirty (30) days of receiving a transcript of the deposition.

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4.

Any documents stamped “Confidential” (including copies or excerpts thereof or

analyses or reports pertaining thereto) may be made available only to:
a.

the prosecution or defense of this action;

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attorneys of record and their employees and other agents participating in

b.

the United States District Court for the Northern District of California,

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including all of its legal and clerical personnel, or any judicial body before

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which an action is subsequently pending (“the Court”);

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c.

representatives of the parties to this action who are actively involved in
assisting counsel and who agree to use the information solely for the

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purposes of this action;

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d.

independent experts or consultants not associated directly or indirectly

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with a party;

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e.

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necessary;

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f.

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a deponent or other witness who authored, received, or saw the document
or who is otherwise familiar with the document.

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outside stenographic court reporters and language translators as reasonably

5.

Any documents stamped “Confidential – Attorneys’ Eyes Only” (including copies

or excerpts thereof or analyses or reports pertaining thereto) may be made available only to:
a.

attorneys of record and their employees participating in the prosecution or

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defense of an action;
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b.
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including all of its legal and clerical personnel, or any judicial body before

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which this action is subsequently pending (“the Court”);

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c.

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independent experts or consultants not associated directly or indirectly
with a party;

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d.

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outside stenographic court reporters and language translators as reasonably
necessary;

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e.

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the United States District Court for the Northern District of California,

a deponent or other witness who authored, received, or saw the document
or who is otherwise familiar with the document.

6.

Each person falling within paragraphs 4.d-e and 5.c-d above who is permitted by

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the parties or their counsel to have access to designated information under the terms of this Order

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shall, prior to being given such access, be provided with a copy of this Order for review. After

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reading this Order, the person shall sign a statement in the form attached as Exhibit A confirming

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that s/he has read the Order and agrees to comply with its terms.

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7.

The restrictions set forth in this Order shall not apply to information known to the

receiving party or the public before the date of its disclosure in this action, or known to the
public after the date of its disclosure in this action, provided that such information does not
become publicly known by any act or omission in violation of this Order by any of the persons
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referred to in paragraphs 4(a through f) or 5(a through e) above.
8.

Nothing in this Order shall preclude any party, its attorneys or any other person

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from disclosing or using, in any manner or for any purpose, any information or documents not

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obtained in discovery in this proceeding, if such information is lawfully obtained from a third

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party, even though the same information or documents may have been produced in discovery in

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this action and designated as “Confidential” or “Confidential – Attorneys’ Eyes Only.”
9.

Nothing in this Order shall preclude any party herein or their attorneys from

showing a document designated as “Confidential” or “Confidential – Attorneys’ Eyes Only” to
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an individual who prepared or reviewed the document prior to the filing of this action, or from
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disclosing or using, in any manner or for any purpose, any documents or information from the
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party’s own files which the party itself has designated as “Confidential” or “Confidential –
Attorneys’ Eyes Only.”
10.

If a party wishes to file with or otherwise submit to the Court any document or

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evidence which is designated as “Confidential” or “Confidential – Attorneys’ Eyes Only” the

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following procedure shall apply:

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a.

If a party seeks to file its own “Confidential” / “Confidential – Attorneys’

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Eyes Only” material under seal, it may file a written request for a sealing

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order setting forth the good cause and accompanied by a proposed order

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that is narrowly tailored as specified in Court Local Rule 79-5.

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b.

Any party or person filing “Confidential” / “Confidential – Attorneys’

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Eyes Only” material which has been designated as such by another party

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or person should either: (1) obtain the producing party’s or person’s

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agreement that the material may be re-designated as non-confidential

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material, or obtain an order that said material is not entitled to confidential
protection, or (2) file a motion to file under seal in compliance with Court
Local Rule 79-5 at the same time the pleadings that contain or have
attached thereto the said “Confidential” / “Confidential – Attorneys’ Eyes
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Only” information are filed with the Court. If a party elects to file the said

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“Confidential” / “Confidential – Attorneys’ Eyes Only” material under

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seal in compliance with Court Local Rule 79-5, an affected party or non-

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party may within five (5) business days file its own cross-motion to file

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the material under seal.

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11.

Any document or information filed with or otherwise submitted to the Court

which is designated as “Confidential” or “Confidential – Attorneys’ Eyes Only” shall be
submitted in an 8-1/2 inch by 11 inch sealed envelope or other suitable container. The submitting

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party must affix a cover sheet to the document and to its envelope or container which must: (1)
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set out the information required by Court Local Rule 3-4(a) and (b); (2) set forth the name,
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address and telephone number of the submitting party; (3) if filed pursuant to a previous Court
order, state the date and name of the Judge ordering the matter filed under seal and attach a copy
of the order; if filed pursuant to statute or rule, state the authorizing statute or rule and good

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cause for filing the submitted matter under seal; or (4) if lodged concurrently with a motion to

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file under seal, state “lodged concurrently with motion to file under seal”; and (5) prominently

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display the notation “DOCUMENT FILED UNDER SEAL.”

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12.

If discovery is sought of a person not a party to this action (“third party”)

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requiring disclosure of such third party’s “Confidential” or “Confidential – Attorneys’ Eyes

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Only” information, any such information disclosed by the third party and designated

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“Confidential” or “Confidential – Attorneys’ Eyes Only” pursuant to the provisions of this Order

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will be accorded the same protection as the parties’ “Confidential” or “Confidential – Attorneys’

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Eyes Only” information, and will be subject to the same procedures as those governing

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disclosure of the parties’ “Confidential” or “Confidential – Attorneys’ Eyes Only” information

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pursuant to this Order.
13.

If, through inadvertence, a producing party discloses information or documents

that it believes should have been designated as “Confidential” or “Confidential – Attorneys’
Eyes Only,” it may subsequently designate such information or documents as belonging to the
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appropriate category. After such designation is made, all receiving parties shall treat the

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information or documents accordingly. If the documents or information have been disclosed by

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the receiving party prior to the designation, the receiving party shall notify the producing party

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and shall also make a good faith effort to have the documents and/or information returned.

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14.

If, at any time during the preparation for trial or during the trial of this action, the

receiving party claims that the producing party or a non-party has unreasonably designated
certain information as “Confidential” or “Confidential – Attorneys’ Eyes Only,” or believes that
it is necessary to disclose designated information to persons other than those permitted by this

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Order, the receiving party must notify the producing party (and the non-party, if applicable) in
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writing that the receiving party objects to the “Confidential” or “Confidential – Attorneys’ Eyes
Only” designation and the reasons therefor. Within ten (10) business days of such notification,
the parties shall meet and confer in an attempt to resolve the receiving party's objection to the
designation. If that attempt at resolution fails, the producing party may seek relief from the

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Court within ten (10) business days of the parties’ meet and confer, and the receiving party may

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object to the relief sought within ten (10) days after the request is submitted to the Court. No

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information may be disclosed while there is an outstanding objection unless the producing party

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fails to file a motion for relief with the Court within ten (10) business days of the meet and

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confer. The burden will be on the producing party to show good cause as to why the information

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should remain “Confidential” or “Confidential – Attorneys’ Eyes Only.”

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15.

This Order shall be without prejudice to the right of any party to oppose

production of any information on grounds other than confidentiality.
16.

This Order shall not prevent the parties from applying to the Court for relief

therefrom or from applying to the Court for further or additional protective orders or from
agreeing among themselves to waive this Order in part or whole as to particular designated
information or to modify or vacate this Order.
17.

Upon termination of this action (including any appeals), each party shall assemble

all designated materials, including copies, and either (1) return the materials to the person(s)
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from whom they were obtained or (2) destroy them, at the producing person’s option. The

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attorney of record may retain one (1) copy of the designated information attached to any

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pleading filed with the Court or marked as an exhibit to a deposition or which is part of

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deposition testimony.

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18.

This Court shall retain jurisdiction over this action with respect to this Order for

purposes of enforcing its terms and conditions and to enable any party herein affected to apply
for such order and further orders concerning the subject of this Order as may be necessary or
appropriate. Each person or entity which receives or produces any designated information

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hereby agrees to subject itself to the jurisdiction of such court for the purpose of any proceedings
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relating to the performance under, compliance with, or violation of this Order.
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Dated: September 19, 2011

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Respectfully submitted:
GORDON E. R. TROY, PC

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/s/ Gordon E. R. Troy

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By: ___________________________
Attorney for Plaintiff Balanced Body, Inc.

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Respectfully submitted:
ERICKSEN ARBUTHNOT

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/s/ Fateh K. Sahota

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By: ___________________________
LOIS A. LINDSTROM
FATEH K. SAHOTA
Attorneys for Defendant Teague Pilates, Inc.

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IT IS SO ORDERED.

September 19
DATED: ____________, 2011

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__________________________________
Hon. Claudia Wilken
United States District Judge

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Balanced Body, Inc. v. Teague Pilates, Inc
Stipulated Protective Order

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EXHIBIT A

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CERTIFICATION

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I, _________________________, declare under penalty of perjury pursuant to the laws

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of the United States of America: that I am employed by ____________________ in the capacity

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of _______________________; that I am not currently and have not within the past two (2)

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years been an employee of any party to this action; that I have read a copy of the Stipulated

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Protective Order that has been entered in this case; that I recognize that during my participation
in this case, I may have occasion to read or hear matters which are designated as confidential
information; that I agree not to disclose any such confidential information to any person not
entitled to receive disclosure of the same under the provisions of the Stipulated Protective Order;

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that I agree to use any such confidential information solely for the purposes appropriate to my
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participation in this case; that I agree to be subject to the jurisdiction of the United States District
Court for the Northern District of California for purposes of any proceedings related to the
performance under, compliance with, or violation of said Stipulated Protective Order; and that I
agree to be bound and abide by said Stipulated Protective Order in every respect.

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Dated: _______________________

_______________________________________
Signature

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Balanced Body, Inc. v. Teague Pilates, Inc
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