Webceleb, Inc v. Procter & Gamble Company

Filing 32

PROTECTIVE ORDER re 30 Motion for Protective Order. Signed by Magistrate Judge Nita L. Stormes on 07/22/11. (cge)(jrd)

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1 Paul J. Loh (SBN 160541) 2 ploh@willenken.com Eileen M. Ahern (SBN 216822) 3 eahern@willenken.com WILLENKEN WILSON LOH & LIEB LLP 4 707 Wilshire Blvd., Suite 3850 5 Los Angeles, CA 90017 Tel: (213) 955-9240 6 Fax: (213) 955-9250 7 Attorneys for Defendant 8 The Procter & Gamble Company 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 WEBCELEB, INC., Plaintiff, 13 14 15 16 17 18 19 20 21 22 23 24 | Case No.: 10-cv-2318 DMS (NLS) | | | Honorable Dana M. Sabraw v. | | THE PROCTER & GAMBLE | PROTECTIVE ORDER | COMPANY, | Defendant. | | [Doc. No. 30.] | | | THE PROCTER & GAMBLE | COMPANY, Counter-complainant, || | v. | | | WEBCELEB, INC, | | Counter-defendant. | | 25 26 27 28 [PROPOSED] PROTECTIVE ORDER 120812.2 1 2 3 4 5 6 In connection with the production of confidential documents and other confidential information in this action, defendant and counter-claimant The Procter & Gamble Company (“P&G”) and plaintiff and counter-defendant Webceleb, Inc. (“Webceleb”), through their respective counsel (collectively, the “Parties” or individually, “Party”), have jointly moved for entry of this Protective Order (“Stipulated Protective Order”). 7 8 I. PURPOSE OF THIS PROTECTIVE ORDER 9 The purpose of this Stipulated Protective Order is to provide a means for 10 limiting access to and use and disclosure of confidential documents or information that 11 are produced in this action. Any unauthorized disclosure of confidential documents or 12 information in violation of this Order may be subject to discipline by the contempt 13 powers of this Court. 14 II. 15 ONLY” DOCUMENTS OR INFORMATION 16 17 DESIGNATION OF “CONFIDENTIAL” OR “ATTORNEYS’ EYES The Parties may designate such documents or information as “Confidential” or “Attorneys’ Eyes Only” in accordance with the following procedures: 18 A. 19 “Confidential” and “Attorneys’ Eyes Only” Documents or Information. 20 Either Party may designate documents or information as “Confidential” if it has 21 22 a reasonable good faith belief that the disclosure of said documents or information 23 absent the protections of this order will have the effect of causing harm to the 24 producing party’s competitive position or privacy interests or a third party’s privacy 25 interests because the documents or information embody (a) sensitive, competitive or 26 other confidential business information; (b) sensitive financial information; (c) 27 sensitive product information; (d) sensitive personal information; (e) other sensitive 28 material that the Party does not customarily disclose to the public; or (f) documents or -2[[PROPOSED] PROTECTIVE ORDER 120812.2 1 2 information that the Party currently maintains as Confidential and is seeking to maintain as Confidential for purposes of this action. 3 4 5 6 7 Either Party may designate documents or information as “Attorneys’ Eyes Only” if it has a reasonable good faith belief that such documents or information meets the requirements for Confidential documents or information within the meaning of this Stipulated Protective Order, and additionally constitutes highly confidential financial information. 8 B. 9 Time of Designation Unless otherwise agreed between counsel for the Parties, the designation of 10 11 Confidential or Attorneys’ Eyes Only Documents or Information shall be made at the 12 time of the production of documents. 13 C. 14 15 16 The designation of Confidential or Attorneys’ Eyes Only Documents or Information (“Designated Documents or Information”) shall be made in the following manner: 17 18 1. 21 22 23 24 25 26 For documents, by placing the notation “Confidential” or “Attorneys’ Eyes Only” on each page of such document; 19 20 Manner of Designation 2. For tangible items, including any documents or information produced on magnetic disks or other computer related media, by placing the notation “Confidential” or “Attorneys’ Eyes Only” on the object and, if applicable, on the container thereof or if such are not practicable, as otherwise agreed by the Parties. In the event either Party generates any “hard copy” or printout from any such materials, that Party must immediately stamp each page “Confidential” or “Attorneys’ Eyes Only” as appropriate, and the hard copy or printout shall be treated as “Confidential” or “Attorneys’ Eyes Only” pursuant to this Stipulated Protective Order. 27 28 -3[[PROPOSED] PROTECTIVE ORDER 120812.2 1 D. 1. 2 3 4 5 6 9 10 11 12 13 14 15 16 17 18 19 20 Inadvertent production of any Designated Documents or Information without a designation of confidentiality will not be deemed to waive a later claim as to confidentiality or privilege, or prevent the Party claiming said confidentiality from redesignating such documents or information as “Confidential” or “Attorneys’ Eyes Only” promptly after discovery of the inadvertent production. 7 8 Retroactive Designation 2. Within a reasonable time after production, either Party may retroactively designate (or withdraw a designation) of Designated Documents or Information, regarding any material that it has produced, provided however, that such retroactive designation (or withdrawal) shall be in accordance with the terms of this Order. Such retroactive designation (or withdrawal) shall be accomplished by notifying counsel for the non-designating Party in writing of such retroactive designation (or withdrawal). Upon receipt of any such written re-designation, counsel (i) shall not make any further disclosure or communication of such retroactively designated material except as provided for in this Order; (ii) shall take reasonable steps to notify all persons known to have possession of any retroactively designated material of the effect of such redesignation under this Order; and (iii) shall take reasonable steps to procure all copies of such retroactively designated material from any persons known to have possession of any such retroactively designated material who are not entitled to receipt under this Order. 21 22 E. Resolution of Disputes Regarding Designation 23 If either Party, at any time, wishes to have the “Confidential” or “Attorneys’ 24 Eyes Only” designation of any particular Designated Documents or Information 25 removed or changed, that Party shall first request in writing that the Party having made 26 the designation at issue change its designation. Thereafter, the Parties shall make good 27 faith efforts to resolve the dispute. If the designating Party refuses to agree to remove 28 or change the designation, then the Party that requests that the designation be so -4[[PROPOSED] PROTECTIVE ORDER 120812.2 1 2 3 4 5 6 7 8 removed may make a motion before this Court for an order removing or changing the designation; provided, however, that the designating Party shall have the burden of proving that such particular Designated Document or Information are properly designated as “Confidential” or “Attorneys’ Eyes Only” pursuant to paragraph III. At all times during the process of challenging a designation, the Parties shall treat the Designated Documents or Information as originally designated until a change is agreed to or the motion is decided by the Court and written notice of such decision is served on the Parties. 9 10 11 Any motion filed with respect to this Stipulated Protective Order or documents labeled “Confidential” or “Attorneys’ Eyes Only” must comply with the Local Rules of this Court and Chambers’ Rules. 12 13 F. 14 15 Designation of Third Party Documents. Documents and/or information produced by a third party in response to a subpoena or during deposition in the course of this litigation may involve receipt of 16 information, documents, things or testimony which include, contain or comprise 17 protected information that may or may not be appropriate for “Confidential” or 18 “Attorneys’ Eyes Only” designation under this Order. Unless otherwise agreed in 19 writing between counsel for the parties, documents and information so produced by a 20 third party shall be treated as follows: First of all, all such documents and information 21 shall automatically be deemed to be and shall be treated as “Attorneys’ Eyes Only” for 22 five [5] business days following their actual receipt by both counsel for Plaintiffs and 23 counsel for Defendant in this action, in order to enable each such counsel to determine 24 whether in their view any protected information is embodied therein. If no designation 25 of the information as “Confidential” or “Attorneys’ Eyes Only” by the Designating 26 Party is received by the non-Designating Party within five [5] business days after said 27 production, then the information will not be protected by this Protective Order except 28 pursuant to subsequent designation by a party hereto or pursuant to a subsequent -5[[PROPOSED] PROTECTIVE ORDER 120812.2 1 2 agreement of the parties or Court order; if however a written designation of “Confidential” or “Attorneys’ Eyes Only” is made by a Designating Party and is 3 received by the non-Designating Party within five [5] business days after said 4 production of documents or information by the non-party, then the information will be 5 subject to this Protective Order and will be deemed to be “Confidential” or “Attorneys’ 6 Eyes Only” (as requested by the Designating Party); provided, however, that the 7 designation may be challenged as any such designation. 8 Lastly, to the extent third party documents or information contain information 9 that is confidential and/or proprietary to the third party, said third party can avail itself 10 of the protections set forth in this Order and designate documents and/or information it 11 produces accordingly by executing this Order and agreeing to be bound by its terms. 12 13 III. PERSONS TO WHOM DESIGNATED DOCUMENTS OR INFORMATION MAY BE DISCLOSED 14 15 A. 16 Documents or Information designated as “Confidential” may be disclosed and Disclosure of Documents or Information Designated as “Confidential” 17 copies may be provided only to: 18 1. Counsel of record; 19 2. Expert witnesses or consultants retained by the Parties or their respective 20 counsel in connection with this action who have complied with paragraph IV(D), 21 below; 22 3. Outside court reporting services and court reporters as may be reasonably 23 necessary in connection with the preparation or conduct of this action; 24 4. This Court and its personnel, or any other tribunal of competent 25 jurisdiction having involvement in this matter and its personnel; and 26 5. Any mediator or arbitrator selected by the Parties to mediate or arbitrate 27 this action. 28 -6[[PROPOSED] PROTECTIVE ORDER 120812.2 1 2 3 6. with paragraph IV(D) below: Scott Fetters and Alex Rolek of Webceleb, and Rich Delcore of P&G. 4 5 The following Designated Representatives of the Parties upon compliance 7. In-house Counsel for P&G, and attorney and Webceleb board member, Jill Southworth, upon compliance with paragraph IV(D) below. 6 B. 7 Disclosure of Documents or Information Designated as “Attorneys’ Eyes Only” 8 Documents or Information designated as “Attorneys’ Eyes Only” may be 9 10 disclosed and copies may be provided only to: 11 1. Counsel of record; 12 2. Expert witnesses or consultants retained by the Parties or their respective 13 counsel in connection with this action who have complied with paragraph IV(D), 14 below; 3. 15 Outside court reporting services and court reporters as may be reasonably 16 necessary in connection with the preparation or conduct of this action; 4. 17 This Court and its personnel, or any other tribunal of competent 18 jurisdiction having involvement in this matter and its personnel; and 5. 19 Any mediator or arbitrator selected by the Parties to mediate or arbitrate 20 this action. 6. 21 In-house Counsel for P&G, and attorney and Webceleb board member, 22 Jill Southworth, upon compliance with paragraph IV(D) below. 23 C. 24 Information 25 26 27 Additional Authorized Disclosure of Designated Documents or Notwithstanding anything to the contrary in paragraphs IV(A) and IV(B) above, particular Designated Documents or Information may be disclosed and copies may be provided: 28 -7[[PROPOSED] PROTECTIVE ORDER 120812.2 1 2 3 1. addressees or to persons who may be shown to be an author or recipient of any particular document; 4 5 2. 3. 10 11 To any other persons with the prior authorization of this Court or any other tribunal of competent jurisdiction having involvement in this matter. 8 9 To any other persons with the prior written consent of the designating Party; and 6 7 To Persons who are explicitly named on the document as the authors or 4. If a document designated as “Confidential” or “Attorneys’ Eyes Only” refers to the conduct or affairs of a potential witness, the Party’s counsel of record may and shall discuss such conduct or affairs with such person without revealing the existence of the document, or its authors or source. 12 D. 13 Disclosure to Experts, Consultants, Inside Counsel or Designated Representatives 14 Prior to disclosing or providing copies of any Designated Documents or 15 16 Information to any expert, consultant, Inside Counsel or Designated Representative 17 pursuant to paragraphs IV(A), IV(B) or IV (C), above, the Parties shall first obtain the 18 agreement of the person to whom such disclosure will be made to be bound by the 19 terms of this Stipulated Protective Order as set forth in the attached “Acknowledgment 20 and Agreement To Be Bound.” Specifically, the person shall acknowledge that, during 21 the course of his or her retention or work on this case they may have access to, and 22 become acquainted with Designated Documents or Information, which are regularly 23 used in the operation of the businesses of the designating Party and in which the 24 designating Party has an expectation of confidentiality. The person shall agree not to 25 disclose such Designated Documents or Information, directly or indirectly, to any 26 person or entity not subject to this Stipulated Protective Order or use them in any way 27 outside the specific scope of his/her retention or work on this case, or at any time 28 thereafter. -8[[PROPOSED] PROTECTIVE ORDER 120812.2 1 E. 2 Consultants 3 4 5 6 Return of Designated Documents or Information by Experts and Designated Documents or Information disclosed to any expert or consultant may be retained by such expert or consultant provided that such expert or consultant subsequently destroys any and all copies of such Designated Documents or Information upon the termination of their engagement. 7 8 IV. 9 A. 10 11 12 13 14 15 16 17 USE OF DESIGNATED DOCUMENTS OR INFORMATION Use of Designated Documents or Information Generally Designated Documents or Information shall only be used by the Parties, their respective agents, and any other persons to whom such Designated Documents or Information may be disclosed pursuant to this Stipulated Protective Order: (1) in this action; (2) as otherwise compelled by lawful process (provided the designating Party is given a reasonable notice to object); or (3) as otherwise required by law. Notwithstanding the foregoing, nothing in this Stipulated Protective Order shall prevent or limit the designating Party from disclosing Designated Documents or Information they so designate. 18 B. 19 Use of Designated Documents or Information in the Conduct of this Action 20 1. 21 Designated Documents or Information may be used by counsel for the 22 non-designating Party in good faith in connection with investigating this action, 23 provided that the Designated Documents or Information are protected pursuant to the 24 terms and conditions of this Stipulated Protective Order. 2. 25 The terms of this Stipulated Protective Order do not apply to evidence 26 presented at court proceedings and/or trial in this matter. Any protective measures 27 relating to Designated Documents or Information should be taken up with the judicial 28 officer conducting the particular proceeding at the appropriate time. -9[[PROPOSED] PROTECTIVE ORDER 120812.2 1 2 3 4 5 6 3. If either Party seeks to file pleadings or other documents with this Court that contains the other Party’s Designated Documents or Information, it may do so only if: (a) reasonably necessary to the proceeding; (b) the filing Party informs the designating Party of such filing concurrently with the filing of such documents with the Court; and (c) the filing Party moves to file the relevant pleadings or documents under seal. 7 8 V. RETURN OF DESIGNATED DOCUMENTS, TESTIMONY, OR 9 INFORMATION 10 Upon written request after the final conclusion of this action, the Parties shall: 11 A. Return to the other Party any and all Designated Documents or 12 Information so designated by that Party and all copies thereof in its possession, custody 13 and control or otherwise destroy such documents; B. 14 Ensure that all Designated Documents or Information in the possession, 15 custody or control of any permitted parties or third parties are returned to the 16 designating Party or are otherwise destroyed; and C. 17 Destroy all notes, memoranda or other documents that contain excerpts 18 from any of the Designated Documents or Information. Notwithstanding the 19 foregoing, attorney work product, attorney-client communications, and information 20 derived from Designated Documents or Information may be retained by the non21 designating Party and its counsel. 22 VI. 23 24 25 26 27 PUBLIC DOCUMENTS None of the restrictions set forth in this Stipulated Protective Order shall apply to any documents or other information that become public knowledge by means not in violation of the provisions of this Stipulated Protective Order. Nothing in this Stipulated Protective Order shall prevent either Party from using any information that it properly possessed prior to receipt of any Designated Documents or Information from 28 -10[[PROPOSED] PROTECTIVE ORDER 120812.2 1 2 3 4 the designating Party or that is discovered independently by the non-designating Party. The terms for the treatment of Designated Documents or Information pursuant to the Stipulated Protective Order shall be effective only upon the entry of this Stipulated Protective Order. 5 6 VII. NO PROBATIVE VALUE This Stipulated Protective Order shall not aggregate or diminish any contractual, 7 8 statutory or other legal obligation or right of any party or person with respect to any 9 Designated Documents or Information. The fact that information is designated 10 “Confidential” or “Attorneys’ Eyes Only” under the Stipulated Protective Order shall 11 not be deemed to be determinative of what a trier of fact may determine to be 12 confidential or proprietary. This Stipulated Protective Order shall be without prejudice 13 to the right of any party to bring information before this Court, regardless of (a) 14 whether any particular material is or is not confidential, or (b) whether any particular 15 information or material is or is not entitled to a greater or lesser degree of protection 16 under the terms of this Stipulated Protective Order, provided that in doing so, the party 17 complies with the procedures set forth herein. The fact that any information is 18 disclosed, used, or produced in any proceeding in this action shall not be offered in any 19 other action or proceeding before this or any other Court, agency or tribunal as 20 evidence of or concerning whether or not such information is admissible, confidential 21 or proprietary. 22 VIII. NO IMPLIED WAIVER OF ADMISSION 23 24 25 No party shall be obligated to challenge the proprietary nature of any designation of “Confidential” or “Attorneys’ Eyes Only” information, and the failure to do so shall not constitute a waiver or otherwise preclude a subsequent challenge to the designation. 26 27 28 -11[[PROPOSED] PROTECTIVE ORDER 120812.2 1 IX. 2 3 4 5 6 7 MODIFICATION OF THIS STIPULATED PROTECTIVE ORDER The Parties hereto may modify the terms of this Stipulated Protective Order by further stipulation. However, no modification by the parties shall have the force or effect of a court order unless the Court approves the modification. Alternatively, any party hereto may seek an order of this Court to modify the terms of this Stipulated Protective Order. Any motion seeking such modification must be served upon all counsel of record and filed in accordance with this Court’s filing procedures. 8 9 X. MANDATORY TERMS PER MAGISTRATE JUDGE STORMES 10 11 The parties will follow and abide by applicable law, including Civ. L.R. 79.2, 12 with respect to filing documents under seal in this Court. If a party wishes to 13 submit to the Court any document or material that comprises, embodies, 14 summarizes, discusses, or quotes from "Confidential" or "Highly Confidential" 15 material, the party seeking to file such material shall seek permission of the 16 Court to file said material under seal. 17 18 The party seeking to file under seal must electronically file a “Motion to File 19 Documents Under Seal” and electronically lodge the said documents using a 20 new event called “Sealed Lodged Proposed Document.” The System will inform 21 the party that the documents will be sealed and only available to court staff. The 22 Clerk’s Office will indicate on the public docket that proposed sealed documents 23 were lodged. A party need only submit a courtesy copy of the documents to 24 chambers if the documents exceed 20 pages in length. If the court grants the 25 motion to seal, the docket entry and documents will be sealed and designated on 26 the docket as filed on the order date. If the court denies the motion to seal, the 27 lodged documents will remain lodged under seal absent an order to the contrary. 28 -12[[PROPOSED] PROTECTIVE ORDER 120812.2 1 A redacted version of the document sought to be filed under seal shall be filed 2 and made part of the public record. The document shall be titled to show that it 3 corresponds to an item filed under seal, e.g., "Redacted Copy of Sealed 4 Declaration of John Smith in Support of Motion for Summary Judgment." 5 6 The Court may modify the protective order in the interests of justice or for 7 public policy reasons. 8 XI. 9 10 11 12 EXECUTION AND COUNTERPART This Stipulated Protective Order may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. Email or facsimile signatures shall be binding upon the Parties hereto and may be submitted and considered as originals. 13 14 IT IS SO ORDERED. 15 Dated: July 22, 2011 16 ___________________________________ The Honorable Nita L. Stormes United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28 -13[[PROPOSED] PROTECTIVE ORDER 120812.2 1 Acknowledgment and Agreement To Be Bound 2 3 4 5 6 7 8 9 10 I hereby acknowledge that I may receive information designated as “Confidential” or “Attorneys’ Eyes Only” from a party to this action. I hereby certify my understanding that such information will be provided to me pursuant to the terms and restrictions of the above Stipulated Protective Order that has been entered by the Court; that I have been given a copy of, and have read and understand, such Stipulated Protective Order; that I agree to be bound by the terms thereof; and that I irrevocably submit to the personal jurisdiction of the Court in connection with any proceeding to enforce the Stipulated Protective Order that may involve me. 11 12 ACKNOWLEDGED AND AGREED: 13 14 Name: Address: 15 16 _________________________________ _________________________________ Employer: _________________________________ 17 Title: Dated: 18 _________________________________ _________________________________ 19 20 21 22 23 24 25 26 27 28 -14[[PROPOSED] PROTECTIVE ORDER 120812.2

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