Xenos, Inc. et al v. Tilly's, Inc.

Filing 63

ORDER approving 62 joint stipulation for protective order. Ordered by Magistrate Judge Cheryl R. Zwart. (BHC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
XENOS, INC., a Nebraska corporation and
OTTILIA CHAPMAN, an individual,

Case No. 8:13-cv-202

Plaintiffs,
v.
STIPULATED PROTECTIVE ORDER
RE CONFIDENTIAL INFORMATION
AND DOCUMENTS

TILLY’S, INC., a Delaware corporation,
and WORLD OF JEANS & TOPS, a
California corporation,
Defendants.

STIPULATION FOR ENTRY OF PROTECTIVE ORDER
WHEREAS, this action involves the alleged intellectual property interests
of plaintiff Xenos, Inc., plaintiff Ottilia Chapman, defendant Tilly’s, Inc., and defendant
World of Jeans & Tops (collectively, the Parties”);

WHEREAS, discovery in this action will involve the disclosure of private,
privileged, proprietary, and confidential information, including without limitation the
following:
A.

Confidential and non-public business models and plans;

B.

Confidential and non-public documents concerning customers and
potential customers;

C.

Confidential and non-public financial records; and

D.

Confidential and private information concerning individuals who are

not parties to this action.

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STIPULATED PROTECTIVE ORDER

WHEREAS the Parties believe that unrestricted disclosure or
dissemination of such information could cause them injury, and desire an efficient and
practicable means to designate such information as confidential and control its
disclosure or dissemination;
NOW, THEREFORE IT IS HEREBY STIPULATED by the Parties, by and
through their respective attorneys of record and pursuant to Federal Rule of Civil
Procedure 26(c)(1)(G) and 29, that discovery in this case of confidential information
shall be had on the following terms and conditions:
1.

During the course of this litigation, all documents and information

that a party considers to contain or to constitute confidential, trade secrets, proprietary
and/or financial information including but not limited to: (a) customer names, contact
information, and terms of service; (b) sales records, and/or sales prices; (c) pending
sales opportunities for customers; (d) vendor names, purchase records, and purchase
pricing information; (e) the identity and contact information for individuals currently
employed by any of the Parties; (f) data derived from such confidential information,
including any summaries, compilations, quotes, or paraphrases thereof; and (g) any
other oral, written, or recorded material which consists of or contains trade secrets or
other confidential research, development, or commercial information or information
subject to a claim of right to privacy and that has been designated by the producing
party as confidential by stamping or writing "CONFIDENTIAL" or "CONFIDENTIALOUTSIDE COUNSEL ONLY" on the face of the document, or alternatively, on the
portion thereof containing the confidential information, shall be handled in accordance
with this Protective Order.

2.

Any designating party shall have the right to designate as

"CONFIDENTIAL" any information and/or document that discloses confidential
information as set forth above in paragraph 1. Material properly designated as
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STIPULATED PROTECTIVE ORDER

“CONFIDENTIAL” includes, but is not limited to, confidential research, development,
technical, manufacturing or commercial information, as well as other such information to
which the receiving party would not have access but for this litigation. Any designating
party shall also have the right to designate as "CONFIDENTIAL- OUTSIDE COUNSEL
ONLY" information and/or documents that constitute or disclose extremely sensitive
confidential information, the disclosure of which would be especially detrimental or
harmful to the producing party if disclosed beyond the limited class of qualified
recipients as specified herein. “CONFIDENTIAL – OUTSIDE COUNSEL ONLY”
material includes, but is not limited to: (a) trade secrets; (b) product designs; or (c)
highly sensitive financial information, business plans and/or forecasts, customer lists,
pricing data, cost data, customer orders, or customer quotations.

3.

In the case of documents or information produced by third parties,

any third party hereto shall also have the right to designate said information and/or
documents as being "CONFIDENTIAL" or "CONFIDENTIAL- OUTSIDE COUNSEL
ONLY," as necessary, in the event said information and/or documents contain
confidential, proprietary and/or trade secret information of such third party as set forth in
Paragraph 2 of this Order.

4.

A designation of "CONFIDENTIAL" or "CONFIDENTIAL- OUTSIDE

COUNSEL ONLY" pursuant to this Protective Order shall not be construed as a
concession by any party that such information is relevant or material to any issue, or is
in fact confidential, proprietary or a trade secret.

5.

CONFIDENTIAL or CONFIDENTIAL- OUTSIDE COUNSEL ONLY

information shall be held in confidence by each person to whom it is disclosed, shall be

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STIPULATED PROTECTIVE ORDER

used only for purposes of this action, shall not be used for any other business purpose,
and shall not be disclosed to any person who is not a qualified recipient.

6.

With respect to information and/or documents designated as

"CONFIDENTIAL," "qualified recipient" shall mean:

A)

The Court and those employed by the Court, and court reporters
and those employed by court reporters to transcribe, record or
videotape testimony in this litigation;

B)

The parties to this case, including officers, in-house counsel,
employees and/or directors of the receiving party responsible for
handling and/or directly participating in the prosecution and defense
of this litigation on behalf of the receiving party.

C)

The outside attorneys of the receiving party in connection with this
action.

D)

Members of the paralegal, secretarial and clerical staff (including
short hand reporters) employed by the receiving party or its outside
attorneys.

E)

Members of the data entry and data processing staff employed by
the receiving party's outside attorneys in assisting in the
development and/or the data retrieval systems in connection with
the action.

F)

The expert witnesses or consultants, if any, employed by the
receiving party and/or its outside attorneys for the assistance in this
action.

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STIPULATED PROTECTIVE ORDER

7.

With respect to information and/or documents designated as

"CONFIDENTIAL — OUTSIDE COUNSEL ONLY," "qualified recipient" shall mean:

A)

The Court and those employed by the Court, and court reporters
and those employed by court reporters to transcribe, record or
videotape testimony in this litigation;

B)

The outside attorneys of the receiving party in connection with this
action.

C)

Members of the paralegal, secretarial and clerical staff (including
short hand reporters) employed by the receiving party's outside
attorneys.

D)

Members of the data entry and data processing staff employed by
the receiving party's outside attorneys in assisting in the
development and/or the data retrieval systems in connection with
the action.

E)

The outside independent expert witnesses or consultants, if any,
retained by the receiving party and/or its outside attorneys for the
assistance in this action.

8.

All qualified recipients specified in Paragraph 6 (B) through (E) and

7 (B) through (E) shall, before any CONFIDENTIAL or CONFIDENTIAL- OUTSIDE
COUNSEL ONLY information or documents are disclosed to them, be advised of the
provisions of the Protective Order by disclosing counsel and such persons must agree
to be bound by the terms hereof and maintain said information or documents in
confidence, and not disclose said information or documents to anyone other than in
accordance with the terms of this Protective Order. Any qualified recipients specified in
Paragraph 6 (F) and Paragraph 7 (E) shall be required to sign the certificate of
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STIPULATED PROTECTIVE ORDER

confidentiality attached as Exhibit "A" hereto prior to receiving any confidential
information or documents subject to this Protective Order. Copies of executed
certificates of confidentiality shall be maintained by each party. In the event of a dispute
regarding disclosure of CONFIDENTIAL or "CONFIDENTIAL- OUTSIDE COUNSEL
ONLY" information, copies of the certificates shall be provided to opposing parties'
counsel upon request.

9.

In the case of depositions, the provisions of this Order may be

invoked by (a) declaring on the record at the deposition that the information that is
disclosed is CONFIDENTIAL or CONFIDENTIAL- OUTSIDE COUNSEL ONLY, with
instructions that those portions of the transcript containing such information be
separately bound, or (b) designating specific pages as CONFIDENTIAL or
CONFIDENTIAL- OUTSIDE COUNSEL ONLY and serving such designations within 30
days of receipt of the transcript of the deposition in which the designations are made.

10.

CONFIDENTIAL or CONFIDENTIAL- OUTSIDE COUNSEL ONLY

information shall not be copied or otherwise reproduced by the receiving party, except
for transmission to qualified recipients, without the written permission of the producing
party, or, in the alternative, by further order of the Court. Nothing herein shall, however,
restrict a qualified recipient from making working copies, abstracts and digests of
CONFIDENTIAL or CONFIDENTIAL- OUTSIDE COUNSEL ONLY information for use in
connection with this action, and such working copies, abstracts and digests of
CONFIDENTIAL or CONFIDENTIAL- OUTSIDE COUNSEL ONLY information shall be
deemed CONFIDENTIAL or CONFIDENTIAL- OUTSIDE COUNSEL ONLY under the
terms of this Protective Order. Further, nothing herein shall restrict a qualified recipient
from converting or translating CONFIDENTIAL or CONFIDENTIAL- OUTSIDE
COUNSEL ONLY information into machine readable form for incorporation in a data
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STIPULATED PROTECTIVE ORDER

retrieval system used in connection with this action, provided such converted or
translated information shall be considered CONFIDENTIAL or CONFIDENTIALOUTSIDE COUNSEL ONLY and that access to CONFIDENTIAL or CONFIDENTIALOUTSIDE COUNSEL ONLY information in whatever form stored or reproduced, shall
be limited to qualified recipients.

11.

By entering into this Stipulation, the receiving parties do not

concede that the marking of any document as "CONFIDENTIAL" or "CONFIDENTIALOUTSIDE COUNSEL ONLY" by the producing parties causes that document or the
information contained in that document to become confidential trade secrets, proprietary
and/or financial information. The receiving party reserves its/his right to move the Court
with appropriate notice to remove the "CONFIDENTIAL" or " CONFIDENTIAL-OUTSIDE
COUNSEL ONLY" designation from any information or documents designated by the
producing parties. In such case, designating party shall bear the burden of proving that
the designation is justified. The parties shall meet and confer in good faith prior to the
filing of any motion to de-designate any material designated as "CONFIDENTIAL" or "
CONFIDENTIAL-OUTSIDE COUNSEL ONLY."

12.

The restrictions and obligations relating to documents and

information protected by this Protective Order shall not apply (a) to any such document
or information which both parties agree, or which the Court rules is already public
knowledge or becomes public knowledge other than as a result of disclosure by the
receiving party, or (b) to any document or information as to which receiving party
demonstrates that it had prior knowledge independently of the producing party.

13.

Any inadvertent production of documents containing privileged

information shall not constitute a waiver of the attorney-client privilege, work product
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STIPULATED PROTECTIVE ORDER

doctrine or any other applicable privilege or doctrine. All parties specifically reserve the
right to demand the return of any privileged documents that it may produce inadvertently
during discovery if the producing party determines that such documents contain
privileged information. Upon request by the producing party for return of any such
documents designated as within the attorney-client, privilege, work product doctrine, or
any other applicable privilege or doctrine, the receiving party immediately shall return to
the producing party all copies of such documents. Nothing herein shall prevent the
receiving party from challenging the propriety of the attorney-client privilege, work
product doctrine, or any other applicable privilege or doctrine designation by filing an
appropriate motion with the court.

14.

If any party inadvertently fails to designate a document or

information as CONFIDENTIAL or CONFIDENTIAL- OUTSIDE COUNSEL ONLY, that
party may subsequently do so in writing and that material shall be deemed
CONFIDENTIAL or CONFIDENTIAL- OUTSIDE COUNSEL ONLY from the date of such
designation. Upon receiving such notice, all receiving parties shall employ reasonable
efforts to ensure that all inadvertently disclosed information is subsequently treated as
confidential pursuant to the terms of this Stipulated Protective Order

15.

Prior to trial, the parties shall meet and confer after the pretrial

conference concerning appropriate methods for dealing with material designated as
CONFIDENTIAL or CONFIDENTIAL-OUTSIDE COUNSEL ONLY at trial.

16.

Upon final termination of this action, including all appeals, and upon

request of the producing party made not later than ninety days after final termination of
this action, each party shall return all materials produced and designated as
CONFIDENTIAL or CONFIDENTIAL- OUTSIDE COUNSEL ONLY to the producing
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STIPULATED PROTECTIVE ORDER

party or shall certify the destruction of such materials, in whatever form stored or
reproduced, including all working copies, abstracts and digests thereof. The attorneys
representing each party in this action shall be entitled to retain file copies, in whatever
form stored or reproduced, including all other materials including, but not limited to,
court filings, discovery responses and documents, deposition and court transcripts,
correspondence, memoranda, notes and other work product materials, which contain or
refer to CONFIDENTIAL or CONFIDENTIAL- OUTSIDE COUNSEL ONLY information.
Any such materials which are not returned or destroyed shall remain subject to this
Protective Order, and the Court shall retain jurisdiction to ensure that the terms hereof
are not violated.

17.

The Court can modify this Order in the interest of justice or for good

cause shown.

18.

Good cause exists for this Order. This action involves the alleged

intellectual property interests of the Parties, and discovery in this action will involve the
disclosure of private, privileged, proprietary, and confidential information, including
without limitation the following:

A)

Confidential and non-public business models and plans;

B)

Confidential and non-public documents concerning customers and
potential customers;

C)

Confidential and non-public financial records; and

D)

Confidential and private information individuals who are not parties
to this litigation.

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STIPULATED PROTECTIVE ORDER

Pursuant to FED. R. CIV. P. 26(c)(1)(G), good cause therefore exists for
entry of this Order because the Parties to this action (a) either have sought or might
seek the discovery of certain information in this action that the Parties believe is
sensitive or confidential, (b) believe that unrestricted disclosure or dissemination of such
information could cause them some business or commercial injury, (c) desire an
efficient and practicable means to designate such information as confidential and
control its disclosure or dissemination, and (d) have agreed to such means as set forth
herein.
IT IS SO STIPULATED.
Respectfully submitted,
Dated this 1st day April, 2014.
TILLY’S, INC., a Delaware corporation, and
WORLD OF JEANS & TOPS, a California
corporation, Defendants,
By: ___/s/Carlo F. Van den Bosch_________
Carlo F. Van den Bosch, admitted pro hac
vice
Gazal J. Pour-Moezzi, admitted pro hac
vice
SHEPPARD MULLIN RICHTER &
HAMPTON LLP
650 Town Center Drive, 4th Floor
Costa Mesa, CA 92626-1993
Daniel J. Fischer, #22272
KOLEY JESSEN P.C., L.L.O.
1125 South 103rd Street Suite 800
Omaha, NE 68124-1079
[phone]
[phone] (facsimile)
[e-mail]
Attorneys for Defendants.

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STIPULATED PROTECTIVE ORDER

Dated this 1st day of April, 2014.
XENOS, INC., a Nebraska corporation, and
OTTILIA CHAPMAN, an individual, Plaintiffs,
By: ____/s/Larry E. Welch, Sr._________
Larry E. Welch, Sr., #14449
Damien J. Wright, #23256
WELCH LAW FIRM, P.C.
1299 Farnam Street, Suite 1220
Omaha, NE 68102
[phone]
[phone] (facsimile)
[e-mail]
[e-mail]

Attorneys for Plaintiffs.
IT IS SO ORDERED.
Dated: April 1, 2014

s/ Cheryl R. Zwart
United States Magistrate Judge

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STIPULATED PROTECTIVE ORDER

EXHIBIT A
CERTIFICATE OF CONFIDENTIALITY

I, ___________________________, hereby declare the following:

1.

My address is ___________________________________. My

telephone number is (______) ______ - ________.

2.

I have read and I understand the Stipulated Protective Order re

Confidential Information ("Protective Order"), entered in this action, and I agree to be
bound by its terms.

3.

I understand that this Protective Order requires me not to disclose

any information designated as CONFIDENTIAL or CONFIDENTIAL – OUTSIDE
COUNSEL ONLY, which is provided to me in the course of my involvement in this
litigation to any person not authorized by this Protective Order to receive such
information.

4.

I agree that I shall return all documents containing any information

designated as CONFIDENTIAL or CONFIDENTIAL – OUTSIDE COUNSEL ONLY,
which have been provided to me, together with any work product including such
information designated as CONFIDENTIAL or CONFIDENTIAL – OUTSIDE COUNSEL
ONLY, upon demand by the Court or the counsel or party who furnished such
information to me.

5.

In addition, I consent to the jurisdiction of the United States District

Court for the District of Nebraska, with respect to any actions of any kind whatsoever

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STIPULATED PROTECTIVE ORDER

relative to the enforcement of the Protective Order, recognizing that in doing so I subject
myself to the full powers of that Court, including the power of imposing sanctions for
contempt.

I declare under penalty of perjury under the laws of the State of _______
and the United States of America that the foregoing is true and correct.

Executed on ________________________ ___, 2014 at
____________________________ (city), __________________________(state).

(signature)
(printed name)

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STIPULATED PROTECTIVE ORDER