Skechers USA, Inc. v. National Union Fire Insurance Company of Pittsburgh, PA ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ||}SKECHERS USA, INC., a corporation; Case No. 2:19-cv-04957-ODW-GJS 12 Plaintiff, DISCOVERY MATTER 13 Vv. PROPOSED | ORDER ON TIPULATED PROTECTIVE 14 || NATIONAL UNION FIRE INSURANCE | ORDER COMPANY OF PITTSBURG, PA., a 15 corporation, and DOES | through 50, inclusive, 16 Defendants. 17 18 19 20 21 22 23 24 25 26 27 28 1 This Court, having read and considered the parties’ Stipulated Protective Order 2 ||(Dkt. No. 17), and finding good cause therefor, hereby enters the parties’ Stipulated 3 || Protective Order (Dkt. No. 17) as an order of the Court as follows: 4 || 1. A. PURPOSES AND LIMITATIONS 5 Discovery in this action is likely to involve production of confidential, 6 || proprietary or private information for which special protection from public disclosure 7 from use for any purpose other than prosecuting this litigation may be warranted. 8 || Accordingly, the parties hereby stipulate to and petition the Court to enter the 9 || following Stipulated Protective Order. The parties acknowledge that this Order does 10 ||not confer blanket protections on all disclosures or responses to discovery and that the 11 || protection it affords from public disclosure and use extends only to the limited 12 information or items that are entitled to confidential treatment under the applicable 13 legal principles. 14 B. GOOD CAUSE STATEMENT 15 This insurance coverage action is likely to involve private, commercial, 16 || financial, technical and/or proprietary information for which special protection from 17 || public disclosure and from use for any purpose other than prosecution of this action is 18 || warranted. Such confidential and proprietary materials and information consist of, 19 || among other things, confidential business or financial information, information 20 ||regarding confidential business practices, or other confidential research, development, 21 commercial information (including information potentially implicating privacy 22 rights of third parties), information otherwise generally unavailable to the public, or 23 || which may be privileged or otherwise protected from disclosure under state or federal 24 statutes, court rules, case decisions, or common law. Accordingly, to expedite the flow 25 || of information, to facilitate the prompt resolution of disputes over confidentiality of 26 discovery materials, to adequately protect information the parties are entitled to keep 27 confidential, to ensure that the parties are permitted reasonable necessary uses of such 28 || material in preparation for and in the conduct of trial, to address their handling at the ] | || end of the litigation, and serve the ends of justice, a protective order for such 2 |\information is justified in this matter. It is the intent of the parties that information will 3 ||not be designated as confidential for tactical reasons and that nothing be so designated 4 || without a good faith belief that it has been maintained in a confidential, non-public 5 ||manner, and there is good cause why it should not be part of the public record of this 6 || case. 7 C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL 8 The parties further acknowledge, as set forth in Section 12.3, below, that this 9 || Stipulated Protective Order does not entitle them to file confidential information under 10 || seal; Local Civil Rule 79-5 sets forth the procedures that must be followed and the 11 |/standards that will be applied when a party seeks permission from the court to file 12 material under seal. 13 There is a strong presumption that the public has a right of access to judicial 14 || proceedings and records in civil cases. In connection with non-dispositive motions, 15 || good cause must be shown to support a filing under seal. See Kamakana v. City and 16 || County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors 17 || Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics, Inc., 18 || 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders require good 19 || cause showing), and a specific showing of good cause or compelling reasons with 20 || proper evidentiary support and legal justification, must be made with respect to 21 Protected Material that a party seeks to file under seal. The parties’ mere designation 22 ||of Disclosure or Discovery Material as CONFIDENTIAL does not—without the 23 ||submission of competent evidence by declaration, establishing that the material sought 24 be filed under seal qualifies as confidential, privileged, or otherwise protectable— 25 || constitute good cause. 26 Further, if a party requests sealing related to a dispositive motion or trial, then 27 ||compelling reasons, not only good cause, for the sealing must be shown, and the relief 28 sought shall be narrowly tailored to serve the specific interest to be protected. See | || Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). For each item 2 || or type of information, document, or thing sought to be filed or introduced under seal 3 ||in connection with a dispositive motion or trial, the party seeking protection must 4 || articulate compelling reasons, supported by specific facts and legal justification, for the 5 requested sealing order. Again, competent evidence supporting the application to file 6 ||documents under seal must be provided by declaration. 7 Any document that is not confidential, privileged, or otherwise protectable in its 8 |}entirety will not be filed under seal if the confidential portions can be redacted. If 9 documents can be redacted, then a redacted version for public viewing, omitting only 10 || the confidential, privileged, or otherwise protectable portions of the document, shall be 11 || filed. Any application that seeks to file documents under seal in their entirety should 12 include an explanation of why redaction is not feasible. 13 |[2: DEFINITIONS 14 2.1 Action: this pending federal lawsuit. 15 2.2 Challenging Party: a Party or Non-Party that challenges the designation 16 of information or items under this Order. 7 2.3. “CONFIDENTIAL” Information or Items: information (regardless of 18 how it is generated, stored or maintained) or tangible things that qualify for protection 19 under Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause 30 Statement. 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their 2! support staff). 22 2.5 Designating Party: a Party or Non-Party that designates information or 23 items that it produces in disclosures or in responses to discovery as 24 “CONFIDENTIAL.” 25 2.6 Disclosure or Discovery Material: all items or information, regardless of 26 the medium or manner in which it is generated, stored, or maintained (including, 27 28 | ||among other things, testimony, transcripts, and tangible things), that are produced or 2 || generated in disclosures or responses to discovery in this matter. 3 2.7 Expert: a person with specialized knowledge or experience in a matter 4 pertinent to the litigation who has been retained by a Party or its counsel to serve as an 5 || expert witness or as a consultant in this Action. 6 2.8 House Counsel: attorneys who are employees of a party to this Action. 7 || House Counsel does not include Outside Counsel of Record or any other outside g counsel. 9 2.9 Non-Party: any natural person, partnership, corporation, association or 10 other legal entity not named as a Party to this action. 2.10 Qutside Counsel of Record: attorneys who are not employees of a party 2 to this Action but are retained to represent or advise a party to this Action and have 13 appeared in this Action on behalf of that party or are affiliated with a law firm that has 14 appeared on behalf of that party, and includes support staff. 5 2.11 Party: any party to this Action, including all of its officers, directors, employees, consultants, retained experts, and Outside Counsel of Record (and their '6 support staffs). i 2.12 Producing Party: a Party or Non-Party that produces Disclosure or I8 Discovery Material in this Action. 19 2.13 Professional Vendors: persons or entities that provide litigation support 20 services (e.g., photocopying, videotaping, translating, preparing exhibits or 21 demonstrations, and organizing, storing, or retrieving data in any form or medium) and 22 || their employees and subcontractors. 23 2.14 Protected Material: any Disclosure or Discovery Material that is 24 || designated as “CONFIDENTIAL.” 25 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material 26 || from a Producing Party. 27 28 1/3. SCOPE 2 The protections conferred by this Stipulation and Order cover not only Protected 3 || Material (as defined above), but also (1) any information copied or extracted from 4 || Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected 5 || Material; and (3) any testimony, conversations, or presentations by Parties or their 6 |} Counsel that might reveal Protected Material. 7 Any use of Protected Material at trial shall be governed by the orders of the trial 8 judge. This Order does not govern the use of Protected Material at trial. 9 4. DURATION 10 FINAL DISPOSITION of the action is defined as the conclusion of any 11 || appellate proceedings, or, if no appeal is taken, when the time for filing of an appeal 12 |{has run. Except as set forth below, the terms of this protective order apply through 13 || FINAL DISPOSITION of the action. The parties may stipulate that the they will be 14 || contractually bound by the terms of this agreement beyond FINAL DISPOSITION, but 15 || will have to file a separate action for enforcement of the agreement once all 16 || proceedings in this case are complete. 17 Once a case proceeds to trial, information that was designated as 1g ||} CONFIDENTIAL or maintained pursuant to this protective order used or introduced as 19 |{an exhibit at trial becomes public and will be presumptively available to all members 90 || of the public, including the press, unless compelling reasons supported by specific 91 || factual findings to proceed otherwise are made to the trial judge in advance of the trial. 97 See Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause” showing for sealing 93 documents produced in discovery from “compelling reasons” standard when merits- 94 ||related documents are part of court record). Accordingly, for such materials, the terms 95 || of this protective order do not extend beyond the commencement of the trial. 26 DESIGNATING PROTECTED MATERIAL 27 5.1 Exercise of Restraint and Care in Designating Material for Protection. 9g || Each Party or Non-Party that designates information or items for protection under this 1 Order must take care to limit any such designation to specific material that qualifies 2 under the appropriate standards. The Designating Party must designate for protection 3 || only those parts of material, documents, items or oral or written communications that 4 || qualify so that other portions of the material, documents, items or communications for 5 || which protection is not warranted are not swept unjustifiably within the ambit of this 6 || Order. 7 Mass, indiscriminate or routinized designations are prohibited. Designations 8 || that are shown to be clearly unjustified or that have been made for an improper purpose 9 || (e.g., to unnecessarily encumber the case development process or to impose 10 ||unnecessary expenses and burdens on other parties) may expose the Designating Party I1 || to sanctions. 12 If it comes to a Designating Party’s attention that information or items that it 13 || designated for protection do not qualify for protection, that Designating Party must 14 || promptly notify all other Parties that it is withdrawing the inapplicable designation. 15 5.2. Manner and Timing of Designations. Except as otherwise provided in this 16 || Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated 17 || or ordered, Disclosure or Discovery Material that qualifies for protection under this 18 || Order must be clearly so designated before the material is disclosed or produced. 19 Designation in conformity with this Order requires: 20 (a) for information in documentary form (e.g., paper or electronic documents, 21 || but excluding transcripts of depositions or other pretrial or trial proceedings), that the 22 || Producing Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter 23 || “CONFIDENTIAL legend”), to each page that contains protected material. If only a 24 || portion of the material on a page qualifies for protection, the Producing Party also must 25 ||clearly identify the protected portion(s) (e.g., by making appropriate markings in the 26 || margins). 27 A Party or Non-Party that makes original documents available for inspection 28 ||need not designate them for protection until after the inspecting Party has indicated 1 || which documents it would like copied and produced. During the inspection and before 2 || the designation, all of the material made available for inspection shall be deemed 3 ||“CONFIDENTIAL.” After the inspecting Party has identified the documents it wants 4 || copied and produced, the Producing Party must determine which documents, or 5 || portions thereof, qualify for protection under this Order. Then, before producing the 6 || specified documents, the Producing Party must affix the “CONFIDENTIAL legend” to 7 ||each page that contains Protected Material. If only a portion of the material on a page 8 || qualifies for protection, the Producing Party also must clearly identify the protected 9 || portion(s) (e.g., by making appropriate markings in the margins). 10 (b) for testimony given in depositions that the Designating Party identifies the 11 || Disclosure or Discovery Material on the record, before the close of the deposition all 12 || protected testimony. 13 (c) for information produced in some form other than documentary and for any 14 || other tangible items, that the Producing Party affix in a prominent place on the exterior 15 || of the container or containers in which the information is stored the legend 16 ||“CONFIDENTIAL.” If only a portion or portions of the information warrants 17 || protection, the Producing Party, to the extent practicable, shall identify the protected 18 || portion(s). 19 5.3. Inadvertent Failures to Designate. If timely corrected, an inadvertent 20 || failure to designate qualified information or items does not, standing alone, waive the 21 || Designating Party’s right to secure protection under this Order for such material. Upon 22 ||timely correction of a designation, the Receiving Party must make reasonable efforts to 23 assure that the material is treated in accordance with the provisions of this Order. 24 CHALLENGING CONFIDENTIALITY DESIGNATIONS 25 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 26 || designation of confidentiality at any time that is consistent with the Court’s Scheduling 27 || Order. 28 6.2. Meetand Confer. The Challenging Party shall initiate the dispute 1 ||resolution process under Local Rule 37.1 et seq. 2 6.3 The burden of persuasion in any such challenge proceeding shall be on the 3 || Designating Party. Frivolous challenges, and those made for an improper purpose 4 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may 5 expose the Challenging Party to sanctions. Unless the Designating Party has waived or 6 || withdrawn the confidentiality designation, all parties shall continue to afford the 7 ||material in question the level of protection to which it 1s entitled under the Producing 8 || Party’s designation until the Court rules on the challenge. 9 ACCESS TO AND USE OF PROTECTED MATERIAL 10 7.1 Basic Principles. A Receiving Party may use Protected Material that is 11 disclosed or produced by another Party or by a Non-Party in connection with this 12 || Action only for prosecuting, defending or attempting to settle this Action. Such 13 || Protected Material may be disclosed only to the categories of persons and under the 14 ||conditions described in this Order. When the Action has been terminated, a Receiving 15 || Party must comply with the provisions of section 13 below (FINAL DISPOSITION). 16 Protected Material must be stored and maintained by a Receiving Party at a 17 || location and in a secure manner that ensures that access is limited to the persons 18 authorized under this Order. 19 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 20 || otherwise ordered by the court or permitted in writing by the Designating Party, a 21 Receiving Party may disclose any information or item designated “CONFIDENTIAL” 22 || only to: 23 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well as 24 ||employees of said Outside Counsel of Record to whom it is reasonably necessary to 25 || disclose the information for this Action; 26 (b) the officers, directors, and employees (including House Counsel) of the 27 || Receiving Party to whom disclosure is reasonably necessary for this Action; 28 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure I ||is reasonably necessary for this Action and who have signed the “Acknowledgment 2 ||and Agreement to Be Bound” (Exhibit A); 3 (d) the court and its personnel; 4 (e) court reporters and their staff; 5 (f) professional jury or trial consultants, mock jurors, and Professional Vendors 6 ||to whom disclosure is reasonably necessary for this Action and who have signed the 7 ||“Acknowledgment and Agreement to Be Bound” (Exhibit A); 8 (g) the author or recipient of a document containing the information or a 9 || custodian or other person who otherwise possessed or knew the information; 10 (h) during their depositions, witnesses, and attorneys for witnesses, in the 11 || Action to whom disclosure is reasonably necessary provided: (1) the deposing party 12 ||requests that the witness sign the form attached as Exhibit | hereto; and (2) they will 13 ||not be permitted to keep any confidential information unless they sign the 14 ||“Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise agreed 15 || by the Designating Party or ordered by the court. Pages of transcribed deposition 16 || testimony or exhibits to depositions that reveal Protected Material may be separately 17 ||bound by the court reporter and may not be disclosed to anyone except as permitted 18 || under this Stipulated Protective Order; and 19 (1) any mediator or settlement officer, and their supporting personnel, mutually 20 agreed upon by any of the parties engaged in settlement discussions. 21 PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN 22 OTHER LITIGATION 23 If a Party is served with a subpoena or a court order issued in other litigation that 24 ||compels disclosure of any information or items designated in this Action as 25 ||““CONFIDENTIAL,” that Party must: 26 (a) promptly notify in writing the Designating Party. Such notification shall 27 ||include a copy of the subpoena or court order; 28 (b) promptly notify in writing the party who caused the subpoena or order to | issue in the other litigation that some or all of the material covered by the subpoena or 2 || order is subject to this Protective Order. Such notification shall include a copy of this 3 || Stipulated Protective Order; and 4 (c) cooperate with respect to all reasonable procedures sought to be pursued by 5 the Designating Party whose Protected Material may be affected. 6 If the Designating Party timely seeks a protective order, the Party served with 7 ||the subpoena or court order shall not produce any information designated in this action 8 “CONFIDENTIAL” before a determination by the court from which the subpoena 9 || or order issued, unless the Party has obtained the Designating Party’s permission. The 10 || Designating Party shall bear the burden and expense of seeking protection in that court 11 || of its confidential material and nothing in these provisions should be construed as 12 authorizing or encouraging a Receiving Party in this Action to disobey a lawful 13 || directive from another court. 14 A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED 15 IN THIS LITIGATION 16 (a) The terms of this Order are applicable to information produced by a Non- 17 || Party in this Action and designated as “CONFIDENTIAL.” Such information produced 18 || by Non-Parties in connection with this litigation is protected by the remedies and relief 19 || provided by this Order. Nothing in these provisions should be construed as prohibiting 20 ||a Non-Party from seeking additional protections. 21 (b) In the event that a Party is required, by a valid discovery request, to produce 22 Non-Party’s confidential information in its possession, and the Party is subject to an 23 ||agreement with the Non-Party not to produce the Non-Party’s confidential information, 24 then the Party shall: 25 (1) promptly notify in writing the Requesting Party and the Non-Party 26 ||that some or all of the information requested is subject to a confidentiality agreement 27 || with a Non-Party; 28 (2) promptly provide the Non-Party with a copy of the Stipulated 10 | || Protective Order in this Action, the relevant discovery request(s), and a reasonably 2 ||specific description of the information requested; and 3 (3) make the information requested available for inspection by the Non- 4 || Party, if requested. 5 (c) If the Non-Party fails to seek a protective order from this court within 14 6 || days of receiving the notice and accompanying information, the Receiving Party may 7 || produce the Non-Party’s confidential information responsive to the discovery request. 8 the Non-Party timely seeks a protective order, the Receiving Party shall not produce 9 || any information in its possession or control that is subject to the confidentiality 10 ||agreement with the Non-Party before a determination by the court. Absent a court 11 || order to the contrary, the Non-Party shall bear the burden and expense of seeking 12 || protection in this court of its Protected Material. 13 |}10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 14 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 15 || Protected Material to any person or in any circumstance not authorized under this 16 || Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing 17 the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve 18 unauthorized copies of the Protected Material, (c) inform the person or persons to 19 |}whom unauthorized disclosures were made of all the terms of this Order, and (d) 20 ||request such person or persons to execute the “Acknowledgment and Agreement to Be 21 Bound” that is attached hereto as Exhibit A. 22 |}11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 23 PROTECTED MATERIAL 24 When a Producing Party gives notice to Receiving Parties that certain 25 ||inadvertently produced material is subject to a claim of privilege or other protection, 26 obligations of the Receiving Parties are those set forth in Federal Rule of Civil 27 || Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure 28 ||may be established in an e-discovery order that provides for production without prior 11 | || privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the 2 || parties reach an agreement on the effect of disclosure of a communication or 3 ||information covered by the attorney-client privilege or work product protection, the 4 || parties may incorporate their agreement in the stipulated protective order submitted to 5 || the court. 6 |}12. MISCELLANEOUS 7 12.1 Right to Further Relief. Nothing in this Order abridges the right of any 8 || person to seek its modification by the Court in the future. 9 12.2 Right to Assert Other Objections. By stipulating to the entry of this 10 || Protective Order, no Party waives any right it otherwise would have to object to 11 disclosing or producing any information or item on any ground not addressed in this 12 ||Stipulated Protective Order. Similarly, no Party waives any right to object on any 13 || ground to use in evidence of any of the material covered by this Protective Order. 14 12.3 Filing Protected Material. A Party that seeks to file under seal any 15 || Protected Material must comply with Local Civil Rule 79-5. Protected Material may 16 || only be filed under seal pursuant to a court order authorizing the sealing of the specific 17 || Protected Material at issue. Ifa Party’s request to file Protected Material under seal is 18 || denied by the court, then the Receiving Party may file the information in the public 19 record unless otherwise instructed by the court. 20 ||}13. FINAL DISPOSITION 21 After the final disposition of this Action, as defined in paragraph 4, within 60 22 days of a written request by the Designating Party, each Receiving Party must return 23 Protected Material to the Producing Party, destroy such material or store the 24 || material in accordance with regulatory requirements. As used in this subdivision, “all 25 || Protected Material” includes all copies, abstracts, compilations, summaries, and any 26 || other format reproducing or capturing any of the Protected Material. Whether the 27 Protected Material is returned, destroyed or stored in accordance with regulatory 28 ||requirements, the Receiving Party must submit a written certification to the Producing 12 | || Party (and, if not the same person or entity, to the Designating Party) by the 60 day 2 || deadline that (1) identifies (by category, where appropriate) all the Protected Material 3 || that was returned, destroyed or stored in accordance with regulatory requirements and 4 || (2) affirms that the Receiving Party has not retained any copies, abstracts, 5 compilations, summaries or any other format reproducing or capturing any of the 6 || Protected Material (except as required by regulation). Notwithstanding this provision, 7 Counsel are entitled to retain an archival copy of all pleadings, motion papers, trial, 8 || deposition, and hearing transcripts, legal memoranda, correspondence, deposition and 9 || trial exhibits, expert reports, attorney work product, and consultant and expert work 10 || product, even if such materials contain Protected Material. Any such archival copies 11 |) that contain or constitute Protected Material remain subject to this Protective Order as 12 □□□ forth in Section 4 (DURATION). 13 ||}14. VIOLATION 14 Any violation of this Order may be punished by appropriate measures including, 15 || without limitation, contempt proceedings and/or monetary sanctions. 16 |}15. NON-WAIVER OF PRIVILEGE THROUGH PRODUCTION OF INVOICES 17 In this action, Skechers anticipates producing invoices for defense fees and costs 18 || (the “Invoices” incurred in connection with the underlying lawsuit entitled adidas 19 || America, Inc. et al. v. Skechers USA, Inc., United States District Court for the District 20 Oregon Case No. 3:15-cv-01741-HZ (the “adidas Action’). National Union agrees, 21 the Court orders, that production of the Invoices shall not constitute a waiver of (1) 22 ||the attorney-client privilege, the attorney work product doctrine, or any other privilege 23 || between Skechers and its attorneys with respect to the adidas Action other than with 24 respect to the specific written content of the Invoices themselves and/or (2) the 25 || attorney-client privilege, the attorney work product doctrine, or any other privilege 26 || between Skechers and its attorney with respect to any third party (including but not 27 || limited to the plaintiffs in the adidas Action). However, National Union reserves the 28 right to assert that any other act by Skechers (including but not limited to the filing of 13 1 || this action) constitutes a waiver of privilege. National Union agrees that the Invoices 2 || constitute “Protected Material” and that such Invoices may only be filed in this Action 3 || under seal pursuant to the terms and conditions set forth herein. 4 ||16. APPLICATION OF PROTECTIVE ORDER FROM ADIDAS ACTION 5 All documents designated as “Confidential” and/or “Attorneys’ Eyes Only” 6 || pursuant to the protective order entered in the adidas Action—a true and correct copy 7 which is attached hereto as Exhibit B—shall automatically constitute “Protected 8 || Material” under the meaning of this Stipulated Protective Order without the necessity 9 || of re-designation in this Action. Prior to receiving any documents designated as 10 “Confidential” and/or “Attorneys’ Eyes Only” pursuant to the protective order entered 11 |/in the adidas Action—and as a condition of receiving such documents—counsel for the 12 || Parties agree to execute and exchange copies of “Exhibit A” to the protective order in 13 || the adidas Action. 14 15 ||} FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 16 17 || DATED: September 3, 2019 18 19 20 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 14 I EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 4 I, [print or type full name], of 5 [print or type full address], declare under penalty of perjury that I 6 || have read in its entirety and understand the Stipulated Protective Order that was issued 7 the United States District Court for the Central District of California on [date] in the 8 ||case of Skechers USA, Inc. v. National Union Fire Insurance Company of Pittsburgh, 9 || Pa., United States District Court for the Central District of California Case No. 2:19- 10 ||cv-04957-ODW-GJS. I agree to comply with and to be bound by all the terms of this 11 || Stipulated Protective Order and I understand and acknowledge that failure to so 12 ||comply could expose me to sanctions and punishment in the nature of contempt. I 13 ||solemnly promise that I will not disclose in any manner any information or item that is 14 || subject to this Stipulated Protective Order to any person or entity except in strict 15 compliance with the provisions of this Order. 16 I further agree to submit to the jurisdiction of the United States District Court for 17 the Central District of California for enforcing the terms of this Stipulated Protective 18 || Order, even if such enforcement proceedings occur after termination of this action. I 19 || hereby appoint [print or type full name] of 20 [print or type full address and 21 ||telephone number] as my California agent for service of process in connection with 22 ||this action or any proceedings related to enforcement of this Stipulated Protective 23 || Order. 24 || Date: 25 City and State where sworn and signed: 26 || Printed name: 27 || Signature: 28 1 2 3 4 5 6 7 8 9 10 11 12 13 i EXHIBIT B 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Stephen M. Feldman, OSB No. 932674 SFeldman@perkinscoie.com PERKINS COIE LLP 1120 NW Couch Street, Tenth Floor Portiand, OR 97209-4128 Telephone: 503.727.2000 Facsimile: 503.737.2222 Mitchell G. Stockwell (admitted pro hac vice) mstockwell@kilpatricktownsend.com KILPATRICK TOWNSEND & STOCKTON LLP 1100 Peachtree Street, Suite 2800 Atlanta, GA 30309 Telephone: 404.815,6500 Facsimile: 404,815.6555 Matias Ferrario (admitted pro hac vice) mferrario@kilpatricktownsend.com Michael T. Morlock (admitted pro hac vice) mmorlock@kilpatricktownsend.com KILPATRICK TOWNSEND & STOCKTON LLP 1001 West Fourth Street Winston-Salem, NC 27101-2400 Telephone: 336.607.7300 Facsimile: 336.607.7500 Attorneys for Plaintiffs UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION ADIDAS AMERICA, INC.,, a Delaware No. 3:16-cv-01400-AC corporation; and ADIDAS AG, a foreign enury, STIPULATED PROTECTIVE ORDER Plaintiffs, Vv. SKECHERS USA, INC., a Delaware corporation, Defendant. Perkins Coie tir 1- STIPULATED PROTECTIVE ORDER 1120 NW Couch Street, Tenth Floor 21184-O8 £7/132487689. 1 Portland, OR 97209-4128 Phone: 503.727.2222 Fax! 503.727.2222 The parties have requested the production of documents or information that at feast one party considers to be or to contain confidential information, and that are subject to protection under Federal Rule of Civil Procedure 26(c). The parties agree that good cause exists to protect the confidential nature of the information contained in documents, interrogatory responses, responses to requests for admission, or deposition testimony. This action concerns corporate entities that directly compete in the marketplace and, therefore, the parties expect to exchange and disclose documents and information related to their finances, business strategies, and other confidential business information, including information of a highly sensitive nature. The parties agree that the entry of this Stipulated Protective Order (the “Protective Order”) is warranted to protect against public disclosure of such documents and information. Based upon the stipulation of the parties, and the Court being duly advised, IT IS HEREBY ORDERED as follows: 1. All documents, testimony, and other materials produced by the parties in this case and labeled “Confidential” or “Attorneys’ Eyes Only” shall only be used in this proceeding. 2, Use of any information or documents labeled “Confidential” or “Attorneys’ Eyes Only” and subject to this Protective Order, including all information derived therefrom, shall be restricted solely to the litigation of this case and shall not be used by any party for any business, commercial, or competitive purpose, This Protective Order, however, does not restrict the disclosure or use of any information or documents lawfully obtained by the receiving party through means or sources outside of this litigation. Should a dispute arise as to any specific information or document, the burden shall be on the party claiming that such information or documents was lawfully obtained through means or sources outside of this litigation. 3. The parties, and third parties subpoenaed by one of the parties, may designate as “Confidential” or ‘Attorneys’ Eyes Only” documents, testimony, written responses, or other materials produced in this case if they contain information that the producing party has a good faith basis for asserting is confidential under the applicable legal standards. The party shall Perkins Coie Lip 2+ STIPULATED PROTECTIVE ORDER 1120 NW Couch Street, Tenth Floor 21184-0117/132487689. 1 Portland, OR 97209-4128 Phone: 503.727.2222 _ Fax: 503.727.2222 designate each page of the document with a stamp identifying it as “Confidential” or “Attorneys” Eyes Only,” if practical to do so. 4, If portions of documents or other materials deemed “Confidential” or “Attorneys” Eyes Only” or any papers containing or making reference to such materials are filed with the Court, they shall be filed under seal and marked as follows or in substantially similar form: CONFIDENTIAL IN ACCORDANCE WITH A PROTECTIVE ORDER, THE ENCLOSURE(S) SHALL BE TREATED AS CONFIDENTIAL AND SHALL NOT BE SHOWN TO ANY PERSON OTHER THAN THOSE PERSONS DESIGNATED IN PARAGRAPH 7 OF THE PROTECTIVE ORDER. or ATTORNEYS’ EYES ONLY IN ACCORDANCE WITH A PROTECTIVE ORDER, THE ENCLOSURE(S) SHALL BE TREATED AS FOR ATTORNEYS’ EYES ONLY AND SHALL NOT BE SHOWN TO ANY PERSON OTHER THAN THOSE PERSONS DESIGNATED IN PARAGRAPH 8 OF THE PROTECTIVE ORDER. If'a party is filing a document that it has itself designated as “Confidential” or “Attorneys’ Eyes Only,” that party shall reference this Stipulated Protective Order in submitting the documents it proposes to maintain under seal, If a non-designating party is filing a document that another party has designated as “Confidential” or “Attorneys’ Eyes Only,” then the non-designating party shall file the document under seal. Ifthe non-designating party makes a request in writing to have the document unsealed and designating party does not file, within ten calendar days, a motion that shows good cause to maintain the document under seal, then the Court shall unseal the document. Before seeking to maintain the protection of documents filed with the Court, a party must assess whether redaction is a viable alternative to complete nondisclosure. 3: Parties or third-parties providing testimony may designate transcripts, or portions of transcripts, as “Confidential” or “Attorneys’ Eyes Only” by indicating the appropriate designation on the record before the close of the deposition, hearing or other proceeding, or if no Perkins Coie Lup 3- STIPULATED PROTECTIVE ORDER 1120 NW Couch Street, Tenth Floor 21184-0117/132487689.1 Portland, OR 97209-4128 Phone: 503.727.2222 Fax: 503.727.2222 designation is made on the record, within thirty (30) days after receipt of the final transcript of any deposition, hearing or other proceeding, a party or the witness may designate as “Confidential” or “Attorneys? Eyes Only” any portion of the transcript that the party or witness contends discloses confidential information. Ifa transcript containing any such material is filed with the Court, it shall be filed under seal and marked in the manner described in paragraph 4. Unless otherwise agreed on the record or in writing, all deposition transcripts will be treated as “Confidential” until the expiration of the thirty (30) day period. 6, “Confidential” or “Attorneys’ Eyes Only” information and documents subject to this Protective Order shail not be filed with the Court or included in whole or in part in pleadings, motions, briefs, etc., filed in this case, except when any portion(s) of such pleadings, motions, briefs, etc. have been filed under seal by counsel and marked in the same manner as described in paragraph 4 above. Such sealed portion(s) of pleadings, motions, briefs, documents, etc., shall be opened only by the Court or by personnel authorized to do so by the Court, 7. Use of any information, documents, or portions of documents marked “Confidential,” including all information derived therefrom, shall be restricted solely to the following persons, who agree to be bound by the terms of this Protective Order, unless additional persons are stipulated by counsel or authorized by the Court: a. Outside counsel of record for the parties, and the administrative staff of outside counsel’s firms. b. In-house counsel for the parties who are responsible for this action and the administrative staff for each in-house counsel. c. Any employee, director, officer, or manager of any party to this action who is called to testify at a deposition, hearing, or trial and up to five non- testifying employees, directors, officers, or managers of any party, but only to the extent necessary to further the interest of the parties in this litigation. d. Independent consultants or expert witnesses (including partners, associates, and employees of the firm which employs such consultant or expert) retained by a party or its attorneys for purposes of this litigation, but only to the extent necessary to further the interest of the parties in this litigation. Perkins Coie LLP 4- STIPULATED PROTECTIVE ORDER 1120 NW Couch Street, ‘Tenth Floor 21184-0117/132487689,1 Portland, OR 97209-4128 Phone: 503.727.2222 Pax: 503.727.2222 The Court and its personnel, including, but not limited to, stenographic reporters regularly employed by the Court and stenographic reporters not regularly employed by the Court who are engaged by the Court or the parties during the litigation of this action, f The authors and the original recipients of the documents. g. Any court reporter or videographer reporting a deposition. hy Professionai litigation support vendors, including but not limited to copy services, microfilming, or database services, trial support firms and/or translators who are engaged by the parties during the litigation of this action, i. Mock jurors hired by trial consultants in connection with this litigation, provided: (1) they are not affiliated with any party to this case or their direct competitors; (2) they agree in writing to be bound by contidentiality; and (3) they are not themselves given custody of any protected materials, nor permitted to remove any presentations, questionnaires or notes taken during the exercise from any room in which the research is conducted. f. While testifying at a deposition, hearing, or trial in this action: (i) any current or former officer, director or employee of the producing party or original source of the information; (ii) any person designated by the producing party to provide testimony pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure; or (iii) any person who authored, previously received or was directly involved in the specific matter(s) addressed in the protected material, as evident from its face or reasonably certain in view of other testimony or evidence. 8. Use of any information, documents, or portions of documents marked “Attorneys” Eyes Only,” including all information derived therefrom, shall be restricted solely to the persons listed in paragraphs 7(a), 7(b), 7(d), 7(e), 7(f), 7(g), 7(h), 7(), and 7(j) unless additional persons are stipulated by counsel or authorized by the Court. 9, Prior to being shown any documents produced by another party marked “Confidential” any person listed under paragraph 7(c) or 7(d) shall agree to be bound by the terms of this Order by signing the agreement attached as Exhibit A to this Protective Order, which shall be retained by the signing party’s outside counsel of record in this action. 10. Prior to disclosing any documents produced by another party marked “Attorneys’ Eyes Only” to any person listed under paragraph 7(d), the party seeking to disclose such Perkins Coie Lup 5- STIPULATED PROTECTIVE ORDER . 1120 NW Couch Street, Tenth Floor 21184-0117/132487689.1 Portland, OR 97209-4128 ' Phone: 303.727.2222 Fax: 503.727.2222 information shall provide written notice to any party to this action that produced “Attorneys” Eyes Only,” material. The written notice shall include: (i) the name of the person; (ii) the present employer and title of the person; (iii) an up-to-date curriculum vitae; (iv) a list of current and past consulting relationships undertaken within the last four (4) years; (v) a list of all pending foreign or domestic patent applications, whether published or unpublished, with which the person has any substantive involvement, to be protected on a “Attorneys” Eyes Only” basis; and (vi) a signed copy of the person’s agreement to be bound by protective order, attached as Exhibit A to this Protective Order. Within three (3) business days of receiving this information, the party who produced the “Attorneys’ Eyes Only” material may object in writing to its disclosure to the proposed expert or consultant for good cause. The objection cannot be unreasonable. In the absence of any objection at the end of the three (3) business day period, the expert or consultant shall be deemed approved under this Protective Order. If an objection is made, the parties shall meet and confer within three (3) business days after the objection and attempt in good faith to resolve the dispute informally. If the dispute is not resolved, the party objecting to the disclosure will have three (3) business days from the date of the meet and confer to seek relief from the Court. Ifreliefis not sought from the Court within that time, the objection shall be deemed withdrawn, If relief is sought, the “Attorneys’ Eyes Only” material shall not be disclosed to the expert or consultant until the objection is resolved by the Court. In the event that an objection is made to a person listed under paragraph 7(d) after that person has already been authorized to receive Attorneys’ Eyes Only information pursuant to this paragraph, that person will continue to have access to such information until the dispute is resolved by the parties or the Court. 11. Whenever information designated as “Confidential” or “Attorneys’ Eyes Only” pursuant to this Protective Order is to be discussed by a party or disclosed in a deposition, hearing, or pre-trial proceeding, the designating party may exclude from the room any person, other than persons designated in Paragraphs 7 and 8, as appropriate, for that portion of the deposition, hearing, or pre-trial proceeding. Perkins Coie Eup 6- STIPULATED PROTECTIVE ORDER 1120 NW Couch Street, Tenth Floor 21184-0117/132487689.1 Portland, OR 97209-4128 Phone: 503.727.2222 Fax: 503.727,2222 12, Each party reserves the right to dispute the confidential status claimed by any other party or subpoenaed party in accordance with this Protective Order. If a party believes that any documents or materials have been inappropriately designated by another party or subpoenaed party, that party shall confer with counse! for the designating party. As part of that conferral, the designating party must assess whether redaction is a viable alternative to complete non-disclosure. If the parties are unable to resolve the matter informally, a party may file an appropriate motion before the Court requesting that the Court determine whether the Protective Order covers the document in dispute. Regardless of which party files the motion, the party secking to protect a document from disclosure bears the burden of establishing good cause for why the document should not be disclosed. A party who disagrees with another party’s designation must nevertheless abide by that designation until the matter is resolved by agreement of the parties or by order of the Court. 13. The inadvertent failure to designate a document, testimony, or other material as “Confidential” or “Attorneys’ Eyes Only” prior to disclosure shall not operate as a waiver of the party’s right to later designate the document, testimony, or other material as “Confidential” or “Attorneys” Eyes Only.” The receiving party or its counsel shall not disclose such documents or materials if that party or counsel knows or reasonably should know that a claim of confidentiality would be made by the producing party. Promptly after receiving notice from the producing party ofa claim of confidentiality, the receiving party or its counsel shall inform the producing party of all pertinent facts relating to the prior disclosure of the newly-designated documents or materials, and shall make reasonable efforts to retrieve such documents and materials and to prevent further disclosure. 14. Designation by either party of information or documents as “Confidential” or “Attorneys’ Eyes Only,” or failure to so designate, will not constitute an admission that information or documents are or are not confidential or trade secrets. Neither party may introduce into evidence in any proceeding between the parties, other than a motion to determine whether the Protective Order covers the information or documents in dispute, the fact that the Perkins Coie Lip 7- STIPULATED PROTECTIVE ORDER. 1120 NW Couch Street, Tenth Floor £84-0117/132487689. 1 Portland, OR 97209-4128 Phone: 503.727.2222 Fax: 503.727.2222 12, Each party reserves the right to dispute the confidential status claimed by any other party or subpoenaed party in accordance with this Protective Order. If a party believes that any documents or materials have been inappropriately designated by another party or subpoenaed party, that party shall confer with counse! for the designating party. As part of that conferral, the designating party must assess whether redaction is a viable alternative to complete non-disclosure. If the parties are unable to resolve the matter informally, a party may file an appropriate motion before the Court requesting that the Court determine whether the Protective Order covers the document in dispute. Regardless of which party files the motion, the party secking to protect a document from disclosure bears the burden of establishing good cause for why the document should not be disclosed. A party who disagrees with another party’s designation must nevertheless abide by that designation until the matter is resolved by agreement of the parties or by order of the Court. 13. The inadvertent failure to designate a document, testimony, or other material as “Confidential” or “Attorneys’ Eyes Only” prior to disclosure shall not operate as a waiver of the party’s right to later designate the document, testimony, or other material as “Confidential” or “Attorneys” Eyes Only.” The receiving party or its counsel shall not disclose such documents or materials if that party or counsel knows or reasonably should know that a claim of confidentiality would be made by the producing party. Promptly after receiving notice from the producing party ofa claim of confidentiality, the receiving party or its counsel shall inform the producing party of all pertinent facts relating to the prior disclosure of the newly-designated documents or materials, and shall make reasonable efforts to retrieve such documents and materials and to prevent further disclosure. 14. Designation by either party of information or documents as “Confidential” or “Attorneys’ Eyes Only,” or failure to so designate, will not constitute an admission that information or documents are or are not confidential or trade secrets. Neither party may introduce into evidence in any proceeding between the parties, other than a motion to determine whether the Protective Order covers the information or documents in dispute, the fact that the Perkins Coie Lip 7- STIPULATED PROTECTIVE ORDER. 1120 NW Couch Street, Tenth Floor £84-0117/132487689. 1 Portland, OR 97209-4128 Phone: 503.727.2222 Fax: 503.727.2222 other party designated or failed to designate information or documents as “Confidential” or “Attorneys” Eyes Only.” 15. | Upon the request of the producing party or third party, within thirty (30) days after the entry of a final judgment no longer subject to appeal on the merits of this case, or the execution of any agreement between the parties to resolve amicably and settle this case, the parties and any person authorized by this Protective Order to receive confidential information shall return to the producing party or third party, or destroy, all information and documents subject to this Protective Order. Returned materials shall be delivered in sealed envelopes marked “Confidential” to respective counsel. The party requesting the return of materials shall pay the reasonable costs of responding to its request. Notwithstanding the foregoing, counsel for a party may retain archival copies of confidential documents. 16. The inadvertent production of document(s) or other material subject to the attorney-client privilege, work product doctrine or any other privilege or immunity does not constitute a waiver. Promptly upon learning of the inadvertent disclosure, however, the producing party must notify the receiving party of the inadvertent production and request return of the documents. The receiving party must promptly return or confirm destruction of all copies of such materials; but doing so shall not preclude the receiving party from seeking to compel production of those materials, nor constitute an admission that the materials were, in fact, privileged, and the producing party must preserve any such documents. Any motion to compel cannot rely on the inadvertent production. Pursuant to Fed, R, Evid. 502(d), the Court orders that □ the protections of this provision also extend to any other Federal or State proceeding, 17. This Protective Order shall not constitute a waiver of any party’s or non-party’s right to oppose any discovery request or object to the admissibility of any document, testimony or other information. 18. A third-party’s use of this Protective Order does not entitle that third-party access to any “Confidential” or “Attorneys’ Eyes Only” material produced by any party in this case. Perkins Coie LLP STIPULATED PROTECTIVE ORDER 1120 NW Couch Street, Tenth Floor 21184-0117/132487689.1 Portland, OR 97209-4128 Phone: 503,727,2222 Fax: 303,727,2222 19. | Nothing in this Protective Order shall prejudice any party from seeking amendments to expand or restrict the rights of access to and use of confidential information, or other modifications, subject to order by the Court. 20.‘ The restrictions on disclosure and use of confidential information shall survive the conclusion of this action, and this Court shall retain jurisdiction of this action after its conclusion for the purpose of enforcing the terms of this Protective Order. 21, This Protective Order shall become effective as a stipulation between the parties immediately upon the filing of the motion to enter protective order, notwithstanding the pendency of approval by the Court, and the parties shall treat any protected materials produced before Court approval as provided herein. So stipulated: PERKINS COIE LLP LANE POWELL PC By:___/s/ Stephen M. Feldman By:___/s/ Parna A. Mehrbani Stephen M. Feldman, OSB No. 932674 Kenneth R. Davis II, OSB No. 971132 SFeldman@perkinscoie.com □ davisk@lanepowell.com 1120 N.W, Couch Street, Tenth Floor Parna A. Mehrbani, OSB No. 053235 Portland, OR 97209-4128 mehrbanip@lanepowell.com Telephone: 503.727.2000 601 SW Second Avenue, Suite 2100 Portland, OR 97204-3158 Mitchell G. Stockwell (admitted pro hac vice) Telephone: 503.778.2121 mstockwell@kilpatricktownsend.com KILPATRICK TOWNSEND & STOCKTON LLP Mark A. Samuels (admitted pro hac vice} 1100 Peachtree Street, Suite 2800 msamuels@omm.com Atlanta, GA 30309 Brian M. Berliner (admitted pro hac vice) Telephone: 404.815.6500 bberliner@omm.com Andrea LaFountain (admitted pro hac vice) Matias Ferrario (admitted pro hac vice) alafountain@omm.com mferrario@kilpatricktownsend.com Cameron W. Westin (admitted pro hac vice) Michael T, Morlock (admitted pro hae vice) cwestin@omm.com mmorlock@kilpatricktownsend.com O’MELVENY & MYERS LLP KILPATRICK TOWNSEND & STOCKTON LLP South Hope Street - 18th Floor 1001 West Fourth Street Los Angeles, CA 90071-2899 Winston-Salem, NC 27101-2400 Telephone: 213.430.7424 Telephone: 336,607,7300 Att for Defendant Attorneys for Plaintiffs aes Sher aeeSEED Perkins Coie Lie 9- STIPULATED PROTECTIVE ORDER 1120 NW Couch Street, Tenth Floor 21184-01177132487689.1 Portland, OR 97209-4128 Phone: 503,727,2222 Fax: 503.727.2222 The Court has reviewed the reasons offered in support of entry of this Stipulated Protective Order and finds that there is good cause to protect the confidential nature of certain information, Accordingly, the Court adopts the above Stipulated Protective Order in this action. ITIS SO ORDERED. \ DATED: di aut Kon , 2016. □ f oo A 7 a PN MK , Nef 7 ss United States Magistrate Judge □□ Perkins Coie LLP 10- STIPULATED PROTECTIVE ORDER 1120 NW Couch Street, Tenth Floor 21184-0117/132487689. 1 Portland, OR 97209-4128 Phone: 503.727.2222 Fax: 503,727,2222 EXHIBIT A i , have been advised by counsel of record for in of the protective order governing the delivery, publication, and disclosure of confidential documents and information produced in this litigation. I have read a copy of the protective order and agree to abide by its terms. Signed Printed Name Date Perkins Coie Lup 11- STIPULATED PROTECTIVE ORDER 1120 NW Couch Street, Tenth Floor 21184-0117/132487689.1 Portland, OR 97209-4128 Phone: 503.727.2222 Fax: 503.727.2222