Tacori Enterprises v. S. Kashi and Sons ( 2019 )

2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 TACORI ENTERPRISES, Case No. 2:18-cv-09921-R-AFM 11 Plaintiff, [PROPOSED] STIPULATED PROTECTIVE ORDER1 12 v. DISCOVERY MATTER 13 S. KASHI & SONS, 14 Defendant. Alexander F. MacKinnon 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 This Stipulated Protective Order is based substantially on the model protective order provided under Magistrate Judge Alexander F. MacKinnon’s Procedures. 2 Discovery in this action is likely to involve production of confidential, proprietary 3 or private information for which special protection from public disclosure and from use for 4 any purpose other than prosecuting this litigation may be warranted. Accordingly, the 5 parties hereby stipulate to and petition the Court to enter the following Stipulated Protective 6 Order. The parties acknowledge that this Order does not confer blanket protections on all 7 disclosures or responses to discovery and that the protection it affords from public 8 disclosure and use extends only to the limited information or items that are entitled to 9 confidential treatment under the applicable legal principles. 10 B. GOOD CAUSE STATEMENT 11 This copyright infringement action is likely to involve confidential information, 12 including trade secrets, customer and pricing lists and other valuable research, 13 development, commercial, financial, technical and/or proprietary information for which 14 special protection from public disclosure and from use for any purpose other than 15 prosecution of this action is warranted. Such confidential and proprietary materials and 16 information consist of, among other things, confidential business or financial information, 17 including customer pricing lists, customer information, supplier information, forward 18 looking business plans, and profit and loss statements. 19 This action may also potentially involve information regarding confidential business 20 practices, or other confidential research, development, or commercial information 21 (including information implicating privacy rights of third parties), information otherwise 22 generally unavailable to the public, or which may be privileged or otherwise protected from 23 disclosure under state or federal statutes, court rules, case decisions, or common law. 24 Accordingly, to expedite the flow of information, to facilitate the prompt resolution 25 of disputes over confidentiality of discovery materials, to adequately protect information 26 the parties are entitled to keep confidential, to ensure that the parties are permitted 27 reasonable necessary uses of such material in preparation for and in the conduct of trial, to 28 address their handling at the end of the litigation, and serve the ends of justice, a protective 2 intent of the parties that information will not be designated as confidential for tactical 3 reasons and that nothing be so designated without a good faith belief that it has been 4 maintained in a confidential, non-public manner, and there is good cause why it should not 5 be part of the public record of this case. 6 C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL 7 The parties further acknowledge, as set forth in Section 12.3, below, that this 8 Stipulated Protective Order does not entitle them to file confidential information under 9 seal; Local Civil Rule 79-5 sets forth the procedures that must be followed and the 10 standards that will be applied when a party seeks permission from the court to file material 11 under seal. 12 There is a strong presumption that the public has a right of access to judicial 13 proceedings and records in civil cases. In connection with non-dispositive motions, good 14 cause must be shown to support a filing under seal. See Kamakana v. City and County of 15 Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors Corp., 307 F.3d 16 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics, Inc., 187 F.R.D. 576, 577 17 (E.D. Wis. 1999) (even stipulated protective orders require good cause showing), and a 18 specific showing of good cause or compelling reasons with proper evidentiary support and 19 legal justification, must be made with respect to Protected Material that a party seeks to 20 file under seal. The parties’ mere designation of Disclosure or Discovery Material as 21 CONFIDENTIAL or HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY does 22 not—without the submission of competent evidence by declaration, establishing that the 23 material sought to be filed under seal qualifies as confidential, privileged, or otherwise 24 protectable—constitute good cause. 25 Further, if a party requests sealing related to a dispositive motion or trial, then 26 compelling reasons, not only good cause, for the sealing must be shown, and the relief 27 sought shall be narrowly tailored to serve the specific interest to be protected. See Pintos 28 v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). For each item or type of 2 with a dispositive motion or trial, the party seeking protection must articulate compelling 3 reasons, supported by specific facts and legal justification, for the requested sealing order. 4 Again, competent evidence supporting the application to file documents under seal must 5 be provided by declaration. 6 Any document that is not confidential, privileged, or otherwise protectable in its 7 entirety will not be filed under seal if the confidential portions can be redacted. If 8 documents can be redacted, then a redacted version for public viewing, omitting only the 9 confidential, privileged, or otherwise protectable portions of the document, shall be filed. 10 Any application that seeks to file documents under seal in their entirety should include an 11 explanation of why redaction is not feasible. 12 2. DEFINITIONS 13 2.1 Action: this pending federal lawsuit. 14 2.2 Challenging Party: a Party or Non-Party that challenges the designation 15 of information or items under this Order. 16 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 17 how it is generated, stored or maintained) or tangible things that qualify for protection 18 under Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause 19 Statement. 20 2.4 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” 21 Information of Items: information (regardless of how it is generated, stored or maintained) 22 or tangible things that qualify for protection under Federal Rule of Civil Procedure 26(c), 23 and as specified above in the Good Cause Statement, and the disclosure of which would 24 put the Producing Party at a competitive disadvantage. 25 2.5 Counsel: Outside Counsel of Record and House Counsel (as well as 26 their support staff). 27 2.6 Designating Party: a Party or Non-Party that designates information or 28 items that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 2 of the medium or manner in which it is generated, stored, or maintained (including, among 3 other things, testimony, transcripts, and tangible things), that are produced or generated in 4 disclosures or responses to discovery in this matter. 5 2.8 Expert: a person with specialized knowledge or experience in a matter 6 pertinent to the litigation who has been retained by a Party or its counsel to serve as an 7 expert witness or as a consultant in this Action. 8 2.9 House Counsel: attorneys who are employees of a party to this Action. 9 House Counsel does not include Outside Counsel of Record or any other outside counsel. 10 2.10 Non-Party: any natural person, partnership, corporation, association or 11 other legal entity not named as a Party to this action. 12 2.11 Outside Counsel of Record: attorneys who are not employees of a party 13 to this Action but are retained to represent or advise a party to this Action and have 14 appeared in this Action on behalf of that party or are affiliated with a law firm that has 15 appeared on behalf of that party, and includes support staff. 16 2.12 Party: any party to this Action, including all of its officers, directors, 17 employees, consultants, retained experts, and Outside Counsel of Record (and their support 18 staffs). 19 2.13 Producing Party: a Party or Non-Party that produces Disclosure or 20 Discovery Material in this Action. 21 2.14 Professional Vendors: persons or entities that provide litigation support 22 services (e.g., photocopying, videotaping, translating, preparing exhibits or 23 demonstrations, and organizing, storing, or retrieving data in any form or medium) and 24 their employees and subcontractors. 25 2.15 Protected Material: any Disclosure or Discovery Material that is 26 designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ 27 EYES ONLY.” 28 2.16 Receiving Party: a Party that receives Disclosure or Discovery Material 2 3. SCOPE 3 The protections conferred by this Stipulated Protective Order cover not only 4 Protected Material (as defined above), but also (1) any information copied or extracted 5 from Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected 6 Material; and (3) any testimony, conversations, or presentations by Parties or their Counsel 7 that might reveal Protected Material. 8 Any use of Protected Material at trial shall be governed by the orders of the trial 9 judge. This Order does not govern the use of Protected Material at trial. 10 4. DURATION 11 Once a case proceeds to trial, information that (1) was designated as Protected 12 Material or maintained pursuant to this protective order and (2) used or introduced as an 13 exhibit at trial becomes public and will be presumptively available to all members of the 14 public, including the press, unless compelling reasons supported by specific factual 15 findings to proceed otherwise are made to the trial judge in advance of the trial. See 16 Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause” showing for sealing 17 documents produced in discovery from “compelling reasons” standard when merits-related 18 documents are part of court record). Accordingly, the terms of this protective order do not 19 extend beyond the commencement of the trial, for items introduced into the public record 20 at trial. 21 Even after final disposition of this litigation, the confidentiality obligations imposed 22 by this Order shall remain in effect until a Designating Party agrees otherwise in writing 23 or a court order otherwise directs. Final disposition shall be deemed to be the later of (1) 24 dismissal of all claims and defenses in this action, with or without prejudice; and (2) final 25 judgment herein after the completion and exhaustion of all appeals, rehearings, remands, 26 trials, or reviews of this action, including the time limits for filing any motions or 27 applications for extension of time pursuant to applicable law. 28 2 5.1 Exercise of Restraint and Care in Designating Material for Protection. 3 Each Party or Non-Party that designates information or items for protection under this 4 Order must take care to limit any such designation to specific material that qualifies under 5 the appropriate standards. The Designating Party must designate for protection only those 6 parts of material, documents, items or oral or written communications that qualify so that 7 other portions of the material, documents, items or communications for which protection 8 is not warranted are not swept unjustifiably within the ambit of this Order. 9 Mass, indiscriminate or routinized designations are prohibited. Designations that are 10 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 11 unnecessarily encumber the case development process or to impose unnecessary expenses 12 and burdens on other parties) may expose the Designating Party to sanctions. 13 If it comes to a Designating Party’s attention that information or items that it 14 designated for protection do not qualify for protection, that Designating Party must 15 promptly notify all other Parties that it is withdrawing the inapplicable designation. 16 5.2 Manner and Timing of Designations. 17 Except as otherwise provided in this Order (see, e.g., second paragraph of section 18 5.2(a) below), or as otherwise stipulated or ordered, Disclosure or Discovery Material that 19 qualifies for protection under this Order must be clearly so designated before the material 20 is disclosed or produced. 21 Designation in conformity with this Order requires: 22 (a) for information in documentary form (e.g., paper or electronic 23 documents, but excluding transcripts of depositions or other pretrial or trial proceedings), 24 that the Producing Party affix at a minimum, the legend “CONFIDENTIAL” or “HIGHLY 25 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” (hereinafter “CONFIDENTIAL 26 legend”), to each page that contains protected material. If only a portion of the material on 27 a page qualifies for protection, the Producing Party also must clearly identify the protected 28 portion(s) (e.g., by making appropriate markings in the margins). 2 need not designate them for protection until after the inspecting Party has indicated which 3 documents it would like copied and produced. During the inspection and before the 4 designation, all of the material made available for inspection shall be deemed “HIGHLY 5 CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” After the inspecting Party has 6 identified the documents it wants copied and produced, the Producing Party must determine 7 which documents, or portions thereof, qualify for protection under this Order. Then, before 8 producing the specified documents, the Producing Party must affix the appropriate 9 “CONFIDENTIAL legend” to each page that contains Protected Material. If only a portion 10 of the material on a page qualifies for protection, the Producing Party also must clearly 11 identify the protected portion(s) (e.g., by making appropriate markings in the margins). 12 (b) for testimony given in depositions that the Designating Party identifies 13 the Disclosure or Discovery Material on the record, before the close of the deposition all 14 protected testimony. 15 (c) for information produced in some form other than documentary and for 16 any other tangible items, that the Producing Party affix in a prominent place on the exterior 17 of the container or containers in which the information is stored the appropriate 18 “CONFIDENTIAL legend.” If only a portion or portions of the information warrants 19 protection, the Producing Party, to the extent practicable, shall identify the protected 20 portion(s). 21 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure 22 to designate qualified information or items does not, standing alone, waive the Designating 23 Party’s right to secure protection under this Order for such material. Upon timely correction 24 of a designation, the Receiving Party must make reasonable efforts to assure that the 25 material is treated in accordance with the provisions of this Order. 26 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 27 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation 28 of confidentiality at any time that is consistent with the Court’s Scheduling Order. 2 process under Local Rule 37-1, et seq. 3 6.3 Joint Stipulation. Any challenge submitted to the Court shall be via a joint 4 stipulation pursuant to Local Rule 37-2. 5 6.4 Burden. The burden of persuasion in any such challenge proceeding shall be 6 on the Designating Party. Frivolous challenges, and those made for an improper purpose 7 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may expose 8 the Challenging Party to sanctions. Unless the Designating Party has waived or withdrawn 9 the confidentiality designation, all parties shall continue to afford the material in question 10 the level of protection to which it is entitled under the Producing Party’s designation until 11 the Court rules on the challenge. 12 7. ACCESS TO AND USE OF PROTECTED MATERIAL 13 7.1 Basic Principles. A Receiving Party may use Protected Material that is 14 disclosed or produced by another Party or by a Non-Party in connection with this Action 15 only for prosecuting, defending or attempting to settle this Action. Such Protected Material 16 may be disclosed only to the categories of persons and under the conditions described in 17 this Order. When the Action has been terminated, a Receiving Party must comply with the 18 provisions of section 13 below (FINAL DISPOSITION). 19 Protected Material must be stored and maintained by a Receiving Party at a location 20 and in a secure manner that ensures that access is limited to the persons authorized under 21 this Order. 22 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise 23 ordered by the court or permitted in writing by the Designating Party, a Receiving Party 24 may disclose any information or item designated “CONFIDENTIAL” only to: 25 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well 26 as employees of said Outside Counsel of Record to whom it is reasonably necessary to 27 disclose the information for this Action; 28 (b) the officers, directors, and employees (including House Counsel) of the 2 (c) Experts (as defined in this Order) of the Receiving Party to whom 3 disclosure is reasonably necessary for this Action and who have signed the 4 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 5 (d) the court and its personnel; 6 (e) court reporters and their staff; 7 (f) professional jury or trial consultants, mock jurors, and Professional 8 Vendors to whom disclosure is reasonably necessary for this Action and who have signed 9 the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 10 (g) the author or recipient of a document containing the information or a 11 custodian or other person who otherwise possessed or knew the information; 12 (h) during their depositions, witnesses, and attorneys for witnesses, in the 13 Action to whom disclosure is reasonably necessary provided: (1) the deposing party 14 requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will not 15 be permitted to keep any confidential information unless they sign the “Acknowledgment 16 and Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the Designating 17 Party or ordered by the court. Pages of transcribed deposition testimony or exhibits to 18 depositions that reveal Protected Material may be separately bound by the court reporter 19 and may not be disclosed to anyone except as permitted under this Stipulated Protective 20 Order; and 21 (i) any mediator or settlement officer, and their supporting personnel, 22 mutually agreed upon by any of the parties engaged in settlement discussions. 23 7.3 Disclosure of “HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES ONLY” 24 Information or Items. Unless otherwise ordered by the court or permitted in writing by the 25 Designating Party, a Receiving Party may disclose any information or item designated 26 “HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES ONLY” only to: the individuals 27 listed in section 7.2, above, except for those listed in subsections (b) and (h), unless 28 consented to by the Designating Party or as otherwise permitted by the Court. 2 OTHER LITIGATION 3 If a Party is served with a subpoena or a court order issued in other litigation that 4 compels disclosure of any information or items designated in this Action as Protected 5 Material, that Party must: 6 (a) promptly notify in writing the Designating Party. Such notification 7 shall include a copy of the subpoena or court order; 8 (b) promptly notify in writing the party who caused the subpoena or order 9 to issue in the other litigation that some or all of the material covered by the subpoena or 10 order is subject to this Protective Order. Such notification shall include a copy of this 11 Stipulated Protective Order; and 12 (c) cooperate with respect to all reasonable procedures sought to be 13 pursued by the Designating Party whose Protected Material may be affected. 14 If the Designating Party timely seeks a protective order, the Party served with the 15 subpoena or court order shall not produce any information designated in this action as 16 Protected Material before a determination by the court from which the subpoena or order 17 issued, unless the Party has obtained the Designating Party’s permission. The Designating 18 Party shall bear the burden and expense of seeking protection in that court of its 19 confidential material and nothing in these provisions should be construed as authorizing or 20 encouraging a Receiving Party in this Action to disobey a lawful directive from another 21 court. 22 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN 23 THIS LITIGATION 24 (a) The terms of this Order are applicable to information produced by a Non-Party 25 in this Action and designated as Protected Material. Such information produced by 26 Non-Parties in connection with this litigation is protected by the remedies and relief 27 provided by this Order. Nothing in these provisions should be construed as prohibiting a 28 Non-Party from seeking additional protections. 2 a Non-Party’s confidential information in its possession, and the Party is subject to an 3 agreement with the Non-Party not to produce the Non-Party’s confidential information, 4 then the Party shall: 5 (1) promptly notify in writing the Requesting Party and the Non-Party that 6 some or all of the information requested is subject to a confidentiality agreement with a 7 Non-Party; 8 (2) promptly provide the Non-Party with a copy of the Stipulated 9 Protective Order in this Action, the relevant discovery request(s), and a reasonably specific 10 description of the information requested; and 11 (3) make the information requested available for inspection by the Non- 12 Party, if requested. 13 (c) If the Non-Party fails to seek a protective order from this court within 14 days 14 of receiving the notice and accompanying information, the Receiving Party may produce 15 the Non-Party’s confidential information responsive to the discovery request. If the Non- 16 Party timely seeks a protective order, the Receiving Party shall not produce any 17 information in its possession or control that is subject to the confidentiality agreement with 18 the Non-Party before a determination by the court. Absent a court order to the contrary, the 19 Non-Party shall bear the burden and expense of seeking protection in this court of its 20 Protected Material. 21 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 22 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 23 Protected Material to any person or in any circumstance not authorized under this 24 Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing the 25 Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve all 26 unauthorized copies of the Protected Material, (c) inform the person or persons to whom 27 unauthorized disclosures were made of all the terms of this Order, and (d) request such 28 person or persons to execute the “Acknowledgment and Agreement to Be Bound” that is 2 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 3 PROTECTED MATERIAL 4 When a Producing Party gives notice to Receiving Parties that certain inadvertently 5 produced material is subject to a claim of privilege or other protection, the obligations of 6 the Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). 7 This provision is not intended to modify whatever procedure may be established in an e- 8 discovery order that provides for production without prior privilege review. Pursuant to 9 Federal Rule of Evidence 502(d) and (e), insofar as the parties reach an agreement on the 10 effect of disclosure of a communication or information covered by the attorney-client 11 privilege or work product protection, the parties may incorporate their agreement in the 12 stipulated protective order submitted to the court. 13 12. MISCELLANEOUS 14 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person 15 to seek its modification by the Court in the future. 16 12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective 17 Order, no Party waives any right it otherwise would have to object to disclosing or 18 producing any information or item on any ground not addressed in this Stipulated 19 Protective Order. Similarly, no Party waives any right to object on any ground to use in 20 evidence of any of the material covered by this Protective Order. 21 12.3 Filing Protected Material. A Party that seeks to file under seal any Protected 22 Material must comply with Local Civil Rule 79-5. Protected Material may only be filed 23 under seal pursuant to a court order authorizing the sealing of the specific Protected 24 Material at issue. If a Party’s request to file Protected Material under seal is denied by the 25 court, then the Receiving Party may file the information in the public record unless 26 otherwise instructed by the court. 27 13. FINAL DISPOSITION 28 After the final disposition of this Action, as defined in paragraph 4, within 60 days 1||of a written request by the Designating Party, each Receiving Party must return all Protected Material to the Producing Party or destroy such material. As used in this 3||subdivision, “all Protected Material’ includes all copies, abstracts, compilations, 4||summaries, and any other format reproducing or capturing any of the Protected Material. 5|| Whether the Protected Material is returned or destroyed, the Receiving Party must submit 6|| a written certification to the Producing Party (and, if not the same person or entity, to the 7||Designating Party) by the 60 day deadline that (1) identifies (by category, where 8|| appropriate) all the Protected Material that was returned or destroyed and (2) affirms that 9|| the Receiving Party has not retained any copies, abstracts, compilations, summaries or any other format reproducing or capturing any of the Protected Material. Notwithstanding this 11]| provision, Counsel are entitled to retain an archival copy of all pleadings, motion papers, 12]| trial, deposition, and hearing transcripts, legal memoranda, correspondence, deposition and exhibits, expert reports, attorney work product, and consultant and expert work 14]| product, even if such materials contain Protected Material. Any such archival copies that 15|| contain or constitute Protected Material remain subject to this Protective Order as set forth 16||in Section 4 (DURATION). 17|| 14. VIOLATION 18 Any violation of this Order may be punished by appropriate measures including, 19]|| without limitation, contempt proceedings and/or monetary sanctions. 20 21 IT IS SO ORDERED. 22 ° 23 (Wy Woe f<——~ 24|| DATED: 12/18/2019 5 Alexander F. MacKinnon U.S. Magistrate Judge 26 27 28 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _____________________________ [print or type full name], of _________________ 4 [print or type full address], declare under penalty of perjury that I have read in its entirety 5 and understand the Stipulated Protective Order that was issued by the United States District 6 Court for the Central District of California on _______ in the case of Tacori Enterprises v. 7 S. Kashi & Sons, 2:18-cv-9921-R-AFM. I agree to comply with and to be bound by all the 8 terms of this Stipulated Protective Order and I understand and acknowledge that failure to 9 so comply could expose me to sanctions and punishment in the nature of contempt. I 10 solemnly promise that I will not disclose in any manner any information or item that is 11 subject to this Stipulated Protective Order to any person or entity except in strict 12 compliance with the provisions of this Order. I further agree to submit to the jurisdiction 13 of the United States District Court for the Central District of California for enforcing the 14 terms of this Stipulated Protective Order, even if such enforcement proceedings occur after 15 termination of this action. I hereby appoint __________________________ [print or type 16 full name] of _______________________________________ [print or type full address 17 and telephone number] as my California agent for service of process in connection with 18 this action or any proceedings related to enforcement of this Stipulated Protective Order. 19 Date: ______________________________________ 20 City and State where sworn and signed: _________________________________ 21 22 Printed name: _______________________________ 23 24 Signature: __________________________________ 25 26 27 28