Phoenix Books, Inc. v. Mr Bongo Worldwide Ltd ( 2019 )

1 SPERTUS, LANDES & UMHOFER, LLP Matthew Donald Umhofer (SBN 206607) 2 Ezra D. Landes (SBN 253052) 1990 South Bundy Dr., Suite 705 3 Los Angeles, California 90025 Telephone: (310) 826-4700 4 Facsimile: (310) 826-4711 matthew@spertuslaw.com 5 ezra@spertuslaw.com 6 Attorneys for Plaintiff 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION 10 PHOENIX BOOKS, INC., a Case No. CV 19-6000-JFW (RAOx) 11 California corporation, DISCOVERY MATTER 12 Plaintiffs, [PROPOSED] PROTECTIVE 13 v. ORDER 14 MR BONGO WORLDWIDE LTD, a United Kingdom limited company, 15 Defendants. 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 Discovery in this action is likely to involve production of confidential, 3 proprietary or private information for which special protection from public 4 disclosure and from use for any purpose other than prosecuting this litigation 5 may be warranted. Accordingly, Plaintiff Phoenix Books, Inc. (“Plaintiff”) 6 hereby petitions the Court to enter the following Protective Order. Plaintiff 7 acknowledges that this Order does not confer blanket protections on all 8 disclosures or responses to discovery and that the protection it affords from 9 public disclosure and use extends only to the limited information or items that 10 are entitled to confidential treatment under the applicable legal principles. 11 B. GOOD CAUSE STATEMENT 12 This action is likely to involve trade secrets, customer and pricing lists and 13 other valuable research, development, commercial, financial, technical and/or 14 proprietary information for which special protection from public disclosure and 15 from use for any purpose other than prosecution of this action is warranted. Such 16 confidential and proprietary materials and information consist of, among other 17 things, confidential business or financial information, information regarding 18 confidential business practices, or other confidential research, development, or 19 commercial information (including information implicating privacy rights of 20 third parties), information otherwise generally unavailable to the public, or which 21 may be privileged or otherwise protected from disclosure under state or federal 22 statutes, court rules, case decisions, or common law. Accordingly, to expedite the 23 flow of information, to facilitate the prompt resolution of disputes over 24 confidentiality of discovery materials, to adequately protect information the 25 parties are entitled to keep confidential, to ensure that the parties are permitted 26 reasonable necessary uses of such material in preparation for and in the conduct 27 of trial, to address their handling at the end of the litigation, and serve the ends of 28 justice, a protective order for such information is justified in this matter. It is 1 2 tactical reasons and that nothing be so designated without a good faith belief that 3 it has been maintained in a confidential, non-public manner, and there is good 4 cause why it should not be part of the public record of this case. 5 C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER 6 SEAL 7 Plaintiff further acknowledges, as set forth in Section 12.3, below, that this 8 Protective Order does not entitle the parties to file confidential information under 9 seal; Local Civil Rule 79-5 sets forth the procedures that must be followed and 10 the standards that will be applied when a party seeks permission from the court 11 to file material under seal. 12 There is a strong presumption that the public has a right of access to 13 judicial proceedings and records in civil cases. In connection with non- 14 dispositive motions, good cause must be shown to support a filing under seal. See 15 Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), 16 Phillips v. Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar- 17 Welbon v. Sony Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even 18 stipulated protective orders require good cause showing), and a specific showing 19 of good cause or compelling reasons with proper evidentiary support and legal 20 justification, must be made with respect to Protected Material that a party seeks 21 to file under seal. The parties’ mere designation of Disclosure or Discovery 22 Material as CONFIDENTIAL does not—without the submission of competent 23 evidence by declaration, establishing that the material sought to be filed under 24 seal qualifies as confidential, privileged, or otherwise protectable—constitute 25 good cause. 26 Further, if a party requests sealing related to a dispositive motion or trial, 27 then compelling reasons, not only good cause, for the sealing must be shown, 28 and the relief sought shall be narrowly tailored to serve the specific interest to be 1 2 2010). For each item or type of information, document, or thing sought to be 3 filed or introduced under seal in connection with a dispositive motion or trial, the 4 party seeking protection must articulate compelling reasons, supported by 5 specific facts and legal justification, for the requested sealing order. Again, 6 competent evidence supporting the application to file documents under seal must 7 be provided by declaration. 8 Any document that is not confidential, privileged, or otherwise protectable 9 in its entirety will not be filed under seal if the confidential portions can be 10 redacted. If documents can be redacted, then a redacted version for public 11 viewing, omitting only the confidential, privileged, or otherwise protectable 12 portions of the document, shall be filed. Any application that seeks to file 13 documents under seal in their entirety should include an explanation of why 14 redaction is not feasible. 15 16 2. DEFINITIONS 17 2.1 Action: this pending federal lawsuit, entitled Phoenix Books, Inc. v. Mr 18 Bongo Worldwide Ltd; Case No. CV 19-6000-JFW (RAOx). 19 2.2 Challenging Party: a Party or Non-Party that challenges the 20 designation of information or items under this Order. 21 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 22 how it is generated, stored or maintained) or tangible things that qualify for 23 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 24 the Good Cause Statement. 25 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as 26 their support staff). 27 28 1 2 items that it produces in disclosures or in responses to discovery as 3 “CONFIDENTIAL.” 4 2.6 Disclosure or Discovery Material: all items or information, regardless 5 of the medium or manner in which it is generated, stored, or maintained 6 (including, among other things, testimony, transcripts, and tangible things), that 7 are produced or generated in disclosures or responses to discovery in this matter. 8 2.7 Expert: a person with specialized knowledge or experience in a matter 9 pertinent to the litigation who has been retained by a Party or its counsel to serve 10 as an expert witness or as a consultant in this Action. 11 2.8 House Counsel: attorneys who are employees of a party to this Action. 12 House Counsel does not include Outside Counsel of Record or any other outside 13 counsel. 14 2.9 Non-Party: any natural person, partnership, corporation, association or 15 other legal entity not named as a Party to this action. 16 2.10 Outside Counsel of Record: attorneys who are not employees of a 17 party to this Action but are retained to represent or advise a party to this Action 18 and have appeared in this Action on behalf of that party or are affiliated with a 19 law firm that has appeared on behalf of that party, and includes support staff. 20 2.11 Party: any party to this Action, including all of its officers, directors, 21 employees, consultants, retained experts, and Outside Counsel of Record (and 22 their support staffs). 23 2.12 Producing Party: a Party or Non-Party that produces Disclosure or 24 Discovery Material in this Action. 25 2.13 Professional Vendors: persons or entities that provide litigation 26 support services (e.g., photocopying, videotaping, translating, preparing exhibits 27 or demonstrations, and organizing, storing, or retrieving data in any form or 28 medium) and their employees and subcontractors. 1 2 designated as “CONFIDENTIAL.” 3 2.15 Receiving Party: a Party that receives Disclosure or Discovery 4 Material from a Producing Party. 5 6 3. SCOPE 7 The protections conferred by this Order cover not only Protected Material 8 (as defined above), but also (1) any information copied or extracted from 9 Protected Material; (2) all copies, excerpts, summaries, or compilations of 10 Protected Material; and (3) any testimony, conversations, or presentations by 11 Parties or their Counsel that might reveal Protected Material. 12 Any use of Protected Material at trial shall be governed by the orders of 13 the trial judge. This Order does not govern the use of Protected Material at trial. 14 15 4. DURATION 16 Once a case proceeds to trial, information that was designated as 17 CONFIDENTIAL or maintained pursuant to this protective order used or 18 introduced as an exhibit at trial becomes public and will be presumptively 19 available to all members of the public, including the press, unless compelling 20 reasons supported by specific factual findings to proceed otherwise are made to 21 the trial judge in advance of the trial. See Kamakana, 447 F.3d at 1180-81 22 (distinguishing “good cause” showing for sealing documents produced in 23 discovery from “compelling reasons” standard when merits-related documents 24 are part of court record). Accordingly, the terms of this protective order do not 25 extend beyond the commencement of the trial. 26 27 28 1 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 4 under this Order must take care to limit any such designation to specific material 5 that qualifies under the appropriate standards. The Designating Party must 6 designate for protection only those parts of material, documents, items or oral or 7 written communications that qualify so that other portions of the material, 8 documents, items or communications for which protection is not warranted are 9 not swept unjustifiably within the ambit of this Order. 10 Mass, indiscriminate or routinized designations are prohibited. 11 Designations that are shown to be clearly unjustified or that have been made for 12 an improper purpose (e.g., to unnecessarily encumber the case development 13 process or to impose unnecessary expenses and burdens on other parties) may 14 expose the Designating Party to sanctions. 15 If it comes to a Designating Party’s attention that information or items that 16 it designated for protection do not qualify for protection, that Designating Party 17 must promptly notify all other Parties that it is withdrawing the inapplicable 18 designation. 19 5.2 Manner and Timing of Designations. Except as otherwise provided 20 in this Order (see, e.g., second paragraph of section 5.2(a) below), or as 21 otherwise stipulated or ordered, Disclosure or Discovery Material that qualifies 22 for protection under this Order must be clearly so designated before the material 23 is disclosed or produced. 24 Designation in conformity with this Order requires: 25 (a) for information in documentary form (e.g., paper or electronic 26 documents, but excluding transcripts of depositions or other pretrial or trial 27 proceedings), that the Producing Party affix at a minimum, the legend 28 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that 1 2 for protection, the Producing Party also must clearly identify the protected 3 portion(s) (e.g., by making appropriate markings in the margins). 4 A Party or Non-Party that makes original documents available for 5 inspection need not designate them for protection until after the inspecting Party 6 has indicated which documents it would like copied and produced. During the 7 inspection and before the designation, all of the material made available for 8 inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has 9 identified the documents it wants copied and produced, the Producing Party must 10 determine which documents, or portions thereof, qualify for protection under this 11 Order. Then, before producing the specified documents, the Producing Party 12 must affix the “CONFIDENTIAL legend” to each page that contains Protected 13 Material. If only a portion of the material on a page qualifies for protection, the 14 Producing Party also must clearly identify the protected portion(s) (e.g., by 15 making appropriate markings in the margins). 16 (b) for testimony given in depositions that the Designating Party identifies 17 the Disclosure or Discovery Material on the record, before the close of the 18 deposition all protected testimony. 19 (c) for information produced in some form other than documentary and for 20 any other tangible items, that the Producing Party affix in a prominent place on 21 the exterior of the container or containers in which the information is stored the 22 legend “CONFIDENTIAL.” If only a portion or portions of the information 23 warrants protection, the Producing Party, to the extent practicable, shall identify 24 the protected portion(s). 25 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 26 failure to designate qualified information or items does not, standing alone, 27 waive the Designating Party’s right to secure protection under this Order for such 28 material. Upon timely correction of a designation, the Receiving Party must 1 2 the provisions of this Order. 3 5.4 Documents Produced by Third-Party Subpoenas. All documents 4 produced to a Party by a third-party in response to a subpoena issued in this 5 Action shall be treated as “CONFIDENTIAL” under the terms of this Order 6 upon production of the documents to the subpoenaing Party and for an additional 7 30 days from the date of service of the documents, including, electronic service, 8 by the subpoenaing Party on the non-subpoenaing Party. The non-subpoenaing 9 Party shall then have until the end of the 30-day period to identify in writing for 10 the subpoenaing Party the specific documents, if any, it is designating 11 “CONFIDENTIAL.” If the non-subpoenaing Party fails to inform the 12 subpoenaing Party of the designations within the 30-day period, absent an 13 agreement by the Parties to extend the review period or an order extending the 14 review period, the documents shall no longer be treated as “CONFIDENTIAL.” 15 16 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 17 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 18 designation of confidentiality at any time that is consistent with the Court’s 19 Scheduling Order. 20 6.2 Meet and Confer. The Challenging Party shall initiate the dispute 21 resolution process under Local Rule 37.1 et seq. 6.3 The burden of persuasion in 22 any such challenge proceeding shall be on the Designating Party. Frivolous 23 challenges, and those made for an improper purpose (e.g., to harass or impose 24 unnecessary expenses and burdens on other parties) may expose the Challenging 25 Party to sanctions. Unless the Designating Party has waived or withdrawn the 26 confidentiality designation, all parties shall continue to afford the material in 27 question the level of protection to which it is entitled under the Producing Party’s 28 designation until the Court rules on the challenge. 1 2 7.1 Basic Principles. A Receiving Party may use Protected Material that 3 is disclosed or produced by another Party or by a Non-Party in connection with 4 this Action only for prosecuting, defending or attempting to settle this Action. 5 Such Protected Material may be disclosed only to the categories of persons and 6 under the conditions described in this Order. When the Action has been 7 terminated, a Receiving Party must comply with the provisions of section 13 8 below (FINAL DISPOSITION). 9 Protected Material must be stored and maintained by a Receiving Party at 10 a location and in a secure manner that ensures that access is limited to the 11 persons authorized under this Order. 12 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 13 otherwise ordered by the court or permitted in writing by the Designating Party, 14 a Receiving Party may disclose any information or item designated 15 “CONFIDENTIAL” only to: 16 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well 17 as employees of said Outside Counsel of Record to whom it is reasonably 18 necessary to disclose the information for this Action; 19 (b) the officers, directors, and employees (including House Counsel) of the 20 Receiving Party to whom disclosure is reasonably necessary for this Action; 21 (c) Experts (as defined in this Order) of the Receiving Party to whom 22 disclosure is reasonably necessary for this Action and who have signed the 23 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 24 (d) the court and its personnel; 25 (e) court reporters and their staff; 26 (f) professional jury or trial consultants, mock jurors, and Professional 27 Vendors to whom disclosure is reasonably necessary for this Action and who 28 have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 1 2 custodian or other person who otherwise possessed or knew the information; 3 (h) during their depositions, witnesses, and attorneys for witnesses, in the 4 Action to whom disclosure is reasonably necessary provided: (1) the deposing 5 party requests that the witness sign the form attached as Exhibit 1 hereto; and (2) 6 they will not be permitted to keep any confidential information unless they sign 7 the “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless 8 otherwise agreed by the Designating Party or ordered by the court. Pages of 9 transcribed deposition testimony or exhibits to depositions that reveal Protected 10 Material may be separately bound by the court reporter and may not be disclosed 11 to anyone except as permitted under this Protective Order; and 12 (i) any mediator or settlement officer, and their supporting personnel, 13 mutually agreed upon by any of the parties engaged in settlement discussions. 14 15 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED 16 PRODUCED IN OTHER LITIGATION 17 If a Party is served with a subpoena or a court order issued in other 18 litigation that compels disclosure of any information or items designated in this 19 Action as “CONFIDENTIAL,” that Party must: 20 (a) promptly notify in writing the Designating Party. Such notification 21 shall include a copy of the subpoena or court order; 22 (b) promptly notify in writing the party who caused the subpoena or order 23 to issue in the other litigation that some or all of the material covered by the 24 subpoena or order is subject to this Protective Order. Such notification shall 25 include a copy of this Protective Order; and 26 (c) cooperate with respect to all reasonable procedures sought to be 27 pursued by the Designating Party whose Protected Material may be affected. 28 1 2 with the subpoena or court order shall not produce any information designated in 3 this action as “CONFIDENTIAL” before a determination by the court from 4 which the subpoena or order issued, unless the Party has obtained the 5 Designating Party’s permission. The Designating Party shall bear the burden and 6 expense of seeking protection in that court of its confidential material and 7 nothing in these provisions should be construed as authorizing or encouraging a 8 Receiving Party in this Action to disobey a lawful directive from another court. 9 10 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 11 PRODUCED IN THIS LITIGATION 12 (a) The terms of this Order are applicable to information produced by a 13 Non-Party in this Action and designated as “CONFIDENTIAL.” Such 14 information produced by Non-Parties in connection with this litigation is 15 protected by the remedies and relief provided by this Order. Nothing in these 16 provisions should be construed as prohibiting a Non-Party from seeking 17 additional protections. 18 (b) In the event that a Party is required, by a valid discovery request, to 19 produce a Non-Party’s confidential information in its possession, and the Party is 20 subject to an agreement with the Non-Party not to produce the Non-Party’s 21 confidential information, then the Party shall: 22 (1) promptly notify in writing the Requesting Party and the Non- 23 Party that some or all of the information requested is subject to a confidentiality 24 agreement with a Non-Party; 25 (2) promptly provide the Non-Party with a copy of the 26 Protective Order in this Action, the relevant discovery request(s), and a 27 reasonably specific description of the information requested; and 28 1 2 Non-Party, if requested. 3 (c) If the Non-Party fails to seek a protective order from this court within 4 14 days of receiving the notice and accompanying information, the Receiving 5 Party may produce the Non-Party’s confidential information responsive to the 6 discovery request. If the Non-Party timely seeks a protective order, the Receiving 7 Party shall not produce any information in its possession or control that is subject 8 to the confidentiality agreement with the Non-Party before a determination by 9 the court. Absent a court order to the contrary, the Non-Party shall bear the 10 burden and expense of seeking protection in this court of its Protected Material. 11 12 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 13 If a Receiving Party learns that, by inadvertence or otherwise, it has 14 disclosed Protected Material to any person or in any circumstance not authorized 15 under this Protective Order, the Receiving Party must immediately (a) notify in 16 writing the Designating Party of the unauthorized disclosures, (b) use its best 17 efforts to retrieve all unauthorized copies of the Protected Material, (c) inform 18 the person or persons to whom unauthorized disclosures were made of all the 19 terms of this Order, and (d) request such person or persons to execute the 20 “Acknowledgment and Agreement to Be Bound” that is attached hereto as 21 Exhibit A. 22 23 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 24 PROTECTED MATERIAL 25 When a Producing Party gives notice to Receiving Parties that certain 26 inadvertently produced material is subject to a claim of privilege or other 27 protection, the obligations of the Receiving Parties are those set forth in Federal 28 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify 1 2 production without prior privilege review. Pursuant to Federal Rule of Evidence 3 502(d) and (e), insofar as the parties reach an agreement on the effect of 4 disclosure of a communication or information covered by the attorney-client 5 privilege or work product protection, the parties may incorporate their agreement 6 in the stipulated protective order submitted to the court. 7 8 12. MISCELLANEOUS 9 12.1 Right to Further Relief. Nothing in this Order abridges the right of 10 any person to seek its modification by the Court in the future. 11 12.2 Right to Assert Other Objections. By the entry of this Protective 12 Order, no Party waives any right it otherwise would have to object to disclosing 13 or producing any information or item on any ground not addressed in this 14 Protective Order. Similarly, no Party waives any right to object on any ground to 15 use in evidence of any of the material covered by this Protective Order. 16 12.3 Filing Protected Material. A Party that seeks to file under seal any 17 Protected Material must comply with Local Civil Rule 79-5. Protected Material 18 may only be filed under seal pursuant to a court order authorizing the sealing of 19 the specific Protected Material at issue. If a Party’s request to file Protected 20 Material under seal is denied by the court, then the Receiving Party may file the 21 information in the public record unless otherwise instructed by the court. 22 23 13. FINAL DISPOSITION 24 After the final disposition of this Action, as defined in paragraph 4, within 25 60 days of a written request by the Designating Party, each Receiving Party must 26 return all Protected Material to the Producing Party or destroy such material. As 27 used in this subdivision, “all Protected Material” includes all copies, abstracts, 28 compilations, summaries, and any other format reproducing or capturing any of 1 □□ □□□ Protected Material. Whether the Protected Material is returned or destroyed, 2 || the Receiving Party must submit a written certification to the Producing Party 3 || (and, if not the same person or entity, to the Designating Party) by the 60 day 4 ||deadline that (1) identifies (by category, where appropriate) all the Protected 5 || Material that was returned or destroyed and (2) affirms that the Receiving Party 6 || has not retained any copies, abstracts, compilations, summaries or any other 7 || format reproducing or capturing any of the Protected Material. Notwithstanding 8 || this provision, Counsel are entitled to retain an archival copy of all pleadings, 9 motion papers, trial, deposition, and hearing transcripts, legal memoranda, 10 ||correspondence, deposition and trial exhibits, expert reports, attorney work 11 || product, and consultant and expert work product, even if such materials contain 12 || Protected Material. Any such archival copies that contain or constitute Protected 3 ; 13 || Material remain subject to this Protective Order as set forth in Section 4 6 14 || (DURATION). 16 |[14. VIOLATION = 17 Any violation of this Order may be punished by appropriate measures 18 || including, without limitation, contempt proceedings and/or monetary sanctions. 19 20 21 |} FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 22 || DATED: December 27, 2019 Rayella a, 25 || United States Mapisirate Judge 26 27 28 14. 1 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 5 that I have read in its entirety and understand the Protective Order that was 6 issued by the United States District Court for the Central District of California on 7 ________ [date] in the case of Phoenix Books, Inc. v. Mr Bongo Worldwide Ltd; 8 Case No. CV 19-6000-JFW (RAOx). I agree to comply with and to be bound by 9 all the terms of this Protective Order and I understand and acknowledge that 10 failure to so comply could expose me to sanctions and punishment in the nature 11 of contempt. I solemnly promise that I will not disclose in any manner any 12 information or item that is subject to this Protective Order to any person or entity 13 except in strict compliance with the provisions of this Order. I further agree to 14 submit to the jurisdiction of the United States District Court for the Central 15 District of California for enforcing the terms of this Protective Order, even if 16 such enforcement proceedings occur after termination of this action. 17 I hereby appoint __________________________ [print or type full name] of 18 _______________________________________ [print or type full address and 19 telephone number] as my California agent for service of process in connection 20 with this action or any proceedings related to enforcement of this Protective 21 Order. 22 Date: ______________________________________ 23 City and State where sworn and signed: _________________________________ 24 25 Printed name: _______________________________ 26 Signature: __________________________________ 27 28