The Alixir Company v. Que Onda Beverage, Inc. ( 2021 )

1 Todd A. Boock (SBN 181933) todd@bnsklaw.com 2 BROWN NERI SMITH & KHAN, LLP 3 11601 Wilshire Boulevard, Suite 2080 Los Angeles, California 90025 4 Telephone: (310) 593-9890 5 Facsimile: (310) 593-9980 6 Attorneys for Plaintiff 7 THE ALIXIR COMPANY dba BEV 8 Defendant’s counsel on following page 9 10 UNITED STATES DISTRICT COURT 11 FOR THE CENTRAL DISTRICT OF CALIFORNIA 12 WESTERN DIVISION 13 THE ALIXIR COMPANY dba BEV, a Case No. 2:20-cv-08368-RGK-RAO 14 Delaware corporation, 15 Hon. R. Gary Klausner Plaintiff, Hon. Rozella A. Oliver 16 17 v. [PROPOSED] STIPULATED PROTECTIVE ORDER 18 QUE ONDA BEVERAGE, INC. dba 19 ONDA, a Delaware corporation, Complaint Filed: September 11, 2020 20 Defendant. Trial Date: November 30, 2021 21 22 23 24 25 26 27 1 Counsel for Defendant Que Onda Beverage, Inc. dba Onda 2 Kevin R. Lussier (SBN 143821) klussier@cmlawfirm.com 3 CRUSER, MITCHELL, NOVITZ, SANCHEZ, GASTON & ZIMET LLP 4 800 Wilshire Boulevard, 15th Floor Los Angeles, California 90017 5 Telephone: (213) 689-8500 6 Facsimile: (213) 689-8501 7 James D. Weinberger (admitted pro hac vice) 8 jweinberger@fzlz.com Daniel M. Nuzzaci (admitted pro hac vice) 9 dnuzzaci@fzlz.com 10 FROSS ZELNICK LEHRMAN & ZISSU, P.C. 151 West 42nd Street, 17th Floor 11 New York, New York 10036 12 Telephone: (212) 813-5900 Facsimile: (213) 813-5901 13 14 15 The Court recognizes that at least some of the documents and information 16 ("materials") being sought through discovery in the above-captioned action are, for 17 competitive reasons, normally kept confidential by the parties. The parties have 18 agreed to be bound by the terms of this Protective Order (“Order”) in this action. 19 The materials to be exchanged throughout the course of the litigation between 20 the parties may contain trade secret or other confidential research, technical, cost, 21 price, marketing or other commercial information, as is contemplated by Federal 22 Rule of Civil Procedure 26(c)(1)(G). The purpose of this Order is to protect the 23 confidentiality of such materials as much as practical during the litigation. 24 THEREFORE: 25 I. PURPOSES AND LIMITATIONS 26 Discovery in this action is likely to involve production of confidential, 27 proprietary, and/or private information for which special protection from public disclosure and from use for any purpose other than prosecuting this litigation may 1 be warranted. Accordingly, the parties hereby stipulate to and petition the Court to 2 enter the following Stipulated Protective Order. The parties acknowledge that this 3 Order does not confer blanket protections on all disclosures or responses to 4 discovery and that the protection it affords from public disclosure and use extends 5 only to the limited information or items that are entitled to confidential treatment 6 under the applicable legal principles. The parties further acknowledge, as set forth 7 in Section 12.3, below, that this Stipulated Protective Order does not entitle them to 8 file confidential information under seal; the parties must follow the applicable local 9 rules, including the procedures that must be followed and the standards that will be 10 applied when a party seeks permission from the Court to file material under seal. 11 A. GOOD CAUSE STATEMENT 12 This action involves alleged trade secrets, confidential information, 13 development, commercial, financial, technical and/or proprietary information for 14 which special protection from public disclosure and from use for any purpose other 15 than prosecution of this action is warranted. Such confidential and proprietary 16 materials and information may consist of, among other things, confidential business 17 or financial information, information regarding confidential business practices, or 18 other confidential research, development, or commercial information (including 19 information implicating privacy rights of third parties), information otherwise 20 generally unavailable to the public, or which may be privileged or otherwise 21 protected from disclosure under state or federal statutes, court rules, case decisions, 22 or common law. Accordingly, to expedite the flow of information, to facilitate the 23 prompt resolution of disputes over confidentiality of discovery materials, to 24 adequately protect information the parties are entitled to keep confidential, to ensure 25 that the parties are permitted reasonable necessary uses of such material in 26 preparation for and in the conduct of trial, to address their handling at the end of the 27 litigation, and serve the ends of justice, a protective order for such information is 1 designated as confidential for tactical reasons and that nothing be so designated 2 without a good faith belief that it has been maintained in a confidential, non-public 3 manner, and there is good cause why it should not be part of the public record of this 4 case. 5 B. ACKNOWLEDGEMENT OF PROCEDURE FOR FILING 6 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 9 under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed 10 and 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 judicial 13 proceedings and records in civil cases. In connection with non-dispositive motions, 14 good cause must be shown to support a filing under seal. See Kamakana v. City and 15 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006); Phillips v. Gen. Motors 16 Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002); Makar-Welbon v. Sony Electrics, 17 Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders 18 require good cause showing), and a specific showing of good cause or compelling 19 reasons with proper evidentiary support and legal justification, must be made with 20 respect to Protected Material that a party seeks to file under seal. The parties’ mere 21 designation of Disclosure or Discovery Material as CONFIDENTIAL does not— 22 without the submission of competent evidence by declaration, establishing that the 23 material sought to be filed under seal qualifies as confidential, privileged, or 24 otherwise 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 27 relief sought shall be narrowly tailored to serve the specific interest to be protected. 1 each item or type of information, document, or thing sought to be filed or introduced 2 under seal in connection with a dispositive motion or trial, the party seeking 3 protection must articulate compelling reasons, supported by specific facts and legal 4 justification, for the requested sealing order. Again, competent evidence supporting 5 the application to file documents under seal must be provided by declaration. 6 Any document that is not confidential, privileged, or otherwise protectable in 7 its entirety will not be filed under seal if the confidential portions can be redacted. 8 If documents can be redacted, then a redacted version for public viewing, omitting 9 only the confidential, privileged, or otherwise protectible portions of the document 10 shall be filed. Any application that seeks to file documents under seal in their 11 entirety should include an explanation of why redaction is not feasible. 12 II. DEFINITIONS 13 2.1 Action: The Alixir Company dba Bev v. Que Onda Beverage, Inc. dba 14 Onda., Case No. 2:20-cv-08368-RGK-RAO. 15 2.2 Challenging Party: a Party or Non-Party that challenges the 16 designation of information or items under this Order. 17 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 18 how it is generated, stored or maintained) or tangible things that qualify for 19 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 20 the Good Cause Statement, including, but not limited to, information contained or 21 disclosed in any materials, including documents, portions of documents, answers to 22 interrogatories, responses to requests for admissions, trial testimony, deposition 23 testimony, and transcripts of trial testimony and depositions, including data, 24 summaries, and compilations derived therefrom that is deemed to be confidential 25 information by any party to which it belongs. 26 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as 27 their support staff). 1 2.5 Designating Party: a Party or Non-Party that designates information or 2 items that it produces in disclosures or in responses to discovery as 3 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 4 ONLY.” 5 2.6 Disclosure or Discovery Material: all items or information, regardless 6 of the medium or manner in which it is generated, stored, or maintained (including, 7 among other things, testimony, transcripts, and tangible things), that are produced or 8 generated in disclosures or responses to discovery in this matter. 9 2.7 Expert: a person with specialized knowledge or experience in a matter 10 pertinent to the litigation who has been retained by a Party or its counsel to serve as 11 an expert witness or as a consultant in this Action. 12 2.8 “HIGHLY CONFIDENTIAL” Information or Items: information or 13 items (regardless of how generated, stored or maintained) or tangible things that 14 contain or reflect sensitive Confidential Information that the designating party 15 contends are trade secrets and/or commercially sensitive, the disclosure of which 16 could cause harm that could not be avoided absent such designation. Such 17 designation shall constitute a representation by the Designating Party that he, she or 18 it, in good faith, believes that the Material so designated contains or constitutes at 19 the time of the designation: (a) competitively sensitive or proprietary information, 20 including trade secrets, research, analysis, development, financial or other 21 commercial information of a non-public nature, non-public communications with 22 regulators or other governmental bodies that are protected from disclosure by statute 23 or regulation; non-public business or financial strategies, business plans, strategic 24 plans, sales and marketing plans, marketing surveys, earnings or other financial 25 projections, contracts or agreements, including any documentation that is considered 26 confidential or proprietary under other confidentiality or non-disclosure agreements 27 and/or information protected by the right of privacy and/or any applicable privilege; 1 Party, would create a risk of harm or injury that could not be avoided by a less 2 restrictive designation. To the extent that a Party or Non-Party desires that any 3 Confidential Information not specifically identified in subsection (a) above be 4 treated as “Attorneys’ Eyes Only,” it may inform the other Party or Parties and they 5 shall have a good faith meet and confer in an attempt to accommodate any such 6 concerns. To the extent that a Party or Non-Party disagrees with an “Attorneys’ 7 Eyes Only” designation, that Party or Non-Party shall follow the “Challenging 8 Confidentiality Designations” procedure specified in Section VI herein. The Parties 9 expressly acknowledge that they will abide by Section 5.1 herein and not 10 indiscriminately designate Materials as “Attorneys’ Eyes Only” and will take care to 11 limit any such designation to specific material that qualifies under the appropriate 12 standards. Materials designated as “Attorneys’ Eyes Only” may not be used for any 13 business or commercial purpose or any purpose unrelated to the prosecution or 14 defense of this litigation. 15 2.9 House Counsel: attorneys who are employees of a party to this Action. 16 House Counsel does not include Outside Counsel of Record or any other outside 17 counsel. 18 2.10 Non-Party: any natural person, partnership, corporation, association, or 19 other legal entity not named as a Party to this action. 20 2.11 Outside Counsel of Record: attorneys who are not employees of a 21 party to this Action but are retained to represent or advise a party to this Action and 22 have appeared in this Action on behalf of that party or are affiliated with a law firm 23 which has appeared on behalf of that party and includes support staff. 24 2.12 Party: any party to this Action, including all of its officers, directors, 25 employees, consultants, retained experts, and Outside Counsel of Record (and their 26 support staffs). 27 2.13 Producing Party: a Party or Non-Party that produces Disclosure or 1 2.14 Professional Vendors: persons or entities that provide litigation 2 support services (e.g., photocopying, videotaping, translating, preparing exhibits or 3 demonstrations, and organizing, storing, or retrieving data in any form or medium) 4 and their employees and subcontractors. 5 2.15 Protected Material: any Disclosure or Discovery Material that is 6 designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – 7 ATTORNEYS’ EYES ONLY.” 8 2.16 Receiving Party: a Party that receives Disclosure or Discovery 9 Material from a Producing Party. 10 III. SCOPE 11 The protections conferred by this Stipulation and Order cover not only 12 Protected Material (as defined above), but also (1) any information copied or 13 extracted from Protected Material; (2) all copies, excerpts, summaries, or 14 compilations of Protected Material; and (3) any testimony, conversations, or 15 presentations by Parties or their Counsel that might reveal Protected Material. 16 IV. DURATION 17 Once a case proceeds to trial, information that was designated as 18 CONFIDENTIAL or maintained pursuant to this protective order used or introduced 19 as an exhibit at trial becomes public and will be presumptively available to all 20 members of the public, including the press, unless compelling reasons supported by 21 specific factual findings to proceed otherwise are made to the trial judge in advance 22 of the trial. See Kamakana, 477 F.3d at 1180-81 (distinguishing “good cause” 23 showing for sealing documents produced in discovery from “compelling reasons” 24 standard when merits-related documents are part of court record). 25 For material or information that does not become public at trial, after final 26 disposition of this litigation, the confidentiality obligations imposed by this Order 27 shall remain in effect until a Designating Party agrees otherwise in writing or a court 1 of all claims and defenses in this Action, with or without prejudice; and (2) final 2 judgment herein after the completion and exhaustion of all appeals, rehearings, 3 remands, trials, or reviews of this action, including the time limits for filing any 4 motions or applications for extension of time pursuant to applicable law. 5 V. DESIGNATING PROTECTED MATERIAL 6 5.1 Exercise of Restraint and Care in Designating Material for Protection. 7 Each Party or Non-Party that designates information or items for protection under 8 this Order must take care to limit any such designation to specific material that 9 qualifies under the appropriate standards. To the extent it is practical to do so, the 10 Designating Party must designate for protection only those parts of material, 11 documents, items, or oral or written communications that qualify – so that other 12 portions of the material, documents, items, or communications for which protection 13 is not warranted are not swept unjustifiably within the ambit of this Order. 14 Mass, indiscriminate, or routinized designations are prohibited. Designations 15 that are shown to be clearly unjustified or that have been made for an improper 16 purpose (e.g., to unnecessarily encumber the case development process or to impose 17 unnecessary expenses and burdens on other parties) may expose the Designating 18 Party to sanctions. 19 If it comes to a Designating Party’s attention that information or items that it 20 designated for protection do not qualify for protection at all or do not qualify for the 21 level of protection initially asserted, that Designating Party must promptly notify all 22 other parties that it is withdrawing the inapplicable designation. 23 5.2 Manner and Timing of Designations. Except as otherwise provided in 24 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 25 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 26 under this Order must be clearly so designated before the material is disclosed or 27 produced. 1 (a) for information in documentary form (e.g., paper or electronic 2 documents, but excluding transcripts of depositions or other pretrial or trial 3 proceedings), that the Producing Party affix at a minimum, the legend 4 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 5 ONLY” to each page that contains protected material. If only a portion or portions 6 of the material on a page qualifies for protection, the Producing Party also must 7 clearly identify the protected portion(s) (e.g., by making appropriate markings in the 8 margins) and must specify, for each portion, the level of protection asserted. 9 A Party or Non-Party that makes original documents available for inspection 10 need not designate them for protection until after the inspecting Party has indicated 11 which documents it would like copied and produced. During the inspection and 12 before the designation, all of the material made available for inspection shall be 13 deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” After the 14 inspecting Party has identified the documents it wants copied and produced, the 15 Producing Party must determine which documents, or portions thereof, qualify for 16 protection under this Order. Then, before producing the specified documents, the 17 Producing Party must affix the appropriate legend (“CONFIDENTIAL” or 18 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”) to each page that 19 contains Protected Material. 20 (b) for testimony given in a deposition or in other pretrial or trial 21 proceedings, that the Designating Party identify on the record, before the close of 22 the deposition, hearing, or other proceeding, whenever possible, all protected 23 testimony and specify the level of protection being asserted. 24 (1) However, a party may designate portions of depositions as 25 containing Protected Material after transcription of the proceedings. A Designating 26 Party will have until fourteen (14) days after receipt of the deposition transcript to 27 inform the other party or parties to the action of the portions of the transcript to be 1 EYES ONLY.” 2 (2) The use of a document as an exhibit at a deposition shall 3 not in any way affect its designation as “CONFIDENTIAL” or “HIGHLY 4 CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Transcripts containing 5 Protected Material shall have an obvious legend on the title page that the transcript 6 contains Protected Material, and the title page shall be followed by a list of all pages 7 (including line numbers as appropriate) that have been designated as Protected 8 Material and the level of protection being asserted by the Designating Party. The 9 Designating Party shall inform the court reporter of these requirements. 10 (3) The Designating Party will have the right to exclude from 11 attendance at the deposition, during such time as the confidential information is to 12 be disclosed, any person other than the deponent, counsel (including their staff and 13 associates), the court reporter, and the person(s) agreed upon pursuant to paragraphs 14 7.2 and 7.3 below. 15 (4) The originals of the deposition transcripts and all copies of 16 the deposition must bear the legend "CONFIDENTIAL" or "HIGHLY 17 CONFIDENTIAL – ATTORNEYS’ EYES ONLY," as appropriate, and the original 18 or any copy ultimately presented to a court for filing must not be filed unless it can 19 be accomplished under seal, identified as being subject to this Order, and protected 20 from being opened except by order of this Court. 21 (c) for information produced in some form other than documentary 22 and for any other tangible items, that the Producing Party affix in a prominent place 23 on the exterior of the container or containers in which the information is stored the 24 legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ 25 EYES ONLY.” If only a portion or portions of the information warrants protection, 26 the Producing Party, to the extent practicable, shall identify the protected portion(s). 27 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 1 the Designating Party’s right to secure protection under this Order for such material. 2 Upon timely correction of a designation, the Receiving Party must make reasonable 3 efforts to assure that the material is treated in accordance with the provisions of this 4 Order. 5 VI. CHALLENGING CONFIDENTIALITY DESIGNATIONS 6 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 7 designation of confidentiality at any time that is consistent with the Court’s 8 Scheduling Order. 9 6.2 Meet and Confer. The Challenging Party objecting to confidentiality 10 must notify, in writing, counsel for the Designating Party of the objected-to materials 11 and the grounds for the objection. If the dispute is not resolved consensually between 12 the parties within seven (7) days of receipt of such a notice of objections, the 13 Challenging Party may move the Court for a ruling on the objection, in accordance 14 with the procedure set forth in Local Rules 37.1, et seq. The materials at issue must 15 be treated as confidential information, as designated by the designating party, until 16 the Court has ruled on the objection or the matter has been otherwise resolved. 17 6.3. The burden of persuasion in any such challenge proceeding shall be on 18 the Designating Party. Frivolous challenges, and those made for an improper purpose 19 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may 20 expose the Challenging Party to sanctions. Unless the Designating Party has waived 21 or withdrawn the confidentiality designation, all parties shall continue to afford the 22 materials in question the level of protection to which it is entitled under the Producing 23 Party’s designation until the Court rules on the challenge. 24 VII. ACCESS TO AND USE OF PROTECTED MATERIAL 25 7.1 Basic Principles. A Receiving Party may use Protected Material that is 26 disclosed or produced by another Party or by a Non-Party in connection with this 27 Action only for prosecuting, defending, or attempting to settle this Action. Such 1 conditions described in this Order. When the Action has been terminated, a 2 Receiving Party must comply with the provisions of section 13 below (FINAL 3 DISPOSITION). 4 Protected Material must be stored and maintained by a Receiving Party at a 5 location and in a secure manner that ensures that access is limited to the persons 6 authorized under this Order. 7 7.2. Disclosure of “CONFIDENTIAL” Information or Items. Unless 8 otherwise ordered by the court or permitted in writing by the Designating Party, a 9 Receiving Party may disclose any information or item designated 10 “CONFIDENTIAL” only to: 11 (a) The Receiving Party’s Outside Counsel of Record in this Action, 12 as well as employees of said Outside Counsel of Record to whom it is reasonably 13 necessary to disclose the information for this Action; 14 (b) the officers, directors, and employees (including House Counsel) 15 of the Receiving Party to whom disclosure is reasonably necessary for this Action; 16 (c) Experts (as defined in this Order) of the Receiving Party to 17 whom disclosure is reasonably necessary for this Action and who have signed the 18 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 19 (d) the Court and its personnel; 20 (e) court reporters and their staff; 21 (f) professional jury or trial consultants, mock jurors, and 22 Professional Vendors to whom disclosure is reasonably necessary for this Action 23 and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit 24 A); 25 (g) the author or recipient of a document containing the information 26 or a custodian or other person who otherwise possessed or knew the information; 27 (h) during their depositions, witnesses, and attorneys for witnesses, 1 deposing party requests that the witness sign the form attached as Exhibit A hereto; 2 and (2) they will not be permitted to keep any confidential information unless they 3 sign the “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless 4 otherwise agreed by the Designating Party or ordered by the court. Pages of 5 transcribed deposition testimony or exhibits to depositions that reveal Protected 6 Material may be separately bound by the court reporter and may not be disclosed to 7 anyone except as permitted under this Stipulated Protective Order; 8 (i) any mediator or settlement officer, and their supporting 9 personnel, mutually agreed upon by any of the parties engaged in settlement 10 discussions; and 11 (j) any other person with the prior written consent of the 12 Designating Party or by Order of this Court. 13 7.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 14 ONLY” Information or Items. A higher level of protection shall be provided for 15 trade secrets and highly sensitive research, development or commercial documents, 16 testimony, information, or other materials designated “HIGHLY CONFIDENTIAL 17 – ATTORNEYS’ EYES ONLY.” Unless otherwise ordered by the Court or 18 permitted in writing by the Designating Party, access to material designated 19 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” shall be restricted to 20 the following individuals: 21 (a) Outside Counsel of Record for the Parties as well as employees of 22 said Outside Counsel of Record to whom it is reasonably necessary to disclose the 23 information to assist such attorneys in connection with the Action; 24 (b) Experts (as defined in this Order) used by Outside Counsel of 25 Record for the Parties (1) to whom disclosure is reasonably necessary for this 26 Action; and (2) who have signed the “Acknowledgment and Agreement to Be 27 Bound” (Exhibit A); 1 (d) the Court and its personnel; 2 (e) professional jury or trial consultants, and Professional Vendors to 3 whom disclosure is reasonably necessary for this Action and who have signed the 4 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 5 (f) authors and recipients of the Confidential Material; 6 (g) a fact deposition witness or a trial witness that meets the limitations 7 of Section (f) above; any 30(b)(6) deposition witness presented by the Designating 8 Party; any trial witness, provided that the Designated Material marked “HIGHLY 9 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” has been or will be offered into 10 evidence, by stipulation of the Designating Party or by ruling by the Court; attorneys 11 for those witnesses; and if disclosure is reasonably necessary, provided: (1) the 12 deposing and/or examining party requests that the witness sign the form attached as 13 Exhibit A hereto; and (2) the witness will not be permitted to keep any confidential 14 information unless they sign the “Acknowledgment and Agreement to Be Bound” 15 (Exhibit A), unless otherwise agreed by the Designating Party or ordered by the 16 court. Pages of transcribed deposition testimony or exhibits to depositions that 17 reveal Protected Material may be separately bound by the court reporter and may 18 not be disclosed to anyone except as permitted under this Stipulated Protective 19 Order; 20 (h) any mediator or settlement officer, and their supporting personnel, 21 mutually agreed upon by the parties engaged in settlement discussions, subject to 22 their agreement to maintain confidentiality to the same degree as required by this 23 Protective Order; and 24 (i) any other person with the prior written consent of the Designating 25 Party or by Order of this Court. 26 VIII. PROTECTED MATERIAL SUBPOENAED OR ORDERED 27 PRODUCED IN OTHER LITIGATION 1 that compels disclosure of any information or items designated in this Action as 2 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 3 ONLY,” that Party must: 4 (a) promptly notify in writing the Designating Party. Such notification 5 shall include a copy of the subpoena or court order; 6 (b) promptly notify in writing the party who caused the subpoena or order 7 to issue in the other litigation that some or all of the material covered by the 8 subpoena or order is subject to this Protective Order. Such notification shall include 9 a copy of this Stipulated Protective Order; and 10 (c) cooperate with respect to all reasonable procedures sought to be 11 pursued by the Designating Party whose Protected Material may be affected. 12 If the Designating Party timely seeks a protective order, the Party served with 13 the subpoena or Court Order shall not produce any information designated in this 14 action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ 15 EYES ONLY” before a determination by the Court from which the subpoena or 16 order issued, unless the Party has obtained the Designating Party’s permission. The 17 Designating Party shall bear the burden and expense of seeking protection in that 18 Court of its confidential material, and nothing in these provisions should be 19 construed as authorizing or encouraging a Receiving Party in this Action to disobey 20 a lawful directive from another court. 21 IX. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 22 PRODUCED IN THIS LITIGATION 23 (a) The terms of this Order are applicable to information produced by a 24 Non-Party in this Action and designated as “CONFIDENTIAL” or “HIGHLY 25 CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” 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 1 (b) In the event that a Party is required, by a valid discovery request, to 2 produce a Non-Party’s confidential information in its possession, and the Party is 3 subject to an agreement with the Non-Party not to produce the Non-Party’s 4 confidential information, then the Party shall: 5 (1) promptly notify in writing the Requesting Party and the Non- 6 Party that some or all of the information requested is subject to a confidentiality 7 agreement with a 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 10 specific description of the information requested; and 11 (3) make the information requested available for inspection by the 12 Non-Party, if requested. 13 (c) If the Non-Party fails to seek a protective order from this court within 14 fourteen (14) days of receiving the notice and accompanying information, the 15 Receiving Party may produce the Non-Party’s confidential information responsive 16 to the discovery request. If the Non-Party timely seeks a protective order, the 17 Receiving Party shall not produce any information in its possession or control that is 18 subject to the confidentiality agreement with the Non-Party before a determination 19 by the court. Absent a court order to the contrary, the Non-Party shall bear the 20 burden and expense of seeking protection in this court of its Protected Material. 21 X. 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 25 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts 26 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or 27 persons to whom unauthorized disclosures were made of all the terms of this Order, 1 Agreement to Be Bound” that is attached hereto as Exhibit A. 2 XI. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 3 PROTECTED MATERIAL 4 When a Producing Party gives notice to Receiving Parties that certain 5 inadvertently produced material is subject to a claim of privilege or other protection, 6 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 7 Procedure 26(b)(5)(B). This provision is not intended to modify whatever 8 procedure may be established in an e-discovery order that provides for production 9 without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and 10 (e), insofar as the parties reach an agreement on the effect of disclosure of a 11 communication or information covered by the attorney-client privilege or work 12 product protection, the parties may incorporate their agreement in the stipulated 13 protective order submitted to the court. 14 XII. MISCELLANEOUS 15 12.1 Right to Further Relief. Nothing in this Order abridges the right of any 16 person to seek its modification by the Court in the future. This Order may be 17 modified by agreement of the parties, subject to Court approval. The Court may 18 otherwise modify the terms and conditions of this Order for good cause, or in the 19 interest of justice, or on its own order at any time in these proceedings. The parties 20 prefer that the Court provide them with notice of the Court's intent to modify the 21 Order and the content of those modifications, prior to entry of such an order. 22 12.2 Right to Assert Other Objections. By stipulating to the entry of this 23 Protective Order no Party waives any right it otherwise would have to object to 24 disclosing or producing any information or item on any ground, including, but not 25 limited to, the attorney-client privilege and work product doctrine, not addressed in 26 this Stipulated Protective Order. Similarly, no Party waives any right to object on 27 any ground to use in evidence of any of the material covered by this Protective 1 12.3. Filing Protected Material In Court. Before any Protected Material, 2 including, but not limited to, materials produced in discovery, answers to 3 interrogatories, responses to requests for admissions, deposition transcripts, or other 4 documents which are designated as CONFIDENTIAL or HIGHLY 5 CONFIDENTIAL – ATTORENYS EYES ONLY are filed with the Court for any 6 purpose, the party seeking to file such material must seek permission of the Court to 7 file the material under seal. The filing party must comply with Local Rule 79-5 and 8 the Federal Rules of Civil Procedure for that purpose. If a Party’s request to file 9 Protected Material under seal is denied by the court, then the Receiving Party may 10 file the information in the public record, unless otherwise instructed by the Court. 11 12.4 The restrictions and obligations set forth within this order will not 12 apply to any information that: (a) the parties agree should not be designated 13 confidential information; (b) the parties agree, or the Court rules, is already public 14 knowledge; (c) the parties agree, or the Court rules, has become public knowledge 15 other than as a result of disclosure by the receiving party, its employees, or its 16 agents in violation of this Order; or (d) has come into the receiving party's legitimate 17 knowledge independently of the production by the designating party. Prior 18 knowledge must be established by pre-production documentation. 19 12.5 The restrictions and obligations within this order will not be deemed to 20 prohibit discussions of any confidential information with anyone if that person 21 already has or legitimately obtains (e.g., via public channels or independent 22 knowledge) of that information. 23 12.6 Transmission by email or some other currently utilized method of 24 transmission is acceptable for all notification purposes within this Order. 25 XIII. FINAL DISPOSITION 26 After the final disposition of this Action, as defined in paragraph 4, within 27 sixty (60) days of a written request by the Designating Party, each Receiving Party 1 As used in this subdivision, “all Protected Material” includes all copies, abstracts, 2 compilations, summaries, and any other format reproducing or capturing any of the 3 Protected Material. Whether the Protected Material is returned or destroyed, the 4 Receiving Party must submit a written certification to the Producing Party (and, if 5 not the same person or entity, to the Designating Party) by the sixty (60) day 6 deadline that (1) identifies (by category, where appropriate) all the Protected 7 Material that was returned or destroyed and (2) affirms that the Receiving Party has 8 not retained any copies, abstracts, compilations, summaries or any other format 9 reproducing or capturing any of the Protected Material. Notwithstanding this 10 provision, Counsel are entitled to retain an archival copy of all pleadings, motion 11 papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence, 12 deposition and trial exhibits, expert reports, attorney work product, and consultant 13 and expert work product, even if such materials contain Protected Material. Any 14 such archival copies that contain or constitute Protected Material remain subject to 15 this Protective Order as set forth in Section 4 (DURATION). 16 // 17 // 18 // 19 // 20 // 21 // 22 // 23 // 24 // 25 // 26 // 27 // 1 XIV. VIOLATION 2 Any violation of this Order may be punished by any and all appropriate 3 measures including, without limitation, contempt proceedings and/or monetary 4 sanctions. 5 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 6 5 Dated: July 9, 2021 Respectfully submitted, 8 /s/ Todd A. Boock Todd A. Boock (SBN 181933) 9 todd@bnsklaw.com 10 BROWN, NERI, SMITH & KHAN LLP Los Angeles, California 90025 1 Attorneys for Plaintiff 12 THE ALIXIR COMPANY dba BEV 13 /s/ James D. Weinberger 14 James D. Weinberger (admitted pro hac vice) jweinberger@fzlz.com 15 Daniel M. Nuzzaci (admitted pro hac vice) 16 dnuzzaci(@fzlz.com FROSS ZELNICK LEHRMAN & ZISSU, P.C. V7 New York, New York 10036 18 Kevin R. Lussier (SBN 143821) 19 klussier(@cmlawfirm.com 20 CRUSER, MITCHELL, NOVITZ, SANCHEZ, GASTON & ZIMET LLP 21 Los Angeles, California 90017 22 Counsel for Defendant, 53 QUE ONDA BEVERAGE, INC. dba ONDA 24 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 25 DATED: July 12, 2021 26 27 Rapes, QA. O2~ 28 HON. ROZELLA A. OLIVER, United States Magistrate Judge {F4163366 1} 1 2 I, Todd A. Boock, am the ECF user whose user ID and password authorized 3 the filing of this document. Pursuant to Central District Local Rule 5-4.3.4(a)(2)(i), I 4 attest that all signatories to this document have concurred and authorized this filing. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 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 6 that I have read in its entirety and understand the Stipulated Protective Order that 7 was issued by the United States District Court for the Central District of California 8 on __________ [date] in the case of The Alixir Company dba Bev v. Que Onda 9 Beverage, Inc. dba Onda., Case No. 2:20-cv-08368-RGK-RAO. I agree to comply 10 with and to be bound by all the terms of this Stipulated Protective Order and I 11 understand and acknowledge that failure to so comply could expose me to sanctions 12 and punishment in the nature of contempt. I solemnly promise that I will not 13 disclose in any manner any information or item that is subject to this Stipulated 14 Protective Order to any person or entity except in strict compliance with the 15 provisions of this Order. 16 I further agree to submit to the jurisdiction of the United States District Court 17 for the Central District of California for the purpose of enforcing the terms of this 18 Stipulated Protective Order, even if such enforcement proceedings occur after 19 termination of this action. I hereby appoint _________________________ [print or 20 type full name] of ______________________________ [print or type full address 21 and telephone number] as my California agent for service of process in connection 22 with this action or any proceedings related to enforcement of this Stipulated 23 Protective Order. 24 Date: ___________________________________ 25 City and State where sworn and signed: _________________________________ 26 Printed name: _____________________________ 27 Signature: ________________________________ 1 CERTIFICATE OF SERVICE 2 I hereby certify that I electronically filed the foregoing with the Clerk of the 3 Court for the United States District Court for the Central District of California by 4 using the CM/ECF system on July 9, 2021. I further certify that all participants in the 5 case are registered CM/ECF users and that service will be accomplished by the 6 CM/ECF system. 7 I certify under penalty of perjury that the foregoing is true and correct. 8 Executed on July 9, 2021. 9 10 /s/ Todd A. Boock 11 Todd A. Boock 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27