KOR Services, LLC v. Thomson International Incorporated ( 2024 )

1 || David V. Roth, Esq., (SBN 194648) dvr@manningllp.com 2 || Emily I Ellse, Esq., (SBN 299579) cie@manninlip.com 3 || MANNING & KASS ELLROD, RAMIEREZ, TRESTER LLP 4 || One California Street, Suite 900 San Francisco, California 94111 5 || Telephone: 415.217.6990 ‘ Facsimile: 415.217.6999 7 || Robert L. Sallander, Esq., (SBN 118352) tsallander@gpstip.com 8 || Chip Cox ( 159681) chipe@gpsllp.com 9 || Helen H. Chen, Esq., (SBN 213150) hchen@gpsllp.com 10 || GREENAN, PEFFER, SALLANDER & LALLY LLP 2000 Crow Canyon Place, Suite 380 11 || San Ramon, California 94583 Telephone: 925.866.1000 12 || Facsimile: 925.830.8787 13 || Attorneys for Defendant and Intervention-Defendant 14 || THOMSON INTERNATIONAL, INC. 15 16 UNITED STATES DISTRICT COURT 17 CENTRAL DISTRICT OF CALIFORNIA — WESTERN DIVISION 18 19 || KOR SERVICES, LLC d/b/a KOR Case No.: 2:21-cv-03695 SSS PDx PRODUCE, a Pennsylvania limited 20 || liability company, STIPULATION AND PROTECTIVE ORDER 21 Plaintiff, 22 V. 23 || THOMSON INTERNATIONAL, INC., a California corporation, 24 Defendant. 25 26 27 28 STIPTIT ATION ANT) Case No.: 2:21-cv-03695 SSS PDx 1 || ONIONS 52, INC., a Utah corporation, 2 Intervenor-Plaintiff, 3 |I v. 4 || THOMSON INTERNATIONAL, INC. a 5 || SERVICES [LC dba ROR ‘ ability Ce Limited 7 Intervention-Defendants 9 10 || I. PURPOSES AND LIMITATIONS 1] Discovery in this action is likely to involve production of confidential, 12 || proprietary or private information for which special protection from public 13 |) disclosure and from use for any purpose other than pursuing this litigation may be 14 |) warranted. Accordingly, the parties hereby stipulate to and petition the Court to 15 |) enter the following Stipulated Protective Order. The parties acknowledge that this 16 |} Order does not confer blanket protections on all disclosures or responses to 17 || discovery and that the protection it affords from public disclosure and use extends 18 || only to the limited information or items that are entitled to confidential treatment 19 || under the applicable legal principles. 20 || II. GOOD CAUSE STATEMENT 21 This action is likely to involve confidential business information, and 22 || personally identifiable information protected under California Law and proprietary 23 || information for which special protection from public disclosure and from use for 24 || any purpose other than prosecution of this action is warranted. Such confidential 25 || and proprietary materials and information 26 || consist of, among other things, confidential business information produced by 27 || Plaintiff KOR Services, LLC and Intervenor-Plaintiff Onions 52, Inc., protected by 28 STIPTIT ATION ANT) Case No.: 2:21-cv-03695 SSS (PD) 1 || statute under California law, confidential business or financial information, 2 || information regarding confidential business practices, or other commercial 3 || information otherwise generally unavailable to the public, or which may be 4 || privileged or otherwise protected from disclosure under state or federal statutes, 5 || court rules, case decisions, or common law. Accordingly, to expedite the flow of 6 || information, to facilitate the prompt resolution of disputes over confidentiality of 7 || discovery materials, to adequately protect information the parties are entitled to 8 || keep confidential, to ensure that the parties are permitted reasonable necessary uses 9 || of such material in preparation for and in the conduct of trial, to address their 10 || handling at the end of the litigation, and serve the ends of justice, a protective orde 11 || for such information is justified in this matter. It is the intent of the parties that 12 || information will not be designated as confidential for tactical reasons and that 13 || nothing be so designated without a good faith belief that it has been maintained in 14 || a confidential, non-public manner, and there is good cause why it should not be 15 || part of the public record of this case. 16 || TI. ACKNOWLEDGMENT OF UNDER SEAL FILING PROCEDURE 17 The parties further acknowledge, as set forth in Section 14.3, below, that this 18 || Stipulated Protective Order does not entitle them to file confidential information 19 || under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed 20 || and the standards that will be applied when a party seeks permission from the court 21 || to file material under seal. There is a strong presumption that the public has a right 22 || of access to judicial proceedings and records in civil cases. In connection with non- 23 || dispositive motions, good cause must be shown to support a filing under seal. See 24 || Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), 25 || Phillips v. Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar- 26 || Welbon v. Sony Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even 27 || stipulated protective orders require good cause showing), and a specific showing o 28 STIPTIT ATION ANT) Case No.: 2:21-cv-03695 SSS (PD) 1 || good cause or compelling reasons with proper evidentiary support and legal 2 || justification, must be made with respect to Protected Material that a party seeks to 3 || file under seal. The parties’ mere designation of Disclosure or Discovery Material 4 || as CONFIDENTIAL does not— without the submission of competent evidence by 5 || declaration, establishing that the material sought to be filed under seal qualifies as 6 || confidential, privileged, or otherwise protectable—constitute good cause. 7 Further, if a party requests sealing related to a dispositive motion or trial, 8 || then compelling reasons, not only good cause, for the sealing must be shown, and 9 || the relief sought shall be narrowly tailored to serve the specific interest to be 10 || protected. See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9" Cir. 11 || 2010). For each item or type of information, document, or thing sought to be filed 12 || or introduced under seal, the party seeking protection must articulate compelling 13 || reasons, supported by specific facts and legal justification, for the requested sealing 14 || order. Again, competent evidence supporting the application to file documents 15 || under seal must be provided by declaration. 16 Any document that is not confidential, privileged, or otherwise protectable 17 || in its entirety will not be filed under seal if the confidential portions can be 18 || redacted. If documents can be redacted, then a redacted version for public viewing, 19 || omitting only the confidential, privileged, or otherwise protectable portions of the 20 || document, shall be filed. Any application that seeks to file documents under seal in 21 || their entirety should include an explanation of why redaction is not feasible. 22 || IV. DEFINITIONS 23 4.1 Action: KOR Services, LLC y. Thomson International, Inc., U.S.D.C. 24 || (C.D. Cal.) Case No. 2:21-cv-03695-SSS-PD 25 4.2 Challenging Party: a Party or Non-Party that challenges the 26 || designation of information or items under this Order. 27 28 STIPTIT ATION ANT) Case No.: 2:21-cv-03695 SSS (PD) 1 4.33. “CONFIDENTIAL” Information or Items: information (regardless of 2 || how it is generated, stored or maintained) or tangible things that qualify for 3 || protection under Federal Rule of Civil Procedure 26(c), and as specified above in 4 || the Good Cause Statement. 5 44 CONFIDENTIAL — ATTY EYES ONLY, shall mean protected 6 || information that is so designated by the producing party. CONFIDENTIAL — 7 || ATTY EYES ONLY may be used only for the following types of past, current, or 8 || future protected material: (1) sensitive technical information, including current 9 || research, development and manufacturing information and patent prosecution 10 || information; (2) sensitive business information, including sensitive financial or 11 || marketing information, tax or accounting information, and the identity of growers, 12 || suppliers, distributors, logistics providers, potential or actual customers, and 13 || former or current employees, (3) competitive technical information, including 14 || technical analyses or comparisons of competitor’s products; (4) competitive 15 || business information, including non-public financial or marketing analyses or 16 || comparisons of competitor’s products, services, and strategic product planning, or 17 || (5) any other protected material the disclosure of which to non-qualified people 18 || subject to this Protective Ordre the producing party reasonably and in good faith 19 || believes would likely cause harm. 20 4.5 Counsel: Outside Counsel of Record and House Counsel (as well as 21 || their support staff). 22 4.6 Designating Party: a Party or Non-Party that designates information o 23 || items that it produces in disclosures or in responses to discovery as 24 || “CONFIDENTIAL.” 25 4.7 Disclosure or Discovery Material: all items or information, regardless 26 || of the medium or manner in which it is generated, stored, or maintained (including, 27 28 STIPTIT ATION ANT) Case No.: 2:21-cv-03695 SSS (PD) 1 || among other things, testimony, transcripts, and tangible things), that are produced 2 || or generated in disclosures or responses to discovery. 3 4.8 Expert: a person with specialized knowledge or experience in a matter 4 || pertinent to the litigation who has been retained by a Party or its counsel to serve 5 || as an expert witness or as a consultant in this Action. 6 4.9 House Counsel: attorneys who are employees of a party to this Action. 7 || House Counsel does not include Outside Counsel of Record or any other outside 8 || counsel. 9 4.10 Insurer: Zenith National Insurance Company 10 4.11 Non-Party: any natural person, partnership, corporation, association or 11 || other legal entity not named as a Party to this action. 12 4.12 Outside Counsel of Record: attorneys who are not employees of a 13 || party to this Action but are retained to represent 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 15 || has appeared on behalf of that party, and includes support staff. 16 4.13 Party: any party to this Action, including all of its officers, directors, 17 || employees, consultants, retained experts, and Outside Counsel of Record (and their 18 || support staffs). 19 4.14 Producing Party: a Party or Non-Party that produces Disclosure or 20 || Discovery Material in this Action. 21 4.15 Professional Vendors: persons or entities that provide litigation 22 || support services (e.g., photocopying, videotaping, translating, preparing exhibits or 23 || demonstrations, and organizing, storing, or retrieving data in any form or medium) 24 || and their employees and subcontractors. 25 4.16 Protected Material: any Disclosure or Discovery Material that is 26 || designated as “CONFIDENTIAL.” 27 28 STIPTIT ATION ANT) Case No.: 2:21-cv-03695 SSS (PD) 1 4.17 Receiving Party: a Party that receives Disclosure or Discovery 2 || Material from a Producing Party. 3 Vv. SCOPE 4 The protections conferred by this Stipulation and Order cover not only 5 || Protected Material (as defined above), but also (1) any information copied or 6 || extracted from Protected Material; (2) all copies, excerpts, summaries, or 7 || compilations of Protected Material; and (3) any testimony, conversations, or 8 || presentations by Parties or their Counsel that might reveal Protected Material. 9 Any use of Protected Material at trial shall be governed by the orders of the 10 || trial judge and other applicable authorities. This Order does not govern the use of 11 || Protected Material at trial. 12 VI. DURATION 13 Once a case proceeds to trial, information that was designated as 14 || CONFIDENTIAL or maintained pursuant to this protective order used or 15 || introduced as an exhibit at trial becomes public and will be presumptively 16 || available to all members of the public, including the press, unless compelling 17 || reasons supported by specific factual findings to proceed otherwise are made to the 18 || trial judge in advance of the trial. See Kamakana, 447 F.3d at 1180-81 19 || (distinguishing “good cause” showing for sealing documents produced in 20 || discovery from “compelling reasons” standard when merits-related documents are 21 || part of court record). Accordingly, the terms of this protective order do not extend 22 || beyond the commencement of the trial for those documents, items or information 23 || introduced at trial as an Exhibit or by testimony. 24 |} /// 25 |} /// 26 |} /// 27 |} /// 28 STIPTIT ATION ANT) Case No.: 2:21-cv-03695 SSS (PD) 1 VII. DESIGNATING PROTECTED MATERIAL 2 7.1 Exercise of Restraint and Care in Designating Material for 3 Protection 4 Once a case proceeds to trial, information that was designated as Each Party 5 || or Non-Party that designates information or items for protection under this Order 6 || must take care to limit any such designation to specific material that qualifies 7 || under the appropriate standards. The Designating Party must designate for 8 || protection only those parts of material, documents, items or oral or written 9 || communications that qualify so that other portions of the material, documents, 10 || items or communications for which protection is not warranted are not swept 1] || unjustifiably within the ambit of this Order. 12 Mass, indiscriminate or routinized designations are prohibited except as 13 || agreed upon by the Parties. Designations that are shown to be clearly unjustified 14 || or that have been made for an improper purpose (e.g., to unnecessarily encumber 15 || the case development process or to impose unnecessary expenses and burdens on 16 || other parties) may expose the Designating Party to sanctions. 17 If it comes to a Designating Party’s attention that information or items 18 || that it designated for protection do not qualify for protection, that Designating 19 || Party must promptly notify all other Parties that it is withdrawing the inapplicable 20 || designation. 21 7.2 Manner and Timing of Designation 22 Except as otherwise provided in this Order, or as otherwise stipulated or 23 || ordered, Disclosure of Discovery Material that qualifies for protection under this 24 || Order must be clearly so designated before the material is disclosed or produced. 25 Designation in conformity with this Order requires: 26 (a) for information in documentary form (e.g., paper or electronic 27 || documents, but excluding transcripts of depositions or other pretrial or trial 28 STIPTIT ATION ANT) Case No.: 2:21-cv-03695 SSS (PD) 1 || proceedings), that the Producing Party affix at a minimum, the legend 2 || “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that 3 || contains protected material. If only a portion of the material on a page qualifies for 4 || protection, the Producing Party also must clearly identify the protected portion(s) 5 || (e.g., by making appropriate markings in the margins). 6 A Party or Non-Party that makes original documents available for 7 || inspection need not designate them for protection until after the inspecting Party 8 || has indicated which documents it would like copied and produced. 9 |) During the inspection and before the designation, all of the material made available 10 || for inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has 11 || identified the documents it wants copied and produced, 12 || the Producing Party must determine which documents, or portions thereof, 13 || qualify for protection under this Order. Then, before producing the specified 14 || documents, the Producing Party must affix the “CONFIDENTIAL legend” to 15 || each page that contains Protected Material. If only a portion of the material on 16 || a page qualifies for protection, the Producing Party also must clearly identify the 17 || protected portion(s) (e.g., by making appropriate markings in the margins). 18 (b) for testimony given in depositions that the Designating Party identifies 19 || the Disclosure or Discovery Material on the record, before the close of the 20 || deposition all protected testimony. 21 (c) for information produced in some form other than documentary and for 22 || any other tangible items, that the Producing Party affix in a prominent place on the 23 || exterior of the container or containers in which the information is stored the legend 24 || “CONFIDENTIAL.” If only a portion or portions of the information warrants 25 || protection, the Producing Party, to the extent practicable, shall identify the 26 || protected portion(s). 27 |} /// 28 STIPTIT ATION ANT) Case No.: 2:21-cv-03695 SSS (PD) 1 7.3 Inadvertent Failure to Designate 2 If timely corrected, an inadvertent failure to designate qualified information 3 || or items does not, standing alone, waive the Designating Party’s right to secure 4 || protection under this Order for such material. Upon timely correction of a 5 || designation, the Receiving Party must make reasonable efforts to assure that the 6 || material is treated in accordance with the provisions of this Order. 7 VII. CHALLENGING CONFIDENTIALITY DESIGNATIONS 8 8.1. Timing of Challenges 9 Any Party or Non-Party may challenge a designation of confidentiality at 10 || any time that is consistent with the Court’s Scheduling Order. 1] 8.2 Meet and Confer 12 The Challenging Party shall initiate the dispute resolution process under 13 || Local Rule 37-1 et seq. 14 8.3. Joint Stipulation 15 Any challenge submitted to the Court shall be via a joint stipulation pursuant 16 || to Local Rule 37-2. 17 8.4 Burdens and Sanctions 18 The burden of persuasion in any such challenge proceeding shall be on the 19 || Designating Party. Frivolous challenges, and those made for an improper purpose 20 || (e.g., to harass or impose unnecessary expenses and burdens on other parties) may 21 || expose the Challenging Party to sanctions. Unless the Designating Party has 22 || waived or withdrawn the confidentiality designation, all parties shall continue to 23 || afford the material in question the level of protection to which it is entitled under 24 || the Producing Party’s designation until the Court rules on the challenge. 25 |} /// 26 |} /// 27 |} /// 28 10 STIPTIT ATION ANT) Case No.: 2:21-cv-03695 SSS (PD) 1 IX. ACCESS TO AND USE OF PROTECTED MATERIAL 2 9.1. Basic Principals 3 A Receiving Party may use Protected Material that is disclosed or produced 4 || by another Party or by a Non-Party in connection with this Action only for 5 || prosecuting, defending or attempting to settle this Action. Such Protected Material 6 || may be disclosed only to the categories of persons and under the conditions 7 || described in this Order. When the Action has been terminated, a Receiving Party 8 || must comply with the provisions of section 15 below (FINAL DISPOSITION). 9 Protected Material must be stored and maintained by a Receiving Party at a 10 || location and in a secure manner that ensures that access is limited to the persons 11 || authorized under this Order. 12 9.2. Disclosure of “CONFIDENTIAL” Information or Items 13 Unless otherwise ordered by the court or permitted in writing by the 14 || Designating Party, a Receiving Party may disclose any information or item 15 || designated “CONFIDENTIAL” only to: 16 (a) the Receiving Party’s Outside Counsel of Record in this Action, as 17 || well 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) 20 || of the 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 |} /// 27 |} /// 28 11 STIPTIT ATION ANT) Case No.: 2:21-cv-03695 SSS (PD) 1 (f) professional jury or trial consultants, mock jurors, and Professional 2 || Vendors to whom disclosure is reasonably necessary for this Action and who have 3 || signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 4 (g) the author or recipient of a document containing the information or 5 || a custodian or other person who otherwise possessed or knew 6 || the information; 7 (h) during their depositions, witnesses, and attorneys for witnesses, in 8 || the Action to whom disclosure is reasonably necessary provided: (1) the deposing 9 || party requests that the witness sign the form attached as Exhibit A hereto; and (2) 10 || they will not be permitted to keep any confidential information unless they sign the 11 || “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 12 || agreed by the Designating Party or ordered by the court. Pages of transcribed 13 || deposition testimony or exhibits to depositions that reveal Protected Material may 14 || be separately bound by the court reporter and may not be disclosed to anyone 15 || except as permitted under this Stipulated Protective Order; and 16 (i) any mediators or settlement officers and their supporting personnel, 17 || mutually agreed upon by any of the parties engaged in settlement discussions. 18 (j) Insurer and its representatives to whom disclosure is reasonably 19 || necessary to fulfill its obligations to Thomson International, Inc. 20 9.3. Disclosure of “CONFIDENTIAL — ATTY EYES ONLY” 21 || Information or Items 22 In addition to all of the requirements set forth for in this Protective Order for 23 || material that is designated as “CONFIDENTIAL”, the following additional 24 || requirements shall apply to information designated “CONFIDENTIAL — ATTY 25 || EYES ONLY.” 26 Information that has been designated CONFIDENTIAL — ATTY EYES 27 || ONLY shall be disclosed by the receiving party only to Qualified Recipients. All 28 12 STIPTIT ATION ANT) Case No.: 2:21-cv-03695 SSS (PD) 1 || Qualified Recipients shall hold such information received from the disclosing party 2 || in confidence, shall use the information only for purposes of this action and for no 3 || other action, and shall not use it for any business or other commercial purpose, and 4 || shall not use it for filing or prosecuting any action, and shall not disclose it to any 5 || person, except as hereinafter provided. All information that has been designated 6 || CONFIDENTIAL or CONFIDENTIAL — ATTY EYES ONLY shall be carefully 7 || maintained so as to preclude access by persons who are not qualified to receive 8 || such information under the terms of this order. 9 For purposes of this Order, “Qualified Recipient" means 10 (1) Outside counsel of record for the parties in this action, and th 11 || partners, associates, secretaries, paralegal assistants, and employees of such counse 12 || to the extent reasonably necessary to render professional services in the action 13 || outside copying services, document management services and graphic services; 14 (2) Court officials involved in this action (including court reporters, 15 || persons operating video recording equipment at depositions, and any special maste 16 || appointed by the Court); 17 (3) Any person designated by the Court in the interest of justice, 18 || upon such terms as the Court may deem proper; 19 (4) Any outside TECHNICAL ADVISOR employed by the outsid 20 || counsel of record, subject to the requirements in Paragraph 3 above; 21 (5) Any witness during the course of discovery, so long as it is 22 || stated on the face of each document designated CONFIDENTIAL 23 || INFORMATION—ATTY EYES ONLY being disclosed that the witness to whom 24 || a party is seeking to disclose the document was either an author, recipient, or 25 || otherwise involved in the creation of the document. Where it is not stated on the 26 || face of the confidential document being disclosed that the witness to whom a party 27 || is seeking to disclose the document was either an author, recipient, or otherwise 28 13 STIPTIT ATION ANT) Case No.: 2:21-cv-03695 SSS (PD) 1 || involved in the creation of the document, the party seeking disclosure may 2 || nonetheless disclose the confidential document to the witness, provided that: (i) 3 || the party seeking disclosure has a reasonable basis for believing that the witness in 4 || fact received or reviewed the document, (ii) the party seeking disclosure provides 5 || advance notice to the party that produced the document, and (iii) the party that 6 || produced the document does not inform the party seeking disclosure that the 7 || person to whom the party intends to disclose the document did not in fact receive 8 || or review the documents. Nothing herein shall prevent disclosure at a deposition 9 || of a document designated CONFIDENTIAL INFORMATION—ATTY EYES 10 || ONLY to the officers, directors, and managerial level employees of the party 11 || producing such CONFIDENTIAL INFORMATION—ATTY EYES ONLY, or to 12 || any employee of such party who has access to such CONFIDENTIAL 13 || INFORMATION—ATTY EYES ONLY in the ordinary course of such 14 || employee’s employment; and 15 (6) Insurer and its representatives to whom disclosure is reasonably 16 || necessary to fulfill its obligations to Thomson International, Inc. 17 The term TECHNICAL ADVISOR shall refer to any person who is not a 18 || party to this action and/or not presently employed by the receiving party or a 19 || company affiliated through common ownership, who has been designated by the 20 || receiving party to receive another party’s PROTECTED MATERIAL, including 21 || CONFIDENTIAL— ATTY EYES ONLY, and CONFIDENTIAL. Each party’s 22 || TECHNICAL ADVISORS shall be limited to such person as, in the judgment of 23 || that party’s counsel, are reasonably necessary for development and presentation of 24 || that party’s case. These persons include outside experts or consultants retained to 25 || provide technical or other expert services such as expert testimony or otherwise 26 || assist in trial preparation. 27 |} /// 28 14 STIPTIT ATION ANT) Case No.: 2:21-cv-03695 SSS (PD) I X. PROTECTED MATERIAL SUBPOENAED OR ORDERED 2 PRODUCED IN OTHER LITIGATION 3 If a Party is served with a subpoena or a court order issued in other litigation 4 || that compels disclosure of any information or items designated in this Action as 5 || “CONFIDENTIAL,” 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 9 || order to issue in the other litigation that some or all of the material covered by the 10 || subpoena or order is subject to this Protective Order. Such notification shall 11 || include a copy of this 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. If 14 || 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 16 || as “CONFIDENTIAL” before a determination by the court from which the 17 || subpoena or order issued, unless the Party has obtained the Designating Party’s 18 || permission. The Designating Party shall bear the burden and expense of seeking 19 || protection in that court of its confidential material and nothing in these provisions 20 || should be construed as authorizing or encouraging a Receiving Party in this Action 21 || to disobey a lawful directive from another court. 22 XI. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 3 PRODUCED IN THIS LITIGATION 24 (a) The terms of this Order are applicable to information produced by a Non- 25 || Party in this Action and designated as “CONFIDENTIAL.” Such information 26 || produced by Non-Parties in connection with this litigation is protected by the 27 28 15 STIPTIT ATION ANT) Case No.: 2:21-cv-03695 SSS (PD) 1 || remedies and relief provided by this Order. Nothing in these provisions should be 2 || construed as prohibiting a Non-Party from seeking additional protections. 3 (b) In the event that a Party is required, by a valid discovery request, to 4 || produce a Non-Party’s confidential information in its possession, and the Party is 5 || subject to an agreement with the Non-Party not to produce the Non-Party’s 6 || confidential information, then the Party shall: 7 (1) promptly notify in writing the Requesting Party and the Non-Party 8 || That some or all of the information requested is subject to a confidentiality 9 || agreement with a Non-Party; 10 (2) promptly provide the Non-Party with a copy of the Stipulated 11 || Protective Order in this Action, the relevant discovery request(s), and a reasonably 12 || specific description of the information requested; and 13 (3) make the information requested available for inspection by the 14 || Non-Party, if requested. 15 (c) If the Non-Party fails to seek a protective order from this court within 14 16 || days of receiving the notice and accompanying information, the Receiving Party 17 || may produce the Non-Party’s confidential information responsive to the discovery 18 || request. If the Non-Party timely seeks a protective order, the Receiving Party shall 19 || not produce any information in its possession or control that is subject to the 20 || confidentiality agreement with the Non-Party before a determination by the court. 21 || Absent a court order to the contrary, the Non-Party shall bear the burden and 22 || expense of seeking protection in this court of its Protected Material. 23 XI. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 24 If a Receiving Party learns that, by inadvertence or otherwise, it has 25 || disclosed Protected Material to any person or in any circumstance not authorized 26 || under this Stipulated Protective Order, the Receiving Party must immediately (a) 27 || notify in writing the Designating Party of the unauthorized disclosures, (b) use its 28 16 STIPTIT ATION ANT) Case No.: 2:21-cv-03695 SSS (PD) 1 || best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform 2 || the person or persons to whom unauthorized disclosures were made of all the terms 3 || of this Order, and (d) request such person or persons to execute the 4 || “Acknowledgment an Agreement to Be Bound” attached hereto as Exhibit A. 5 XII. INADVERTENT PRODUCTION OF PRIVILEGED OR 6 OTHERWISE PROTECTED MATERIAL 7 When a Producing Party gives notice to Receiving Parties that certain 8 || inadvertently produced material is subject to a claim of privilege or other 9 || protection, the obligations of the Receiving Parties are those set forth in Federal 10 |} Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify 1] || whatever procedure may be established in an e-discovery order that provides for 12 |} production without prior privilege review. Pursuant to Federal Rule of Evidence 13 || 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure 14 || of a communication or information covered by the attorney-client privilege or 15 || work product protection, the parties may incorporate their agreement in the 16 || stipulated protective order submitted to the court. 17 XIV. MISCELLANEOUS 18 14.1 Right to Further Relief 19 Nothing in this Order abridges the right of any person to seek its 20 || modification by the Court in the future. 21 14.2 Right to Assert Other Objections 22 By stipulating to the entry of this Protective Order, no Party waives any righ 23 || it otherwise would have to object to disclosing or producing any information or 24 || 1tem on any ground not addressed in this Stipulated Protective Order. Similarly, no 25 || Party waives any right to object on any ground to use in evidence of any of the 26 || material covered by this Protective Order. /// 28 17 STIPTIT ATION ANT) Case No.: 2:21-cv-03695 SSS (PD) 1 14.3 Filing Protected Material 2 A Party that seeks to file under seal any Protected Material must comply 3 || with Local Civil Rule 79-5. Protected Material may only be filed under seal 4 || pursuant to a court order authorizing the sealing of the specific Protected Material. 5 || If a Party’s request to file Protected Material under seal is denied by the court, then 6 || the Receiving Party may file the information in the public record unless otherwise 7 || instructed by the court. 8 XV. FINAL DISPOSITION 9 If a After the final disposition of this Action, as defined in paragraph 6, 10 || within 60 days of a written request by the Designating Party, each Receiving Party 11 || must return all Protected Material to the Producing Party or destroy such material. 12 || Counsel are entitled to retain an archival copy of all pleadings, motion papers, trial, 13 || deposition, and hearing transcripts, legal memoranda, correspondence, email, 14 || deposition and trial exhibits, expert reports, attorney work product, and consultant 15 || and expert work product, even if such materials contain Protected Material. Any 16 || such archival copies that contain or constitute Protected Material remain subject to 17 || this Protective Order as set forth in Section 6 (DURATION). 18 XVI. VIOLATION 19 Any violation of this Order may be punished by appropriate measures 20 || including, without limitation, contempt proceedings and/or monetary sanctions. 21 |} /// 22 || /// 23 |} /// 24 |} /// 25 |} /// 26 || /// 27 |} /// 28 18 STIPTIT ATION ANT) Case No.: 2:21-cv-03695 SSS (PD) 1 ||] ITIS SO STIPULATED. 2 || Dated: November 19, 2024 GREENAN, PEFFER, SALLANDER & 3 LALLY, LLP 4 By: /s/ Chip Cox 5 Attorneys for Defendant and Intervention-Defendant 6 THOMSON INTERNATIONAL, INC. 8 || Dated: November 19, 2024 STEWART SMITH 9 By: /s/ 10 Nace Naumoski □ Attorneys for Intervenor-Plaintiff 11 ONIONS 52, INC. 12 13 || Dated: November 19, 2024 MEUERS LAW FIRM, P.L. 14 By: /s/ 15 Steven E. Nurenberg Attorneys for Plaintiff 16 KOR SERVICES, LLC dba KOR PRODUCE 17 18 || FOR GOOD CAUSE SHOWN, IT IS SO ORDERED 19 20 || Dated: November 20, 2024 21 22 Patucur Lena hoe By: 23 Hon. Patricia Donahue UNITED STATES COURT 24 MAGISTRATE JUDGE 25 26 27 28 19 STIPTIT ATION ANT) Case No.: 2:21-cv-03695 SSS (PD)