The opinion of the court was delivered by: Honorable S. James Otero
STIPULATION FOR PROTECTIVE ORDER AND RELATED COUNTERCLAIM GOOD CAUSE STATEMENT
Filed: November 19, 2009 Discovery Cut-Off Date: September 1, 2009 Motion Filing Cut-off Date: October 19, 2009 Trial Date: December 1, 2009
A. The Parties to the above-entitled matter have created and maintained various documents and information in the course of their business that constitute proprietary, trade secret, and other protected confidential information subject to protection under the Uniform Trade Secrets Act ("UTSA"), which (1) derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use, and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy." [California Civ.Code, § 3426.1, subd. (d); Reeves v. Hanlon, 33 Cal. 4th 1140, 1155 (2004)];
B. Defendants Unger Fabrik, LLC , a California limited liability company erroneously sued as Rad Clothing, Inc. ("Unger"), Forever 21, Inc. ("Forever 21") , and Ross Stores, Inc. ("Ross"), have requested from Plaintiff, and Plaintiff has requested from said Defendants, (and the other parties may hereafter make similar requests among each other) the discovery of information and documents that do or may contain and embody trade secrets or other confidential and proprietary information, which contain financial information, projected sales forecasts, sales records, item profitability reports, and pricing methods (collectively referred to as "Confidential Material"), with such Confidential Material being trade secrets within the meaning of California Civ.Code, § 3426.1, subd. (d) and Whyte v Schlage Lock Company (2002) 101 Cal. App. 4th 1443, 1455-1456;
C. Plaintiff and Defendants have objected, and may in the future object to producing or disclosing Confidential Material in discovery absent execution by the parties and approval and entry by the Court of an appropriate protective order to protect and to prevent the unauthorized use or disclosure of Confidential Material, and the other parties may hereafter make similar objections;
D. In order to facilitate the fair and efficient completion of pre-trial discovery while at the same time protecting the respective parties' rights in their Confidential Material and minimizing the need for judicial intervention in the discovery process, Plaintiff, on the one hand, and Defendants Unger, Ross, Forever 21 and FP Stores, Inc., ("Defendants"), on the other hand, by and through their respective counsel of record, hereby stipulate and agree as follows:
1. Any party who is requested by an adverse party to produce or disclose Confidential Material may designate such materials as subject to this stipulation and order (the "Protective Order") by stamping on or otherwise permanently affixing to such material (without obscuring or defacing the material) prior to its production the designation "CONFIDENTIAL" ("Confidential Material Designation"). Either party may designate as Confidential Material documents produced by the opposing party or any non-party to this litigation. Such designation shall be made within 30 days from the date the designating party receives the documents it desires to designate as Confidential Material.
(a) Should any party, counsel for any party, or any person or entity not a party to this action who obtains access to Confidential Material pursuant to the terms hereof make copies or duplicates of such Confidential Material, or any portion thereof, and if the Confidential Material Designation is not clearly reproduced on the copies or duplicates as a result of the copying process, then the designation "CONFIDENTIAL" or "CONFIDENTIAL-SUBJECT TO COURT ORDER" shall be stamped on or affixed to such copies or duplicates, and the references of this Protective Order to Confidential Material shall be deemed to include and to apply to such copies or duplicates.
(b) Should any party, counsel for any party, or any person or entity not a party to this action who obtains access to Confidential Material pursuant to the terms hereof make extracts or summaries of any Confidential Material, such extracts or summaries shall also be stamped with the designation "CONFIDENTIAL -SUBJECT TO COURT ORDER." Such extracts or summaries shall also constitute Confidential Material even if the extracts or summaries are not marked with a Confidential Material Designation, and this Protective Order shall apply to such extracts and/or summaries.
(c) This Protective Order shall apply to all Confidential Material so designated whether produced informally or in response to formal discovery requests, subpoenas or at depositions.
(d) This Protective Order shall not apply to or limit a party's use of documents or information that were obtained by the party independently of this action.
(e) By designating the documents as "CONFIDENTIAL" "CONFIDENTIAL-SUBJECT TO COURT ORDER", the designating party is certifying that there is a good faith basis both in law and fact for the designation within the meaning of FRCP 26(g).
2. As several of the Defendants are direct retail competitors or direct wholesale competitors, the Defendants may further designate certain Confidential Material on an extraordinarily high confidential and/or proprietary nature as "CONFIDENTIAL -- PLAINTIFF'S-EYES ONLY" or similar designation, in the manner described in Paragraph 1. This Confidential Material so designated, and the information contained therein, shall be disclosed only to the Court, to counsel (including the paralegal, clerical and secretarial staff employed by such counsel), to the President of Plaintiff, and to experts who execute Exhibit A and whose names are furnished to the other parties. If disclosure of this Confidential Material is made pursuant to this paragraph, all other provisions in this order with respect to confidentiality shall also apply, except where inconsistent with this paragraph. By designating the documents as "CONFIDENTIAL -- PLAINTIFF'S-EYES ONLY", the designating party is certifying that there is a good faith basis both in law and fact for the designation within the meaning of FRCP 26(g).
3. Confidential Material shall not be used or disclosed, in whole or in part, directly or indirectly, by any person granted access thereto under or as a result of this Protective Order, for any purpose or to any person or entity whatsoever, except in connection with the preparation for and/or trial of this action. Confidential Material may be disclosed to the Court for prosecution, defense or settlement of this action.
4. If a party disagrees with or challenges the grounds or basis for the designation of any document or information as Confidential Material, that party nevertheless shall treat and protect such material as Confidential Material in accordance with this Protective Order unless and until all parties shall have agreed in writing, or an order of the Court shall have been entered, that provides that such challenged Confidential Material may be used or disclosed in a manner different from that specified for Confidential Material in this Protective Order. In the event of such a disagreement, the party challenging the designation shall have the burden of pursuing any relief desired, but the party asserting confidentiality shall have the burden of justifying the appropriateness of and/or need for the designation as Confidential Material. In the event of a dispute regarding the designation of confidential information, the parties shall follow the procedures set forth in Local Rule 37 to obtain a decision from the Court. If the parties want to file the Joint Stipulation required by Local Rule 37 under seal, the parties may file a stipulation to that effect or the moving party may file an ex parte application making the appropriate request. The parties must set forth good ...