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U.S. Auto Parts Network, Inc. v. Parts Geek

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION


February 19, 2010

U.S. AUTO PARTS NETWORK, INC., A DELAWARE CORPORATION, PLAINTIFF,
v.
PARTS GEEK, LLC, A NEW JERSEY LIMITED LIABILITY COMPANY, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Honorable Ralph Zarefsky United States Magistrate Judge

[PROPOSED] PROTECTIVE ORDER

[Stipulation for Protective Order filed concurrently herewith]

NOTE: CHANGES HAVE BEEN MADE TO THIS DOCUMENT

Pursuant to the Stipulation for Protective Order of Plaintiff U.S. Auto Parts Network, Inc. ("USAP") and Defendants Parts Geek, LLC, Richard E. Pine, Brian Tinari, Lowell E. Mann, Todd Daugherty, Dannie Hendershot, Cheryl M. Hendershot, and Kyle Singleton, (collectively, "Defendants"), and good cause appearing therefore, the following Protective Order is hereby entered:

1. This Protective Order shall be applicable to and govern all depositions, documents produced in response to requests for production of documents, answers to interrogatories, responses to requests for admissions, and all other discovery taken pursuant to the Federal Rules of Civil Procedure, as well as all documents produced by either party in response to informal discovery requests, and testimony adduced at trial, matters in evidence and computerized records (collectively, "RECORDS") which the disclosing party designates as "CONFIDENTIAL MATERIAL" or "FOR OUTSIDE COUNSEL'S EYES ONLY MATERIAL" hereafter furnished, directly or indirectly, by or on behalf of any party in connection with this action.

2. In designating RECORDS as "CONFIDENTIAL MATERIAL" or "FOR OUTSIDE COUNSEL'S EYES ONLY MATERIAL," a party shall make such a designation of CONFIDENTIAL MATERIAL or FOR OUTSIDE COUNSEL'S EYES ONLY MATERIAL only for RECORDS which that party in good faith believes contain trade secrets, as defined by California Civil Code § 3426.1, or other confidential, competitive or proprietary business information used by it in, or pertaining to, its business which the party takes appropriate efforts to keep confidential or which the party is otherwise required to keep confidential by agreement or law. This includes is limited to RECORDS described in the Good Cause Statement set forth in the Stipulation for Protective Order. For a designation of RECORDS as "FOR OUTSIDE COUNSEL'S EYES ONLY MATERIAL," the party must additionally believe in good faith that the RECORDS must be protected from disclosure to the parties themselves in this litigation and must be subject to the restricted disclosure provided for below. CONFIDENTIAL MATERIAL and FOR OUTSIDE COUNSEL'S EYES ONLY MATERIAL shall be used solely for the purpose of conducting this litigation and not for any other purpose.

3. RECORDS designated as CONFIDENTIAL MATERIAL may be disclosed only to the following persons:

(a) the attorneys working on this action on behalf of any party, including in-house attorneys;

(b) any paralegal assistants, stenographic and clerical employees working under the direct supervision of such counsel;

(c) any parties to this action who are individuals, and every employee, director, officer, or manager (collectively, "employee") of parties to this action who are entities other than individuals, but only to the extent necessary to further the interest of the parties in this litigation;

(d) any person not employed by a party who is expressly retained or sought to be retained by any attorney described in paragraph 3(a) to assist in preparation of this action for trial, with disclosure only to the extent necessary to perform such work;

(e) any witness at deposition or trial in this matter, provided that such witness is at the time of deposition or trial a current employee of the party who produced the RECORDS in discovery, or if not a current employee of the party who produced the RECORDS in discovery, then only upon such terms as the parties in this action may stipulate or the Court may order;

(f) any court reporter at deposition or trial in this matter, provided that such court reporter agree to maintain the confidentiality of the RECORDS; and

(g) the Court.

4. RECORDS designated as "FOR OUTSIDE COUNSEL'S EYES ONLY MATERIAL" may be disclosed only to the following persons:

(a) the attorneys working on this action on behalf of any party, including in-house attorneys;

(b) any paralegal assistants, stenographic and clerical employees working under the direct supervision of such counsel, with disclosure only to the extent necessary to perform their work in connection with this matter;

(c) any person not employed by a party who is expressly retained or sought to be retained by any attorney described in paragraph 4(a) to assist in preparation of this action for trial, with disclosure only to the extent necessary to perform such work;

(d) any witness at deposition or trial in this matter, provided that such witness is at the time of deposition or trial a current employee of the party who produced the RECORDS in discovery, or if not a current employee of the party who produced the RECORDS in discovery, then only upon such terms as the parties in this action may stipulate or the Court may order;

(e) any court reporter at deposition or trial in this matter, provided that such court reporter agree to maintain the confidentiality of the RECORDS; and

(f) the Court.

Although FOR OUTSIDE COUNSEL'S EYES ONLY MATERIAL may not be disclosed to the parties or their employees, nothing herein shall preclude counsel from communicating with their clients a general description of what was produced to the extent such communication is necessary to provide adequate legal advice regarding the litigation or settlement of this action, provided that the actual confidential information contained in such FOR OUTSIDE COUNSEL'S EYES ONLY MATERIAL is not disclosed to the party represented by the communicating counsel.

5. The persons described in paragraphs 3(d) and 4(c) shall have access to the CONFIDENTIAL MATERIAL or FOR OUTSIDE COUNSEL'S EYES ONLY MATERIAL once they have been made aware of the provisions of this Order and have manifested their assent to be bound thereby by signing a copy of the annexed "ACKNOWLEDGMENT." The executed ACKNOWLEDGEMENT shall be provided to opposing counsel within five (5) days of disclosure, unless the person to whom the documents are being disclosed is an expert. If the person is an expert, the executed ACKNOWLEDGEMENT shall be provided at the time the expert is disclosed pursuant to Local Rules, the Federal Rules of Civil Procedure and/or Court Order. The other persons described in paragraphs 3(a), 3(b), 3(c), and 3(e) and 4(a), 4(b), and 4(d) shall have access to the CONFIDENTIAL MATERIAL and FOR OUTSIDE COUNSEL'S EYES ONLY MATERIAL pursuant to the terms of this Order without signing a copy of the annexed ACKNOWLEDGEMENT. The persons receiving CONFIDENTIAL MATERIAL or FOR OUTSIDE COUNSEL'S EYES ONLY MATERIAL pursuant to paragraphs 3(a) through 3(e) and 4(a) through 4(d) shall not disclose it to any other person, except in conformance with this Order.

6. Each individual who receives any CONFIDENTIAL MATERIAL or FOR OUTSIDE COUNSEL'S EYES ONLY MATERIAL pursuant to paragraphs 3(a) through 3(e) and 4(a) through 4(d) hereby agrees to subject himself/herself to the jurisdiction of this Court for the purpose of any proceedings relating to the performance under, compliance with or violation of this Order.

7. The recipient of any CONFIDENTIAL MATERIAL or FOR OUTSIDE COUNSEL'S EYES ONLY MATERIAL that is provided under this Order pursuant to paragraphs 3(a) through 3(e) and 4(a) through 4(d) shall maintain such RECORDS in a secure and safe area and shall exercise the same standard of due and proper care with respect to the storage, custody, use and/or dissemination of such RECORDS as is exercised by the recipient with respect to its own proprietary information.

8. Parties shall designate CONFIDENTIAL MATERIAL or FOR OUTSIDE COUNSEL'S EYES ONLY MATERIAL as follows:

(a) In the case of RECORDS produced pursuant to Rules 26 and 34 of the Federal Rules of Civil Procedure, interrogatory answers, responses to requests for admissions, and the information contained therein, designation shall be made by placing the following legend on any such RECORD prior to production: "CONFIDENTIAL MATERIAL" or "FOR OUTSIDE COUNSEL'S EYES ONLY MATERIAL." In the event that a party inadvertently fails to stamp or otherwise designate a RECORD as CONFIDENTIAL MATERIAL or FOR OUTSIDE COUNSEL'S EYES ONLY MATERIAL at the time of its production that party shall have five (5) business days after discovery of such error to so stamp or otherwise designate the RECORD.

(b) In the case of depositions, designation of the portion of the transcript (including exhibits) which contains CONFIDENTIAL MATERIAL or FOR OUTSIDE COUNSEL'S EYES ONLY MATERIAL shall be made by a statement to such effect on the record in the course of the deposition or, upon review of such transcript by counsel for the party to whose CONFIDENTIAL MATERIAL or FOR OUTSIDE COUNSEL'S EYES ONLY MATERIAL the deponent has had access, said counsel shall designate within fourteen (14) days after counsel's receipt of the transcript.

(c) Transcripts of depositions will not be filed with the Court unless it is necessary to do so for purposes of trial, motions for summary judgment, or other matters. If a deposition transcript is filed and if it contains CONFIDENTIAL MATERIAL or FOR OUTSIDE COUNSEL'S EYES ONLY MATERIAL, the transcript shall be accompanied by an application to file the deposition transcript or the portion thereof containing CONFIDENTIAL MATERIAL or FOR OUTSIDE COUNSEL'S EYES ONLY MATERIAL (if such portion may be segregated) under seal. The application shall be directed to the judge to whom the submission of the deposition testimony is directed, pursuant to Local Rule 79-5.1.

9. A party shall not be obligated to challenge the propriety of a CONFIDENTIAL MATERIAL or FOR OUTSIDE COUNSEL'S EYES ONLY MATERIAL designation at the time made, and failure to do so shall not preclude a subsequent challenge thereto. In the event that any party to this litigation disagrees at any stage of these proceedings with such designation, such party shall confer in good faith pursuant to Local Rule 37-1 in an effort to eliminate the necessity for a motion. If the dispute cannot be resolved, the parties shall formulate a written stipulation and engage in motion practice as set forth in Local Rule 37. If the parties wish to file the Joint Stipulation required by Local Rule 37 under seal, they may file a stipulation to that effect or the moving party may file an ex parte application making such a request. The parties must set forth good cause in the stipulation or ex parte application as to why the Joint Stipulation or portions thereof should be filed under seal.

10. All RECORDS and all transcripts of deposition testimony filed with this Court in this litigation by any party which are, in whole or in part, designated as CONFIDENTIAL MATERIAL or FOR OUTSIDE COUNSEL'S EYES ONLY MATERIAL, including all pleadings, deposition transcripts, exhibits, discovery responses or memoranda purporting to reproduce or paraphrase such RECORDS, shall be accompanied by an application to file such RECORDS or deposition testimony, or the portion thereof containing CONFIDENTIAL MATERIAL or FOR OUTSIDE COUNSEL'S EYES ONLY MATERIAL (if such portion may be segregated), under seal. The application shall be directed to the judge to whom the submission of the RECORDS or deposition testimony is directed, as set forth in Local Rule 79-5.1. Upon the default of the filing party to submit an application to file the RECORDS or deposition testimony under seal, any party may do so.

11. Once this case proceeds to trial, CONFIDENTIAL MATERIAL and FOR OUTSIDE COUNSEL'S EYES ONLY MATERIAL will be treated in a manner agreed to by the parties and approved by the Court or as otherwise ordered by the Court. At no time shall a party have access to FOR OUTSIDE COUNSEL'S EYES ONLY MATERIAL either in written or verbal form. The record shall be sealed and the non-producing party and all personnel, other than outside counsel, shall be required to leave the courtroom during presentation of FOR OUTSIDE COUNSEL'S EYES ONLY MATERIAL.

12. Notwithstanding the designation as CONFIDENTIAL MATERIAL or FOR OUTSIDE COUNSEL'S EYES ONLY MATERIAL of any testimony, evidence, and other matters, as provided above, and notwithstanding the protection of documents as provided above, said documents, testimony, evidence, and other matters shall not, in fact, be deemed confidential and shall not be subject to this order, if the content and/or substance thereof:

(a) is, at the time of disclosure, in the public domain by publication or otherwise;

(b) becomes, at any time, through no act or failure to act on the part of the recipient party or counsel, part of the public domain by publication or otherwise;

(c) is already in the possession of a party at the time of disclosure by the other party and was not acquired in the course of this litigation directly or indirectly from the disclosing party; or,

(d) is made available to a party by a third party who obtained the same by legal means and without any obligation of confidence to the party claiming its confidential nature.

However, with respect to FOR OUTSIDE COUNSEL'S EYES ONLY MATERIAL, counsel who received the information shall be responsible for maintaining the confidentiality and shall be liable for any disclosure of same.

13. Nothing in this order shall preclude any party to the lawsuit or their attorneys (a) from showing RECORDS designated as CONFIDENTIAL MATERIAL or FOR OUTSIDE COUNSEL'S EYES ONLY MATERIAL to an individual who either prepared or reviewed the RECORDS prior to the filing of this action, or (b) from disclosing or using, in any manner or for any purpose, RECORDS from the party's own files which the party itself has designated as CONFIDENTIAL MATERIAL or FOR OUTSIDE COUNSEL'S EYES ONLY MATERIAL. However, FOR OUTSIDE COUNSEL'S EYES ONLY MATERIAL shall not be disclosed to former employees even if such employee had access to or provided input into the FOR OUTSIDE COUNSEL'S EYES ONLY MATERIAL while employed by the party.

14. Except as may be specifically provided in this order, nothing in this order will prevent any attorney from using Confidential information in the following situations:

(a) In any deposition in this action;

(b) In connection with any pleading, motion or legal argument in this action;

(c) During mediation, trial or appeal of this action;

(d) Otherwise as permitted by agreement of counsel or as expressly permitted by order of the Court.

15. If any party in this action violates this order by improperly disclosing CONFIDENTIAL MATERIAL or FOR OUTSIDE COUNSEL'S EYES ONLY MATERIAL, that party shall be liable to pay to the party who produced such material a monetary penalty in the amount of one hundred fifty thousand dollars ($150,000). If an expert retained by a party who signs the Acknowledgement attached to this Order violates this Order by improperly disclosing CONFIDENTIAL MATERIAL or FOR OUTSIDE COUNSEL'S EYES ONLY MATERIAL, then the party that retained such expert shall be liable to pay to the party who produced such material a monetary penalty in the amount of one hundred fifty thousand dollars ($150,000).

16. Within sixty (60) days of the termination of litigation between the parties, all CONFIDENTIAL MATERIAL and FOR OUTSIDE COUNSEL'S EYES ONLY MATERIAL, and all copies thereof, except such copies which have been filed with the Court, utilized in accordance with this Order, or which are and will continue to be maintained in a secure place pursuant to the continuing obligations of this Order, shall be returned to the party which produced it or shall be destroyed, unless any party's law firm's malpractice carrier requires otherwise. If a party's law firm's malpractice carrier requires that documents be so maintained, the documents designated CONFIDENTIAL MATERIAL or FOR OUTSIDE COUNSEL'S EYES ONLY MATERIAL, including copies and reproductions of the same, shall be destroyed by the party, person, or firm in possession within sixty (60) days of the exhaustion of the retention period required by the law firm's malpractice carrier. The party destroying documents pursuant to this provision shall provide a certificate to the producing party attesting to the destruction of the documents not more than one hundred fifty (150) days after final termination of this litigation or exhaustion of the retention period required by the law firm's malpractice carrier, whichever is later. The Parties shall ensure that any electronic data produced by another Party in the course of this litigation shall, upon the termination of this litigation, be completely deleted, removed, and scrubbed from the receiving Party's storage media.

17. Except as specifically provided herein, the terms, conditions and limitations of this Order shall survive the termination of this action at the option of the designating party. This Court retains jurisdiction, both before and after the entry of final judgment in this case (whether by settlement or litigation), to construe, enforce, and/or amend the provisions of this Order.

18. This Order is without prejudice to the right of any party to seek relief from the Court, upon good cause shown, from any of the provisions contained herein.

This order shall not govern the use of materials in connection with dispositive motions. If protection is desired for such materials, it must be sought separately from the judicial officer who will preside over the dispositive motions.

IT IS SO ORDERED.

ACKNOWLEDGMENT

The undersigned hereby acknowledges that he/she has read the PROTECTIVE ORDER which was entered by the Court on __________________, 2010 in U.S. Auto Parts Network, Inc. v. Parts Geek, LLC, et al., Case No. 09CV 4609 JFW RZx, that he/she is one of the persons contemplated in paragraph 3 and 4 thereof as authorized to receive disclosure of RECORDS designated CONFIDENTIAL MATERIAL or FOR OUTSIDE COUNSEL'S EYES ONLY MATERIAL by any of the parties or by third parties, and that he/she fully understand and agrees to abide by the obligations and conditions of the Protective Order. The undersigned further consents to be subject to the jurisdiction of the United States District Court for the Central District of California for purposes of any proceedings relating to performance under, compliance with or violation of the above-described Order.

20100219

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