The opinion of the court was delivered by: Magistrate: Hon. Jacqueline Chooljian
AMENDED PROTECTIVE ORDER GOVERNING THE USE AND MAINTENANCE OF CONFIDENTIAL MATERIAL [CHANGES MADE BY COURT]
Judge: Hon. S. James Otero
WHEREAS, Plaintiff L.A. Triumph, Inc. and Defendants Material Girl Brand, LLC, MG Icon LLC, and Macy's Retail Holdings, Inc. (collectively, the "Parties") filed a Stipulated Protective Order, (Dkt 23), on December 13, 2010, and the Court entered a Stipulated Protective Order Governing the Use and Maintenance of Confidential Material, (Dkt 25), on December 28, 2010;
WHEREAS, it has become apparent that some documents sought by and produced by the Parties necessitate a higher level of protection due to their sensitive business nature;
WHEREAS, the parties have entered into a Joint Stipulation Re Amended Protective Order Governing the Use and Maintenance of Confidential Material ("Amended Stipulation"), concurrently filed herewith, providing for the designation of select documents as "ATTORNEYS' EYES ONLY".
GOOD CAUSE STATEMENT: The Court agrees that good cause exists for the entry of this Amended Protective Order Governing the Use and Maintenance of Confidential Material with respect to a select number of documents that the Parties represent will be produced in this action that contain confidential financial information, sensitive business information, and, trade secrets, the disclosure of which could harm the businesses involved, as the Parties here represent that they are, in certain respects, competitors in the same marketplace. Accordingly, the Court agrees to the addition of the designation "ATTORNEYS' EYES ONLY" to protect the following categories of documents: (1) Proprietary and confidential business plans that the other parties could utilize to their competitive advantage if they were provided access to them;
(2) Proprietary and confidential financial information that the other parties could utilize to their competitive advantage if they were provided access to them; and (3) Other types of proprietary and confidential trade secrets such as lists of customers not publicly known, technical information, cost information, and individual pricing information not either publicly available or available upon the request of a customer that competitors could utilize to their competitive advantage.
The Parties represent that the overriding interest in the requested protection overcomes any right the public may have to access this type of information, and that, given the nature of the dispute and the high-profile parties involved, there is a substantial probability that the Parties' interest will be prejudiced if they are not permitted to file certain documents under seal. The Parties agree to only designate the most sensitive and potentially harmful documents as confidential and to work in good faith to ensure that this Order remains narrowly tailored and limited in scope.
The provisions of this Amended Order are set forth below:
1. Designated Materials: Any party in this action or any third-party witness shall have the right to designate any material produced during discovery (including exhibits, documents and things produced by any party or witness, electronic files, disks or DVDs, answers to interrogatories, responses to requests for admissions, responses to requests for production, subpoenas, declarations, affidavits, and deposition testimony or transcripts) which comprises or contains information which such party or witness claims in good faith to constitute trade secrets, confidential research (including market research, surveys, and demographic information), product development, the development and creation of advertising, commercial information (including business plans and license agreements), financial information (including sales and profit figures and advertising expenditures) or personnel information as "CONFIDENTIAL" or "ATTORNEYS' EYES ONLY," depending on the level of protection necessary. Any documents filed with the Court or produced or provided by any party or non-party in the course of discovery or other proceedings in this action may be designated as "CONFIDENTIAL" or "ATTORNEYS' EYES ONLY" so long as a good faith and reasonable basis exists for such a designation. Such materials are referred to throughout this Amended Stipulation as "Designated Materials."
Information shall not be designated as "CONFIDENTIAL" or "ATTORNEYS' EYES ONLY," and shall not be subject to any form of protection if it is, or becomes, public knowledge, as shown by publicly available writings, other than through violation of the terms of this Amended Stipulation or as a result of misappropriation from the disclosing party. If a party disagrees with the other party's designation, the party requesting the change in designation shall make such request in writing to counsel for the other party. The requested change shall occur and/or the requested permission shall be granted, unless within ten (10) business days after such notice is received by the other party, an objection is sent to the requesting party. The Parties shall attempt in good faith to resolve any such further dispute by agreement. Any dispute as to the propriety of a party's designation shall be governed by the provisions of paragraph 15.
The failure to immediately challenge a designation shall not constitute acquiescence to such designation and a challenge to such can be made at any time.
2. Marking and Deposition Procedures: Documents and other discovery materials shall be designated by labeling such documents and materials in a visible manner with an appropriate legend stamped or affixed thereto, or by a manner mutually agreeable to the Parties if the materials cannot be readily so labeled. Deposition transcripts or portions thereof may be designated as confidential by a party or third-party witness either: (a) before the testimony is taken, in which case the portion of the transcript of the designated testimony shall be bound in a separate volume and marked "CONFIDENTIAL" or "ATTORNEYS' EYES ONLY" by the reporter, as the designating party may direct; or (b) by written notice to the reporter and all counsel of record, given within twenty (20) business days after the reporter sends written notice to the deponent or the deponent's counsel that the transcript is available for review, in which case all counsel receiving such notice shall be responsible for marking the copies of the designated transcript or portion thereof in their possession or control as directed by the designating party or witness. Pending expiration of the twenty business days, all Parties and, if applicable, any third-party witnesses or attorneys, shall treat the deposition transcript as if it had been designated "CONFIDENTIAL" or "ATTORNEYS' EYES ONLY." No person shall attend the designated portions of such depositions unless such person is an authorized recipient of Designated Materials under the terms of this Amended Stipulation.
3. Restriction on Disclosure and Use: No person may use or disclose Designated Materials or information derived from such materials (excluding information which is derived lawfully from an independent source) except for purposes of this action and as set forth in this or any further order of the court; but nothing contained in this Amended Stipulation shall affect the right of a party or other witness to use its own Designated Materials as it sees fit. In addition, and without limiting the foregoing, except as provided in paragraphs 4 and 9, no receiving party, including any consultants or employees of a receiving party, shall be given access to Designated Materials of any producing party, nor shall the contents or substance of any Designated Materials be disclosed to any such person.
4. Access -- "CONFIDENTIAL" and "ATTORNEYS' EYES ONLY":
(a) Designated Materials marked "CONFIDENTIAL" shall be available only to(1) counsel of record for the named Parties, their partners, associates and employees,(2) in-house counsel of the named Parties in this action, and (3) the named Parties to this action (including current officers and employees). Materials marked "CONFIDENTIAL" may also be disclosed to outside consultants if the consultant is not already otherwise retained by the party outside the context of this litigation, but only after the outside consultant signs a copy of the Acknowledgement of Confidentiality Order in the form of Exhibit "A" attached hereto, including all the information to be completed therein, and agrees to be bound by all terms and conditions of this Amended Stipulation. Counsel to whom Designated Materials are produced shall keep in his or her files an original of each such signed Acknowledgement of Confidentiality Order.
(b) Designated Materials marked "ATTORNEYS' EYES ONLY" shall be available only to counsel of record in this action and in-house counsel for the Parties who are attorneys actively and primarily involved in the management and supervision of litigation for their employers, and the supporting personnel employed by the attorneys, such as paralegals, secretaries, clerks, and document copiers.
5. Procedures for Filing Designated Material: Designated Materials marked as "CONFIDENTIAL" or "ATTORNEYS' EYES ONLY" may be included with, or referred to in, papers filed with the Court where this case is now pending or in any subsequent appellate courts only in accordance with the following procedures:
(a) If Designated Materials are included in any papers to be filed in Court, such papers shall be accompanied by an application to file the papers -- or the confidential portion thereof -- under seal; the application must show good cause or compelling reasons (depending upon the procedural context) for the under seal filing. The application shall be directed to the Judge to whom the papers are directed. Pending the ruling on ...