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Summit Entertainment, LLC, A Delaware Limited Liability Company v. B.B. Dakota

August 15, 2011

SUMMIT ENTERTAINMENT, LLC, A DELAWARE LIMITED LIABILITY COMPANY, PLAINTIFF,
v.
B.B. DAKOTA, INC., A CALIFORNIA CORPORATION, METROPARK USA, INC., A DELAWARE CORPORATION, MODCLOTH, INC., A DELAWARE CORPORATION, AND DOES 1-10, INCLUSIVE, DEFENDANTS. B.B. DAKOTA, INC., COUNTERCLAIMANT,
v.
SUMMIT ENTERTAINMENT, LLC, COUNTERDEFENDANT.



[PROPOSED] PROTECTIVE ORDER [Lodged concurrently with Stipulated Protective Order]

NOTE: CHANGES HAVE BEEN MADE TO THIS DOCUMENT

Plaintiff and Counterdefendant Summit Entertainment, LLC, Defendant and Counterclaimant B.B. Dakota, Inc., and Defendant ModCloth, Inc. have submitted a Stipulated Protective Order ("the Stipulation"). Pursuant to the Stipulation, t he parties believe that a protective order restricting the use and dissemination of confidential, proprietary, and competitively sensitive information and documents is necessary and appropriate to facilitate discovery and litigation in this action. Certain of plaintiff Summit Entertainment, LLC's licensees and defendants B.B. Dakota, Inc. and ModCloth, Inc. are competitors in the apparel industry, and this protective order is necessary to protect against any of these parties unfairly obtaining a competitive advantage in the marketplace by access to their competitors' sales information, marketing strategies, consumer and market research, agreements related to the manufacturing and sale of apparel, or other non-public information that could potentially be used by a competing party to obtain a competitive advantage. Examples of the type of information which the parties believe might result in an unfair competitive advantage if disseminated to competitors without protection are listed in paragraphs 2 and 3 below. The parties also believe that such an order is necessary and appropriate to enable the parties to conduct discovery of non-parties, including competitors and employees of competitors, that may have similar concerns regarding their confidential, proprietary or competitively sensitive information and documents.

Finally, Summit's licensee agreements are highly confidential and have been treated as such by other courts in this District in entering protective orders. See Summit Entertainment, LLC v. Becket Media, Inc., Case No. CV09-8161 PSG (MANx), Protective Order, Docket No. 75. Disclosure of Summit's licensing information without a protective order would put Summit at a disadvantage because all of its current and potential licensees would know Summit's licensing structure for the various licenses entered for the Twilight Motion Pictures property. Finally, Summit is not a public company and therefore maintains its financial records as confidential and does not disclose such information publicly.

Accordingly, the Court, having considered the Stipulation and good cause appearing therefore, hereby ORDERS as follows:

1. Any confidential information or documents produced by or on behalf of any party or non-party as part of discovery in this action may be designated by the producing party(ies) as "Confidential" or "Highly Confidential - Outside Counsel Only" (referred to herein as "Outside Counsel Only") (collectively referred to herein as "Protected Information"). As a general guideline, any information that is publicly available should not be designated as Protected Information.

2. A document should be designated "Confidential" when it contains or reflects confidential business information, relating to information which the disclosing party or non-party believes in good faith contains, constitutes or reveals non-public customer lists, financial information relating to pricing, gross revenue, units sold and profits for products at issue in the litigation, or other information of a confidential, proprietary, private or personal nature.

3. Information or documents designated "Outside Counsel Only" shall be limited to trade secrets as defined by Cal. Civil Code § 3426.1 or marketing plans or strategies, market surveys, business plans, pricing plans, strategic plans, license agreements or negotiations, distribution agreements, manufacturing agreements, manufacturing processes, manufacturing drawings, employee files, merchandising, research and development of products and technical matters not yet released or sold, general financial information or projections, including, without limitation, budgets, net worth, identity of shareholders, or other documents relating to total revenue earned, financial information not related to the product at issue in this litigation and asset information that is not public knowledge.

4. Information designated "Confidential" and "Outside Counsel Only" may be used only in connection with this proceeding, and not for any other purpose. Such information may not be disclosed to anyone except as provided in this Protective Order.

5. Any party or non-party wishing to come within the provisions of this Protective Order may designate in writing the documents (as defined in Fed. R. Civ. P. 34 and Fed. R. Evid. 1001) or portions thereof that it considers confidential at the time the documents are produced. Each page of the document must be marked "Confidential" or "Outside Counsel Only" by the producing party, and any Protected Information exchanged prior to this Protective Order being entered by the Court shall, within a reasonable time hereafter, be so marked on each such page, if such markings do not include every such page. It is the intent of the parties that each document previously designated as "Confidential" and "Outside Counsel Only" and transmitted to the respective other parties, including any such documents and information exchanged for settlement purposes, are to be covered by this Protective Order. "Confidential" and "Outside Counsel Only" documents or things that cannot be reasonably labeled pursuant to this paragraph shall be so designated by the producing party by informing the receiving parties in writing.

6. In the instance of deposition testimony, the witness under deposition or his counsel shall invoke the provisions of this Protective Order in a timely manner and designate the level of restriction. During the deposition, parties shall be excluded from testimony designated "Outside Counsel Only." The witness under deposition or his counsel shall have the right, within fifteen days of receiving a transcript of the deposition, to designate, or change, the confidentiality designation of the transcript or portions thereof. For depositions containing some Protected Information and some non-Protected Information, a separate confidential transcript, apart from the usual transcript, shall be prepared by the court reporter. Counsel for the party asserting that certain documents or testimony contains Protected Information shall endeavor to characterize the level of confidentiality for the Protected Information during the deposition.

7. Any documents, discovery responses or deposition transcripts stamped or marked "Outside Counsel Only," as well as any copies or excerpts thereof, or analyses or reports that pertain thereto, and any deposition testimony or portion thereof marked as "Outside Counsel Only" may be made available only to:

a. Attorneys of record for the receiving party and employees of such attorneys on a need to know basis;

b. Judges, law clerks and other personnel of the Court before which this proceeding is pending;

c. Independent experts retained by the attorneys for purposes of the litigation that are not directly associated with a party, whom the receiving party identifies to the producing party seven days prior to disclosure to such expert, and who have signed and agreed to abide by the "Confidentiality Agreement for Others" (Exhibit A);

d. Court reporters and their staff that are required to transcribe testimony;

e. Outside litigation support vendors, including commercial photocopying vendors, scanning services vendors, coders and keyboard operators;

f. Any person who is identified on the face of any designated "Outside Counsel Only" material as an author or recipient thereof or who is an officer, director, managing agent, or principal of the company that ...


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