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Cinezeta Internationale Filmproduktionsgesellschaft Mbh & Co 1. v. Inferno Distribution

August 24, 2011

CINEZETA INTERNATIONALE FILMPRODUKTIONSGESELLSCHAFT MBH & CO 1. BETEILIGUNGS KG, PLAINTIFF,
v.
INFERNO DISTRIBUTION, LLC; INFERNO INTERNATIONAL, LLC; AND DOES 1-10, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Judge: Hon. Fernando M. Olguin

AMENDED STIPULATION AND PROTECTIVE ORDER

Date: N/A Time: N/A Motion Cut-off: Oct. 17, 2011 Discovery Cut-off: Oct. 3, 2011 Trial Date: Dec. 6, 2011 Action Filed: December 27, 2010

Plaintiff Cinezeta Internationale Filmproduktionsgesellschaft mbH & Co 1. Beteiligungs KG ("Plaintiff") and defendants Inferno Distribution, LLC and Inferno International, LLC (collectively, "Defendants") are parties to the above-captioned litigation (hereinafter, the "Action"). Plaintiff and each of the Defendants are referred to herein as a "Party" and, collectively, as the "Parties."

GOOD CAUSE STATEMENT: Good cause exists for entering into a Protective Order because, among other things, (1) Plaintiff has propounded discovery on Defendants seeking confidential, proprietary and sensitive financial books and records from Defendants, including but not limited to, Defendants' general ledgers for the years 2008-2010 and confidential sales figures (collectively and individually, "Defendants' Financial Records"), which Plaintiff maintains is relevant to this action; (2) Defendants have propounded discovery on Plaintiff seeking confidential, proprietary and sensitive financial information; (3) both Parties have propounded discovery seeking agreements and contracts potentially implicating their own confidential information and the confidential information of third parties, including but not limited to Defendants' seeking a confidential Settlement Agreement (the "Settlement Agreement"), which they maintain is relevant to this action; (4) both Parties have propounded discovery seeking internal communications that may contain confidential business discussions, strategy, and financial information; and (5) absent a protective order Plaintiff and Defendants will suffer prejudice.

The Parties' production of confidential and financial information will lead to the disclosure of, among other things, confidential employee information; the amount Defendants charge and/or pay for certain services and/or goods, the amount certain projects generate for the Parties or non-parties. The Parties actively keep these types of documents, data and information private from others, especially their competitors. The confidentiality of this type of information is essential for the Parties to maintain their competitive edge in their industry and to shield the Parties from liability from non-parties that expect such information to be kept confidential.

Protection of confidential business information, plans and materials is common in litigation. See e.g. Nutratech, Inc. v. Syntech (SSPF) Int'l, Inc., 242 F.R.D. 552, 555 (C.D. Cal. 2007) ("Fed.R.Civ.P. 26(c)(7) . allows for protection of 'confidential commercial information'") (citing Vesta Corset Co., Inc. v. Carmen Found., Inc., 1999 WL 13257, at *3 (S.D.N.Y. 1999) and Davis v. AT & T Corp., 1998 WL 912012, at *2 (W.D.N.Y. 1998)). In addition, other proprietary business information may be safeguarded though a protective order. See Miles v. Boeing Co., 154 F.R.D. 112, 114-15 (E.D. Pa. 1994) (entering protective order where information about defendant's competitive labor pricing, if made available to the general public, would allow competitors to examine defendant's production abilities); Sprinturf, Inc. v. Southwest Recreational Industries, Inc., 216 F.R.D. 320, 324 (E.D. Pa. 2003) (protecting information about defendant's market share, the impact of plaintiffs' requested relief on defendant's customers, and proprietary information regarding development of defendant's product line, the release of which competitors could exploit to undermine defendant's market position).

Additionally, Plaintiff's disclosure of the Settlement Agreement will prejudice Plaintiff absent a protective order because the parties to the Settlement Agreement agreed that it would be kept confidential.

STIPULATION AND [PROPOSED] PROTECTIVE ORDER THEREFORE, SUBJECT TO THE APPROVAL OF THE COURT, the Parties, believing that good cause exists, hereby stipulate, subject to approval, that the following procedures shall be followed in this Action to facilitate the orderly and efficient discovery of relevant information while minimizing the potential for unauthorized disclosure or use of confidential or proprietary information.

1. This stipulation and protective order (the "Order") shall apply to all information, documents, and things, including electronic files, subject to discovery or otherwise exchanged by the Parties or submitted to the Court in this Action that are owned or controlled by a Party and believed by the Party to contain its trade secrets or other confidential information, including but not limited to Defendants' Financial Records and the Settlement Agreement and information contained therein or adduced therefrom (including, without limitation, testimony adduced at depositions upon oral examination or upon written questions, answers to interrogatories, documents and things produced, information obtained from inspection of premises or things, and answers to requests for admission). The term DESIGNATED MATERIAL shall include all the foregoing and all information, documents, and things derived therefrom, including, but not limited to, copies, summaries, or abstracts thereof.

2. Information may not be designated as subject to any form of protection if it (a) is, or becomes, public knowledge, as shown by publicly available writings, other than through violation of the terms of this document; (b) is acquired by a non-designating Party or non-party witness from a third party lawfully possessing such information and having no obligation to the owner of the information; (c) was lawfully possessed by a non-designating Party or non-party witness prior to the opening of discovery in this proceeding, and for which there is written evidence of the lawful possession; (d) is disclosed by a non-designating Party or non-party witness legally compelled to disclose the information; or (e) is disclosed by a non-designating Party with the approval of the designating Party.

3. The Parties shall label or mark documents and things that they deem to be DESIGNATED MATERIALS, at the time of production, with the legend "CONFIDENTIAL" or "CONFIDENTIAL-ATTORNEYS' EYES ONLY" (or similar designation) on every page produced or, if the entire document is to be treated as DESIGNATED MATERIALS, on the first page of the document with an indication that the designation applies to the entire document. In the case of electronic files, the designation may be included: in the file name; in the folder name, if all files in the folder are DESIGNATED MATERIALS; or on the physical medium containing the electronic files if all files contained on the physical medium are DESIGNATED MATERIALS.

4. Prior to disclosure of protected information by any Party or its attorney to any individual not already provided access to such information by the terms of this Order, the individual shall be informed of the existence of this Order and provided with a copy to read. The individual will then be required to certify in writing that the Order has been read and understood and that the terms shall be binding on the individual. No such individual shall receive any protected information until the Party or attorney proposing to disclose the information has received a signed certification in the form attached to this Order as Exhibit A (the "Consent"). The Party or attorney receiving the completed form shall retain the original.

5. If any document or information designated DESIGNATED MATERIAL by the Parties hereunder is disclosed inadvertently to any person not entitled to receive that document or information, such disclosure shall not result in forfeiture or limitation of the protections of this Order, or remedies for violation of this Order. Any such recipient shall automatically be bound by this Order and such person:

(a) Shall promptly be informed of all the provisions of this Order by the Party who discovers the improper disclosure and asked to return all copies of improperly received DESIGNATED MATERIAL;

(b) Shall be identified immediately to all other Parties; and (c) Shall be requested to sign a Consent, attached as Exhibit A, which signed Consent shall be served on the opposing Parties.

6. If, through inadvertence, a person produces any DESIGNATED MATERIALS pursuant to this litigation without marking the information with the appropriate confidentiality label, the producing person may subsequently request that the receiving party treat previously produced documents, information, or things as DESIGNATED MATERIALS by notifying the receiving party of the error and sending copies appropriately marked. Upon receipt of such notice, the receiving party will comply with the request to the extent that the documents, information, or things or contents thereof have not already been disclosed beyond those permitted access in paragraphs 9 and 10 below, and if the documents, ...


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