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Qs Wholesale, Inc v. World Marketing

September 18, 2012

QS WHOLESALE, INC., PLAINTIFF,
v.
WORLD MARKETING, INC., DEFENDANT. WORLD MARKETING, INC., COUNTERCLAIMANT,
v.
QS WHOLESALE, INC. AND QUIKSILVER, INC., COUNTER-DEFENDANTS.



The opinion of the court was delivered by: Magistrate: Honorable Robert N. Block

[PROPOSED] STIPULATED PROTECTIVE ORDER

Judge: Honorable David O. Carter

WHEREAS, this action involves the alleged intellectual property interests of Plaintiff and Counter-defendant QS Wholesale, Inc., Counter-defendant Quiksilver, Inc. and Defendant and Counterclaimant World Marketing, Inc. (collectively, the "Parties");

WHEREAS, discovery in this action will involve the disclosure of private, privileged, proprietary, and confidential information, including without limitation the following:

(1) confidential and non-public business models and plans;

(2) confidential and non-public documents concerning customers and potential customers; and

(3) confidential and non-public financial records; and WHEREAS the Parties to this action believe that unrestricted disclosure or dissemination of such information could cause them injury, and desire an efficient and practicable means to designate such information as confidential and control its disclosure or dissemination;

NOW, THEREFORE IT IS HEREBY STIPULATED by the Parties, by and through their respective attorneys of record, and pursuant to FED. R. CIV. P. 26(c)(1)(G) and 29, subject to the approval of the Court, that discovery in this case of confidential information shall be had on the following terms and conditions:

1.DEFINITIONS

1.1 As used herein, the term "confidential information" means: (a) any type of information that has not been made public and the disclosure of which the disclosing party contends would (i) cause substantial harm to the disclosing party's business operations or to their own privacy interests or the privacy interests of their customers, or (ii) disclose their customers' personal financial affairs or transactions, including, but not limited to, personal information, personal references, private contact information, private family information, prior employment, personal financial records including bank records and tax returns; (b) data derived from such confidential information, including any summaries, compilations, quotes, or paraphrases thereof; and (c) any other oral, written, or recorded material that consists of or contains trade secrets (as defined in CAL. CIVIL CODE § 3426.1(d)) or other confidential research, development, or commercial information. Confidential information shall not include information

(i) that comes into the public domain, unless it is through the action of the Receiving Party; (ii) is disclosed to the Receiving Party by a third party not under any confidentiality restrictions; or, (iii) that is required to be disclosed pursuant to subpoena or valid governmental requirement.

1.2 As used herein, the terms "document," "documents," "tangible things," "recordings," and "photographs" mean documents, writings, tangible things, recordings, and photographs as defined in FED. R. CIV. P. 34(a) and FED. R. EVID. 1001, and include, but are not limited to, records, exhibits, reports, samples, transcripts, video or audio recordings, disks, affidavits, briefs, summaries, notes, abstracts, drawings, company records and reports, answers to interrogatories, responses to requests for admissions, and motions, including copies or computer-stored versions of any of the foregoing.

1.3 The term "concerning" shall be construed broadly and shall mean, for example, referring to, pertaining to, evidencing, containing, describing, reflecting, regarding, illustrating, mentioning, embodying, constituting, supporting, discussing, or having any logical or factual connection whatsoever with the subject matter in question.

2.DESIGNATION OF CONFIDENTIAL INFORMATION

2.1 This Protective Order applies to all discovery responses, documents, testimony, and other materials disclosed in this action that are designated by a party as CONFIDENTIAL or CONFIDENTIAL - ATTORNEYS' EYES ONLY, as defined below, whether such disclosure is by order of the Court or by response to questions in a deposition, written interrogatories, requests for the production of documents and other tangible things, requests for admission, or any other discovery undertaken in this action.

2.2 Any party may protect information it believes constitutes its confidential information by designating such information as CONFIDENTIAL or CONFIDENTIAL - ATTORNEYS' EYES ONLY, as defined below, prior to or at the time of disclosure of such information. Such designation shall be accomplished by placing the notation CONFIDENTIAL or CONFIDENTIAL -ATTORNEYS' EYES ONLY (or some notation essentially equivalent to the phrase CONFIDENTIAL - ATTORNEYS' EYES ONLY) on every page of each document or portion thereof so designated. In the case of confidential information disclosed in a non-paper medium (e.g., videotape, audiotape, computer disks, etc.), the notation CONFIDENTIAL or CONFIDENTIAL - ATTORNEYS' EYES ONLY shall be affixed to the outside of the medium or its container so as to clearly give notice of the designation. Such designation is deemed to apply to the document itself and to the confidential information contained therein.

2.3 Confidential information so designated shall be used only for the purposes of this litigation and may not be used by any party to which that information is produced or disclosed for research, development, sales, marketing, publicity, or competitive purposes, or any other purpose. Confidential information so designated shall not be disclosed to anyone other than those persons identified in Paragraphs 4.3 and 4.4, infra, except as may be ordered by the Court or agreed to in writing by the Parties.

2.4 The Parties shall use reasonable care to avoid designating any materials as CONFIDENTIAL or CONFIDENTIAL - ATTORNEYS' EYES ONLY that are (a) not entitled to such designation, or (b) are generally available to the public.

3.DEPOSITIONS

3.1 With respect to the examination of witnesses upon oral deposition, when designated confidential information is supplied to the deponent, or when the deponent's testimony contains, reflects, or comments on designated confidential information, the deposition reporter and/or videotape operator shall be informed of this Protective Order by the party seeking to invoke its protection, and will be required to agree to be bound by its terms in accordance with Paragraph

4.5, infra. The reporter and/or videotape operator then shall place on the cover of any deposition transcript or videotape that contains any designated confidential information the words "CONTAINS CONFIDENTIAL INFORMATION SUBJECT TO A COURT PROTECTIVE ORDER" or "CONTAINS CONFIDENTIAL - ATTORNEYS' EYES ONLY INFORMATION SUBJECT TO A COURT PROTECTIVE ORDER," depending on the designation made by the designating party. Counsel for the Parties then shall take appropriate steps to prevent any portions of any deposition transcript or videotape designated CONFIDENTIAL or CONFIDENTIAL - ATTORNEYS' EYES ONLY from being disclosed to any person, except as provided in this Protective Order.

3.2 All testimony at a deposition shall be presumed to be designated CONFIDENTIAL or CONFIDENTIAL - ATTORNEYS' EYES ONLY if this Protective Order is invoked at any time during the deposition until the specific pages of the transcript containing designated confidential information are identified and designated CONFIDENTIAL or CONFIDENTIAL -ATTORNEYS' EYES ONLY, as provided below. The designating party shall, within ten (10) business days after receiving a copy of the deposition transcript, provide all Parties with a written list of the page(s) of the deposition transcript, and any exhibits attached thereto, that the party has designated CONFIDENTIAL or CONFIDENTIAL - ATTORNEYS' EYES ONLY. If the non-designating party believes there is good cause for these specific deposition designations to be made in fewer than ten (10) business days and makes a reasonable request therefor specifying the basis for the expedited request, the designating party shall make good faith efforts to provide all Parties with a written list of the designated pages and exhibits within the timeframe requested by the non-designating party.

3.3 Each deponent to whom any party proposes to disclose designated confidential information at a deposition shall be given a copy of this Protective Order and informed of its contents. After reading this Protective Order, the Parties shall take all reasonable steps to have such witnesses sign the declaration attached hereto as EXHIBIT A and referenced herein in Paragraphs 4.5 and 4.6, infra ("COMPLIANCE DECLARATION").

3.4 If designated confidential information is to be discussed or disclosed in a deposition, any party claiming such confidentiality may exclude from the room any person who is not entitled to receive such confidential information during that portion of the deposition in which the confidential information is actually discussed or disclosed.

4.DISCLOSURE OF DESIGNATED CONFIDENTIAL INFORMATION

4.1 The Parties, counsel for the Parties, and all persons who execute the COMPLIANCE DECLARATION shall maintain all designated confidential information in confidence and shall not disclose such information, directly or indirectly, to any person except as provided in this Protective Order.

4.2 While the disclosure of confidential information designated CONFIDENTIAL or CONFIDENTIAL - ATTORNEYS' EYES ONLY to persons not authorized by this Protective Order could, by definition, be prejudicial to the business, operations, or interests of the designating party or third party, the ...


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