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Macy's, Inc. and Macys.Com, Inc v. Strategic Marks

March 26, 2013


The opinion of the court was delivered by: The Honorable Samuel Conti United States District Judge


3 confidential, proprietary, or private information for which special protection from public 4 disclosure and from use for any purpose other than prosecuting this litigation may be 5 warranted. Accordingly, the parties hereby stipulate to and petition the Court to enter the 6 following Stipulated Protective Order ("Stipulated Order"). The parties acknowledge that 7 this Stipulated Order does not confer blanket protections on all disclosures or responses 8 to discovery and that the protection it affords from public disclosure and use extends only 9 to the limited information or items that are entitled to confidential treatment under the 10 applicable legal principles. The parties further acknowledge, as set forth in Section 12.3, 11 below, that this Stipulated Order does not entitle them to file confidential information 12 under seal; Civil Local Rule 79-5 and General Order 62 set forth the procedures that 13 must be followed and the standards that will be applied when a party seeks permission 14 from the Court to file material under seal. The parties further acknowledge that the 15 protections afforded by this Stipulated Order apply to Protected Material properly 16 designated as so by either party prior to the parties entering into this Stipulated Order. 17

19 information or items under this Stipulated Order. 20

2.2 "CONFIDENTIAL" Information or Items: Disclosure or Discovery Material

(regardless of how it is generated, stored, maintained, or produced) and/or tangible 22 things qualify for protection as "CONFIDENTIAL" Information or Items if their disclosure 23 to the public would violate a personal, financial, or other interest protected by law (such 24 as a trade secret or other confidential research, development, or proprietary commercial 25 information) or such Disclosure or Discovery Material and/or tangible things otherwise 26 qualify for protection under Federal Rule of Civil Procedure 26(c). 27


Disclosure and discovery activity in this action are likely to involve production of


2.1 Challenging Party: a Party or Non-Party that challenges the designation of

2.3 Counsel: Outside Counsel and/or House Counsel (as well as their

associated attorneys and support staff). 2

2.4 Designated House Counsel: House Counsel who seek access to

"HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY" information in this matter. 4

5 items that it produces in disclosures or in responses to discovery as either 6

Information or Items. 8

9 regardless of the medium or manner in which it is generated, stored, maintained or 10 produced (including, among other things, testimony, transcripts, videotaped depositions, 11 video cassettes , or other digital media upon which the recorded deposition has been 12 stored, and tangible things), that are produced or generated in disclosures or responses 13 to discovery sought (in writing and/or during a deposition) in this matter. 14

2.7 Expert: a person with specialized knowledge or experience in a matter

15 pertinent to the litigation who has been retained by a Party or its Counsel to serve as an 16 expert witness or as a consultant in this action. 17

2.5 Designating Party: a Party or Non-Party that designates information or


2.6 Disclosure or Discovery Material: all items, testimony or information,


Items: extremely sensitive "CONFIDENTIAL" Information or Items, disclosure of which to 19 another Party or Non-Party would create a substantial risk of serious harm that could not 20 be avoided by less restrictive means. 21

2.9 House Counsel: attorneys who are employees of a party to this action.

House Counsel does not include Outside Counsel. 23

24 other legal entity not named as a Party to this action. 25

26 action, but are retained to represent or advise a party to this action in connection with this 27 action, or are affiliated with a law firm which has appeared on behalf of that party in this 28

2.10 Non-Party: any natural person, partnership, corporation, association, or

2.11 Outside Counsel: attorneys who are not employees of a party to this

action. 2

3 employees, consultants, retained experts, and Outside Counsel (and their support staffs). 4

5 or Discovery Material to (or makes such material available for inspection to) a Receiving 6

2.14 Professional Vendors: persons or entities that provide litigation support

8 services (e.g., photocopying, court reporting, stenographic reporting, videotaping, 9 translating, preparing exhibits or demonstrations, and organizing, copying, imaging, 10 coding, converting, storing or retrieving data, documents or information, or designing 11 programs for handling data connected with this litigation in any form or medium), and 12 their employees and subcontractors. 13

14 designated by a Designating Party as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL -- 15

ATTORNEYS' EYES ONLY" Information or Items (or deemed to be so pursuant to the 16 terms of this Stipulated Protective Order). 17

18 from a Producing Party. 19

2.12 Party: any party to this action, including all of its officers, directors,

2.13 Producing Party: a Party or Non-Party that testifies or provides Disclosure

Party in connection with this action. 7

2.15 Protected Material: any Disclosure or Discovery Material that is

2.16 Receiving Party: a Party that receives Disclosure or Discovery Material


The protections conferred by this Stipulation and Order cover not only Protected

Material (as defined above), but also the following material which is hereby deemed to 22 constitute Protected Material under this Stipulated Order: (1) any information copied or 23 extracted from Protected Material by (or at the behest) of someone other than the 24

Designating Party for that Protected Material; (2) all copies, excerpts, summaries, or 25 compilations of Protected Material made by (or at the behest) of someone other than the 26

Designating Party for that Protected Material; and (3) any testimony, conversations, or 27 presentations by Parties or their Counsel that might reveal Protected Material. 28

2 information: (i) lawfully acquired by the Receiving Party (by means other than discovery 3 in this litigation) prior to its disclosure by the Designating Party in a manner that did not 4 impose any obligation of confidentiality upon the Receiving Party; (ii) lawfully acquired by 5 the Receiving Party from a third party who obtained the information lawfully, was under 6 no obligation of confidentiality to the Designating Party when it provided the information 7 to the Receiving Party, and failed to impose any conditions of confidentiality upon the 8

Party to the Receiving Party; (iv) entered the public domain (after its disclosure by the 10

Designating Party to the Receiving Party) as a result of a publication not involving a 11 violation of this Stipulated Order, including becoming part of the public record through 12 trial or otherwise. The Parties shall confer in good faith prior to trial in an attempt to 13 devise any necessary additional and/or alternate protective procedures to be applicable 14 at trial that are satisfactory to the Court. 15

However, the protections conferred by this Stipulated Order do not cover

Receiving Party; (iii) was in the public domain when it was disclosed by the Designating 9

This Stipulated Order has no effect upon, and its scope shall not extend to, any

Party's use or disclosure of its own "CONFIDENTIAL" Information or Items. 17

18 parties execution of this Stipulated Order shall be afforded the full protections conferred 19 by this Stipulated Order. 20

22 by this Stipulated Order shall remain in effect until a Designating Party agrees otherwise 23 in writing or a court order otherwise directs. Final disposition shall be deemed to be the 24 later of (1) dismissal of all claims and defenses in this action, with or without prejudice; 25 and (2) final judgment herein after the completion and exhaustion of all appeals, 26 rehearings, remands, trials, or reviews of this action, including the time limits for filing any 27 motions or applications for extension of time pursuant to applicable law. 28

Protected Material that has been produced by a Designating Party prior to the


Even after final disposition of this litigation, the confidentiality obligations imposed

4 this Stipulated Order shall make a good faith effort to limit any such designation only to 5 material that qualifies for protection hereunder (according to the standards set forth in 6 paragraphs 2.2 and 2.8 of this Stipulated Order). Where practicable, a Designating Party 7 shall designate for protection only the qualifying portions of material, documents, items, 8 or oral or written communications, leaving non-qualifying material, documents, items, and 9 oral or written communications undesignated. 10

11 information or items as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL - ATTORNEYS' 12

EYES ONLY" Information or Items pursuant to terms of this Stipulated Order shall 13 constitute the verification by Counsel of record for the Producing Party that at least one 14 attorney has reviewed the material being designated and that the designation is, in the 15 good faith judgment of the Producing Party's Counsel, consistent with the terms of this 16

Stipulated Order. Designations that are shown to be clearly unjustified, or to have been 17 made for an improper purpose (e.g., to unnecessarily encumber or retard the case 18 development process or to impose unnecessary expenses and burdens on other parties), 19 expose the Designating Party to sanctions. 20

If it comes to a Designating Party's attention that information or items that it

21 designated for protection do not qualify for protection at all or do not qualify for the level 22 of protection initially asserted, that Designating Party shall promptly notify all other parties 23 that it is withdrawing the mistaken designation. 24

26 of section 5.2(a) below), or as otherwise stipulated or ordered, Disclosure or Discovery 27

Material that qualifies for protection under this Stipulated Order must be clearly 28


5.1 Exercise of Restraint and Care in Designating Material for Protection.

Each Party or Non-Party that designates information or items for protection under

Mass and/or indiscriminate designations are prohibited. The designation of any

5.2 Manner and Timing of Designations.

Except as otherwise provided in this Stipulated Order (see, e.g., second paragraph

designated as such before the material is disclosed or produced. 2

4 documents, but excluding transcripts of depositions or other pretrial or trial proceedings), 5 that the Producing Party affix the legend "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL 6

-- ATTORNEYS' EYES ONLY" to each page that contains Protected Material. If only a 7 portion of the material appearing on such a page qualifies for protection hereunder, the 8

Designation in conformity with this Stipulated Order requires:

(a) for information in documentary form (e.g., paper or electronic

Producing Party must also clearly identify the protected portion(s) (e.g., by making 9 appropriate markings in the margins) and must specify, for each portion thus identified, 10 the level of protection being asserted for the referenced material. 11

12 inspection need not designate any portions thereof for protection until after the inspecting 13

During the inspection and before the designation, all of the material made available for 15 inspection shall be temporarily deemed "HIGHLY CONFIDENTIAL -- ATTORNEYS' 16

EYES ONLY." After the inspecting Party has identified the documents it wants copied 17 and/or produced, the Producing Party shall be provided with a reasonable opportunity 18

(prior to copying and/or production of the requested documents) to determine which of 19 the requested documents, or portions thereof, qualify for protection under this Stipulated 20

(b) for testimony given in deposition or in other pretrial or trial proceedings,

22 that the Designating Party identify on the record all protected testimony and specify the 23 level of protection being asserted before the close of the deposition, hearing, or other 24 proceeding. If a Party has reasons for believing it may be (or has been) impractical to 25 comply fully with this requirement, and/or it appears that substantial portions of the 26 testimony may qualify for protection, the Designating Party may invoke on the record 27 prior to the conclusion of the deposition, hearing, or other proceeding, a right to have up 28

A Party or Non-Party that makes original documents or materials available for

Party has indicated which documents or material it would like copied and produced. 14

Order, and to designate its Protected Material as such. 21

to 21 days following the deposition (the "21-Day Review Period"), hearing, or other 2 proceeding to identify the specific portions of the testimony as to which protection is 3 sought and to specify the level of protection being asserted. Following expiration of such 4

21-Day Review Period, only those portions of the testimony that are appropriately 5 designated for protection within that 21-Day Review Period shall be covered by the 6 provisions of this Stipulated Order. 7

Alternatively, when there is good cause to do so, a Designating Party may

8 specify, during the deposition or up to 21 days afterwards (if that period is properly 9 invoked during the deposition), that the entire transcript shall be treated as 10

Parties shall give the other parties reasonable notice if they reasonably

12 expect a deposition, hearing or other proceeding to include Protected Material so that the 13 other parties can ensure that only authorized individuals who have signed the 14

"Acknowledgment and Agreement to Be Bound" (Exhibit A) are present at those 15 proceedings. Nonetheless, if Protected Material is about to be (or at risk of being) 16 disclosed during a deposition, then prior to disclosure of the Protected Material, any 17 person not authorized to receive the Protected Material pursuant to paragraph 7.2 or 18 paragraph 7.3 below shall be excluded from the deposition until testimony regarding 19 those matters has been concluded. The use of a document as an exhibit at a deposition 20 shall not in any way affect its designation as "CONFIDENTIAL" or "HIGHLY 21

Transcripts containing Protected Material shall have an obvious legend on

23 the title page that the transcript contains Protected Material, and the title page shall be 24 followed by a list of all pages (including line numbers as appropriate) that have been 25 designated as Protected Material and the level of protection being asserted by the 26

Designating Party. Additionally, each page of the transcript containing Protected Material 27 shall be individually marked as containing Protected Material, including the level of 28



protection being asserted by the Designating Party for such Protected Material. The 2

Designating Party shall inform the court reporter of these requirements. Any transcript 3 that is prepared before the expiration of a 21-Day Review Period shall be treated by all 4 parties during that period as if it had been designated "HIGHLY CONFIDENTIAL -- 5

ATTORNEYS' EYES ONLY" in its entirety unless otherwise agreed. After the expiration 6 of that period, the transcript shall be treated as Protected Material only if, and as, actually 7 designated. 8

9 any other tangible items, that the Producing Party affix in a prominent place on the 10 exterior of the container or containers in which the information or item is stored (and to 11 the extent possible, on the information or item itself) the legend "CONFIDENTIAL" or 12

"HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY." If only a portion or portions of 13 the information or item warrant protection, the Producing Party, to the extent practicable, 14 shall identify the protected ...

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