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Deckers Outdoor Corporation v. Ash International Group Limited

United States District Court, Ninth Circuit

October 11, 2013

DECKERS OUTDOOR CORPORATION, a Delaware Corporation, Plaintiff,
v.
ASH INTERNATIONAL GROUP LIMITED, a Foreign Corporation; and DOES 1-10, inclusive, Defendants.

PROTECTIVE ORDER ENTERED PURSUANT TO THE PARTIES' STIPULATION

MARGARET A. NAGLE, Magistrate Judge.

Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure and based on the parties' [Proposed] Stipulated Protective Order filed on August 27, 2013, the terms of the protective order to which the parties have agreed are adopted as a protective order of this Court (which generally shall govern the pretrial phase of this action) except to the extent, as set forth below, that those terms have been substantively modified by the Court's amendment of paragraphs 8(d), 26, and 27 of the [Proposed] Stipulated Protective Order.

The parties are expressly cautioned that the designation of any information, document, or thing as Confidential, Outside Attorney Eyes Only, or other designation(s) used by the parties, does not, in and of itself, create any entitlement to file such information, document, or thing, in whole or in part, under seal. Accordingly, reference to this Protective Order or to the parties' designation of any information, document, or thing as Confidential, Outside Attorney Eyes Only, or other designation(s) used by the parties, is wholly insufficient to warrant a filing under seal.

There is a strong presumption that the public has a right of access to judicial proceedings and records in civil cases. In connection with non-dispositive motions, good cause must be shown to support a filing under seal. The parties' mere designation of any information, document, or thing as Confidential, Outside Attorney Eyes Only, or other designation(s) used by parties, does not - without the submission of competent evidence, in the form of a declaration or declarations, establishing that the material sought to be filed under seal qualifies as confidential, privileged, or otherwise protectable - constitute good cause.

Further, if sealing is requested in connection with a dispositive motion or trial, then compelling reasons, as opposed to good cause, for the sealing must be shown, and the relief sought shall be narrowly tailored to serve the specific interest to be protected. See Pintos v. Pacific Creditors Ass'n , 605 F.3d 665, 677-79 (9th Cir. 2010). For each item or type of information, document, or thing sought to be filed or introduced under seal in connection with a dispositive motion or trial, the party seeking protection must articulate compelling reasons, supported by specific facts and legal justification, for the requested sealing order. Again, competent evidence supporting the application to file documents under seal must be provided by declaration.

Any document that is not confidential, privileged, or otherwise protectable in its entirety will not be filed under seal if the confidential portions can be redacted. If documents can be redacted, then a redacted version for public viewing, omitting only the confidential, privileged, or otherwise protectable portions of the document, shall be filed. Any application that seeks to file documents under seal in their entirety should include an explanation of why redaction is not feasible.

Notwithstanding any other provision of this Protective Order, in the event that this case proceeds to trial, all information, documents, and things discussed or introduced into evidence at trial will become public and available to all members of the public, including the press, unless sufficient cause is shown in advance of trial to proceed otherwise.

TERMS OF PROTECTIVE ORDER

DEFINITIONS

1. As used in this Protective Order,

a. "Designating Party" means any Person who designates Material as Confidential Material.

b. "Discovering Counsel" means counsel of record for a Discovering Party.

c. "Discovering Party" means the Party to whom Material is being Provided by a Producing Party.

d. "Confidential Material" refers to those materials designated as "CONFIDENTIAL" or "OUTSIDE ATTORNEY EYES ONLY" as defined in Paragraph 2 below, as well as all copies, excerpts, summaries or compilations thereof, plus testimony, conversations, or presentations that might reveal Confidential Material.

e. "Material" means any document, testimony or information in any form or medium whatsoever, including, without limitation, any written or printed matter, Provided in this action by a Party before or after the date of this Protective Order.

f. "Party" means the Parties to this action, their attorneys of record and their officers, directors, employees, in-house attorneys, consultants, support staff, and agents.

g. "Person" means any individual, corporation, partnership, unincorporated association, governmental agency, or other business or governmental entity whether a Party or not.

h. "Producing Party" means any Person who Provides Material during the course of this action.

i. "Provide" means to produce any Material, whether voluntarily or involuntarily, whether pursuant to request or process.

CONFIDENTIAL DESIGNATIONS

2. Exercise of Restraint and Care in Designating Material for Protection. Each Party or non-party that designates information or items for protection under this Protective Order must take care to limit any such designation to specific material that qualifies under the appropriate standards.

a. Confidential. A Producing Party may designate as "CONFIDENTIAL" any material that the Producing Party considers in good faith to contain or disclose commercially sensitive and/or proprietary information not otherwise known or available to the public or information that the Party is under a duty to preserve as confidential under an agreement with or other obligation to another Person.

b. Outside Attorney Eyes Only. The Producing Party may designate as "OUTSIDE ATTORNEY EYES ONLY" documents Parties contend contain or disclose materials which they in good faith believe to be of an extremely high degree of current commercial sensitivity and/or would provide a competitive advantage to its competitors if disclosed.

c. The Producing Party may not use "CONFIDENTIAL" and/or "OUTSIDE ATTORNEY EYES ONLY" designations to conceal the identity of potential parties to the litigation, such as manufacturers, distributors, importers, retailers, and others in the supply chain of the alleged infringing goods.

3. A Producing Party shall stamp as CONFIDENTIAL or OUTSIDE ATTORNEY EYES ONLY Materials which the Producing Party in good faith believes are entitled to protection pursuant to the standards set forth in Paragraph 2 of this Protective Order. A Producing Party may designate Confidential Material for Protection under this Protective Order by either of the following methods:

a. By physically marking it with the following inscription prior to Providing it to a Party:

CONFIDENTIAL SUBJECT TO ...


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