United States District Court, C.D. California
PROTECTIVE ORDER PURSUANT TO STIPULATION
Hon.
Frederick F. Mumm United States Magistrate Judge
1.
INTRODUCTION
1.1
PURPOSES AND LIMITATIONS
Discovery
in this action is likely to involve production of
confidential, proprietary, or private information for which
special protection from public disclosure and from use for
any purpose other than prosecuting this litigation may be
warranted. Accordingly, the parties hereby stipulate to and
petition the Court to enter the following Stipulated
Protective Order. The parties acknowledge that this Order
does not confer blanket protections on all disclosures or
responses to discovery and that the protection it affords
from public disclosure and use extends only to the limited
information or items that are entitled to confidential
treatment under the applicable legal principles. The parties
further acknowledge, as set forth in Section 12.3, below,
that this Stipulated Protective Order does not entitle them
to file confidential information under seal; Civil Local Rule
79-5 sets forth the procedures that must be followed and the
standards that will be applied when a party seeks permission
from the court to file material under seal.
1.2
GOOD CAUSE STATEMENT
This
action is likely to involve trade secrets, customer and
pricing lists and other valuable research, development,
commercial, financial, technical and/or proprietary
information for which special protection from public
disclosure and from use for any purpose other than
prosecution of this action is warranted. Such confidential
and proprietary materials and information consist of, among
other things, confidential business or financial information,
including, but not limited to, sales, expenses, and profits,
information regarding confidential business practices,
information regarding the creation, purchase or sale of
graphics, artwork, and/or designs used on textiles and
garments, or other confidential research, development, or
commercial information (including information implicating
privacy rights of third parties), information otherwise
generally unavailable to the public, or which may be
privileged or otherwise protected from disclosure under state
or federal statutes, court rules, case decisions, or common
law. Accordingly, to expedite the flow of information, to
facilitate the prompt resolution of disputes over
confidentiality of discovery materials, to adequately protect
information the parties are entitled to keep confidential, to
ensure that the parties are permitted reasonable necessary
uses of such material in preparation for and in the conduct
of trial, to address their handling at the end of the
litigation, and serve the ends of justice, a protective order
for such information is justified in this matter. It is the
intent of the parties that information will not be designated
as confidential for tactical reasons and that nothing be so
designated without a good faith belief that it has been
maintained in a confidential, non-public manner, and there is
good cause why it should not be part of the public record of
this case.
2.
DEFINITIONS
2.1
Action: This pending federal lawsuit KC &HC,
Inc. v. Dillard's, Inc., et al., No.
2:19-cv-06691-DMG-FFM.
2.2
Challenging Party: a Party or Non-Party that
challenges the designation of information or items under this
Order.
2.3
“CONFIDENTIAL” Information or Items:
information (regardless of how it is generated, stored or
maintained) or tangible things that qualify for protection
under Federal Rule of Civil Procedure 26(c), and as specified
above in the Good Cause Statement.
2.4
Counsel: Outside Counsel of Record and House Counsel
(as well as their support staff).
2.5
Designating Party: a Party or Non-Party that
designates information or items that it produces in
disclosures or in responses to discovery as
“CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL-ATTORNEYS' EYES ONLY.”
2.6
Disclosure or Discovery Material: all items or
information, regardless of the medium or manner in which it
is generated, stored, or maintained (including, among other
things, testimony, transcripts, and tangible things), that
are produced or generated in disclosures or responses to
discovery in this matter.
2.7
Expert: a person with specialized knowledge or
experience in a matter pertinent to the litigation who has
been retained by a Party or its counsel to serve as an expert
witness or as a consultant in this Action.
2.8
House Counsel: attorneys who are employees of a
party to this Action. House Counsel does not include Outside
Counsel of Record or any other outside counsel.
2.9
Non-Party: any natural person, partnership,
corporation, association, or other legal entity not named as
a Party to this Action.
2.10
Outside Counsel of Record: attorneys who are not
employees of a party to this Action but are retained to
represent or advise a party to this Action and have appeared
in this Action on behalf of that party or are affiliated with
a law firm which has appeared on behalf of that party, and
includes support staff.
2.11
Party: any party to this Action, including all of
its officers, directors, employees, consultants, retained
experts, and Outside Counsel of Record (and their support
staffs).
2.12
Producing Party: a Party or Non-Party that produces
Disclosure or Discovery Material in this Action.
2.13
Professional Vendors: persons or entities that
provide litigation support services (e.g.,
photocopying, videotaping, translating, preparing exhibits or
demonstrations, and organizing, storing, or retrieving data
in any form or medium) and their employees and
subcontractors.
2.14
Protected Material: any Disclosure or Discovery
Material that is designated as “CONFIDENTIAL” or
“HIGHLY CONFIDENTIAL- ATTORNEYS' EYES ONLY.”
2.15
Receiving Party: a Party that receives Disclosure or
Discovery Material from a Producing Party.
3.
SCOPE
The
protections conferred by this Stipulation and Order cover not
only Protected Material (as defined above), but also (1) any
information copied or extracted from Protected Material; (2)
all copies, excerpts, summaries, or compilations of Protected
Material; and (3) any testimony, conversations, or
presentations by Parties or their Counsel that might reveal
Protected Material.
Any use
of Protected Material at trial shall be governed by the
orders of the trial judge. This Order does not govern the use
of Protected Material at trial.
4.
DURATION
Once a
case proceeds to trial, all the information that was
designated as confidential or maintained pursuant to this
Stipulated Protective Order becomes public and will be
presumptively available to all members of the public,
including the press, unless compelling reasons supported by
specific factual findings to proceed otherwise are made to
the trial judge in advance of the trial. See Kamakana v.
City and County of Honolulu, 447 F.3d 1172, 1180-81 (9th
Cir. 2006) (distinguishing “good cause” showing
for sealing documents produced in discovery from
“compelling reasons” standard when merits-related
documents are part of court record). Accordingly, the terms
of this Stipulated Protective Order do not extend beyond the
commencement of the trial.
The use
of Designated Materials at depositions or trial does not void
the documents' status as “CONFIDENTIAL” or
“HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY”
material or void the restrictions on the use of the
Designated Materials. Upon request of a party, the parties
shall meet and confer concerning the use and protection of
Designated Material in open court at any hearing.
At
deposition, the party using Designated Material must request
that the portion of the proceeding where use is made be
conducted so as to exclude persons not qualified to receive
such Designated Material.
At
trial, the party using Designated Material must request that
the portion of the proceeding where use is made be conducted
so as to exclude persons not qualified to receive such
Designated Material.
Prior
to the Pretrial Conference, the parties shall meet and confer
concerning appropriate methods for dealing with Designated
Material at trial.
5.
DESIGNATING PROTECTED MATERIAL
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 this Stipulated Protective Order must take
care to limit any such designation to specific material that
qualifies under the appropriate standards. The Designating
Party must designate for protection only those parts of
material, documents, items, or oral or written communications
that qualify so that other portions of the material,
documents, items, or ...