even stipulated protective 19 orders require good cause showing
How later courts described this case
- even stipulated protective 19 orders require good cause showing
Written by the judges who cited it.
The opinion
1 CHAN YONG JEONG, ESQ. (SBN 255244)
jeong@jeonglikens.com
2
JEONG & LIKENS, L.C.
3 222 South Oxford Ave.
Los Angeles, CA 90004
4
Tel: 213-688-2001
5 Fax: 213-315-5035
Attorney for Plaintiff, CS&M INT’L
6
Morgan E. Pietz (SBN 260629)
7 morgan@pstrials.com
Cyrus E. Shahriari (SBN 292166)
8 cyrus@pstrials.com
9454 Wilshire Boulevard, Ste. 310
9 PIETZ &SHAHRIARI,LLP
Beverly Hills, CA 90212
10 Telephone: (310) 424-5557
Facsimile: (310) 597-4626
11
Attorneys for Defendant ZULILY, LLC
12
UNITED STATES DISTRICT COURT
13
14 CENTRAL DISTRICT OF CALIFORNIA
15
16 CS&M INT’L, a South Korea Case No.: 2:19-cv-04472-PSG-AFM
Corporation;
17 STIPULATED PROTECTIVE
ORDER1
18 Plaintiff,
19
v.
20
ZULILY, LLC, a Delaware Complaint filed: May 22, 2019
21 Corporation; and DOES 1-10, inclusive;
22
Defendants.
23
24
25
26
27
1 1. A. PURPOSES AND LIMITATIONS
2
Discovery in this action is likely to involve production of confidential,
3
proprietary or private information for which special protection from public
4
disclosure and from use for any purpose other than prosecuting this litigation may
5
be warranted. Accordingly, the parties hereby stipulate to and petition the Court to
6
enter the following Stipulated Protective Order. The parties acknowledge that this
7
Order does not confer blanket protections on all disclosures or responses to
8
discovery and that the protection it affords from public disclosure and use extends
9
only to the limited information or items that are entitled to confidential treatment
10
under the applicable legal principles.
11
12
B. GOOD CAUSE STATEMENT
13
This action is likely to involve trade secrets, customer and pricing lists and
14
other valuable research, development, commercial, financial, technical and/or
15
proprietary information for which special protection from public disclosure and
16
from use for any purpose other than prosecution of this action is warranted. Such
17
confidential and proprietary materials and information consist of, among other
18
things, confidential business or financial information, information regarding
19
confidential business practices, or other confidential research, development, or
20
commercial information (including information implicating privacy rights of third
21
parties), information otherwise generally unavailable to the public, or which may
22
be privileged or otherwise protected from disclosure under state or federal statutes,
23
court rules, case decisions, or common law. Accordingly, to expedite the flow of
24
information, to facilitate the prompt resolution of disputes over confidentiality of
25
discovery materials, to adequately protect information the parties are entitled to
26
keep confidential, to ensure that the parties are permitted reasonable necessary uses
27
of such material in preparation for and in the conduct of trial, to address their
1 for such information is justified in this matter. It is the intent of the parties that
2 information will not be designated as confidential for tactical reasons and that
3 nothing be so designated without a good faith belief that it has been maintained in
4 a confidential, non-public manner, and there is good cause why it should not be
5 part of the public record of this case.
6 C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER
7 SEAL
8 The parties further acknowledge, as set forth in Section 12.3, below, that this
9 Stipulated Protective Order does not entitle them to file confidential information
10 under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed
11 and the standards that will be applied when a party seeks permission from the court
12 to file material under seal.
13 There is a strong presumption that the public has a right of access to judicial
14 proceedings and records in civil cases. In connection with non-dispositive motions,
15 good cause must be shown to support a filing under seal. See Kamakana v. City
16 and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen.
17 Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony
18 Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective
19 orders require good cause showing), and a specific showing of good cause or
20 compelling reasons with proper evidentiary support and legal justification, must be
21 made with respect to Protected Material that a party seeks to file under seal. The
22 parties’ mere designation of Disclosure or Discovery Material as
23 CONFIDENTIAL does not— without the submission of competent evidence by
24 declaration, establishing that the material sought to be filed under seal qualifies as
25 confidential, privileged, or otherwise protectable—constitute good cause.
26 Further, if a party requests sealing related to a dispositive motion or trial,
27 then compelling reasons, not only good cause, for the sealing must be shown, and
1 protected. See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir.
2 2010). For each item or type of information, document, or thing sought to be filed
3 or introduced under seal in connection with a dispositive motion or trial, the party
4 seeking protection must articulate compelling reasons, supported by specific facts
5 and legal justification, for the requested sealing order. Again, competent evidence
6 supporting the application to file documents under seal must be provided by
7 declaration.
8 Any document that is not confidential, privileged, or otherwise protectable
9 in its entirety will not be filed under seal if the confidential portions can be
10 redacted. If documents can be redacted, then a redacted version for public
11 viewing, omitting only the confidential, privileged, or otherwise protectable
12 portions of the document, shall be filed. Any application that seeks to file
13 documents under seal in their entirety should include an explanation of why
14 redaction is not feasible.
15
16 2. DEFINITIONS
17 2.1 Action: This pending federal law suit.
18 2.2 Challenging Party: a Party or Non-Party that challenges the
19 designation of information or items under this Order.
20 2.3 “CONFIDENTIAL” Information or Items: information (regardless of
21 how it is generated, stored or maintained) or tangible things that qualify for
22 protection under Federal Rule of Civil Procedure 26(c), and as specified above in
23 the Good Cause Statement.
24 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as
25 their support staff).
26 2.5 Designating Party: a Party or Non-Party that designates information or
27 items that it produces in disclosures or in responses to discovery as
1 2.6 Disclosure or Discovery Material: all items or information, regardless
2 of the medium or manner in which it is generated, stored, or maintained (including,
3 among other things, testimony, transcripts, and tangible things), that are produced
4 or generated in disclosures or responses to discovery in this matter.
5 2.7 Expert: a person with specialized knowledge or experience in a matter
6 pertinent to the litigation who has been retained by a Party or its counsel to serve
7 as an expert witness or as a consultant in this Action.
8 2.8 House Counsel: attorneys who are employees of a party to this Action.
9 House Counsel does not include Outside Counsel of Record or any other outside
10 counsel.
11 2.9 Non-Party: any natural person, partnership, corporation, association, or
12 other legal entity not named as a Party to this action.
13 2.10 Outside Counsel of Record: attorneys who are not employees of a
14 party to this Action but are retained to represent or advise a party to this Action
15 and have appeared in this Action on behalf of that party or are affiliated with a law
16 firm which has appeared on behalf of that party, and includes support staff.
17 2.11 Party: any party to this Action, including all of its officers, directors,
18 employees, consultants, retained experts, and Outside Counsel of Record (and their
19 support staffs).
20 2.12 Producing Party: a Party or Non-Party that produces Disclosure or
21 Discovery Material in this Action.
22 2.13 Professional Vendors: persons or entities that provide litigation
23 support services (e.g., photocopying, videotaping, translating, preparing exhibits or
24 demonstrations, and organizing, storing, or retrieving data in any form or medium)
25 and their employees and subcontractors.
26 2.14 Protected Material: any Disclosure or Discovery Material that is
27 designated as “CONFIDENTIAL.”
1 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material
2 from a Producing Party.
3
4 3. SCOPE
5 The protections conferred by this Stipulation and Order cover not only
6 Protected Material (as defined above), but also (1) any information copied or
7 extracted from Protected Material; (2) all copies, excerpts, summaries, or
8 compilations of Protected Material; and (3) any testimony, conversations, or
9 presentations by Parties or their Counsel that might reveal Protected Material.
10 Any use of Protected Material at trial shall be governed by the orders of the
11 trial judge. This Order does not govern the use of Protected Material at trial.
12
13 4. DURATION
14 Once a case proceeds to trial, information that was designated as
15 CONFIDENTIAL or maintained pursuant to this protective order used or
16 introduced as an exhibit at trial becomes public and will be presumptively
17 available to all members of the public, including the press, unless compelling
18 reasons supported by specific factual findings to proceed otherwise are made to the
19 trial judge in advance of the trial. See Kamakana, 447 F.3d at 1180-81
20 (distinguishing “good cause” showing for sealing documents produced in
21 discovery from “compelling reasons” standard when merits-related documents are
22 part of court record). Accordingly, the terms of this protective order do not extend
23 beyond the commencement of the trial.
24
25 5. DESIGNATING PROTECTED MATERIAL
26 5.1 Exercise of Restraint and Care in Designating Material for Protection.
27 Each Party or Non-Party that designates information or items for protection under
1 qualifies under the appropriate standards. The Designating Party must designate for
2 protection only those parts of material, documents, items or oral or written
3 communications that qualify so that other portions of the material, documents,
4 items or communications for which protection is not warranted are not swept
5 unjustifiably within the ambit of this Order.
6 Mass, indiscriminate or routinized designations are prohibited. Designations
7 that are shown to be clearly unjustified or that have been made for an improper
8 purpose (e.g., to unnecessarily encumber the case development process or to
9 impose unnecessary expenses and burdens on other parties) may expose the
10 Designating Party to sanctions.
11 If it comes to a Designating Party’s attention that information or items that it
12 designated for protection do not qualify for protection, that Designating Party must
13 promptly notify all other Parties that it is withdrawing the inapplicable designation.
14 5.2 Manner and Timing of Designations. Except as otherwise provided in
15 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
16 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
17 under this Order must be clearly so designated before the material is disclosed or
18 produced.
19 Designation in conformity with this Order requires:
20 (a) for information in documentary form (e.g., paper or electronic
21 documents, but excluding transcripts of depositions or other pretrial or trial
22 proceedings), that the Producing Party affix at a minimum, the legend
23 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that
24 contains protected material. If only a portion of the material on a page qualifies for
25 protection, the Producing Party also must clearly identify the protected portion(s)
26 (e.g., by making appropriate markings in the margins).
27 A Party or Non-Party that makes original documents available for inspection
1 which documents it would like copied and produced. During the inspection and
2 before the designation, all of the material made available for inspection shall be
3 deemed “CONFIDENTIAL.” After the inspecting Party has identified the
4 documents it wants copied and produced, the Producing Party must determine
5 which documents, or portions thereof, qualify for protection under this Order.
6 Then, before producing the specified documents, the Producing Party must affix
7 the “CONFIDENTIAL legend” to each page that contains Protected Material. If
8 only a portion of the material on a page qualifies for protection, the Producing
9 Party also must clearly identify the protected portion(s) (e.g., by making
10 appropriate markings in the margins).
11 (b) for testimony given in depositions that the Designating Party identifies
12 the Disclosure or Discovery Material on the record, before the close of the
13 deposition all protected testimony.
14 (c) for information produced in some form other than documentary and for
15 any other tangible items, that the Producing Party affix in a prominent place on the
16 exterior of the container or containers in which the information is stored the legend
17 “CONFIDENTIAL.” If only a portion or portions of the information warrants
18 protection, the Producing Party, to the extent practicable, shall identify the
19 protected portion(s).
20 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
21 failure to designate qualified information or items does not, standing alone, waive
22 the Designating Party’s right to secure protection under this Order for such
23 material. Upon timely correction of a designation, the Receiving Party must make
24 reasonable efforts to assure that the material is treated in accordance with the
25 provisions of this Order.
26 ///
27 ///
1 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
2 6.1 Timing of Challenges. Any Party or Non-Party may challenge a
3 designation of confidentiality at any time that is consistent with the Court’s
4 Scheduling Order.
5 6.2 Meet and Confer. The Challenging Party shall initiate the dispute
6 resolution process under Local Rule 37.1 et seq.
7 6.3 Joint Stipulation. Any challenge submitted to the Court shall be via a
8 joint stipulation pursuant to Local Rule 37-2.
9 6.4 The burden of persuasion in any such challenge proceeding shall be on the
10 Designating Party. Frivolous challenges, and those made for an improper purpose
11 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may
12 expose the Challenging Party to sanctions. Unless the Designating Party has
13 waived or withdrawn the confidentiality designation, all parties shall continue to
14 afford the material in question the level of protection to which it is entitled under
15 the Producing Party’s designation until the Court rules on the challenge.
16
17 7. ACCESS TO AND USE OF PROTECTED MATERIAL
18 7.1 Basic Principles. A Receiving Party may use Protected Material that is
19 disclosed or produced by another Party or by a Non-Party in connection with this
20 Action only for prosecuting, defending, or attempting to settle this Action. Such
21 Protected Material may be disclosed only to the categories of persons and under
22 the conditions described in this Order. When the Action has been terminated, a
23 Receiving Party must comply with the provisions of section 13 below (FINAL
24 DISPOSITION).
25 Protected Material must be stored and maintained by a Receiving Party at a
26 location and in a secure manner that ensures that access is limited to the persons
27 authorized under this Order.
1 otherwise ordered by the court or permitted in writing by the Designating Party, a
2 Receiving Party may disclose any information or item designated
3 “CONFIDENTIAL” only to:
4 (a) the Receiving Party’s Outside Counsel of Record in this Action, as
5 well as employees of said Outside Counsel of Record to whom it is reasonably
6 necessary to disclose the information for this Action;
7 (b) the officers, directors, and employees (including House Counsel) of
8 the Receiving Party to whom disclosure is reasonably necessary for this Action;
9 (c) Experts (as defined in this Order) of the Receiving Party to whom
10 disclosure is reasonably necessary for this Action and who have signed the
11 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
12 (d) the court and its personnel;
13 (e) court reporters and their staff;
14 (f) professional jury or trial consultants, mock jurors, and Professional
15 Vendors to whom disclosure is reasonably necessary for this Action and who have
16 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
17 (g) the author or recipient of a document containing the information or a
18 custodian or other person who otherwise possessed or knew the information;
19 (h) during their depositions, witnesses, and attorneys for witnesses, in the
20 Action to whom disclosure is reasonably necessary provided: (1) the deposing
21 party requests that the witness sign the form attached as Exhibit 1 hereto; and (2)
22 they will not be permitted to keep any confidential information unless they sign the
23 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise
24 agreed by the Designating Party or ordered by the court. Pages of transcribed
25 deposition testimony or exhibits to depositions that reveal Protected Material may
26 be separately bound by the court reporter and may not be disclosed to anyone
27 except as permitted under this Stipulated Protective Order; and
1 mutually agreed upon by any of the parties engaged in settlement discussions.
2
3 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
4 IN OTHER LITIGATION
5 If a Party is served with a subpoena or a court order issued in other litigation
6 that compels disclosure of any information or items designated in this Action as
7 “CONFIDENTIAL,” that Party must:
8 (a) promptly notify in writing the Designating Party. Such notification
9 shall include a copy of the subpoena or court order;
10 (b) promptly notify in writing the party who caused the subpoena or order
11 to issue in the other litigation that some or all of the material covered by the
12 subpoena or order is subject to this Protective Order. Such notification shall
13 include a copy of this Stipulated Protective Order; and
14 (c) cooperate with respect to all reasonable procedures sought to be
15 pursued by the Designating Party whose Protected Material may be affected.
16 If the Designating Party timely seeks a protective order, the Party served
17 with the subpoena or court order shall not produce any information designated in
18 this action as “CONFIDENTIAL” before a determination by the court from which
19 the subpoena or order issued, unless the Party has obtained the Designating Party’s
20 permission. The Designating Party shall bear the burden and expense of seeking
21 protection in that court of its confidential material and nothing in these provisions
22 should be construed as authorizing or encouraging a Receiving Party in this Action
23 to disobey a lawful directive from another court.
24
25 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
26 PRODUCED IN THIS LITIGATION
27 (a) The terms of this Order are applicable to information produced by a
1 produced by Non-Parties in connection with this litigation is protected by the
2 remedies and relief provided by this Order. Nothing in these provisions should be
3 construed as prohibiting a Non-Party from seeking additional protections.
4 (b) In the event that a Party is required, by a valid discovery request, to
5 produce a Non-Party’s confidential information in its possession, and the Party is
6 subject to an agreement with the Non-Party not to produce the Non-Party’s
7 confidential information, then the Party shall:
8 (1) promptly notify in writing the Requesting Party and the Non-Party
9 that some or all of the information requested is subject to a confidentiality
10 agreement with a Non-Party;
11 (2) promptly provide the Non-Party with a copy of the Stipulated
12 Protective Order in this Action, the relevant discovery request(s), and a reasonably
13 specific description of the information requested; and
14 (3) make the information requested available for inspection by the
15 Non-Party, if requested.
16 (c) If the Non-Party fails to seek a protective order from this court within
17 14 days of receiving the notice and accompanying information, the Receiving
18 Party may produce the Non-Party’s confidential information responsive to the
19 discovery request. If the Non-Party timely seeks a protective order, the Receiving
20 Party shall not produce any information in its possession or control that is subject
21 to the confidentiality agreement with the Non-Party before a determination by the
22 court. Absent a court order to the contrary, the Non-Party shall bear the burden and
23 expense of seeking protection in this court of its Protected Material.
24
25 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
26 If a Receiving Party learns that, by inadvertence or otherwise, it has
27 disclosed Protected Material to any person or in any circumstance not authorized
1 notify in writing the Designating Party of the unauthorized disclosures, (b) use its
2 best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform
3 the person or persons to whom unauthorized disclosures were made of all the terms
4 of this Order, and (d) request such person or persons to execute the
5 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit
6 A.
7
8 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
9 PROTECTED MATERIAL
10 When a Producing Party gives notice to Receiving Parties that certain
11 inadvertently produced material is subject to a claim of privilege or other
12 protection, the obligations of the Receiving Parties are those set forth in Federal
13 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify
14 whatever procedure may be established in an e-discovery order that provides for
15 production without prior privilege review. Pursuant to Federal Rule of Evidence
16 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure
17 of a communication or information covered by the attorney-client privilege or
18 work product protection, the parties may incorporate their agreement in the
19 stipulated protective order submitted to the court.
20
21 12. MISCELLANEOUS
22 12.1 Right to Further Relief. Nothing in this Order abridges the right of any
23 person to seek its modification by the Court in the future.
24 12.2 Right to Assert Other Objections. By stipulating to the entry of this
25 Protective Order no Party waives any right it otherwise would have to object to
26 disclosing or producing any information or item on any ground not addressed in
27 this Stipulated Protective Order. Similarly, no Party waives any right to object on
1 any ground to use in evidence of any of the material covered by this Protective
2 Order.
3 12.3 Filing Protected Material. A Party that seeks to file under seal any
4 Protected Material must comply with Civil Local Rule 79-5. Protected Material
5 may only be filed under seal pursuant to a court order authorizing the sealing of the
6 specific Protected Material at issue. If a Party's request to file Protected Material
7 under seal is denied by the court, then the Receiving Party may file the information
8 in the public record unless otherwise instructed by the court.
9
10 13. FINAL DISPOSITION
11 After the final disposition of this Action, as defined in paragraph 4, within
12 60 days of a written request by the Designating Party, each Receiving Party must
13 return all Protected Material to the Producing Party or destroy such material. As
14 used in this subdivision, “all Protected Material” includes all copies, abstracts,
15 compilations, summaries, and any other format reproducing or capturing any of the
16 Protected Material. Whether the Protected Material is returned or destroyed, the
17 Receiving Party must submit a written certification to the Producing Party (and, if
18 not the same person or entity, to the Designating Party) by the 60 day deadline that
19 (1) identifies (by category, where appropriate) all the Protected Material that was
20 returned or destroyed and (2)affirms that the Receiving Party has not retained any
21 copies, abstracts, compilations, summaries or any other format reproducing or
22 capturing any of the Protected Material. Notwithstanding this provision, Counsel
23 are entitled to retain an archival copy of all pleadings, motion papers, trial,
24 deposition, and hearing transcripts, legal memoranda, correspondence, deposition
25 and trial exhibits, expert reports, attorney work product, and consultant and expert
26 work product, even if such materials contain Protected Material. Any such archival
27 copies that contain or constitute Protected Material remain subject to this
1 VIOLATION
2 Any violation of this Order may be punished by appropriate measures
3 ||including, without limitation, contempt proceedings and/or monetary sanctions.
4
5 IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
6
Dated: April 28, 2020 /s/C. Yong Jeong
7
C. Yong Jeong
8
9 JEONG & LIKENS, L.C.
Attorney for Plaintiff
10
11 || Dated: April 28, 2020 /s/ Morgan E. Pietz
Morgan E. Pietz
Cyrus E. Shahriari
13 Pietz & Shahriari, LLP
14 Professional Law Corporation
Attorneys for Defendant ZULILY, LLC
15
16
17 |} FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
18
19 || DATED:— 4/28/202——W
20
21 (dy Wi
22
23 ||} HON. ALEXANDER F. MACKINNON
74 United States Magistrate Judge
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1
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3
EXHIBIT A
4
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
5
I, _____________________________ [print or type full name], of
6
_________________ [print or type full address], declare under penalty of perjury
7
that I have read in its entirety and understand the Stipulated Protective Order that
8
was issued by the United States District Court for the Central District of California
9
on [date] in the case of CS&M INT’L v. ZULILY, LLC; et al, 2:19-cv-04472-PSG-
10
AFM. I agree to comply with and to be bound by all the terms of this Stipulated
11
Protective Order and I understand and acknowledge that failure to so comply could
12
expose me to sanctions and punishment in the nature of contempt. I solemnly
13
promise that I will not disclose in any manner any information or item that is
14
subject to this Stipulated Protective Order to any person or entity except in strict
15
compliance with the provisions of this Order.
16
I further agree to submit to the jurisdiction of the United States District Court for
17
the Central District of California for the purpose of enforcing the terms of this
18
Stipulated Protective Order, even if such enforcement proceedings occur after
19
termination of this action. I hereby appoint __________________________ [print
20
or type full name] of _______________________________________ [print or
21
type full address and telephone number] as my California agent for service of
22
process in connection with this action or any proceedings related to enforcement of
23
this Stipulated Protective Order.
24
Date: ______________________________________
25
City and State where sworn and signed: _________________________________
26
27
Printed name: _______________________________
1 Signature: __________________________________
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