distinguishing 4 “good cause” showing for sealing documents produced in discovery from 5 “compelling reasons” standard when merits-related documents are part of court 6 record
How later courts described this case
- distinguishing 4 “good cause” showing for sealing documents produced in discovery from 5 “compelling reasons” standard when merits-related documents are part of court 6 record
Written by the judges who cited it.
The opinion
1 Steven J. Nataupsky (SBN 155,913)
steven.nataupsky@knobbe.com
2 Joseph R. Re (SBN 134,479)
joe.re@knobbe.com
3
Lynda J. Zadra-Symes (SBN 156,511)
4 lynda.zadrasymes@knobbe.com
Marko R. Zoretic (SBN 233,952)
5 marko.zoretic@knobbe.com
Jason A. Champion (SBN 259,207)
6 jason.champion@knobbe.com
KNOBBE, MARTENS, OLSON & BEAR, LLP
7
2040 Main Street, Fourteenth Floor
8 Irvine, CA 92614
Phone: (949) 760-0404
9 Facsimile: (949) 760-9502
10
Brian C. Horne (SBN 205,621)
11 brian.horne@knobbe.com
KNOBBE, MARTENS, OLSON & BEAR, LLP
12 1925 Century Park East, Suite 600
Los Angeles, CA 90067
13 Telephone: (310) 551-3450
Facsimile: (310) 601-1263
14
Attorneys for Plaintiff
15
MONSTER ENERGY COMPANY
Attorneys for Defendant on next page
16
17
IN THE UNITED STATES DISTRICT COURT
18
FOR THE CENTRAL DISTRICT OF CALIFORNIA
19
EASTERN DIVISION
20
) Case No. 5:19-cv-01297-JGB-SP
MONSTER ENERGY COMPANY, a
)
21 Delaware corporation,
) STIPULATED PROTECTIVE
22 Plaintiff, ) ORDER
)
)
23 v. )
)
24 INTEGRATED SUPPLY NETWORK,
) Hon. Jesus Bernal
LLC, a Florida limited liability
25 company, )
) Hon. Sheri Pym
26 Defendant. ) )
27 )
)
1
DOUGLAS C. SMITH (SBN 160013)
2 dsmith@smitlaw.com
SMITH LAW OFFICES, LLP
3
4204 Riverwalk Parkway, Suite 250
4 Riverside, California 92505
Telephone: (951)509-1355
5
Facsimile: (951)509-1356
6
CHRISTOPHER W. MADEL (MN #230297)
7 cmadel@madellaw.com
JENNIFER M. ROBBINS (MN #387745)
8
jrobbins@madellaw.com
9 CASSANDRA B. MERRICK (MN #396372)
cmerrick@madellaw.com
10 MADEL PA
800 Hennepin Avenue
11 800 Pence Building
Minneapolis, MN 55403
12
Telephone: (612) 605-0630
13 Facsimile: (612) 326-9990
14 Attorneys for Defendant
INTEGRATED SUPPLY NETWORK, LLC
15
16
17
18
19
20
21
22
23
24
25
26
27
1 1. PURPOSES AND LIMITATIONS
2 Plaintiff Monster Energy Company (“Monster”)1 and Defendant Integrated
3 Supply Network, LLC (“ISN”), recognizing that each may have materials
4 containing trade secret or other confidential research, technical, cost, price, sales,
5 marketing, or other commercial information, as is contemplated by Federal Rule
6 of Civil Procedure 26(c), have agreed to the terms of the Stipulated Protective
7 Order (“Order”) as set forth below, which is in substantially the same form as the
8 Stipulated Protective Order (Dkt. No. 41) entered in the related matter between
9 the parties, Monster Energy Company v. Integrated Supply Network, LLC, Case
10 No. 5:17-CV-00548-CBM-RAO. The purpose of this Order is to protect the
11 confidentiality of such materials as much as practical during the litigation.
12 The parties acknowledge that this Order does not confer blanket protections
13 on all disclosures or responses to discovery and that the protection it affords from
14 public disclosure and use extends only to the limited information or items that are
15 entitled to confidential treatment under the applicable legal principles.
16 2. GOOD CAUSE STATEMENT
17 This action is likely to involve trade secrets, customer and pricing lists and
18 other valuable research, development, commercial, financial, technical and/or
19 proprietary information for which special protection from public disclosure and
20 from use for any purpose other than prosecution of this action is warranted. Such
21 confidential and proprietary materials and information consist of, among other
22 things, confidential business or financial information, information regarding
23 confidential business practices, or other confidential research, development, or
24 commercial information (including information implicating privacy rights of
25 1 As with each joint document submitted by the parties, ISN objects to MEC’s
insistence on positioning itself in this litigation by referring to itself as “Monster”
26 when a federal jury has found it has no rights in that word and when, in the
substantially same Stipulated Protective Order in the prior litigation between the
27 parties, MEC indeed referred to itself as “MEC.” (See Case No. 5:17-cv-00548-
1 third parties), information otherwise generally unavailable to the public, or which
2 may be privileged or otherwise protected from disclosure under state or federal
3 statutes, court rules, case decisions, or common law. Accordingly, to expedite
4 the flow of information, to facilitate the prompt resolution of disputes over
5 confidentiality of discovery materials, to adequately protect information the
6 parties are entitled to keep confidential, to ensure that the parties are permitted
7 reasonable necessary uses of such material in preparation for and in the conduct
8 of trial, to address their handling at the end of the litigation, and serve the ends of
9 justice, a protective order for such information is justified in this matter. It is the
10 intent of the parties that information will not be designated as confidential for
11 tactical reasons and that nothing be so designated without a good faith belief that
12 it has been maintained in a confidential, non-public manner, and there is good
13 cause why it should not be part of the public record of this case.
14 3. ACKNOWLEDGEMENT OF PROCEDURE FOR FILING UNDER
15 SEAL
16 The parties further acknowledge, as set forth in Section 14.3, below, that
17 this Stipulated Protective Order does not entitle them to file confidential
18 information under seal. Local Civil Rule 79-5 sets forth the procedures that must
19 be followed and the standards that will be applied when a party seeks permission
20 from the court to file material under seal.
21 In accordance with Local Rule 79-5, if any papers to be filed with the Court
22 contain information and/or documents that have been designated as confidential,
23 the proposed filing shall be accompanied by an application to file papers or the
24 portion thereof containing the designated information or documents (if such
25 portion is segregable) under seal. The parties further acknowledge that Local
26 Rule 79-5.2.2(b) sets forth the procedures to be followed when filing papers
27 containing confidential information or documents designated by another party
1 4. DEFINITIONS
2 4.1 Action: this pending federal law suit.
3 4.2 Challenging Party: a Party or Non-Party that challenges the
4 designation of information or items under this Order.
5 4.3 “CONFIDENTIAL” Information or Items: information (regardless
6 of how it is generated, stored or maintained) or tangible things that qualify for
7 protection under Federal Rule of Civil Procedure 26(c), and as specified above in
8 the Good Cause Statement.
9 4.4 Counsel: Outside Counsel of Record and House Counsel (as well as
10 their support staff).
11 4.5 Designating Party: a Party or Non-Party that designates information
12 or items that it produces in disclosures or in responses to discovery as
13 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
14 ONLY.”
15 4.6 Disclosure or Discovery Material: all items or information,
16 regardless of the medium or manner in which it is generated, stored, or maintained
17 (including, among other things, testimony, transcripts, and tangible things), that
18 are produced or generated in disclosures or responses to discovery in this matter,
19 or otherwise produced or generated in the course of this litigation, including
20 without limitation production documents, electronically stored information,
21 things, answers to interrogatories, responses to requests for admissions, and
22 depositions, as well as testimony adduced at trial or a hearing or any matters in
23 evidence.
24 4.7 Expert: a person with specialized knowledge or experience in a
25 matter pertinent to the litigation who has been retained by a Party or its counsel
26 to serve as an expert witness or as a consultant in this Action.
27 4.8 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
1 maintained) or tangible things that qualify for protection under Federal Rule of
2 Civil Procedure 26(c), and as specified above in the Good Cause Statement, that
3 is extremely sensitive information the disclosure of which to another party or non-
4 party would likely harm the competitive position of the party producing the
5 information. Examples of information that could be considered HIGHLY
6 CONFIDENTIAL – ATTORNEYS’ EYES ONLY include sales volumes, sales
7 units, cost of goods sold, price structures, discounts, business costs, profits,
8 margins, technical documents, marketing strategies, competitive business plans,
9 and the identity of customers.
10 4.9 House Counsel: attorneys who are employees of a party to this
11 Action. House Counsel does not include Outside Counsel of Record or any other
12 outside counsel.
13 4.10 Non-Party: any natural person, partnership, corporation, association,
14 or other legal entity not named as a Party to this action.
15 4.11 Outside Counsel of Record: attorneys who are not employees of a
16 party to this Action but are retained to represent or advise a party to this Action
17 and have appeared in this Action on behalf of that party or are affiliated with a
18 law firm which has appeared on behalf of that party, and includes support staff.
19 4.12 Party: any party to this Action, including all of its officers, directors,
20 employees, consultants, retained experts, and Outside Counsel of Record (and
21 their support staffs).
22 4.13 Producing Party: a Party or Non-Party that produces Disclosure or
23 Discovery Material in this Action.
24 4.14 Professional Vendors: persons or entities that provide litigation
25 support services (e.g., photocopying, videotaping, translating, preparing exhibits
26 or demonstrations, computer database preparation, document coding, and
27 organizing, storing, or retrieving data in any form or medium) and their
1 4.15 Protected Material: any Disclosure or Discovery Material that is
2 designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
3 ATTORNEYS’ EYES ONLY.”
4 4.16 Receiving Party: a Party that receives Disclosure or Discovery
5 Material from a Producing Party.
6 5. SCOPE
7 The protections conferred by this Stipulation and Order cover not only
8 Protected Material (as defined above), but also (1) any information copied or
9 extracted from Protected Material; (2) all copies, excerpts, summaries, or
10 compilations of Protected Material; and (3) any testimony, conversations, or
11 presentations by Parties or their Counsel that might reveal Protected Material.
12 However, the protections conferred by this Stipulation and Order do not
13 cover the following information: (a) any information that is in the public domain
14 at the time of disclosure to a Receiving Party or becomes part of the public domain
15 after its disclosure to a Receiving Party as a result of publication not involving a
16 violation of this Order, including becoming part of the public record through trial
17 or otherwise; and (b) any information known to the Receiving Party prior to the
18 disclosure or obtained by the Receiving Party after the disclosure from a source
19 who obtained the information lawfully under no obligation of confidentiality to
20 the Designating Party.
21 Any use of Protected Material at trial shall be governed by the orders of the
22 trial judge. This Order does not govern the use of Protected Material at trial.
23 6. DURATION
24 Once a case proceeds to trial, information that was designated as
25 CONFIDENTIAL or HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
26 ONLY, or otherwise maintained pursuant to this Stipulated Protective Order, that
27 is used or introduced as an exhibit at trial becomes public and will be
1 compelling reasons supported by specific factual findings to proceed otherwise
2 are made to the trial judge in advance of the trial. See Kamakana v. City and
3 County of Honolulu, 447 F.3d 1172, 1180-81 (9th Cir. 2006) (distinguishing
4 “good cause” showing for sealing documents produced in discovery from
5 “compelling reasons” standard when merits-related documents are part of court
6 record). Accordingly, the terms of this Stipulated Protective Order do not extend
7 beyond the commencement of the trial with respect to such information.
8 7. DESIGNATING PROTECTED MATERIAL
9 7.1 Exercise of Restraint and Care in Designating Material for
10 Protection. Each Party or Non-Party that designates information or items for
11 protection under this Order must take care to limit any such designation to specific
12 material that qualifies under the appropriate standards.
13 Mass, indiscriminate, or routinized designations are prohibited.
14 Designations that are shown to be clearly unjustified or that have been made for
15 an improper purpose (e.g., to unnecessarily encumber the case development
16 process or to impose unnecessary expenses and burdens on other parties) may
17 expose the Designating Party to sanctions.
18 If it comes to a Designating Party’s attention that information or items that
19 it designated for protection do not qualify for protection, the Designating Party
20 must promptly notify all other Parties that it is withdrawing the inapplicable
21 designation.
22 7.2 Manner and Timing of Designations. Except as otherwise provided
23 in this Order, or as otherwise stipulated or ordered, Disclosure or Discovery
24 Material that qualifies for protection under this Order must be clearly so
25 designated at the time the material is disclosed or produced.
26 Designation in conformity with this Order requires:
27 (a) For information in documentary form (e.g., paper or electronic
1 proceedings), that the Producing Party affix at a minimum, the legend
2 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
3 ONLY” (hereinafter “CONFIDENTIALITY legend”), to each page that contains
4 protected material.
5 A Party or Non-Party that makes original documents available for
6 inspection need not designate them for protection until after the inspecting Party
7 has indicated which documents it would like copied and produced. During the
8 inspection and before the designation, all of the material made available for
9 inspection shall be deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’
10 EYES ONLY.” After the inspecting Party has identified the documents it wants
11 copied and produced, the Producing Party must determine which documents, or
12 portions thereof, qualify for protection under this Order. Then, before producing
13 the specified documents, the Producing Party must affix the
14 “CONFIDENTIALITY legend” to each page that contains Protected Material.
15 (b) For a deposition transcript, the Producing Party shall
16 designate the transcript as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL
17 – ATTORNEYS’ EYES ONLY” by requesting such treatment thereof either on
18 the record at the time of the deposition or by written notice to all counsel of record
19 after service of the final deposition transcript. If confidential treatment of a
20 transcript is requested by a party by written notice after completion of a
21 deposition, such written notice shall be provided to all counsel of record within
22 fourteen (14) days after completion and service of the final transcript. Such
23 written notice shall specifically identify by page and line number all portions of
24 the transcript that should be treated as “CONFIDENTIAL” or “HIGHLY
25 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in accordance with this
26 Stipulated Protective Order. All counsel receiving such notice shall be
27 responsible for marking the copies of the designated transcript or portion thereof
1 shall not disseminate a deposition transcript or the contents thereof beyond the
2 persons designated in Paragraph 9.3 below for a period of fourteen (14) days after
3 completion and service of the final transcript, except that portions of the transcript
4 may be filed under seal with the Court in connection with these proceedings.
5 Documents or things used as exhibits at a deposition that a party desires to be
6 subject to this Stipulated Protective Order shall be separately stamped or marked
7 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
8 ONLY.” The disclosing party will have the right to exclude from attendance at a
9 deposition, during such time as the Confidential Information is to be disclosed,
10 any person other than the deponent, counsel, the court reporter, the videographer,
11 designated experts and any person(s) agreed upon by counsel for the disclosing
12 party.
13 (c) For information produced in some form other than
14 documentary (including, without limitation, electronically stored information
15 produced in native format) and for any other tangible items, that the Producing
16 Party affix in a prominent place on the media or exterior of the container or
17 containers in which the information is stored the legend “CONFIDENTIAL” or
18 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” If only a portion
19 or portions of the information warrants protection, the Producing Party, to the
20 extent practicable, shall identify the protected portion(s).
21 7.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
22 failure to designate qualified information or items does not, standing alone, waive
23 the Designating Party’s right to secure protection under this Order for such
24 material. Upon timely correction of a designation, the Receiving Party must make
25 reasonable efforts to assure that the material is treated in accordance with the
26 provisions of this Order.
27 8. CHALLENGING CONFIDENTIALITY DESIGNATIONS
1 designation of confidentiality at any time that is consistent with the Court’s
2 Scheduling Order.
3 8.2 Meet and Confer. The Challenging Party shall initiate the dispute
4 resolution process under Local Rule 37.1 et seq.
5 8.3 The burden of persuasion in any such challenge proceeding shall be
6 on the Designating Party. Frivolous challenges, and those made for an improper
7 purpose (e.g., to harass or impose unnecessary expenses and burdens on other
8 parties) may expose the Challenging Party to sanctions. Unless the Designating
9 Party has waived or withdrawn the confidentiality designation, all parties shall
10 continue to afford the material in question the level of protection to which it is
11 entitled under the Producing Party’s designation until the Court rules on the
12 challenge.
13 9. ACCESS TO AND USE OF PROTECTED MATERIAL
14 9.1 Basic Principles. A Receiving Party may use Protected Material that
15 is disclosed or produced by another Party or by a Non-Party in connection with
16 this Action only for prosecuting, defending, or attempting to settle this Action.
17 Such Protected Material may be disclosed only to the categories of persons and
18 under the conditions described in this Order. When the Action has been
19 terminated, a Receiving Party must comply with the provisions of section 15
20 below (FINAL DISPOSITION).
21 Protected Material must be stored and maintained by a Receiving Party at
22 a location and in a secure manner that ensures that access is limited to the persons
23 authorized under this Order.
24 9.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless
25 otherwise ordered by the court or permitted in writing by the Designating Party,
26 a Receiving Party may disclose any information or item designated
27 “CONFIDENTIAL” only to:
1 Action and other attorneys from Outside Counsel of Record’s law firm, as well
2 as employees of said Outside Counsel of Record to whom it is reasonably
3 necessary to disclose the information for this Action;
4 (b) the officers, directors, and employees (including House
5 Counsel) of the Receiving Party to whom disclosure is reasonably necessary for
6 this Action and who have signed the “Acknowledgment and Agreement to Be
7 Bound” (Exhibit A);
8 (c) Experts (as defined in this Order) of the Receiving Party to
9 whom disclosure is reasonably necessary for this Action and who have signed the
10 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
11 (d) the court and its personnel;
12 (e) court reporters, videographers and their staff;
13 (f) professional jury or trial consultants, mock jurors, and
14 Professional Vendors to whom disclosure is reasonably necessary for this Action
15 and who have signed the “Acknowledgment and Agreement to Be Bound”
16 (Exhibit A);
17 (g) the author or recipient of a document containing the
18 information or a custodian or other person who otherwise possessed or knew the
19 information;
20 (h) during their depositions, witnesses, and attorneys for
21 witnesses, in the Action to whom disclosure is reasonably necessary provided: (1)
22 the deposing party requests that the witness sign the form attached as Exhibit A
23 hereto; and (2) they will not be permitted to keep any confidential information
24 unless they sign the “Acknowledgment and Agreement to Be Bound” (Exhibit
25 A), unless otherwise agreed by the Designating Party or ordered by the court.
26 Pages of transcribed deposition testimony or exhibits to depositions that reveal
27 Protected Material may be separately bound by the court reporter and may not be
1 and
2 (i) any mediator or settlement officer, and their supporting
3 personnel, mutually agreed upon by any of the parties engaged in settlement
4 discussions.
5 9.3 Disclosure of “CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
6 Information or Items. Unless otherwise ordered by the court or permitted in
7 writing by the Designating Party, a Receiving Party may disclose any information
8 or item designated “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to:
9 (a) the Receiving Party’s Outside Counsel of Record in this
10 Action and other attorneys from Outside Counsel of Record’s law firm, as well
11 as employees of said Outside Counsel of Record to whom it is reasonably
12 necessary to disclose the information for this Action;
13 (b) No more than three (3) House Counsel of the Receiving Party,
14 that has previously been identified to the other side in writing, to (1) whom
15 disclosure is reasonably necessary for this Action, (2) who have no involvement
16 in competitive decision-making, and (3) who have signed the “Acknowledgement
17 and Agreement to Be Bound” (exhibit A);
18 (c) Experts (as defined in this Order) of the Receiving Party to
19 whom disclosure is reasonably necessary for this Action and who have signed the
20 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
21 (d) the court and its personnel;
22 (e) court reporters, videographers and their staff;
23 (f) professional jury or trial consultants, mock jurors, and
24 Professional Vendors to whom disclosure is reasonably necessary for this Action
25 and who have signed the “Acknowledgment and Agreement to Be Bound”
26 (Exhibit A);
27 (g) the author or recipient of a document containing the
1 information; and
2 (h) any mediator or settlement officer, and their supporting
3 personnel, mutually agreed upon by any of the parties engaged in settlement
4 discussions.
5 10. PROTECTED MATERIAL SUBPOENAED OR ORDERED
6 PRODUCED IN OTHER LITIGATION
7 If a Party is served with a subpoena or a court order issued in another
8 litigation that compels disclosure of any information or items designated in this
9 Action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
10 ATTORNEYS’ EYES ONLY,” that Party must:
11 (a) promptly notify in writing the Designating Party. Such
12 notification shall include a copy of the subpoena or court order;
13 (b) promptly notify in writing the party who caused the subpoena
14 or order to issue in the other litigation that some or all of the material covered by
15 the subpoena or order is subject to this Stipulated Protective Order. Such
16 notification shall include a copy of this Stipulated Protective Order; and
17 (c) cooperate with respect to all reasonable procedures sought to
18 be pursued by the Designating Party whose Protected Material may be affected.
19 If the Designating Party timely seeks a protective order, the Party served
20 with the subpoena or court order shall not produce any information designated in
21 this action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
22 ATTORNEYS’ EYES ONLY” before a determination by the court from which
23 the subpoena or order issued, unless the Party has obtained the Designating
24 Party’s permission. The Designating Party shall bear the burden and expense of
25 seeking protection in that court of its Protected Material and nothing in these
26 provisions should be construed as authorizing or encouraging a Receiving Party
27 in this Action to disobey a lawful directive from another court.
1 11. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
2 PRODUCED IN THIS LITIGATION
3 (a) The terms of this Order are applicable to information
4 produced by a Non-Party in this Action and designated as “CONFIDENTIAL” or
5 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Such
6 information produced by Non-Parties in connection with this litigation is
7 protected by the remedies and relief provided by this Order. Nothing in these
8 provisions should be construed as prohibiting a Non-Party from seeking
9 additional protections.
10 (b) In the event that a Party is required, by a valid discovery
11 request, to produce a Non-Party’s confidential information in its possession, and
12 the Party is subject to an agreement with the Non-Party not to produce the Non-
13 Party’s confidential information, then the Party shall:
14 (1) promptly notify in writing the Requesting Party and the
15 Non-Party that some or all of the information requested is subject to a
16 confidentiality agreement with a Non-Party;
17 (2) promptly provide the Non-Party with a copy of the
18 Stipulated Protective Order in this Action, the relevant discovery
19 request(s), and a reasonably specific description of the information
20 requested; and
21 (3) make the information requested available for inspection
22 by the Non-Party, if requested.
23 (c) If the Non-Party fails to seek a protective order from this court
24 within 14 days of receiving the notice and accompanying information, the
25 Receiving Party may produce the Non-Party’s confidential information
26 responsive to the discovery request. If the Non-Party timely seeks a protective
27 order, the Receiving Party shall not produce any information in its possession or
1 a determination by the court. Absent a court order to the contrary, the Non-Party
2 shall bear the burden and expense of seeking protection in this court of its
3 Protected Material.
4 12. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
5 If a Receiving Party learns that, by inadvertence or otherwise, it has
6 disclosed Protected Material to any person or in any circumstance not authorized
7 under this Stipulated Protective Order, the Receiving Party must immediately:
8 (a) notify in writing the Designating Party of the unauthorized disclosures;
9 (b) use its best efforts to retrieve all unauthorized copies of the Protected
10 Material;
11 (c) inform the person or persons to whom unauthorized disclosures were
12 made of all the terms of this Order; and
13 (d) request such person or persons to execute the “Acknowledgment and
14 Agreement to Be Bound” that is attached hereto as Exhibit A.
15 13. INADVERTENT PRODUCTION OF PRIVILEGED,
16 CONFIDENTIAL OR OTHERWISE PROTECTED MATERIAL
17 The production of privileged or work-product protected documents,
18 electronically stored information or information, whether inadvertent or
19 otherwise, is not a waiver of the privilege or protection from discovery in this
20 case or in any other federal or state proceeding. This Order shall be interpreted
21 to provide the maximum protection allowed by Federal Rule of Evidence 502.
22 Nothing contained herein is intended to or shall serve to limit a Party’s right
23 to conduct a review of documents, ESI or information (including metadata) for
24 relevance, responsiveness, and/or segregation of privileged and/or protected
25 information before production.
26 If a Party through inadvertence produces or provides Disclosure or
27 Discovery Material which it believes is subject to a claim of an applicable
1 Parties that the Disclosure or Discovery Material is subject to a claim of privilege
2 and request that it be returned to the Producing Party. If a Producing Party or
3 Non-Party requests the return, pursuant to this paragraph, of any Disclosure or
4 Discovery Material, the Receiving Party or Parties shall not use or disclose, and
5 shall immediately return to the Producing Party all copies of such Disclosure or
6 Discovery Material or confirm that all copies have been destroyed. Return of the
7 Disclosure or Discovery Material by the Receiving Party shall not constitute an
8 admission or concession, or permit any inference, that the returned Disclosure or
9 Discovery Material is, in fact, properly subject to a claim of privilege nor shall it
10 foreclose any Party from moving the court for an order that such Disclosure or
11 Discovery Material has been improperly designated for reasons other than a
12 waiver caused by the inadvertent production.
13 The inadvertent or unintentional disclosure by a Party or Non-Party of
14 Disclosure or Discovery Material which it believes should have been designated
15 as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
16 ONLY,” regardless of whether it was so designated at the time of disclosure, shall
17 not be deemed a waiver in whole or in part of the Party’s or Non-Party’s claim of
18 confidentiality, either as to the specific information disclosed or as to any other
19 information relating thereto or on the same or related subject matter, provided that
20 the Party or Non-Party notifies the Receiving Party as soon as reasonably
21 practicable after discovery of the inadvertent or unintentional failure to designate
22 but in no event more than 14 business days. If a Party or Non-Party inadvertently
23 or unintentionally produces or discloses Protected Material without designating it
24 as such, the Party or Non-Party may give written notice to the Receiving Party or
25 Parties that the Disclosure or Discovery Material is designated
26 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
27 ONLY,” and should be treated in accordance with the provisions of this Stipulated
1 Discovery Material as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
2 ATTORNEYS’ EYES ONLY,” from the date such notice is received. Disclosure
3 of such Disclosure or Discovery Material, prior to receipt of such notice, to
4 persons not authorized to receive Protected Material shall not be deemed a
5 violation of this Stipulated Protective Order; however, those persons to whom
6 disclosure was made are to be advised that the Protected Material disclosed is
7 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
8 ONLY,” and must be treated in accordance with this Stipulated Protective Order.
9 14. MISCELLANEOUS
10 14.1 Right to Further Relief. Nothing in this Order abridges the right of
11 any person to seek its modification by the Court in the future.
12 14.2 Right to Assert Other Objections. By stipulating to the entry of this
13 Stipulated Protective Order, no Party waives any right it otherwise would have to
14 object to disclosing or producing any information or item on any ground not
15 addressed in this Stipulated Protective Order. Similarly, no Party waives any
16 right to object on any ground to use in evidence of any of the Disclosure or
17 Discovery Material covered by this Stipulated Protective Order.
18 14.3 Filing Protected Material. A Party that seeks to file under seal any
19 Protected Material must comply with Local Civil Rule 79-5. Protected Material
20 may only be filed under seal pursuant to a court order authorizing the sealing of
21 the specific Protected Material at issue. If a Party’s request to file Protected
22 Material under seal is denied by the court, then the Receiving Party may file the
23 information in the public record unless otherwise instructed by the court.
24 14.4 Related Proceeding. In order to promote efficiency in this case, the
25 Parties stipulate and agree that they may use Disclosure or Discovery Material
26 that Monster and/or ISN produced in Monster Energy Company v. Integrated
27 Supply Network, LLC, Trademark Trial and Appeal Board Proceeding No.
1 Network, LLC, Case No. 5:17-CV-00548-CBM-RAO (“Case 1”). The parties
2 agree that the Disclosure or Discovery Material produced by Monster and/or ISN
3 in the Opposition and Case 1 will be subject to this Stipulated Protective Order.
4 The parties further agree that any Protected Material from the Opposition and
5 Case 1 will be afforded the same level of confidentiality protection as originally
6 designated (i.e. through the confidentiality designation marked on the documents
7 or in correspondence between the parties). For avoidance of doubt, any
8 Disclosure or Discovery Material marked “TRADE
9 SECRET/COMMERCIALLY SENSITIVE” in the Opposition shall be treated as
10 if designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
11 under the terms of this Stipulated Protective Order.
12 15. FINAL DISPOSITION
13 After the final disposition of this Action, within 60 days of a written request
14 by the Designating Party, each Receiving Party must return all Protected Material
15 to the Producing Party or destroy such material. As used in this subdivision, “all
16 Protected Material” includes all copies, abstracts, compilations, summaries, and
17 any other format reproducing or capturing any of the Protected Material. Whether
18 the Protected Material is returned or destroyed, the Receiving Party must submit
19 a written certification to the Producing Party (and, if not the same person or entity,
20 to the Designating Party) by the 60 day deadline that states all Protected Material
21 was returned or destroyed and affirms that the Receiving Party has not retained
22 any copies, abstracts, compilations, summaries or any other format reproducing
23 or capturing any of the Protected Material. Notwithstanding this provision,
24 Counsel are entitled to retain an archival copy of all pleadings, motion papers,
25 trial, deposition, and hearing transcripts, legal memoranda, correspondence,
26 deposition and trial exhibits, expert reports, attorney work product, and consultant
27 and expert work product, even if such materials contain Protected Material. Any
1 to this Stipulated Protective Order.
2 16. VIOLATION
3 Any violation of this Order may be punished by appropriate measures
4 including, without limitation, contempt proceedings and/or monetary sanctions.
5
6 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD:
7
KNOBBE, MARTENS, OLSON & BEAR, LLP
8
9
10
Dated: August 19, 2020 By: /s/ Marko R. Zoretic
11 Steven J. Nataupsky
Joseph R. Re
12
Lynda J. Zadra-Symes
13 Brian C. Horne
Marko R. Zoretic Cassandra B. Merrick
14
Jason A. Champion
15
Attorneys for Plaintiff,
16
MONSTER ENERGY COMPANY
17
18 MADEL PA
19
20 Dated: August 19, 2020 By: /s/ Cassandra B. Merrick (with permission)
Christopher W. Madel
21
Jennifer M. Robbins
22 Cassandra B. Merrick
23
Attorneys for Defendant,
24 INTEGRATED SUPPLY NETWORK, LLC
25 IT IS SO ORDERED.
26
Dated: August 24, 2020
27
Honorable Sheri Pym
1 EXHIBIT A
2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
3 I, _____________________________ [print or type full name], of
4 _________________ [print or type full address], declare under penalty of perjury
5 that I have read in its entirety and understand the Stipulated Protective Order that
6 was issued by the United States District Court for the Central District of
7 California in the case of Monster Energy Company v. Integrated Supply Network,
8 LLC, Case No. 5:19-CV-01297-JGB-SP. I agree to comply with and to be bound
9 by all the terms of this Stipulated Protective Order and I understand and
10 acknowledge that failure to so comply could expose me to sanctions and
11 punishment in the nature of contempt. I solemnly promise that I will not disclose
12 in any manner any information or item that is subject to this Stipulated Protective
13 Order to any person or entity except in strict compliance with the provisions of
14 this Order. I further agree to submit to the jurisdiction of the United States District
15 Court for the Central District of California for enforcing the terms of this
16 Stipulated Protective Order, even if such enforcement proceedings occur after
17 termination of this action. I hereby appoint __________________________
18 [print or type full name] of _______________________________________
19 [print or type full address and telephone number] as my California agent for
20 service of process in connection with this action or any proceedings related to
21 enforcement of this Stipulated Protective Order.
22 Date: ______________________________________
23 City and State or Nation where sworn and signed:________________________
24 Printed name: _______________________________
25 Signature: __________________________________
26
27