even stipulated 25 protective orders require good cause showing
How later courts described this case
- even stipulated 25 protective orders require good cause showing
Written by the judges who cited it.
The opinion
1 BROWNE GEORGE ROSS Craig S. Summers (SBN 108,688)
O’BRIEN ANNAGUEY & ELLIS craig.summers@knobbe.com
2 LLP Ali S. Razai (SBN 246,922)
Peter W. Ross (SBN 109741) ali.razai@knobbe.com
3 pross@bgrfirm.com Susan M. Natland (SBN 198,100)
Charles Avrith (SBN 96804) susan.natland@knobbe.com
4 cavrith@bgrfirm.com Sean M. Murray (SBN 213,655)
Tyler J. King (SBN 262547) sean.murray@knobbe.com
5 tking@bgrfirm.com Brandon G. Smith (SBN 307,676)
2121 Avenue of the Stars, Suite 2800 brandon.smith@knobbe.com
6 L Teo ls e A phn og ne ele : s (, 3 C 10a )l i 2fo 7r 4n -i 7a 1 9 00 00 67 KNOBBE, MARTENS, OLSON & BEAR,
7 Facsimile: (310) 275-5697 LLP
2040 Main Street, Fourteenth Floor
8 CALL & JENSEN Irvine, CA 92614
Scott P. Shaw (SBN 223592)
9 sshaw@calljensen.com Telephone: (949) 760-0404
610 Newport Center Drive, Suite 700 Facsimile: (949) 760-9502
10 Newport Beach, California 90067
Telephone: (949) 717-3000
11 Facsimile: (949) 717-3100 Attorneys for Defendants
lululemon athletica inc. and
12 Attorneys for Plaintiff lululemon athletica canada inc.
Aliign Activation Wear, LLC
13
14
15
16 IN THE UNITED STATES DISTRICT COURT
17 FOR THE CENTRAL DISTRICT OF CALIFORNIA
18 WESTERN DIVISION
19
20 ALIIGN ACTIVATION WEAR, ) Case No.2:20-CV-03339-SVW-JEM
LLC, a California limited liability )
21 company ) STIPULATED PROTECTIVE
) ORDER
22 Plaintiff, )
)
23 v. ) Honorable Stephen V. Wilson
) Magistrate Judge John E. McDermott
24 lululemon athletica canada, inc., a )
Canadian corporation and lululemon )
25 athletica, inc., a Delaware )
corporation and DOES 1-10 )
26 )
Defendants. )
27 )
1 1. 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
5 may be warranted. Accordingly, the parties hereby stipulate and respectfully
6 request that the Court enter the following Stipulated Protective Order. The
7 parties acknowledge that this Order does not confer blanket protections on all
8 disclosures or responses to discovery and that the protection it affords from
9 public disclosure and use extends only to the limited information or items that
10 are entitled to confidential treatment under the applicable legal principles.
11 1.1 Good Cause Statement
12 This action is likely to involve trade secrets, customer and pricing lists,
13 market research, and other valuable research, marketing, development,
14 commercial, financial, technical and/or proprietary information for which special
15 protection from public disclosure and from use for any purpose other than
16 prosecution of this action is warranted. Such confidential and proprietary
17 materials and information consist of, among other things, confidential business or
18 financial information, information regarding confidential business practices, or
19 other confidential research, development, or commercial information (including
20 information implicating privacy rights of third parties), information otherwise
21 generally unavailable to the public, or which may be privileged or otherwise
22 protected from disclosure under state or federal statutes, court rules, case
23 decisions, or common law. Information such as sales volumes, sales units, costs
24 of goods sold, price structures, business costs, profit margins, customer lists,
25 marketing strategies, and competitive business plans may need to be disclosed
26 only to a party’s attorneys due to the potential for competitive harm. Accordingly,
27 to expedite the flow of information, to facilitate the prompt resolution of disputes
1 parties are entitled to keep confidential, to ensure that the parties are permitted
2 reasonable necessary uses of such material in preparation for and in the conduct
3 of trial, to address their handling at the end of the litigation, and serve the ends of
4 justice, a protective order for such information is justified in this matter. To
5 adequately protect information the parties are entitled to keep confidential and to
6 prevent competitive harm two tiers of confidentiality designations—
7 “CONFIDENTIAL” and “HIGHLY CONFIDENTIAL-ATTORNEY EYES
8 ONLY”—are required. It is the intent of the parties that information will not be
9 designated as confidential for tactical reasons and that nothing be so designated
10 without a good faith and reasonable belief that it has been maintained in a
11 confidential, non-public manner, and there is good cause why it should not be part
12 of the public record of this case.
13 1.2 Acknowledgment Of Procedure For Filing Under Seal
14 The parties further acknowledge, as set forth in Section 12.3, below, that
15 this Stipulated Protective Order does not entitle them to file confidential
16 information under seal; Local Civil Rule 79-5 sets forth the procedures that must
17 be followed and the standards that will be applied when a party seeks permission
18 from the court to file material under seal.
19 There is a strong presumption that the public has a right of access to judicial
20 proceedings and records in civil cases. In connection with non-dispositive
21 motions, good cause must be shown to support a filing under seal. See Kamakana
22 v. City and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v.
23 Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v.
24 Sony Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated
25 protective orders require good cause showing), and a specific showing of good
26 cause or compelling reasons with proper evidentiary support and legal
27 justification, must be made with respect to Protected Material that a party seeks
1 Material does not—without the submission of competent evidence by declaration,
2 establishing that the material sought to be filed under seal qualifies as
3 confidential, privileged, or otherwise protectable—constitute good cause.
4 Further, if a party requests sealing related to a dispositive motion or trial,
5 then compelling reasons, not only good cause, for the sealing must be shown, and
6 the relief sought shall be narrowly tailored to serve the specific interest to be
7 protected. See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir.
8 2010). For each item or type of information, document, or thing sought to be filed
9 or introduced under seal in connection with a dispositive motion or trial, the party
10 seeking protection must articulate compelling reasons, supported by specific facts
11 and legal justification, for the requested sealing order. Again, competent
12 evidence supporting the application to file documents under seal must be provided
13 by declaration.
14 Any document that is not confidential, privileged, or otherwise protectable
15 in its entirety will not be filed under seal if the confidential portions can be
16 redacted. If documents can be redacted, then a redacted version for public
17 viewing, omitting only the confidential, privileged, or otherwise protectable
18 portions of the document, shall be filed. Any application that seeks to file
19 documents under seal in their entirety should include an explanation of why
20 redaction is not feasible.
21 2. DEFINITIONS
22 2.1 Action: Case No. 2:20-cv-03339-SVW-JEM
23 2.2 Challenging Party: a Party or Non-Party that challenges the
24 designation of information or items under this Order.
25 2.3 “CONFIDENTIAL” Information or Items: information (regardless
26 of how it is generated, stored or maintained) or tangible things or the portion
27 thereof that qualify for protection under Federal Rule of Civil Procedure 26(c),
1 2.4 “HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY” Information
2 or Items: information (regardless of how it is generated, stored or maintained) or
3 tangible things or the portion thereof that: (a) qualify for protection under Federal
4 Rule of Civil Procedure 26(c) and as specified above in the Good Cause
5 Statement, and (b) the disclosure of which to the opposing party or a competitor
6 would create a substantial risk of injury to the Designating Party in the good faith,
7 reasonable belief of the Designating Party, including for example trade secrets or
8 other highly sensitive business information, including confidential financial
9 information, or product expansion plans or developments,; or (c) any other
10 category of information this Court subsequently affords HIGHLY
11 CONFIDENTIAL – ATTORNEY EYES ONLY status.
12 2.5 Counsel: Outside Counsel of Record and House Counsel (as well as
13 their support staff).
14 2.6 Designating Party: a Party or Non-Party that designates information
15 or items that it produces in disclosures or in responses to discovery as
16 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEY EYES
17 ONLY.”
18 2.7 Disclosure or Discovery Material: all items or information,
19 regardless of the medium or manner in which it is generated, stored, or maintained
20 (including, among other things, testimony, transcripts, and tangible things), that
21 are produced or generated in disclosures or responses to discovery in this matter.
22 2.8 Expert: a person with specialized knowledge or experience in a
23 matter pertinent to the litigation who has been retained by a Party or its counsel
24 to serve as an expert witness or as a consultant in this Action.
25 2.9 House Counsel: attorneys who are employees of a party to this
26 Action. House Counsel does not include Outside Counsel of Record or any other
27 outside counsel.
1 or other legal entity not named as a Party to this action.
2 2.11 Outside Counsel of Record: attorneys who are not employees of a
3 party to this Action but are retained to represent or advise a party to this Action
4 and have appeared in this Action on behalf of that party or are affiliated with a
5 law firm that has appeared on behalf of that party, and includes support staff.
6 2.12 Party: any party to this Action, including all of its officers, directors,
7 employees, consultants, retained experts, and Outside Counsel of Record (and
8 their support staffs).
9 2.13 Producing Party: a Party or Non-Party that produces Disclosure or
10 Discovery Material in this Action.
11 2.14 Professional Vendors: persons or entities that provide litigation
12 support services (e.g., photocopying, videotaping, translating, preparing exhibits
13 or demonstrations, and organizing, storing, or retrieving data in any form or
14 medium) and their employees and subcontractors.
15 2.15 Protected Material: any Disclosure or Discovery Material that is
16 designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
17 ATTORNEY EYES ONLY”
18 2.16 Receiving Party: a Party that receives Disclosure or Discovery
19 Material from a Producing Party.
20 3. SCOPE
21 The protections conferred by this Stipulation and Order cover not only
22 Protected Material (as defined above), but also: (1) any information copied or
23 extracted from Protected Material; (2) all copies, excerpts, summaries, or
24 compilations of Protected Material; and (3) any testimony, conversations, or
25 presentations by Parties or their Counsel that would reveal Protected Material.
26 Any use of Protected Material at trial shall be governed by the orders of the trial
27 judge. This Order does not govern the use of Protected Material at trial.
1 4. DURATION
2 Once a case proceeds to trial, information that was designated as
3 PROTECTED MATERIAL or maintained pursuant to this protective order used
4 or introduced as an exhibit at trial becomes public and will be presumptively
5 available to all members of the public, including the press, unless compelling
6 reasons supported by specific factual findings to proceed otherwise are made to
7 the trial judge in advance of the trial. See Kamakana, 447 F.3d at 1180-81
8 (distinguishing “good cause” showing for sealing documents produced in
9 discovery from “compelling reasons” standard when merits-related documents
10 are part of court record). Accordingly, the terms of this protective order do not
11 extend beyond the commencement of the trial.
12 5. DESIGNATING PROTECTED MATERIAL
13 5.1 Exercise of Restraint and Care in Designating Material for
14 Protection. Each Party or Non-Party that designates information or items for
15 protection under this Order must take care to limit any such designation to specific
16 material that qualifies under the appropriate standards. To the extent practicable,
17 the Designating Party must designate for protection only those parts of material,
18 documents, items or oral or written communications that qualify so that other
19 portions of the material, documents, items or communications for which
20 protection is not warranted are not swept unjustifiably within the ambit of this
21 Order.
22 Mass, indiscriminate or routinized designations are prohibited.
23 Designations that are shown to be clearly unjustified or that have been made for
24 an improper purpose (e.g., to unnecessarily encumber the case development
25 process or to impose unnecessary expenses and burdens on other parties) may
26 expose the Designating Party to sanctions.
27 If it comes to a Designating Party’s attention that information or items that
1 must promptly notify all other Parties that it is withdrawing the inapplicable
2 designation.
3 5.2 Manner and Timing of Designations. Except as otherwise provided
4 in this Order (see, e.g., second paragraph of Section 5.2(a) below), or as otherwise
5 stipulated or ordered, Disclosure or Discovery Material that qualifies for
6 protection under this Order must be clearly so designated before the material is
7 disclosed or produced.
8 Designation in conformity with this Order requires:
9 (a) for information in documentary form (e.g., paper or electronic
10 documents, but excluding transcripts of depositions or other pretrial or trial
11 proceedings), that the Producing Party affix at a minimum, the legend
12 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), or the legend
13 “HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY” (hereinafter
14 “HIGHLY CONFIDENTIAL legend”) to at least the first page of the document
15 that contains Protected Material. If only a portion or portions of the material on
16 a page qualifies for protection, the Producing Party also must clearly identify the
17 protected portion(s) (e.g., by making appropriate markings in the margins).
18 A Party or Non-Party that makes original documents available for
19 inspection need not designate them for protection until after the inspecting Party
20 has indicated which documents it would like copied and produced. During the
21 inspection and before the designation, all of the material made available for
22 inspection shall be deemed “HIGHLY CONFIDENTIAL – ATTORNEY EYES
23 ONLY.” After the inspecting Party has identified the documents it wants copied
24 and produced, the Producing Party must determine which documents, or portions
25 thereof, qualify for protection under this Order. Then, before producing the
26 specified documents, the Producing Party must affix the “CONFIDENTIAL
27 legend” or “HIGHLY CONFIDENTIAL legend” to each page that contains
1 protection, the Producing Party also must clearly identify the protected portion(s)
2 (e.g., by making appropriate markings in the margins).
3 (b) for testimony given in deposition or other proceeding, the designator
4 shall specify all protected testimony and the level of protection being asserted or,
5 in the alternative, it may designate on the record at the deposition that the entire
6 transcript be designated CONFIDENTIAL or HIGHLY CONFIDENTIAL –
7 ATTORNEY EYES ONLY. If the designator designates the entire transcript
8 CONFIDENTIAL or HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY,
9 within 21 days after the final transcript is available, the designator must provide
10 written notice to the other party specifically identifying by page and line number
11 all portions of the transcript that should be treated as “CONFIDENTIAL” or
12 “HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY” in accordance with
13 this Stipulated Protective Order, otherwise the entire transcript will be de-
14 designated and not afforded any protection as including confidential information.
15 (c) for information produced in some form other than documentary and for
16 any other tangible items, that the Producing Party affix in a prominent place on
17 the exterior of the container or containers in which the information is stored the
18 legend “CONFIDENTIAL” or legend “HIGHLY CONFIDENTIAL.” If only a
19 portion or portions of the information warrants protection, the Producing Party,
20 to the extent practicable, shall identify the protected portion(s).
21 5.3 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 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
1 designation of confidentiality at any time that is consistent with the Court’s
2 Scheduling Order.
3 6.2 Meet and Confer. The Challenging Party shall initiate the dispute
4 resolution process under Local Rule 37-1 et seq.
5 6.3 Joint Stipulation. Any challenge submitted to the Court shall be via
6 a joint stipulation pursuant to Local Rule 37-2.
7 6.4 The burden of persuasion in any such challenge proceeding shall be
8 on the Designating Party. Frivolous challenges or designations made for an
9 improper purpose (e.g., to harass or impose unnecessary expenses and burdens on
10 other parties) may expose the Challenging Party or Designating Party to
11 sanctions. Unless the Designating Party has waived or withdrawn the
12 confidentiality designation, all parties shall continue to afford the material in
13 question the level of protection to which it is entitled under the Designating
14 Party’s designation until the Court rules on the challenge.
15 7. ACCESS TO AND USE OF PROTECTED MATERIAL
16 7.1 Basic Principles. A Receiving Party may use Protected Material that
17 is disclosed or produced by another Party or by a Non-Party in connection with
18 this Action only for prosecuting, defending or attempting to settle this Action.
19 Such Protected Material may be disclosed only to the categories of persons and
20 under the conditions described in this Order. When the Action has been
21 terminated, a Receiving Party must comply with the provisions of Section 13
22 below (FINAL DISPOSITION).
23 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless
24 otherwise ordered by the court or permitted in writing by the Designating Party,
25 a Receiving Party may disclose any information or item designated
26 “CONFIDENTIAL” only to:
27 (a) the Receiving Party’s Outside Counsel of Record in this Action and
1 of said Outside Counsel of Record to whom it is reasonably necessary to disclose
2 the information for this Action;
3 (b) the officers, directors, and employees of the Receiving Party to
4 whom disclosure is reasonably necessary for this Action, including the Receiving
5 Party’s House Counsel;
6 (c) Experts (as defined in this Order) of the Receiving Party to whom
7 disclosure is reasonably necessary in this Action and who have signed the
8 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
9 (d) the Court and its personnel;
10 (e) court reporters and their staff;
11 (f) professional jury or trial consultants, mock jurors, and Professional
12 Vendors to whom disclosure is reasonably necessary for this Action and who have
13 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
14 (g) the author or recipient of a document containing the information or
15 a custodian or other person who otherwise possessed or knew the information;
16 (h) during their depositions, witnesses, and attorneys for witnesses, in
17 the Action to whom disclosure is reasonably necessary provided: (1) the deposing
18 party requests that the witness and his or her attorney, if the attorney is not already
19 Outside Counsel of Record for a Party in this Action, sign the form attached as
20 Exhibit A hereto; and (2) they will not be permitted to keep any confidential
21 information unless they sign the “Acknowledgment and Agreement to Be Bound”
22 (Exhibit A), unless otherwise agreed by the Designating Party or ordered by the
23 court. Pages of transcribed deposition testimony or exhibits to depositions that
24 reveal Protected Material may be separately bound by the court reporter and may
25 not be disclosed to anyone except as permitted under this Stipulated Protective
26 Order; and
27 (i) any mediator or settlement officer, and their supporting personnel,
1 7.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEY EYES
2 ONLY” Information or Items. Unless otherwise ordered by the court or permitted
3 in writing by the Designating Party, a Receiving Party may disclose material
4 designated HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY without
5 further approval only to:
6 (a) The Receiving Party’s Outside Counsel of Record in this action and
7 other attorneys from Outside Counsel of Record’s law firm and employees of
8 Outside Counsel of Record to whom it is reasonably necessary to disclose the
9 information for this Action and the Receiving Party’s House Counsel;
10 (b) Experts (as defined in this Order) of the Receiving Party to whom
11 disclosure is reasonably necessary for this Action and who have signed the
12 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
13 (c) the Court and its personnel;
14 (d) court reporters and their staff;
15 (e) professional jury or trial consultants, and Professional Vendors to
16 whom disclosure is reasonably necessary, and who have signed the
17 “Acknowledgment and Agreement to Be Bound” (Exhibit A); and
18 (f) the author or recipient of a document containing the material, or a
19 custodian or other person who otherwise possessed or knew the information;
20 (g) any mediator or settlement officer, and their supporting personnel,
21 mutually agreed upon by any of the parties engaged in settlement discussions
22 7.4 Procedures for Approving or Objecting to Disclosure of
23 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL-ATTORNEY EYES
24 ONLY” Material to Experts.
25 (a) A party seeking to disclose to an expert retained by Outside Counsel
26 of Record any information or item that has been designated “CONFIDENTIAL”
27 or “HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY” must first (1) set
1 residence, (2) attach a copy of the expert’s current resume, (3) identify the
2 expert’s current employer(s), and, (4) identify each person or entity from whom
3 the expert has received compensation or funding for work in his or her areas of
4 expertise (not including in connection with litigation) in the past three years. If
5 the expert believes any of the information in (3) is subject to a confidentiality
6 obligation to a third party, then the expert should provide whatever information
7 the expert believes can be disclosed without violating any confidentiality
8 agreements, and the party seeking to disclose the information to the expert shall
9 be available to meet and confer with the designator regarding any such
10 confidentiality obligations.
11 (b) A party that makes a request and provides the information specified
12 in Section 7.4(a) may disclose the designated material to the identified expert
13 unless, within four days of delivering the request, the party receives a written
14 objection from the designator providing detailed grounds for the objection.
15 (c) A Party that receives a timely written objection (“Objecting Party”)
16 must meet and confer with the Designating Party (through direct voice-to-voice
17 dialogue) to try to resolve the matter by agreement within seven days of the
18 written objection. If no agreement is reached, the Party objecting to the disclosure
19 to the Expert may file a motion as provided under L.R. 37-1 through L.R. 37-4.
20 (d) In any such proceeding, the Party opposing disclosure to the Expert
21 shall bear the burden of proving that the risk of harm that the disclosure would
22 entail (under the safeguards proposed) outweighs the Receiving Party’s need to
23 disclose the Protected Material to its Expert.
24 (e) Unless the Objecting Party has waived or withdrawn the
25 confidentiality designation, the material in question shall not be disclosed to the
26 relevant expert until the Court rules on the objection.
27 / / /
1 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED
2 PRODUCED IN OTHER LITIGATION
3 If a Party is served with a subpoena or a court order issued in other litigation
4 that compels disclosure of any information or items designated in this Action as
5 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEY EYES
6 ONLY” that Party must:
7 (a) promptly notify in writing the Designating Party. Such notification
8 shall include a copy of the subpoena or court order;
9 (b) promptly notify in writing the party who caused the subpoena or
10 order to issue in the other litigation that some or all of the material covered by the
11 subpoena or order is subject to this Stipulated Protective Order. Such notification
12 shall include a copy of this Stipulated Protective Order; and
13 (c) cooperate with respect to all reasonable procedures sought to be
14 pursued by the Designating Party whose Protected Material may be affected.
15 If the Designating Party timely seeks a protective order, the Party served
16 with the subpoena or court order shall not produce any information designated in
17 this action as Protected Material before a determination by the court from which
18 the subpoena or order issued, unless the Party has obtained the Designating
19 Party’s permission. The Designating Party shall bear the burden and expense of
20 seeking protection in that court of its confidential material and nothing in these
21 provisions should be construed as authorizing or encouraging a Receiving Party
22 in this Action to disobey a lawful directive from another court.
23 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
24 PRODUCED IN THIS LITIGATION
25 (a) The terms of this Order are applicable to information produced by a
26 Non-Party in this Action and designated as “CONFIDENTIAL” or “HIGHLY
27 CONFIDENTIAL – ATTORNEY EYES ONLY.” Such information produced
1 relief provided by this Order. Nothing in these provisions should be construed as
2 prohibiting a Non-Party from seeking additional protections.
3 (b) In the event that a Party is required, by a valid discovery request, to
4 produce a Non-Party’s confidential information in its possession, and the Party is
5 subject to an agreement with the Non-Party not to produce the Non-Party’s
6 confidential information, then the Party shall:
7 (1) promptly notify in writing the Requesting Party and the Non-Party
8 that some or all of the information requested is subject to a confidentiality
9 agreement with a Non-Party;
10 (2) promptly provide the Non-Party with a copy of the Stipulated
11 Protective Order in this Action, the relevant discovery request(s), and a
12 reasonably specific description of the information requested; and
13 (3) make the information requested available for inspection by the Non-
14 Party, if requested.
15 (c) If the Non-Party fails to seek a protective order from this court within
16 14 days of receiving the notice and accompanying information, the Receiving
17 Party may produce the Non-Party’s confidential information responsive to the
18 discovery request. If the Non-Party timely seeks a protective order, the Receiving
19 Party shall not produce any information in its possession or control that is subject
20 to the confidentiality agreement with the Non-Party before a determination by the
21 court. Absent a court order to the contrary, the Non-Party shall bear the burden
22 and expense of seeking protection in this court of its Protected Material.
23 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
24 If a Receiving Party learns that, by inadvertence or otherwise, it has
25 disclosed Protected Material to any person or in any circumstance not authorized
26 under this Stipulated Protective Order, the Receiving Party must immediately (a)
27 notify in writing the Designating Party of the unauthorized disclosures, (b) use its
1 inform the person or persons to whom unauthorized disclosures were made of all
2 the terms of this Order, and (d) request such person or persons to execute the
3 “Acknowledgment and Agreement to Be Bound” that is attached hereto as
4 Exhibit A.
5 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
6 PROTECTED MATERIAL
7 The inadvertent production of information that is subject to the attorney-
8 client privilege or work-product doctrine, or any other applicable privilege that
9 protects such material from disclosure is not a waiver of the attorney-privilege,
10 or work-product doctrine, or other applicable privilege or protection from
11 discovery in this case or in any other federal or state proceeding. This Order shall
12 be interpreted to provide the maximum protection allowed by Federal Rule of
13 Evidence 502.
14 When a Producing Party gives notice to Receiving Parties that certain
15 inadvertently produced material is subject to a claim of privilege or other
16 protection, the obligations of the Receiving Parties are those set forth in Federal
17 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify
18 whatever procedure may be established in an e-discovery order that provides for
19 production without prior privilege review.
20 12. MISCELLANEOUS
21 12.1 Right to Further Relief. Nothing in this Order abridges the right of
22 any person to seek its modification by the Court in the future.
23 12.2 Right to Assert Other Objections. By stipulating to the entry of this
24 Protective Order, no Party waives any right it otherwise would have to object to
25 disclosing or producing any information or item on any ground not addressed in
26 this Stipulated Protective Order. Similarly, no Party waives any right to object
27 on any ground to use in evidence of any of the material covered by this Protective
1 12.3 Filing Protected Material. A Party that seeks to file under seal any
2 Protected Material must comply with Local Civil Rule 79-5. Protected Material
3 may only be filed under seal pursuant to a court order authorizing the sealing of
4 the specific Protected Material at issue. If a Party’s request to file Protected
5 Material under seal is denied by the court, then the Receiving Party may file the
6 information in the public record unless otherwise instructed by the court.
7 13. FINAL DISPOSITION
8 After the final disposition of this Action, as defined in Section 4, within 60
9 days of a written request by the Designating Party, each Receiving Party must
10 return all Protected Material to the Producing Party or destroy such material. As
11 used in this subdivision, “all Protected Material” includes all copies, abstracts,
12 compilations, summaries, and any other format reproducing or capturing any of
13 the Protected Material. Whether the Protected Material is returned or destroyed,
14 the Receiving Party must submit a written certification to the Producing Party
15 (and, if not the same person or entity, to the Designating Party) by the 60 day
16 deadline that affirms that the Receiving Party has not retained any copies,
17 abstracts, compilations, summaries or any other format reproducing or capturing
18 any of the Protected Material. Notwithstanding this provision, Counsel are
19 entitled to retain an archival copy of all pleadings, motion papers, trial, deposition,
20 and hearing transcripts, legal memoranda, correspondence, deposition and trial
21 exhibits, expert reports, attorney work product, and consultant and expert work
22 product, even if such materials contain Protected Material. Any such archival
23 copies that contain or constitute Protected Material remain subject to this
24 Protective Order as set forth in Section 4 (DURATION).
25 14. VIOLATION
26 Any violation of this Order may be punished by appropriate measures
27 including, without limitation, contempt proceedings and/or monetary sanctions.
1 KNOBBE, MARTENS, OLSON & BEAR, LLP
Dated: January 21, 2021 By: /s/Ali S. Razai
Craig Summers
4 Ali Razai
Susan Natland
5 Brandon Smith
6 Attorneys for Defendants
BROWNE GEORGE ROSS O’BRIEN
8 ANNAGUEY & ELLIS LLP
Dated: January 21, 2021 By: /s/ Charles Avrith (with permission)
ll Peter W. Ross
Charles Avrith
12 Tyler J. King
13 Attorneys for Plaintiff
]4|| FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
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DATED: 1/22/2021
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18 pS Terme
19|| Hon. John E. McDermott
» United States Magistrate Judge
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1 EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
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I, ____________________________________ [print or type full name], of
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_______________________ [print or type full address], declare under penalty
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of perjury that I have read in its entirety and understand the Stipulated Protective
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Order that was issued by the United States District Court for the Central District
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of California on _________ in the case of Aliign Activation Wear, LLC v.
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lululemon athletica inc. et al., Case No. 2:20-cv-03339-SVW-JEM (C.D. Cal.).
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I agree to comply with and to be bound by all the terms of this Stipulated
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Protective Order and I understand and acknowledge that failure to so comply
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could expose me to sanctions and punishment in the nature of contempt. I
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solemnly promise that I will not disclose in any manner any information or item
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that is subject to this Stipulated Protective Order to any person or entity except
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in strict compliance with the provisions of this Order. I further agree to submit
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to the jurisdiction of the United States District Court for the Central District of
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California for enforcing the terms of this Stipulated Protective Order, even if
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such enforcement proceedings occur after termination of this action.
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I hereby appoint ____________________________ [print or type full name] of
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____________________________________ [print or type full address and
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telephone number] as my California agent for service of process in connection
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with this action or any proceedings related to enforcement of this Stipulated
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Protective Order.
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Date: _________________________
24 City and State: _________________________
Printed name: _________________________
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26 Signature: _________________________
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