# The Alixir Company v. Que Onda Beverage, Inc.

> District Court, C.D. California · July 12, 2021

URL: https://www.frixlaw.com/law-library/cases/10041327

## Case

- **Court:** District Court, C.D. California
- **Decided:** July 12, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

1 Todd A. Boock (SBN 181933)
todd@bnsklaw.com
2
BROWN NERI SMITH & KHAN, LLP
3 11601 Wilshire Boulevard, Suite 2080
Los Angeles, California 90025
4
Telephone: (310) 593-9890
5 Facsimile: (310) 593-9980

6
Attorneys for Plaintiff
7 THE ALIXIR COMPANY dba BEV

8
Defendant’s counsel on following page
9

10
UNITED STATES DISTRICT COURT
11
FOR THE CENTRAL DISTRICT OF CALIFORNIA
12
WESTERN DIVISION
13
THE ALIXIR COMPANY dba BEV, a Case No. 2:20-cv-08368-RGK-RAO
14 Delaware corporation,
15 Hon. R. Gary Klausner
Plaintiff, Hon. Rozella A. Oliver
16
17 v. [PROPOSED] STIPULATED
PROTECTIVE ORDER
18 QUE ONDA BEVERAGE, INC. dba
19 ONDA, a Delaware corporation,
Complaint Filed: September 11, 2020
20 Defendant. Trial Date: November 30, 2021
21

22
23

24
25
26
27
1 Counsel for Defendant Que Onda Beverage, Inc. dba Onda
2 Kevin R. Lussier (SBN 143821)
klussier@cmlawfirm.com
3
CRUSER, MITCHELL, NOVITZ, SANCHEZ, GASTON & ZIMET LLP
4 800 Wilshire Boulevard, 15th Floor
Los Angeles, California 90017
5
Telephone: (213) 689-8500
6 Facsimile: (213) 689-8501

7
James D. Weinberger (admitted pro hac vice)
8 jweinberger@fzlz.com
Daniel M. Nuzzaci (admitted pro hac vice)
9
dnuzzaci@fzlz.com
10 FROSS ZELNICK LEHRMAN & ZISSU, P.C.
151 West 42nd Street, 17th Floor
11
New York, New York 10036
12 Telephone: (212) 813-5900
Facsimile: (213) 813-5901
13

14

15 The Court recognizes that at least some of the documents and information
16 ("materials") being sought through discovery in the above-captioned action are, for
17 competitive reasons, normally kept confidential by the parties. The parties have
18 agreed to be bound by the terms of this Protective Order (“Order”) in this action.
19 The materials to be exchanged throughout the course of the litigation between
20 the parties may contain trade secret or other confidential research, technical, cost,
21 price, marketing or other commercial information, as is contemplated by Federal
22 Rule of Civil Procedure 26(c)(1)(G). The purpose of this Order is to protect the
23 confidentiality of such materials as much as practical during the litigation.
24 THEREFORE:
25 I. PURPOSES AND LIMITATIONS
26 Discovery in this action is likely to involve production of confidential,
27 proprietary, and/or private information for which special protection from public
disclosure and from use for any purpose other than prosecuting this litigation may
1 be warranted. Accordingly, the parties hereby stipulate to and petition the Court to
2 enter the following Stipulated Protective Order. The parties acknowledge that this
3 Order does not confer blanket protections on all disclosures or responses to
4 discovery and that the protection it affords from public disclosure and use extends
5 only to the limited information or items that are entitled to confidential treatment
6 under the applicable legal principles. The parties further acknowledge, as set forth
7 in Section 12.3, below, that this Stipulated Protective Order does not entitle them to
8 file confidential information under seal; the parties must follow the applicable local
9 rules, including the procedures that must be followed and the standards that will be
10 applied when a party seeks permission from the Court to file material under seal.
11 A. GOOD CAUSE STATEMENT
12 This action involves alleged trade secrets, confidential information,
13 development, commercial, financial, technical and/or proprietary information for
14 which special protection from public disclosure and from use for any purpose other
15 than prosecution of this action is warranted. Such confidential and proprietary
16 materials and information may consist of, among other things, confidential business
17 or financial information, information regarding confidential business practices, or
18 other confidential research, development, or commercial information (including
19 information implicating privacy rights of third parties), information otherwise
20 generally unavailable to the public, or which may be privileged or otherwise
21 protected from disclosure under state or federal statutes, court rules, case decisions,
22 or common law. Accordingly, to expedite the flow of information, to facilitate the
23 prompt resolution of disputes over confidentiality of discovery materials, to
24 adequately protect information the parties are entitled to keep confidential, to ensure
25 that the parties are permitted reasonable necessary uses of such material in
26 preparation for and in the conduct of trial, to address their handling at the end of the
27 litigation, and serve the ends of justice, a protective order for such information is
1 designated as confidential for tactical reasons and that nothing be so designated
2 without a good faith belief that it has been maintained in a confidential, non-public
3 manner, and there is good cause why it should not be part of the public record of this
4 case.
5 B. ACKNOWLEDGEMENT OF PROCEDURE FOR FILING
6 UNDER SEAL
7 The parties further acknowledge, as set forth in Section 12.3, below, that this
8 Stipulated Protective Order does not entitle them to file confidential information
9 under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed
10 and the standards that will be applied when a party seeks permission from the Court
11 to file material under seal.
12 There is a strong presumption that the public has a right of access to judicial
13 proceedings and records in civil cases. In connection with non-dispositive motions,
14 good cause must be shown to support a filing under seal. See Kamakana v. City and
15 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006); Phillips v. Gen. Motors
16 Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002); Makar-Welbon v. Sony Electrics,
17 Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders
18 require good cause showing), and a specific showing of good cause or compelling
19 reasons with proper evidentiary support and legal justification, must be made with
20 respect to Protected Material that a party seeks to file under seal. The parties’ mere
21 designation of Disclosure or Discovery Material as CONFIDENTIAL does not—
22 without the submission of competent evidence by declaration, establishing that the
23 material sought to be filed under seal qualifies as confidential, privileged, or
24 otherwise protectable—constitute good cause.
25 Further, if a party requests sealing related to a dispositive motion or trial, then
26 compelling reasons, not only good cause, for the sealing must be shown, and the
27 relief sought shall be narrowly tailored to serve the specific interest to be protected.
1 each item or type of information, document, or thing sought to be filed or introduced
2 under seal in connection with a dispositive motion or trial, the party seeking
3 protection must articulate compelling reasons, supported by specific facts and legal
4 justification, for the requested sealing order. Again, competent evidence supporting
5 the application to file documents under seal must be provided by declaration.
6 Any document that is not confidential, privileged, or otherwise protectable in
7 its entirety will not be filed under seal if the confidential portions can be redacted.
8 If documents can be redacted, then a redacted version for public viewing, omitting
9 only the confidential, privileged, or otherwise protectible portions of the document
10 shall be filed. Any application that seeks to file documents under seal in their
11 entirety should include an explanation of why redaction is not feasible.
12 II. DEFINITIONS
13 2.1 Action: The Alixir Company dba Bev v. Que Onda Beverage, Inc. dba
14 Onda., Case No. 2:20-cv-08368-RGK-RAO.
15 2.2 Challenging Party: a Party or Non-Party that challenges the
16 designation of information or items under this Order.
17 2.3 “CONFIDENTIAL” Information or Items: information (regardless of
18 how it is generated, stored or maintained) or tangible things that qualify for
19 protection under Federal Rule of Civil Procedure 26(c), and as specified above in
20 the Good Cause Statement, including, but not limited to, information contained or
21 disclosed in any materials, including documents, portions of documents, answers to
22 interrogatories, responses to requests for admissions, trial testimony, deposition
23 testimony, and transcripts of trial testimony and depositions, including data,
24 summaries, and compilations derived therefrom that is deemed to be confidential
25 information by any party to which it belongs.
26 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as
27 their support staff).
1 2.5 Designating Party: a Party or Non-Party that designates information or
2 items that it produces in disclosures or in responses to discovery as
3 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
4 ONLY.”
5 2.6 Disclosure or Discovery Material: all items or information, regardless
6 of the medium or manner in which it is generated, stored, or maintained (including,
7 among other things, testimony, transcripts, and tangible things), that are produced or
8 generated in disclosures or responses to discovery in this matter.
9 2.7 Expert: a person with specialized knowledge or experience in a matter
10 pertinent to the litigation who has been retained by a Party or its counsel to serve as
11 an expert witness or as a consultant in this Action.
12 2.8 “HIGHLY CONFIDENTIAL” Information or Items: information or
13 items (regardless of how generated, stored or maintained) or tangible things that
14 contain or reflect sensitive Confidential Information that the designating party
15 contends are trade secrets and/or commercially sensitive, the disclosure of which
16 could cause harm that could not be avoided absent such designation. Such
17 designation shall constitute a representation by the Designating Party that he, she or
18 it, in good faith, believes that the Material so designated contains or constitutes at
19 the time of the designation: (a) competitively sensitive or proprietary information,
20 including trade secrets, research, analysis, development, financial or other
21 commercial information of a non-public nature, non-public communications with
22 regulators or other governmental bodies that are protected from disclosure by statute
23 or regulation; non-public business or financial strategies, business plans, strategic
24 plans, sales and marketing plans, marketing surveys, earnings or other financial
25 projections, contracts or agreements, including any documentation that is considered
26 confidential or proprietary under other confidentiality or non-disclosure agreements
27 and/or information protected by the right of privacy and/or any applicable privilege;
1 Party, would create a risk of harm or injury that could not be avoided by a less
2 restrictive designation. To the extent that a Party or Non-Party desires that any
3 Confidential Information not specifically identified in subsection (a) above be
4 treated as “Attorneys’ Eyes Only,” it may inform the other Party or Parties and they
5 shall have a good faith meet and confer in an attempt to accommodate any such
6 concerns. To the extent that a Party or Non-Party disagrees with an “Attorneys’
7 Eyes Only” designation, that Party or Non-Party shall follow the “Challenging
8 Confidentiality Designations” procedure specified in Section VI herein. The Parties
9 expressly acknowledge that they will abide by Section 5.1 herein and not
10 indiscriminately designate Materials as “Attorneys’ Eyes Only” and will take care to
11 limit any such designation to specific material that qualifies under the appropriate
12 standards. Materials designated as “Attorneys’ Eyes Only” may not be used for any
13 business or commercial purpose or any purpose unrelated to the prosecution or
14 defense of this litigation.
15 2.9 House Counsel: attorneys who are employees of a party to this Action.
16 House Counsel does not include Outside Counsel of Record or any other outside
17 counsel.
18 2.10 Non-Party: any natural person, partnership, corporation, association, or
19 other legal entity not named as a Party to this action.
20 2.11 Outside Counsel of Record: attorneys who are not employees of a
21 party to this Action but are retained to represent or advise a party to this Action and
22 have appeared in this Action on behalf of that party or are affiliated with a law firm
23 which has appeared on behalf of that party and includes support staff.
24 2.12 Party: any party to this Action, including all of its officers, directors,
25 employees, consultants, retained experts, and Outside Counsel of Record (and their
26 support staffs).
27 2.13 Producing Party: a Party or Non-Party that produces Disclosure or
1 2.14 Professional Vendors: persons or entities that provide litigation
2 support services (e.g., photocopying, videotaping, translating, preparing exhibits or
3 demonstrations, and organizing, storing, or retrieving data in any form or medium)
4 and their employees and subcontractors.
5 2.15 Protected Material: any Disclosure or Discovery Material that is
6 designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
7 ATTORNEYS’ EYES ONLY.”
8 2.16 Receiving Party: a Party that receives Disclosure or Discovery
9 Material from a Producing Party.
10 III. SCOPE
11 The protections conferred by this Stipulation and Order cover not only
12 Protected Material (as defined above), but also (1) any information copied or
13 extracted from Protected Material; (2) all copies, excerpts, summaries, or
14 compilations of Protected Material; and (3) any testimony, conversations, or
15 presentations by Parties or their Counsel that might reveal Protected Material.
16 IV. DURATION
17 Once a case proceeds to trial, information that was designated as
18 CONFIDENTIAL or maintained pursuant to this protective order used or introduced
19 as an exhibit at trial becomes public and will be presumptively available to all
20 members of the public, including the press, unless compelling reasons supported by
21 specific factual findings to proceed otherwise are made to the trial judge in advance
22 of the trial. See Kamakana, 477 F.3d at 1180-81 (distinguishing “good cause”
23 showing for sealing documents produced in discovery from “compelling reasons”
24 standard when merits-related documents are part of court record).
25 For material or information that does not become public at trial, after final
26 disposition of this litigation, the confidentiality obligations imposed by this Order
27 shall remain in effect until a Designating Party agrees otherwise in writing or a court
1 of all claims and defenses in this Action, with or without prejudice; and (2) final
2 judgment herein after the completion and exhaustion of all appeals, rehearings,
3 remands, trials, or reviews of this action, including the time limits for filing any
4 motions or applications for extension of time pursuant to applicable law.
5 V. DESIGNATING PROTECTED MATERIAL
6 5.1 Exercise of Restraint and Care in Designating Material for Protection.
7 Each Party or Non-Party that designates information or items for protection under
8 this Order must take care to limit any such designation to specific material that
9 qualifies under the appropriate standards. To the extent it is practical to do so, the
10 Designating Party must designate for protection only those parts of material,
11 documents, items, or oral or written communications that qualify – so that other
12 portions of the material, documents, items, or communications for which protection
13 is not warranted are not swept unjustifiably within the ambit of this Order.
14 Mass, indiscriminate, or routinized designations are prohibited. Designations
15 that are shown to be clearly unjustified or that have been made for an improper
16 purpose (e.g., to unnecessarily encumber the case development process or to impose
17 unnecessary expenses and burdens on other parties) may expose the Designating
18 Party to sanctions.
19 If it comes to a Designating Party’s attention that information or items that it
20 designated for protection do not qualify for protection at all or do not qualify for the
21 level of protection initially asserted, that Designating Party must promptly notify all
22 other parties that it is withdrawing the inapplicable designation.
23 5.2 Manner and Timing of Designations. Except as otherwise provided in
24 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
25 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
26 under this Order must be clearly so designated before the material is disclosed or
27 produced.
1 (a) for information in documentary form (e.g., paper or electronic
2 documents, but excluding transcripts of depositions or other pretrial or trial
3 proceedings), that the Producing Party affix at a minimum, the legend
4 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
5 ONLY” to each page that contains protected material. If only a portion or portions
6 of the material on a page qualifies for protection, the Producing Party also must
7 clearly identify the protected portion(s) (e.g., by making appropriate markings in the
8 margins) and must specify, for each portion, the level of protection asserted.
9 A Party or Non-Party that makes original documents available for inspection
10 need not designate them for protection until after the inspecting Party has indicated
11 which documents it would like copied and produced. During the inspection and
12 before the designation, all of the material made available for inspection shall be
13 deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” After the
14 inspecting Party has identified the documents it wants copied and produced, the
15 Producing Party must determine which documents, or portions thereof, qualify for
16 protection under this Order. Then, before producing the specified documents, the
17 Producing Party must affix the appropriate legend (“CONFIDENTIAL” or
18 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”) to each page that
19 contains Protected Material.
20 (b) for testimony given in a deposition or in other pretrial or trial
21 proceedings, that the Designating Party identify on the record, before the close of
22 the deposition, hearing, or other proceeding, whenever possible, all protected
23 testimony and specify the level of protection being asserted.
24 (1) However, a party may designate portions of depositions as
25 containing Protected Material after transcription of the proceedings. A Designating
26 Party will have until fourteen (14) days after receipt of the deposition transcript to
27 inform the other party or parties to the action of the portions of the transcript to be
1 EYES ONLY.”
2 (2) The use of a document as an exhibit at a deposition shall
3 not in any way affect its designation as “CONFIDENTIAL” or “HIGHLY
4 CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Transcripts containing
5 Protected Material shall have an obvious legend on the title page that the transcript
6 contains Protected Material, and the title page shall be followed by a list of all pages
7 (including line numbers as appropriate) that have been designated as Protected
8 Material and the level of protection being asserted by the Designating Party. The
9 Designating Party shall inform the court reporter of these requirements.
10 (3) The Designating Party will have the right to exclude from
11 attendance at the deposition, during such time as the confidential information is to
12 be disclosed, any person other than the deponent, counsel (including their staff and
13 associates), the court reporter, and the person(s) agreed upon pursuant to paragraphs
14 7.2 and 7.3 below.
15 (4) The originals of the deposition transcripts and all copies of
16 the deposition must bear the legend "CONFIDENTIAL" or "HIGHLY
17 CONFIDENTIAL – ATTORNEYS’ EYES ONLY," as appropriate, and the original
18 or any copy ultimately presented to a court for filing must not be filed unless it can
19 be accomplished under seal, identified as being subject to this Order, and protected
20 from being opened except by order of this Court.
21 (c) for information produced in some form other than documentary
22 and for any other tangible items, that the Producing Party affix in a prominent place
23 on the exterior of the container or containers in which the information is stored the
24 legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’
25 EYES ONLY.” If only a portion or portions of the information warrants protection,
26 the Producing Party, to the extent practicable, shall identify the protected portion(s).
27 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
1 the Designating Party’s right to secure protection under this Order for such material.
2 Upon timely correction of a designation, the Receiving Party must make reasonable
3 efforts to assure that the material is treated in accordance with the provisions of this
4 Order.
5 VI. CHALLENGING CONFIDENTIALITY DESIGNATIONS
6 6.1 Timing of Challenges. Any Party or Non-Party may challenge a
7 designation of confidentiality at any time that is consistent with the Court’s
8 Scheduling Order.
9 6.2 Meet and Confer. The Challenging Party objecting to confidentiality
10 must notify, in writing, counsel for the Designating Party of the objected-to materials
11 and the grounds for the objection. If the dispute is not resolved consensually between
12 the parties within seven (7) days of receipt of such a notice of objections, the
13 Challenging Party may move the Court for a ruling on the objection, in accordance
14 with the procedure set forth in Local Rules 37.1, et seq. The materials at issue must
15 be treated as confidential information, as designated by the designating party, until
16 the Court has ruled on the objection or the matter has been otherwise resolved.
17 6.3. The burden of persuasion in any such challenge proceeding shall be on
18 the Designating Party. Frivolous challenges, and those made for an improper purpose
19 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may
20 expose the Challenging Party to sanctions. Unless the Designating Party has waived
21 or withdrawn the confidentiality designation, all parties shall continue to afford the
22 materials in question the level of protection to which it is entitled under the Producing
23 Party’s designation until the Court rules on the challenge.
24 VII. ACCESS TO AND USE OF PROTECTED MATERIAL
25 7.1 Basic Principles. A Receiving Party may use Protected Material that is
26 disclosed or produced by another Party or by a Non-Party in connection with this
27 Action only for prosecuting, defending, or attempting to settle this Action. Such
1 conditions described in this Order. When the Action has been terminated, a
2 Receiving Party must comply with the provisions of section 13 below (FINAL
3 DISPOSITION).
4 Protected Material must be stored and maintained by a Receiving Party at a
5 location and in a secure manner that ensures that access is limited to the persons
6 authorized under this Order.
7 7.2. Disclosure of “CONFIDENTIAL” Information or Items. Unless
8 otherwise ordered by the court or permitted in writing by the Designating Party, a
9 Receiving Party may disclose any information or item designated
10 “CONFIDENTIAL” only to:
11 (a) The Receiving Party’s Outside Counsel of Record in this Action,
12 as well as employees of said Outside Counsel of Record to whom it is reasonably
13 necessary to disclose the information for this Action;
14 (b) the officers, directors, and employees (including House Counsel)
15 of the Receiving Party to whom disclosure is reasonably necessary for this Action;
16 (c) Experts (as defined in this Order) of the Receiving Party to
17 whom disclosure is reasonably necessary for this Action and who have signed the
18 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
19 (d) the Court and its personnel;
20 (e) court reporters and their staff;
21 (f) professional jury or trial consultants, mock jurors, and
22 Professional Vendors to whom disclosure is reasonably necessary for this Action
23 and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit
24 A);
25 (g) the author or recipient of a document containing the information
26 or a custodian or other person who otherwise possessed or knew the information;
27 (h) during their depositions, witnesses, and attorneys for witnesses,
1 deposing party requests that the witness sign the form attached as Exhibit A hereto;
2 and (2) they will not be permitted to keep any confidential information unless they
3 sign the “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless
4 otherwise agreed by the Designating Party or ordered by the court. Pages of
5 transcribed deposition testimony or exhibits to depositions that reveal Protected
6 Material may be separately bound by the court reporter and may not be disclosed to
7 anyone except as permitted under this Stipulated Protective Order;
8 (i) any mediator or settlement officer, and their supporting
9 personnel, mutually agreed upon by any of the parties engaged in settlement
10 discussions; and
11 (j) any other person with the prior written consent of the
12 Designating Party or by Order of this Court.
13 7.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
14 ONLY” Information or Items. A higher level of protection shall be provided for
15 trade secrets and highly sensitive research, development or commercial documents,
16 testimony, information, or other materials designated “HIGHLY CONFIDENTIAL
17 – ATTORNEYS’ EYES ONLY.” Unless otherwise ordered by the Court or
18 permitted in writing by the Designating Party, access to material designated
19 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” shall be restricted to
20 the following individuals:
21 (a) Outside Counsel of Record for the Parties as well as employees of
22 said Outside Counsel of Record to whom it is reasonably necessary to disclose the
23 information to assist such attorneys in connection with the Action;
24 (b) Experts (as defined in this Order) used by Outside Counsel of
25 Record for the Parties (1) to whom disclosure is reasonably necessary for this
26 Action; and (2) who have signed the “Acknowledgment and Agreement to Be
27 Bound” (Exhibit A);
1 (d) the Court and its personnel;
2 (e) professional jury or trial consultants, and Professional Vendors to
3 whom disclosure is reasonably necessary for this Action and who have signed the
4 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
5 (f) authors and recipients of the Confidential Material;
6 (g) a fact deposition witness or a trial witness that meets the limitations
7 of Section (f) above; any 30(b)(6) deposition witness presented by the Designating
8 Party; any trial witness, provided that the Designated Material marked “HIGHLY
9 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” has been or will be offered into
10 evidence, by stipulation of the Designating Party or by ruling by the Court; attorneys
11 for those witnesses; and if disclosure is reasonably necessary, provided: (1) the
12 deposing and/or examining party requests that the witness sign the form attached as
13 Exhibit A hereto; and (2) the witness will not be permitted to keep any confidential
14 information unless they sign the “Acknowledgment and Agreement to Be Bound”
15 (Exhibit A), unless otherwise agreed by the Designating Party or ordered by the
16 court. Pages of transcribed deposition testimony or exhibits to depositions that
17 reveal Protected Material may be separately bound by the court reporter and may
18 not be disclosed to anyone except as permitted under this Stipulated Protective
19 Order;
20 (h) any mediator or settlement officer, and their supporting personnel,
21 mutually agreed upon by the parties engaged in settlement discussions, subject to
22 their agreement to maintain confidentiality to the same degree as required by this
23 Protective Order; and
24 (i) any other person with the prior written consent of the Designating
25 Party or by Order of this Court.
26 VIII. PROTECTED MATERIAL SUBPOENAED OR ORDERED
27 PRODUCED IN OTHER LITIGATION
1 that compels disclosure of any information or items designated in this Action as
2 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
3 ONLY,” that Party must:
4 (a) promptly notify in writing the Designating Party. Such notification
5 shall include a copy of the subpoena or court order;
6 (b) promptly notify in writing the party who caused the subpoena or order
7 to issue in the other litigation that some or all of the material covered by the
8 subpoena or order is subject to this Protective Order. Such notification shall include
9 a copy of this Stipulated Protective Order; and
10 (c) cooperate with respect to all reasonable procedures sought to be
11 pursued by the Designating Party whose Protected Material may be affected.
12 If the Designating Party timely seeks a protective order, the Party served with
13 the subpoena or Court Order shall not produce any information designated in this
14 action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’
15 EYES ONLY” before a determination by the Court from which the subpoena or
16 order issued, unless the Party has obtained the Designating Party’s permission. The
17 Designating Party shall bear the burden and expense of seeking protection in that
18 Court of its confidential material, and nothing in these provisions should be
19 construed as authorizing or encouraging a Receiving Party in this Action to disobey
20 a lawful directive from another court.
21 IX. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
22 PRODUCED IN THIS LITIGATION
23 (a) The terms of this Order are applicable to information produced by a
24 Non-Party in this Action and designated as “CONFIDENTIAL” or “HIGHLY
25 CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Such information produced by
26 Non-Parties in connection with this litigation is protected by the remedies and relief
27 provided by this Order. Nothing in these provisions should be construed as
1 (b) In the event that a Party is required, by a valid discovery request, to
2 produce a Non-Party’s confidential information in its possession, and the Party is
3 subject to an agreement with the Non-Party not to produce the Non-Party’s
4 confidential information, then the Party shall:
5 (1) promptly notify in writing the Requesting Party and the Non-
6 Party that some or all of the information requested is subject to a confidentiality
7 agreement with a Non-Party;
8 (2) promptly provide the Non-Party with a copy of the Stipulated
9 Protective Order in this Action, the relevant discovery request(s), and a reasonably
10 specific description of the information requested; and
11 (3) make the information requested available for inspection by the
12 Non-Party, if requested.
13 (c) If the Non-Party fails to seek a protective order from this court within
14 fourteen (14) days of receiving the notice and accompanying information, the
15 Receiving Party may produce the Non-Party’s confidential information responsive
16 to the discovery request. If the Non-Party timely seeks a protective order, the
17 Receiving Party shall not produce any information in its possession or control that is
18 subject to the confidentiality agreement with the Non-Party before a determination
19 by the court. Absent a court order to the contrary, the Non-Party shall bear the
20 burden and expense of seeking protection in this court of its Protected Material.
21 X. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
22 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
23 Protected Material to any person or in any circumstance not authorized under this
24 Stipulated Protective Order, the Receiving Party must immediately (a) notify in
25 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
26 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or
27 persons to whom unauthorized disclosures were made of all the terms of this Order,
1 Agreement to Be Bound” that is attached hereto as Exhibit A.
2 XI. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
3 PROTECTED MATERIAL
4 When a Producing Party gives notice to Receiving Parties that certain
5 inadvertently produced material is subject to a claim of privilege or other protection,
6 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
7 Procedure 26(b)(5)(B). This provision is not intended to modify whatever
8 procedure may be established in an e-discovery order that provides for production
9 without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and
10 (e), insofar as the parties reach an agreement on the effect of disclosure of a
11 communication or information covered by the attorney-client privilege or work
12 product protection, the parties may incorporate their agreement in the stipulated
13 protective order submitted to the court.
14 XII. MISCELLANEOUS
15 12.1 Right to Further Relief. Nothing in this Order abridges the right of any
16 person to seek its modification by the Court in the future. This Order may be
17 modified by agreement of the parties, subject to Court approval. The Court may
18 otherwise modify the terms and conditions of this Order for good cause, or in the
19 interest of justice, or on its own order at any time in these proceedings. The parties
20 prefer that the Court provide them with notice of the Court's intent to modify the
21 Order and the content of those modifications, prior to entry of such an order.
22 12.2 Right to Assert Other Objections. By stipulating to the entry of this
23 Protective Order no Party waives any right it otherwise would have to object to
24 disclosing or producing any information or item on any ground, including, but not
25 limited to, the attorney-client privilege and work product doctrine, not addressed in
26 this Stipulated Protective Order. Similarly, no Party waives any right to object on
27 any ground to use in evidence of any of the material covered by this Protective
1 12.3. Filing Protected Material In Court. Before any Protected Material,
2 including, but not limited to, materials produced in discovery, answers to
3 interrogatories, responses to requests for admissions, deposition transcripts, or other
4 documents which are designated as CONFIDENTIAL or HIGHLY
5 CONFIDENTIAL – ATTORENYS EYES ONLY are filed with the Court for any
6 purpose, the party seeking to file such material must seek permission of the Court to
7 file the material under seal. The filing party must comply with Local Rule 79-5 and
8 the Federal Rules of Civil Procedure for that purpose. If a Party’s request to file
9 Protected Material under seal is denied by the court, then the Receiving Party may
10 file the information in the public record, unless otherwise instructed by the Court.
11 12.4 The restrictions and obligations set forth within this order will not
12 apply to any information that: (a) the parties agree should not be designated
13 confidential information; (b) the parties agree, or the Court rules, is already public
14 knowledge; (c) the parties agree, or the Court rules, has become public knowledge
15 other than as a result of disclosure by the receiving party, its employees, or its
16 agents in violation of this Order; or (d) has come into the receiving party's legitimate
17 knowledge independently of the production by the designating party. Prior
18 knowledge must be established by pre-production documentation.
19 12.5 The restrictions and obligations within this order will not be deemed to
20 prohibit discussions of any confidential information with anyone if that person
21 already has or legitimately obtains (e.g., via public channels or independent
22 knowledge) of that information.
23 12.6 Transmission by email or some other currently utilized method of
24 transmission is acceptable for all notification purposes within this Order.
25 XIII. FINAL DISPOSITION
26 After the final disposition of this Action, as defined in paragraph 4, within
27 sixty (60) days of a written request by the Designating Party, each Receiving Party
1 As used in this subdivision, “all Protected Material” includes all copies, abstracts,
2 compilations, summaries, and any other format reproducing or capturing any of the
3 Protected Material. Whether the Protected Material is returned or destroyed, the
4 Receiving Party must submit a written certification to the Producing Party (and, if
5 not the same person or entity, to the Designating Party) by the sixty (60) day
6 deadline that (1) identifies (by category, where appropriate) all the Protected
7 Material that was returned or destroyed and (2) affirms that the Receiving Party has
8 not retained any copies, abstracts, compilations, summaries or any other format
9 reproducing or capturing any of the Protected Material. Notwithstanding this
10 provision, Counsel are entitled to retain an archival copy of all pleadings, motion
11 papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence,
12 deposition and trial exhibits, expert reports, attorney work product, and consultant
13 and expert work product, even if such materials contain Protected Material. Any
14 such archival copies that contain or constitute Protected Material remain subject to
15 this Protective Order as set forth in Section 4 (DURATION).
16 //
17 //
18 //
19 //
20 //
21 //
22 //
23 //
24 //
25 //
26 //
27 //
1 XIV. VIOLATION
2 Any violation of this Order may be punished by any and all appropriate
3 measures including, without limitation, contempt proceedings and/or monetary
4 sanctions.
5 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
6
5 Dated: July 9, 2021 Respectfully submitted,

8 /s/ Todd A. Boock
Todd A. Boock (SBN 181933)
9 todd@bnsklaw.com
10 BROWN, NERI, SMITH & KHAN LLP
Los Angeles, California 90025
1 Attorneys for Plaintiff
12 THE ALIXIR COMPANY dba BEV
13 /s/ James D. Weinberger
14 James D. Weinberger (admitted pro hac vice)
jweinberger@fzlz.com
15 Daniel M. Nuzzaci (admitted pro hac vice)
16 dnuzzaci(@fzlz.com
FROSS ZELNICK LEHRMAN & ZISSU, P.C.
V7 New York, New York 10036
18
Kevin R. Lussier (SBN 143821)
19 klussier(@cmlawfirm.com
20 CRUSER, MITCHELL, NOVITZ, SANCHEZ,
GASTON & ZIMET LLP
21 Los Angeles, California 90017
22 Counsel for Defendant,
53 QUE ONDA BEVERAGE, INC. dba ONDA
24 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
25 DATED: July 12, 2021
26
27 Rapes, QA. O2~
28 HON. ROZELLA A. OLIVER, United States Magistrate Judge
{F4163366 1}

1
2 I, Todd A. Boock, am the ECF user whose user ID and password authorized
3 the filing of this document. Pursuant to Central District Local Rule 5-4.3.4(a)(2)(i), I
4 attest that all signatories to this document have concurred and authorized this filing.
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1 EXHIBIT A
2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
3
4 I, __________________________________ [print or type full name], of
5 __________________ [print or type full address], declare under penalty of perjury
6 that I have read in its entirety and understand the Stipulated Protective Order that
7 was issued by the United States District Court for the Central District of California
8 on __________ [date] in the case of The Alixir Company dba Bev v. Que Onda
9 Beverage, Inc. dba Onda., Case No. 2:20-cv-08368-RGK-RAO. I agree to comply
10 with and to be bound by all the terms of this Stipulated Protective Order and I
11 understand and acknowledge that failure to so comply could expose me to sanctions
12 and punishment in the nature of contempt. I solemnly promise that I will not
13 disclose in any manner any information or item that is subject to this Stipulated
14 Protective Order to any person or entity except in strict compliance with the
15 provisions of this Order.
16 I further agree to submit to the jurisdiction of the United States District Court
17 for 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 or
20 type full name] of ______________________________ [print or type full address
21 and telephone number] as my California agent for service of process in connection
22 with this action or any proceedings related to enforcement of this Stipulated
23 Protective Order.
24 Date: ___________________________________
25 City and State where sworn and signed: _________________________________
26 Printed name: _____________________________
27 Signature: ________________________________
1 CERTIFICATE OF SERVICE

2
I hereby certify that I electronically filed the foregoing with the Clerk of the
3
Court for the United States District Court for the Central District of California by
4
using the CM/ECF system on July 9, 2021. I further certify that all participants in the
5
case are registered CM/ECF users and that service will be accomplished by the
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CM/ECF system.
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I certify under penalty of perjury that the foregoing is true and correct.
8
Executed on July 9, 2021.
9

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/s/ Todd A. Boock
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Todd A. Boock
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10041327. Public record. Not legal advice.