Monster Energy Company v. Metro Giant, Inc.

1 Steven J. Nataupsky (SBN 155913) Hans L. Mayer (SBN 291998)

steven.nataupsky@knobbe.com hans.mayer@knobbe.com

2 Lynda J. Zadra-Symes (SBN 156511) KNOBBE, MARTENS, OLSON & BEAR, LLP

lynda.zadrasymes@knobbe.com 1925 Century Park East, Suite 600

3 Jason A. Champion (SBN 259207) Los Angeles, CA 90067

jason.champion@knobbe.com Phone: (310) 551-3450

4 KNOBBE, MARTENS, OLSON & BEAR, LLP Facsimile: (310) 601-1263

2040 Main Street

5 Fourteenth Floor

Irvine, CA 92614

6 Phone: (949) 760-0404

Facsimile: (949) 760-9502

7

Attorneys for Plaintiff

8 MONSTER ENERGY COMPANY

9

Daniel J. Kessler (SBN 173710) Robert J. Figa

10 Amanda V. Dwight (SBN 187028) DEAN & FULKERSON, P.C.

BURKHALTER KESSLER CLEMENT 801 W. Big Beaver Road, 5th Fl.

11 & GEORGE LLP Troy, MI 48084

2020 Main Street, Suite 600 248-362-1300

12 Irvine, CA 92614 rfiga@DFLaw.com

949-975-7500

13 dkessler@bkcglaw.com

adwight@bkcglaw.com

14

Attorneys for Defendants

15 METRO GIANT, INC. and CHRISTOPHER ANKAWI

16

IN THE UNITED STATES DISTRICT COURT

17

FOR THE CENTRAL DISTRICT OF CALIFORNIA

18

MONSTER ENERGY COMPANY, ) Civil Action No. 5:20-CV-2616-JGB-SHK

19 a Delaware corporation, )

) Magistrate Judge Shashi H. Kewalramani

20

Plaintiff, )

21 ) [PROPOSED] STIPULATED

v. ) PROTECTIVE ORDER

22

)

23 METRO GIANT, INC., a Michigan )

corporation; CHRISTOPHER )

24

ANKAWI, an individual, )

25 )

Defendants. )

26

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 may

5 be warranted. Accordingly, the parties hereby stipulate to and petition the Court

6 to enter the following Stipulated Protective Order. The parties acknowledge that

7 this Order does not confer blanket protections on all disclosures or responses to

8 discovery and that the protection it affords from public disclosure and use extends

9 only to the limited information or items that are entitled to confidential treatment

10 under the applicable legal principles.

11 2. GOOD CAUSE STATEMENT

12 This action is likely to involve trade secrets, customer and pricing lists and

13 other valuable research, development, commercial, financial, technical and/or

14 proprietary information for which special protection from public disclosure and

15 from use for any purpose other than prosecution of this action is warranted. Such

16 confidential and proprietary materials and information consist of, among other

17 things, confidential business or financial information, information regarding

18 confidential business practices, or other confidential research, development, or

19 commercial information (including information implicating privacy rights of

20 third parties), information otherwise generally unavailable to the public, or which

21 may be privileged or otherwise protected from disclosure under state or federal

22 statutes, court rules, case decisions, or common law. Accordingly, to expedite the

23 flow of information, to facilitate the prompt resolution of disputes over

24 confidentiality of discovery materials, to adequately protect information the

25 parties are entitled to keep confidential, to ensure that the parties are permitted

26 reasonable necessary uses of such material in preparation for and in the conduct

27 of trial, to address their handling at the end of the litigation, and serve the ends of

1 intent of the parties that information will not be designated as confidential for

2 tactical reasons and that nothing be so designated without a good faith belief that

3 it has been maintained in a confidential, non-public manner, and there is good

4 cause why it should not be part of the public record of this case.

5 3. ACKNOWLEDGEMENT OF PROCEDURE FOR FILING UNDER

6 SEAL

7 The parties further acknowledge, as set forth in Section 14.3, below, that

8 this Stipulated Protective Order does not entitle them to file confidential

9 information under seal. Local Civil Rule 79-5 sets forth the procedures that must

10 be followed and the standards that will be applied when a party seeks permission

11 from the court to file material under seal.

12 In accordance with Local Rule 79-5, if any papers to be filed with the Court

13 contain information and/or documents that have been designated as confidential,

14 the proposed filing shall be accompanied by an application to file papers or the

15 portion thereof containing the designated information or documents (if such

16 portion is segregable) under seal. The parties further acknowledge that Local

17 Rule 79-5.2.2(b) sets forth the procedures to be followed when filing papers

18 containing confidential information or documents designated by another party

19 including notice to the designating party at least 3 days before filing.

20 4. DEFINITIONS

21 4.1 Action: this pending federal law suit.

22 4.2 Challenging Party: a Party or Non-Party that challenges the

23 designation of information or items under this Order.

24 4.3 “CONFIDENTIAL” Information or Items: information (regardless of

25 how it is generated, stored or maintained) or tangible things that qualify for

26 protection under Federal Rule of Civil Procedure 26(c), and as specified above in

27 the Good Cause Statement.

1 4.4 Counsel: Outside Counsel of Record and House Counsel (as well as

2 their support staff).

3 4.5 Designating Party: a Party or Non-Party that designates information

4 or items that it produces in disclosures or in responses to discovery as

5 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

6 ONLY.”

7 4.6 Disclosure or Discovery Material: all items or information,

8 regardless of the medium or manner in which it is generated, stored, or maintained

9 (including, among other things, testimony, transcripts, and tangible things), that

10 are produced or generated in disclosures or responses to discovery in this matter,

11 or otherwise produced or generated in the course of this litigation, including

12 without limitation production documents, electronically stored information,

13 things, answers to interrogatories, responses to requests for admissions, and

14 depositions, as well as testimony adduced at trial or a hearing or any matters in

15 evidence.

16 4.7 Expert: a person with specialized knowledge or experience in a

17 matter pertinent to the litigation who has been retained by a Party or its counsel

18 to serve as an expert witness or as a consultant in this Action.

19 4.8 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

20 Information or Items: information (regardless of how it is generated, stored or

21 maintained) or tangible things that qualify for protection under Federal Rule of

22 Civil Procedure 26(c), and as specified above in the Good Cause Statement, that

23 is extremely sensitive information the disclosure of which to another party or non-

24 party would likely harm the competitive position of the party producing the

25 information. Examples of information that could be considered HIGHLY

26 CONFIDENTIAL – ATTORNEYS’ EYES ONLY include sales volumes, sales

27 units, cost of goods sold, price structures, discounts, business costs, profits,

1 and the identity of customers.

2 4.9 House Counsel: attorneys who are employees of a party to this

3 Action. House Counsel does not include Outside Counsel of Record or any other

4 outside counsel.

5 4.10 Non-Party: any natural person, partnership, corporation, association,

6 or other legal entity not named as a Party to this action.

7 4.11 Outside Counsel of Record: attorneys who are not employees of a

8 party to this Action but are retained to represent or advise a party to this Action

9 and have appeared in this Action on behalf of that party or are affiliated with a

10 law firm which has appeared on behalf of that party, and includes support staff.

11 4.12 Party: any party to this Action, including all of its officers, directors,

12 employees, consultants, retained experts, and Outside Counsel of Record (and

13 their support staffs).

14 4.13 Producing Party: a Party or Non-Party that produces Disclosure or

15 Discovery Material in this Action.

16 4.14 Professional Vendors: persons or entities that provide litigation

17 support services (e.g., photocopying, videotaping, translating, preparing exhibits

18 or demonstrations, computer database preparation, document coding, and

19 organizing, storing, or retrieving data in any form or medium) and their

20 employees and subcontractors.

21 4.15 Protected Material: any Disclosure or Discovery Material that is

22 designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

23 ATTORNEYS’ EYES ONLY.”

24 4.16 Receiving Party: a Party that receives Disclosure or Discovery

25 Material from a Producing Party.

26 5. SCOPE

27 The protections conferred by this Stipulation and Order cover not only

1 extracted from Protected Material; (2) all copies, excerpts, summaries, or

2 compilations of Protected Material; and (3) any testimony, conversations, or

3 presentations by Parties or their Counsel that might reveal Protected Material.

4 However, the protections conferred by this Stipulation and Order do not

5 cover the following information: (a) any information that is in the public domain

6 at the time of disclosure to a Receiving Party or becomes part of the public domain

7 after its disclosure to a Receiving Party as a result of publication not involving a

8 violation of this Order, including becoming part of the public record through trial

9 or otherwise; and (b) any information known to the Receiving Party prior to the

10 disclosure or obtained by the Receiving Party after the disclosure from a source

11 who obtained the information lawfully under no obligation of confidentiality to

12 the Designating Party

13 Any use of Protected Material at trial shall be governed by the orders of the

14 trial judge. This Order does not govern the use of Protected Material at trial.

15 6. DURATION

16 Once a case proceeds to trial, information that was designated as

17 CONFIDENTIAL or HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

18 ONLY, or otherwise maintained pursuant to this Stipulated Protective Order, that

19 is used or introduced as an exhibit at trial becomes public and will be

20 presumptively available to all members of the public, including the press, unless

21 compelling reasons supported by specific factual findings to proceed otherwise

22 are made to the trial judge in advance of the trial. See Kamakana v. City and

23 County of Honolulu, 447 F.3d 1172, 1180-81 (9th Cir. 2006) (distinguishing

24 “good cause” showing for sealing documents produced in discovery from

25 “compelling reasons” standard when merits-related documents are part of court

26 record). Accordingly, the terms of this Stipulated Protective Order do not extend

27 beyond the commencement of the trial with respect to such information.

1 7. DESIGNATING PROTECTED MATERIAL

2 7.1 Exercise of Restraint and Care in Designating Material for

3 Protection. Each Party or Non-Party that designates information or items for

4 protection under this Order must take care to limit any such designation to specific

5 material that qualifies under the appropriate standards.

6 The Designating Party must designate for protection only those parts of

7 material, documents, items, or oral or written communications that qualify so that

8 other portions of the material, documents, items, or communications for which

9 protection is not warranted are not swept unjustifiably within the ambit of this

10 Order.

11 Mass, indiscriminate, or routinized designations are prohibited.

12 Designations that are shown to be clearly unjustified or that have been made for

13 an improper purpose (e.g., to unnecessarily encumber the case development

14 process or to impose unnecessary expenses and burdens on other parties) may

15 expose the Designating Party to sanctions.

16 If it comes to a Designating Party’s attention that information or items that

17 it designated for protection do not qualify for protection, that Designating Party

18 must promptly notify all other Parties that it is withdrawing the inapplicable

19 designation.

20 7.2 Manner and Timing of Designations. Except as otherwise provided

21 in this Order, or as otherwise stipulated or ordered, Disclosure or Discovery

22 Material that qualifies for protection under this Order must be clearly so

23 designated before the material is disclosed or produced.

24 Designation in conformity with this Order requires:

25 (a) For information in documentary form (e.g., paper or electronic

26 documents, but excluding transcripts of depositions or other pretrial or trial

27 proceedings), that the Producing Party affix at a minimum, the legend

1 EYES ONLY” (hereinafter “CONFIDENTIALITY legend”), to each page

2 that contains protected material.

3 A Party or Non-Party that makes original documents available for

4 inspection need not designate them for protection until after the inspecting

5 Party has indicated which documents it would like copied and produced.

6 During the inspection and before the designation, all of the material made

7 available for inspection shall be deemed “HIGHLY CONFIDENTIAL –

8 ATTORNEYS’ EYES ONLY.” After the inspecting Party has identified

9 the documents it wants copied and produced, the Producing Party must

10 determine which documents, or portions thereof, qualify for protection

11 under this Order. Then, before producing the specified documents, the

12 Producing Party must affix the “CONFIDENTIALITY legend” to each

13 page that contains Protected Material.

14 (b) For a deposition transcript, the Producing Party shall

15 designate the transcript as “CONFIDENTIAL” or “HIGHLY

16 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” by requesting such

17 treatment thereof either on the record at the time of the deposition or by

18 written notice to all counsel of record after service of the final deposition

19 transcript. If confidential treatment of a transcript is requested by a party

20 by written notice after completion of a deposition, such written notice shall

21 be provided to all counsel of record within fourteen (14) days after

22 completion and service of the final transcript. Such written notice shall

23 specifically identify by page and line number all portions of the transcript

24 that should be treated as “CONFIDENTIAL” or “HIGHLY

25 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in accordance with

26 this Stipulated Protective Order. All counsel receiving such notice shall be

27 responsible for marking the copies of the designated transcript or portion

1 The parties shall not disseminate a deposition transcript or the contents

2 thereof beyond the persons designated in Paragraph 9.3 below for a period

3 of fourteen (14) days after completion and service of the final transcript,

4 except that portions of the transcript may be filed under seal with the Court

5 in connection with these proceedings. Documents or things used as

6 exhibits at a deposition that a party desires to be subject to this Stipulated

7 Protective Order shall be separately stamped or marked

8 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’

9 EYES ONLY.” The disclosing party will have the right to exclude from

10 attendance at a deposition, during such time as the Confidential

11 Information is to be disclosed, any person other than the deponent, counsel,

12 the court reporter, the videographer, designated experts and any person(s)

13 agreed upon by counsel for the disclosing party.

14 (c) For information produced in some form other than

15 documentary (including, without limitation, electronically stored

16 information produced in native format) and for any other tangible items,

17 that the Producing Party affix in a prominent place on the media or exterior

18 of the container or containers in which the information is stored the legend

19 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’

20 EYES ONLY. If only a portion or portions of the information warrants

21 protection, the Producing Party, to the extent practicable, shall identify the

22 protected portion(s).

23 7.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent

24 failure to designate qualified information or items does not, standing alone, waive

25 the Designating Party’s right to secure protection under this Order for such

26 material. Upon timely correction of a designation, the Receiving Party must make

27 reasonable efforts to assure that the material is treated in accordance with the

1 8. CHALLENGING CONFIDENTIALITY DESIGNATIONS

2 8.1 Timing of Challenges. Any Party or Non-Party may challenge a

3 designation of confidentiality at any time that is consistent with the Court’s

4 Scheduling Order.

5 8.2 Meet and Confer. The Challenging Party shall initiate the dispute

6 resolution process under Local Rule 37.1 et seq.

7 8.3 The burden of persuasion in any such challenge proceeding shall be

8 on the Designating Party. Frivolous challenges, and those made for an improper

9 purpose (e.g., to harass or impose unnecessary expenses and burdens on other

10 parties) may expose the Challenging Party to sanctions. Unless the Designating

11 Party has waived or withdrawn the confidentiality designation, all parties shall

12 continue to afford the material in question the level of protection to which it is

13 entitled under the Producing Party’s designation until the Court rules on the

14 challenge.

15 9. ACCESS TO AND USE OF PROTECTED MATERIAL

16 9.1 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 15

22 below (FINAL DISPOSITION).

23 Protected Material must be stored and maintained by a Receiving Party at

24 a location and in a secure manner that ensures that access is limited to the persons

25 authorized under this Order.

26 9.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless

27 otherwise ordered by the court or permitted in writing by the Designating Party,

1 “CONFIDENTIAL” only to:

2 (a) the Receiving Party’s Outside Counsel of Record in this

3 Action and other attorneys from Outside Counsel of Record’s law firm, as

4 well as employees of said Outside Counsel of Record to whom it is

5 reasonably necessary to disclose the information for this Action;

6 (b) the officers, directors, and employees (including House

7 Counsel) of the Receiving Party to whom disclosure is reasonably

8 necessary for this Action and who have signed the “Acknowledgment and

9 Agreement to Be Bound” (Exhibit A);

10 (c) Experts (as defined in this Order) of the Receiving Party to

11 whom disclosure is reasonably necessary for this Action and who have

12 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

13 (d) the court and its personnel;

14 (e) court reporters and their staff;

15 (f) professional jury or trial consultants, mock jurors, and

16 Professional Vendors to whom disclosure is reasonably necessary for this

17 Action and who have signed the “Acknowledgment and Agreement to Be

18 Bound” (Exhibit A);

19 (g) the author or recipient of a document containing the

20 information or a custodian or other person who otherwise possessed or

21 knew the information;

22 (h) during their depositions, witnesses, and attorneys for

23 witnesses, in the Action to whom disclosure is reasonably necessary

24 provided: (1) the deposing party requests that the witness sign the form

25 attached as Exhibit 1 hereto; and (2) they will not be permitted to keep any

26 confidential information unless they sign the “Acknowledgment and

27 Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the

1 testimony or exhibits to depositions that reveal Protected Material may be

2 separately bound by the court reporter and may not be disclosed to anyone

3 except as permitted under this Stipulated Protective Order; and

4 (i) any mediator or settlement officer, and their supporting

5 personnel, mutually agreed upon by any of the parties engaged in

6 settlement discussions.

7 9.3 Disclosure of “CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

8 Information or Items. Unless otherwise ordered by the court or permitted in

9 writing by the Designating Party, a Receiving Party may disclose any information

10 or item designated “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to:

11 (a) the Receiving Party’s Outside Counsel of Record in this

12 Action and other attorneys from Outside Counsel of Record’s law firm, as

13 well as employees of said Outside Counsel of Record to whom it is

14 reasonably necessary to disclose the information for this Action;

15 (b) No more than three (3) House Counsel of the Receiving Party,

16 that has previously been identified to the other side in writing, to (1) whom

17 disclosure is reasonably necessary for this Action, (2) who have no

18 involvement in competitive decision-making, and (3) who have signed the

19 “Acknowledgement and Agreement to Be Bound” (exhibit A);

20 (c) Experts (as defined in this Order) of the Receiving Party to

21 whom disclosure is reasonably necessary for this Action and who have

22 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

23 (d) the court and its personnel;

24 (e) court reporters, videographers and their staff;

25 (f) professional jury or trial consultants, mock jurors, and

26 Professional Vendors to whom disclosure is reasonably necessary for this

27 Action and who have signed the “Acknowledgment and Agreement to Be

1 (g) the author or recipient of a document containing the

2 information or a custodian or other person who otherwise possessed or

3 knew the information; and

4 (h) any mediator or settlement officer, and their supporting

5 personnel, mutually agreed upon by any of the parties engaged in

6 settlement discussions.

7 9.4 Limited Disclosure of “CONFIDENTIAL – ATTORNEYS’ EYES

8 ONLY” Information to Officers, Directors and Employees of the Receiving Party.

9 In the event that the Receiving Party’s Outside Counsel of Record believes that

10 disclosure of certain “CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

11 information or items to one or more of the individuals listed in Section 9.2(b) is

12 necessary for the Receiving Party to litigate and/or defend the claims in this

13 matter, the Receiving Party’s Outside Counsel of Record may prepare a written

14 summary of the “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information

15 or item and submit a Limited Disclosure Request to the Designating Party. The

16 Limited Disclosure Request must be in writing and identify by name the

17 individual or individuals that fall within Section 9.2(b) of the Agreement with

18 whom the Limited Disclosure will be shared. Only upon receiving written consent

19 and approval of the Limited Disclosure Request from the Designating Party, the

20 Receiving Party’s Outside Counsel of Record may disclose the written summary

21 of the “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information or item

22 with the approved individual or individuals. A failure to respond by the

23 Designating Party shall not be deemed consent and approval.

24 10. PROTECTED MATERIAL SUBPOENAED OR ORDERED

25 PRODUCED IN OTHER LITIGATION

26 If a Party is served with a subpoena or a court order issued in another

27 litigation that compels disclosure of any information or items designated in this

1 ATTORNEYS’ EYES ONLY,” that Party must:

2 (a) promptly notify in writing the Designating Party. Such

3 notification shall include a copy of the subpoena or court order;

4 (b) promptly notify in writing the party who caused the subpoena

5 or order to issue in the other litigation that some or all of the material

6 covered by the subpoena or order is subject to this Protective Order. Such

7 notification shall include a copy of this Stipulated Protective Order; and

8 (c) cooperate with respect to all reasonable procedures sought to

9 be pursued by the Designating Party whose Protected Material may be

10 affected.

11 If the Designating Party timely seeks a protective order, the Party served

12 with the subpoena or court order shall not produce any information designated in

13 this action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

14 ATTORNEYS’ EYES ONLY” before a determination by the court from which

15 the subpoena or order issued, unless the Party has obtained the Designating

16 Party’s permission. The Designating Party shall bear the burden and expense of

17 seeking protection in that court of its Protected Material and nothing in these

18 provisions should be construed as authorizing or encouraging a Receiving Party

19 in this Action to disobey a lawful directive from another court.

20 11. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

21 PRODUCED IN THIS LITIGATION

22 (a) The terms of this Order are applicable to information produced by a

23 Non-Party in this Action and designated as “CONFIDENTIAL” or “HIGHLY

24 CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Such information produced

25 by Non-Parties in connection with this litigation is protected by the remedies and

26 relief provided by this Order. Nothing in these provisions should be construed as

27 prohibiting a Non-Party from seeking additional protections.

1 produce a Non-Party’s confidential information in its possession, and the Party is

2 subject to an agreement with the Non-Party not to produce the Non-Party’s

3 confidential information, then the Party shall:

4 (1) promptly notify in writing the Requesting Party and the Non-

5 Party that some or all of the information requested is subject to a

6 confidentiality agreement with a Non-Party;

7 (2) promptly provide the Non-Party with a copy of the Stipulated

8 Protective Order in this Action, the relevant discovery request(s), and a

9 reasonably specific description of the information requested; and

10 (3) make the information requested available for inspection by the

11 Non-Party, if requested.

12 (c) If the Non-Party fails to seek a protective order from this court within

13 14 days of receiving the notice and accompanying information, the Receiving

14 Party may produce the Non-Party’s confidential information responsive to the

15 discovery request. If the Non-Party timely seeks a protective order, the Receiving

16 Party shall not produce any information in its possession or control that is subject

17 to the confidentiality agreement with the Non-Party before a determination by the

18 court. Absent a court order to the contrary, the Non-Party shall bear the burden

19 and expense of seeking protection in this court of its Protected Material.

20 12. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

21 If a Receiving Party learns that, by inadvertence or otherwise, it has

22 disclosed Protected Material to any person or in any circumstance not authorized

23 under this Stipulated Protective Order, the Receiving Party must immediately:

24 (a) notify in writing the Designating Party of the unauthorized

25 disclosures;

26 (b) use its best efforts to retrieve all unauthorized copies of the Protected

27 Material;

1 made of all the terms of this Order; and

2 (d) request such person or persons to execute the “Acknowledgment and

3 Agreement to Be Bound” that is attached hereto as Exhibit A.

4 13. INADVERTENT PRODUCTION OF PRIVILEGED OR

5 OTHERWISE PROTECTED MATERIAL

6 The production of privileged or work-product protected documents,

7 electronically stored information or information, whether inadvertent or

8 otherwise, is not a waiver of the privilege or protection from discovery in this

9 case or in any other federal or state proceeding. This Order shall be interpreted

10 to provide the maximum protection allowed by Federal Rule of Evidence 502.

11 Nothing contained herein is intended to or shall serve to limit a Party’s right

12 to conduct a review of documents, ESI or information (including metadata) for

13 relevance, responsiveness, and/or segregation of privileged and/or protected

14 information before production.

15 If a Party through inadvertence produces or provides Disclosure or

16 Discovery Material which it believes is subject to a claim of an applicable

17 privilege, the Producing Party may give written notice to the Receiving Party or

18 Parties that the Disclosure or Discovery Material is subject to a claim of privilege

19 and request that it be returned to the Producing Party. If a Producing Party or

20 Non-Party requests the return, pursuant to this paragraph, of any Disclosure or

21 Discovery Material, the Receiving Party or Parties shall not use or disclose, and

22 shall immediately return to the Producing Party all copies of such Disclosure or

23 Discovery Material or confirm that all copies have been destroyed. Return of the

24 Disclosure or Discovery Material by the Receiving Party shall not constitute an

25 admission or concession, or permit any inference, that the returned Disclosure or

26 Discovery Material is, in fact, properly subject to a claim of privilege nor shall it

27 foreclose any Party from moving the court for an order that such Disclosure or

1 Discovery Material has been improperly designated for reasons other than a

2 waiver caused by the inadvertent production.

3 The inadvertent or unintentional disclosure by a Party or Non-Party of

4 Disclosure or Discovery Material which it believes should have been designated

5 as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

6 ONLY,” regardless of whether it was so designated at the time of disclosure, shall

7 not be deemed a waiver in whole or in part of the Party’s or Non-Party’s claim of

8 confidentiality, either as to the specific information disclosed or as to any other

9 information relating thereto or on the same or related subject matter, provided that

10 the Party or Non-Party notifies the Receiving Party as soon as reasonably

11 practicable after discovery of the inadvertent or unintentional failure to designate

12 but in no event more than 14 business days. If a Party or Non-Party inadvertently

13 or unintentionally produces or discloses Protected Material without designating it

14 as such, the Party or Non-Party may give written notice to the Receiving Party or

15 Parties that the Disclosure or Discovery Material is designated

16 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

17 ONLY,” and should be treated in accordance with the provisions of this Stipulated

18 Protective Order. The Receiving Party or Parties must treat such Disclosure or

19 Discovery Material as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

20 ATTORNEYS’ EYES ONLY,” from the date such notice is received. Disclosure

21 of such Disclosure or Discovery Material, prior to receipt of such notice, to

22 persons not authorized to receive Protected Material shall not be deemed a

23 violation of this Stipulated Protective Order; however, those persons to whom

24 disclosure was made are to be advised that the Protected Material disclosed is

25 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

26 ONLY,” and must be treated in accordance with this Stipulated Protective Order.

27 / / /

1 14. MISCELLANEOUS

2 14.1 Right to Further Relief. Nothing in this Order abridges the right of

3 any person to seek its modification by the Court in the future.

4 14.2 Right to Assert Other Objections. By stipulating to the entry of this

5 Protective Order no Party waives any right it otherwise would have to object to

6 disclosing or producing any information or item on any ground not addressed in

7 this Stipulated Protective Order. Similarly, no Party waives any right to object on

8 any ground to use in evidence of any of the material covered by this Protective

9 Order.

10 14.3 Filing Protected Material. A Party that seeks to file under seal any

11 Protected Material must comply with Civil Local Rule 79-5. Protected Material

12 may only be filed under seal pursuant to a court order authorizing the sealing of

13 the specific Protected Material at issue. If a Party's request to file Protected

14 Material under seal is denied by the court, then the Receiving Party may file the

15 information in the public record unless otherwise instructed by the court.

16 14.4 Related Proceeding. In order to promote efficiency in this case, the

17 Parties stipulate and agree that they may use Disclosure or Discovery Material

18 that Monster and/or Metro Giant produced in Monster Energy Company v. Metro

19 Giant, Inc., Trademark Trial and Appeal Board Proceeding No. 9124112 (“the

20 Opposition”). The parties agree that the Disclosure or Discovery Material

21 produced by Monster and/or Metro Giant in the Opposition will be subject to this

22 Stipulated Protective Order. The parties further agree that any Protected Material

23 from the Opposition will be afforded the same level of confidentiality protection

24 as originally designated (i.e. through the confidentiality designation marked on

25 the documents or in correspondence between the parties). For avoidance of doubt,

26 any Disclosure or Discovery Material marked “TRADE

27 SECRET/COMMERCIALLY SENSITIVE” in the Opposition shall be treated as

1 under the terms of this Stipulated Protective Order and any Disclosure or

2 Discovery Material marked “CONFIDENTIAL” in the Opposition shall be

3 treated as if designated “CONFIDENTIAL” under the terms of this Stipulated

4 Protective Order

5 15. FINAL DISPOSITION

6 After the final disposition of this Action, within 60 days of a written request

7 by the Designating Party, each Receiving Party must return all Protected Material

8 to the Producing Party or destroy such material. As used in this subdivision, “all

9 Protected Material” includes all copies, abstracts, compilations, summaries, and

10 any other format reproducing or capturing any of the Protected Material. Whether

11 the Protected Material is returned or destroyed, the Receiving Party must submit

12 a written certification to the Producing Party (and, if not the same person or entity,

13 to the Designating Party) by the 60-day deadline that states all Protected Material

14 was returned or destroyed and affirms that the Receiving Party has not retained

15 any copies, abstracts, compilations, summaries or any other format reproducing

16 or capturing any of the Protected Material. Notwithstanding this provision,

17 Counsel are entitled to retain an archival copy of all pleadings, motion papers,

18 trial, deposition, and hearing transcripts, legal memoranda, correspondence,

19 deposition and trial exhibits, expert reports, attorney work product, and consultant

20 and expert work product, even if such materials contain Protected Material. Any

21 such archival copies that contain or constitute Protected Material remain subject

22 to this Stipulated Protective Order.

23 16. VIOLATION

24 Any violation of this Order may be punished by any and all appropriate

25 measures including, without limitation, contempt proceedings and/or monetary

26 sanctions.

27 / / /

1 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

2 Respectfully submitted,

3 KNOBBE, MARTENS, OLSON & BEAR, LLP

4

5 Dated: July 30, 2021 By: /s/ Jason A. Champion

6 Steven J. Nataupsky

Lynda J. Zadra-Symes

7 Jason A. Champion

Hans L. Mayer

8

Attorneys for Plaintiff,

9 MONSTER ENERGY COMPANY

10

11 DEAN & FULKERSON, P.C.

12

13 Dated: July 30, 2021 By: /s/ Robert J. Figa

(with permission Jason A. Champion)

14

15 Robert J. Figa

16 Attorneys for Defendants,

METRO GIANT, INC. and

17 CHRISTOPHER ANKAWI

18 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

19

DATED:___J_u_ly_ _3_0_, _2_0_2_1___________

20

21

_____________________________________

22 Hon. Shashi H. Kewalramani

United States Magistrate Judge

23

24

25

26

27

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. Metro Giant, Inc., et al.,

8 Case No. 5:20-cv-02616-JGB-SHK. I agree to comply with and to be bound by

9 all the terms of this Stipulated Protective Order and I understand and acknowledge

10 that failure to so comply could expose me to sanctions and punishment in the

11 nature of contempt. I solemnly promise that I will not disclose in any manner any

12 information or item that is subject to this Stipulated Protective Order to any

13 person or entity except in strict compliance with the provisions of this Order. I

14 further agree to submit to the jurisdiction of the United States District Court for

15 the Central District of California for enforcing the terms of this Stipulated

16 Protective Order, even if such enforcement proceedings occur after termination

17 of this action. I hereby appoint __________________________ [print or type

18 full name] of _______________________________________ [print or type full

19 address and telephone number] as my California agent for service of process in

20 connection with this action or any proceedings related to enforcement of this

21 Stipulated Protective Order.

22 Date: ______________________________________

23 City and State or Nation where sworn and signed:________________________

24 Printed name: _______________________________

25 Signature: __________________________________

26

35270940

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