Opinion

Gearhead Productions, Inc. v. Gearhead Outfitters, Inc.

Court: District Court, E.D. California
Filed: Aug 26, 2024
Cited by: 0 cases
Authority: More cited than 31.2%

even stipulated protective orders require good 28 cause showing

How later courts described this case

even stipulated protective orders require good 28 cause showing

Written by the judges who cited it.

The opinion

2 EA-NMOaOil:J PMAaTrcE@LH (SaBnkNin: P3a0t0e2n9tL7)a w.com

E-Mail: Anooj@HankinPatentLaw.com

ELODIE BARDON (SBN: 352856)

4 E-Mail: Elodie@HankinPatentLaw.com

HANKIN PATENT LAW,

5 A Professional Corporation

2341 Pacifica Ct.,

6 San Leandro, CA 94579

Tel: (310) 979-3600

Attorneys for Plaintiff,

8 Gearhead Productions, Inc.

9 LEWIS KOHN & WALKER, LLP

BRETT WEAVER (SBN 204715)

10 bweaver@lewiskohn.com

JOSHUA J. RICHMAN (SBN 243147)

jrichman@lewiskohn.com

12 MICHAEL LANE (SBN 248624)

mlane@lewiskohn.com

13 17085 Via Del Campo

San Diego, CA 92127

Tel: (858) 436-1330

15 Fax: (858) 436-1349

Attorneys for Defendant,

16 Gearhead Outfitters, Inc.

17 UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

19 Gearhead Productions, Inc., a CASE No. 2:23-cv-02331- KJM-JDP

California corporation,

20 [PROPOSED]

Plaintiff,

v. STIPULATED PROTECTIVE

22 ORDER

Gearhead Outfitters, Inc., an

23 Arkansas corporation;

U.S. Magistrate Judge Jeremy D.

24 Defendant. Peterson

1. PRELIMINARY STATEMENTS

4 A. PURPOSE AND LIMITATIONS

Plaintiff Gearhead Productions, Inc. (“Gearhead Productions” or “Plaintiff”),

6 and Defendant Gearhead Outfitters, Inc. (“Gearhead Outfitters” or “Defendant”)

7 (each a “Party,” collectively, the “Parties”) believe that certain information that is or

8 will be encompassed by discovery demands by the Parties involves the production or

9 disclosure of trade secrets, confidential business information, or other proprietary

10 information, for which special protection from public disclosure and from use for any

11 purpose other than prosecuting this litigation may be warranted. Accordingly, the

12 parties hereby stipulate to and petition the Court to enter the following Stipulated

13 Protective Order. The parties acknowledge that this Order does not confer blanket

14 protections on all disclosures or responses to discovery and that the protection it

15 affords from public disclosure and use extends only to the limited information or

items that are entitled to confidential treatment under the applicable legal principles.

The Parties further acknowledge, as set forth in Section 12.3, below, that this Order

does not entitle them to file confidential information under seal or with redactions;

Civil Local Rules 140 (redaction) and 141 (sealing) sets forth the procedures that must

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

the Court to file redacted material or material under seal.

22 B. GOOD CAUSE STATEMENT

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

valuable research, development, commercial, financial, technical and/or proprietary

information for which special protection from public disclosure and from use for any

purpose other than prosecution of this action is warranted. Such confidential and

27 proprietary materials and information consist of, among other things, confidential

28 business or financial information, information regarding confidential business

2 (including information implicating privacy rights of third parties), information

3 otherwise generally unavailable to the public, or which may be privileged or

4 otherwise protected from disclosure under state or federal statutes, court rules, case

decisions, or common law.

Accordingly, to expedite the flow of information, to facilitate the prompt

resolution of disputes over confidentiality of discovery materials, to adequately

protect information the parties are entitled to keep confidential, to ensure that the

parties are permitted reasonable necessary uses of such material in preparation for and

in the conduct of trial, to address their handling at the end of the litigation, and serve

the ends of justice, a protective order for such information is justified in this matter.

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

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

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

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

C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL

17 The parties further acknowledge, as set forth in Section 12.3, below, that this

18 Stipulated Protective Order does not entitle them to file confidential information

19 under seal. Civil Local Rules 140 (redaction) and 141 (sealing) set forth the

20 procedures that must be followed and the standards that will be applied when a party

21 seeks permission from the court to file material under seal.

22 There is a strong presumption that the public has a right of access to judicial

23 proceedings and records in civil cases. In connection with non-dispositive motions,

24 good cause must be shown to support a filing under seal. See Kamakana v. City and

25 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors

26 Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics, Inc.,

27 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders require good

28 cause showing), and a specific showing of good cause or compelling reasons with

2 Protected Material that a party seeks to file under seal. The Parties’ mere designation

3 of Disclosure or Discovery Material as CONFIDENTIAL or HIGHLY

4 CONFIDENTIAL - ATTORNEYS’ EYES ONLY does not—without the submission

5 of competent evidence by declaration, establishing that the material sought to be filed

6 under seal qualifies as confidential, privileged, or otherwise protectable—constitute

7 good cause.

8 Further, if a Party requests sealing related to a dispositive motion or trial, then

9 compelling reasons, not only good cause, for the sealing must be shown, and the relief

10 sought shall be narrowly tailored to serve the specific interest to be protected. See

11 Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir. 2010). For each

12 item or type of information, document, or thing sought to be filed or introduced under

13 seal in connection with a dispositive motion or trial, the party seeking protection must

14 articulate compelling reasons, supported by specific facts and legal justification, for

15 the requested sealing order. Again, competent evidence supporting the application to

16 file documents under seal must be provided by declaration.

17 Any document that is not confidential, privileged, or otherwise protectable in

18 its entirety will not be filed under seal if the confidential portions can be redacted. If

19 documents can be redacted, then a redacted version for public viewing, omitting only

20 the confidential, privileged, or otherwise protectable portions of the document, shall

21 be filed. Any application that seeks to file documents under seal in their entirety

22 should include an explanation of why redaction is not feasible.

2. DEFINITIONS

25 2.1. Action: Gearhead Productions, Inc. v. Gearhead Outfitters, Inc., 2:23-cv-

02331-KJM-JDP now pending in the United States District Court for the Eastern

District of California.

28 2.2. Challenging Party: a Party or Non-Party that challenges the designation

2.3. Designated Material: any Disclosure or Discovery Material that is

designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS’

EYES ONLY.”

2.4. “CONFIDENTIAL” Information or Items: information (regardless of

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

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

Cause Statement.

10 2.5. “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY”

11 Information or Items: extremely sensitive “CONFIDENTIAL” information

(regardless of how it is generated, stored or maintained) or tangible things, the

disclosure of which to another Party or Non-Party would create a substantial risk of

serious harm that could not be avoided by less restrictive means.

15 2.6. Counsel: Outside Counsel of Record and In-House Counsel (as well as

16 their support staff).

2.7. Designating Party: a Party or Non-Party that designates information or

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

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES

ONLY.”

2.8. Disclosure or Discovery Material: all items or information, regardless of

the medium or manner in which it is generated, stored, or maintained (including,

among other things, testimony, transcripts, and tangible things), that are produced or

generated in disclosures or responses to discovery in this matter.

26 2.9. Expert: a person with specialized knowledge or experience in a matter

27 pertinent to the litigation who has been retained by a Party or its counsel to serve as

28 an expert witness or as a consultant in this Action.

2 Action. In-House Counsel does not include Outside Counsel of Record or any other

3 outside counsel.

2.11. Non-Party: any natural person, partnership, corporation, association, or

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

2.12. Outside Counsel of Record: attorneys who are not internal employees of

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

have appeared in this Action on behalf of that party or are affiliated with a law firm

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

11 2.13. Party: any party to this Action, including all of its officers, directors,

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

support staffs).

14 2.14. Producing Party: a Party or Non-Party that produces Disclosure or

15 Discovery Material in this Action.

2.15. Professional Vendors: persons or entities that provide litigation support

services (e.g., photocopying, videotaping, translating, preparing exhibits or

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

and their employees and subcontractors.

2.16. Protected Material: any document, information or material that

constitutes or includes, in whole or in part, confidential or proprietary information or

trade secrets of the Party or a Third Party to whom the Party reasonably believes it

owes an obligation of confidentiality with respect to such document, information or

material.

26 2.17. Receiving Party: a Party that receives Disclosure or Discovery Material

27 from a Producing Party.

The protections conferred by this Stipulation and Order cover not only

Designated Material and/or Protected Material (as defined above), but also (1) any

information copied or extracted from Designated Material and/or Protected Material;

5 (2) all copies, excerpts, summaries, or compilations of Designated Material and/or

6 Protected Material; and (3) any testimony, conversations, or presentations by Parties

7 or their Counsel that might reveal Designated Material and/or Protected Material. The

8 protections conferred by this Stipulation and Order, however, do not cover the

9 following information: (a) any information that is in the public domain at the time of

10 disclosure to a Receiving Party or becomes part of the public domain after its

11 disclosure to a Receiving Party as a result of publication not involving a violation of

12 this Order, including becoming part of the public record through trial or otherwise;

13 and (b) any information known to the Receiving Party prior to the disclosure or

14 obtained by the Receiving Party after the disclosure from a source who obtained the

information lawfully and under no obligation of confidentiality to the Designating

Party.

Any use of Designated Material and/or Protected Material at trial shall be

governed by the orders of the trial judge. This Order does not govern the use of

Designated Material and/or Protected Material at trial.

20 4. DURATION

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

CONFIDENTIAL, HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY, or

maintained pursuant to this Protective Order used or introduced as an exhibit at trial

becomes public and will be presumptively available to all members of the public,

including the press, unless compelling reasons supported by specific factual findings

to proceed otherwise are made to the trial judge in advance of the trial. See Kamakana,

447 F.3d at 1180-81 (distinguishing “good cause” showing for sealing documents

28 produced in discovery from “compelling reasons” standard when merits-related

2 do not extend beyond the commencement of the trial.

5. DESIGNATING PROTECTED MATERIAL

5.1. Exercise of Restraint and Care in Designating Material for Protection.

Each Party or Non-Party that designates information or items for protection under this

Order must take care to limit any such designation to specific material that qualifies

under the appropriate standards. The Designating Party must designate for protection

only those parts of material, documents, items, or oral or written communications that

qualify so that other portions of the material, documents, items, or communications

for which protection is not warranted are not swept unjustifiably within the ambit of

this Order.

13 Mass, indiscriminate, or routinized designations are prohibited. Designations

14 that are shown to be clearly unjustified or that have been made for an improper

purpose (e.g., to unnecessarily encumber the case development process or to impose

unnecessary expenses and burdens on other parties) may expose the Designating Party

to sanctions.

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

designated for protection do not qualify for protection, that Designating Party must

promptly notify all other Parties that it is withdrawing the inapplicable designation.

21 5.2. Confidential Material. A Party shall designate documents, information or

22 material as “CONFIDENTIAL” only upon a good faith belief that the documents,

23 information or material contains confidential or proprietary information or trade

24 secrets of the Party or a Third Party to whom the Party reasonably believes it owes an

obligation of confidentiality with respect to such documents, information or material.

Documents, information or material produced pursuant to any discovery request in

this Action, including but not limited to Protected Material designated as Designated

Material, shall be used by the Parties only in the litigation of this Action and shall not

be used for any other purpose. Any person or entity who obtains access to Designated

2 duplicates, extracts, summaries or descriptions of such Designated Material or any

3 portion thereof except as may be reasonably necessary in the litigation of this Action.

4 Any such copies, duplicates, extracts, summaries or descriptions shall be classified

Designated Materials and subject to all of the terms and conditions of this Order.

6 5.3. Highly Confidential – Attorneys’ Eyes Only Material. Any party may

7 designate Protected Material as “HIGHLY CONFIDENTIAL – ATTORNEY’S

8 ONLY” when the producing Party believes in good faith that the Protected Material

9 is so sensitive that the disclosure of which to another Party or Non-Party would create

10 a substantial risk of serious harm that could not be avoided by less restrictive means

11 and therefore, its dissemination deserves even further limitation, including

12 information that the Designating Party in good faith believes that disclosure will

13 likely harm the Designating Party’s competitive position concerning, inter alia: trade

14 secrets; customer/supplier lists and other highly confidential information regarding

customers, dealers and distributors; non-public technical information; confidential

financial information; manufacturing and research information; confidential

commercial information regarding technology used to make and/or confirm the

authenticity of the products at issue in the litigation; and/or highly sensitive

information that is not publicly known. Attorneys’ Eyes Only Material, and the

information contained therein, shall be disclosed only as specified in Paragraph 7.3

below unless otherwise agreed or ordered. If disclosure of Attorneys’ Eyes Only

Material is made pursuant to this paragraph, all other provisions in this order with

respect to confidentiality shall also apply.

24 5.4. Manner and Timing of Designations. Except as otherwise provided in

this Order (see, e.g., second paragraph of section 5.4(a) below), or as otherwise

stipulated or ordered, Disclosure or Discovery Material that qualifies for protection

under this Order must be clearly so designated before the material is disclosed or

produced.

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

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

4 proceedings), the Producing Party shall affix at a minimum, the word(s)

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES

ONLY”, placed clearly at the bottom, center of each page of the Protected Material

for which such protection is sought. Discovery responses shall not bear the

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

ONLY” legend on the entire document, unless all of the responses contained therein

meet the criteria of being designated as such. Otherwise, the responding party shall

designate for each response the appropriate designation legend. Such designations

shall be made at the time when the discovery response is served, or when the

document or thing, or copy thereof, is provided to the receiving party. If only a

portion or portions of the material on a page qualifies for protection, the Producing

Party also must clearly identify the protected portion(s) (e.g., by making appropriate

markings in the margins).

(b) For testimony given in depositions or at a hearing, the wording

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES

ONLY” shall be placed on the cover page of the transcript (if not already present on

the cover page of the transcript when received from the Court Reporter) by each

attorney receiving a copy of the transcript after that attorney receives notice of the

designation of some or all of that transcript as “CONFIDENTIAL or “HIGHLY

CONFIDENTIAL - ATTORNEYS’ EYES ONLY” and on each page where

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES

ONLY” testimony or statements are made. Arrangements shall be made with the court

reporter taking and transcribing such proceeding to separately bind such portions of

the transcript containing information designated as confidential, and to label such

portions appropriately.

2 videorecording, or any portion thereof, as “CONFIDENTIAL” or “HIGHLY

3 CONFIDENTIAL – ATTORNEYS’ EYES ONLY”. All documents, or any portion

4 thereof, made available for inspection (but not yet formally produced to the inspecting

party) shall be presumptively deemed to contain “Highly Confidential – Attorneys’

Eyes Only” subject to the provisions of this Protective Order, regardless of whether

so identified, until copies thereof are formally produced to the inspecting party. Any

information, document, or thing that bears both designations must be treated as

“Highly Confidential – Attorneys’ Eyes Only.”

10 (d) For information produced in some form other than documentary and for

11 any other tangible items, that the Producing Party affix in a prominent place on the

12 exterior of the container or containers in which the information is stored the legend

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

14 ONLY.” If only a portion or portions of the information warrants protection, the

Producing Party, to the extent practicable, shall identify the protected portion(s).

16 (e) All documents, or any portion thereof, made available for inspection (but

17 not yet formally produced to the inspecting party) shall be presumptively deemed to

18 contain “Highly Confidential – Attorneys’ Eyes Only” subject to the provisions of

19 this Protective Order, regardless of whether so identified, until copies thereof are

20 formally produced to the inspecting party. Any information, document, or thing that

21 bears both designations must be treated as “Highly Confidential – Attorneys’ Eyes

22 Only.”

5.5. With respect to documents, information or material designated

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES

25 ONLY”, subject to the provisions herein and unless otherwise stated, this Order

26 governs, without limitation: (a) all documents, electronically stored information,

27 and/or things as defined by the Federal Rules of Civil Procedure; (b) all trial, pretrial,

28 hearing or deposition testimony, or documents marked as exhibits or for identification

2 other court filings; (d) affidavits; and (e) stipulations. All copies, reproductions,

3 extracts, digests and complete or partial summaries prepared from any Designated

4 Material shall also be considered Designated Material and treated as such under this

Order.

6 5.6. A designation of Protected Material (i.e., “CONFIDENTIAL” or

7 “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY”) shall be made as

8 follows: (i) for testimony at deposition or hearing, such designation shall be made by

9 each party within ten (10) days of receipt of the transcript and (ii) for any other

10 Designated Material, such designation shall be made at the time of production.

11 Access to Designated Material shall be limited in accordance with the terms of this

12 Order. Prior to expiration of the 10-day period, Designated Material shall be treated

13 as “HIGHLY CONFIDENTIAL - ATTORNEY’S EYES ONLY”.

5.7. Inadvertent Failures to Designate. If timely corrected, an inadvertent

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

16 Designating Party’s right to secure protection under this Order for such material.

17 Upon timely correction of a designation, the Receiving Party must make reasonable

18 efforts to assure that the material is treated in accordance with the provisions of this

19 Order.

6. CHALLENGING CONFIDENTIALITY DESIGNATIONS

22 Any party may challenge a designation given to any Designated Material at any

23 time by notifying the designating Party in writing of the basis for the dispute,

24 identifying the specific document[s] or thing[s] as to which the designation is disputed

and proposing a new designation for such materials. The Parties must make every

attempt to resolve any dispute without court involvement. Any motion regarding

confidentiality designation or for a protective order must include a certification, in the

motion or in a declaration or affidavit, that the movant has engaged in a good faith

meet and confer conference with other affected Parties in an effort to resolve the

2 participants to the conference. A good faith effort to confer requires a face-to-face

3 meeting or a telephone conference. If the Parties cannot agree, the requesting Party

4 may apply to the Court for relief. Pending the Court’s determination of the

application, the designation of the designating Party shall be maintained. A Party’s

failure to contest a designation of information as Confidential or Highly Confidential

is not an admission that the information was properly designated as such.

8 7. ACCESS TO AND USE OF PROTECTED MATERIAL

7.1. Basic Principles. A Receiving Party may use Designated Material and/or

Protected Material that is disclosed or produced by another Party or by a Non-Party

in connection with this Action only for prosecuting, defending, or attempting to settle

this Action. Such Designated Material and/or Protected Material may be disclosed

only to the categories of persons and under the conditions described in this Order.

When the Action has been terminated, a Receiving Party must comply with the

provisions of Section 13 below (FINAL DISPOSITION).

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

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

authorized under this Order.

7.2. Disclosure of “CONFIDENTIAL” Information or Items. Unless

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

Receiving Party may disclose any information or item designated

“CONFIDENTIAL” only to:

24 (a) a Party’s Outside Counsel of Record in this Action, including necessary

paralegal, secretarial, clerical personnel assisting such counsel, and any other

employees of counsel or independent contractors operating under counsel’s

instruction;

28 (b) a Party’s In-House Counsel (if any exist);

2 Receiving Party to whom disclosure is reasonably necessary for this Action;

(d) outside consultants or Experts (as defined in this Order) (i.e., not existing

employees or affiliates of a Party or an affiliate of a Party) retained for the purpose of

5 this litigation, provided that: (1) such consultants or experts are not presently

6 employed by the Parties hereto for purposes other than this Action; and (2) before

7 access is given, the consultant or expert has completed the undertaking attached as

8 Exhibit A hereto;

(e) the court and its personnel;

11 (f) independent litigation support services, including persons working for or

as court reporters, stenographers, videographers, graphics or design services, jury or

trial consulting services, and photocopy, document imaging, and database services

retained by counsel and reasonably necessary to assist counsel with the litigation of

this Action;

16 (g) the author or recipient of a document containing the information or a

17 custodian or other person who otherwise possessed or knew the information;

(h) any mediator(s) arbitrator(s), or special masters(s) appointed by the Court

or agreed to by the Parties ;

7.3. Disclosure of “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES

ONLY” Information or Items. For Protected Material designated as HIGHLY

CONFIDENTIAL -- ATTORNEYS’ EYES ONLY, access to, and disclosure of, such

Protected Material shall be limited to individuals listed in Paragraphs 7.2(a) and (d-

h).

26 7.4. Privilege/Work Product Material. Nothing in this Order shall require

27 production of documents, information or other material that a Party contends is

28 protected from disclosure by the attorney-client privilege, the work product doctrine,

2 subject to a claim of attorney-client privilege, work product doctrine, or other

3 privilege, doctrine, or immunity is inadvertently or unintentionally produced, such

4 production shall in no way prejudice or otherwise constitute a waiver of, or estoppel

as to, any such privilege, doctrine, or immunity. Any Party that inadvertently or

unintentionally produces documents, information or other material it reasonably

believes are protected under the attorney-client privilege, work product doctrine, or

other privilege, doctrine, or immunity may obtain the return of such documents,

information or other material by promptly notifying the recipient(s) and providing a

privilege log for the inadvertently or unintentionally produced documents,

information or other material. Any Party that believes they have inadvertently or

unintentionally received documents, information or other material subject to a claim

of attorney-client privilege, work product doctrine, or other privilege, doctrine, or

immunity, shall immediately notify the producing Party of the potential inadvertent

disclosure. The recipient(s) shall gather and return all copies of such documents,

information or other material to the producing Party, except for any pages containing

privileged or otherwise protected markings by the recipient(s), which pages shall

instead be destroyed and certified as such to the producing Party.

7.5. There shall be no disclosure of any Designated Material by any person

authorized to have access thereto to any person who is not authorized for such access

under this Order. The Parties are hereby ORDERED to safeguard all such documents,

information and material to protect against disclosure to any unauthorized persons or

entities.

24 7.6. Service of Designated Material. Any Party electronically serving

Designated Material, shall share the Designated Material by email or a shared file link

to all email eservice addresses identified in the Parties’ Counsel’s signature blocks

below. The subject line of the email shall include the language “SERVICE OF

DESIGNATED MATERIAL, GEARHEAD PRODUCTIONS, INC. V.

GEARHEAD OUTFITTERS, INC., CASE NO. 2:23-cv-02331”. Non-Designated

2 the Subject reference line may be modified accordingly.

7.7. Use of Designated Material. Nothing contained herein shall be construed

to prejudice any Party’s right to use any Designated Material in taking testimony at

5 any deposition, hearing or trial provided that the Designated Material is only disclosed

6 to a person(s) who is: (i) eligible to have access to the Designated Material by virtue

7 of his or her employment with the designating party, (ii) identified in the Designated

8 Material as an author, addressee, or copy recipient of such information, (iii) although

9 not identified as an author, addressee, or copy recipient of such Designated Material,

10 has, in the ordinary course of business, seen such Designated Material, (iv) a current

11 or former officer, director or employee of the producing Party or a current or former

12 officer, director or employee of a company affiliated with the producing Party; (v) for

13 CONFIDENTIAL MATERIAL, counsel for a Party, including outside counsel, and

14 in-house counsel, and for HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES

ONLY MATERIAL, counsel for a party, excluding in-house counsel, unless agreed

in a prior writing; (vi) subject to Section 7.2(d), an independent contractor, consultant,

and/or expert retained for the purpose of this litigation; (vii) court reporters and

videographers; (viii) the Court; or (ix) other persons entitled hereunder to access to

Designated Material. Designated Material shall not be disclosed to any other persons

unless prior authorization is obtained from counsel representing the producing Party.

21 7.8. Acknowledgement Form. Each (i) Party representative or (ii) outside

22 consultant or expert to whom Designated Material is disclosed in accordance with the

23 terms of this Order shall be advised by counsel of the terms of this Order, shall be

24 informed that he or she is subject to the terms and conditions of this Order, and shall

sign an undertaking that he or she has received a copy of, has read, and has agreed to

be bound by this Order. A copy of the undertaking form is attached as Exhibit A

2 OTHER LITIGATION

If a Party is served with a subpoena or a court order issued in other litigation

that compels disclosure of any information or items designated in this Action as

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES

6 ONLY” that Party must:

7 (1) promptly notify in writing the Designating Party. Such notification shall

8 include a copy of the subpoena or court order;

(2) promptly notify in writing the party who caused the subpoena or order to

issue in the other litigation that some or all of the material covered by the subpoena

or order is subject to this Protective Order. Such notification shall include a copy of

this Stipulated Protective Order; and

(3) to the extent permitted by law, court rule, and court order, withhold

production of the requested information until (a) the producing Party permits

production, (b) a court of competent jurisdiction orders otherwise, (c) the producing

Party files a motion or other legal action to protect such material and the court has

ruled on said motion, or (d) the producing Party fails to file a motion or other legal

action to protect such material within five (5) business days following receipt of the

notice received in Paragraph 8(1).

21 The purpose of imposing these duties is to alert the interested Parties to the

22 existence of this Protective Order and to afford the designating party in this litigation

an opportunity to try to protect its confidentiality interests in the court from which the

subpoena, request or order issued.

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

PRODUCED IN THIS LITIGATION

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

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

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

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

4 prohibiting a Non-Party from seeking additional protections.

5 (b) To the extent that discovery or testimony is taken of Non-Party, the Non-

6 Party may designate as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL --

7 ATTORNEYS’ EYES ONLY” any documents, information or other material, in

8 whole or in part, produced or given by such Non-Party. The Non-Party shall have ten

9 (10) days after production of such documents, information or other materials to make

10 such a designation. Until that time period lapses or until such a designation has been

11 made, whichever occurs sooner, all documents, information or other material so

12 produced or given shall be treated as “HIGHLY CONFIDENTIAL – ATTORNEYS’

13 EYES ONLY” in accordance with this Order.

10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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

17 Protected Material to any person or in any circumstance not authorized under this

18 Stipulated Protective Order, the Receiving Party must immediately (a) notify in

19 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts

20 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or

21 persons to whom unauthorized disclosures were made of all the terms of this Order,

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

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

11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

PROTECTED MATERIAL

When a Producing Party gives notice to Receiving Parties that certain

inadvertently produced material is subject to a claim of privilege or other protection,

the obligations of the Receiving Parties are those set forth in Federal Rule of Civil

2 may be established in an e-discovery order that provides for production without prior

3 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the

4 parties reach an agreement on the effect of disclosure of a communication or

information covered by the attorney-client privilege or work product protection, the

parties may incorporate their agreement in the stipulated protective order submitted

to the court.

8 12. MISCELLANEOUS

12.1. Right to Further Relief. Nothing in this Order abridges the right of any

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

12 12.2. Right to Assert Other Objections. By stipulating to the entry of this

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

14 disclosing or producing any information or item on any ground not addressed in this

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

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

17 12.3. Filing Designated and/or Protected Material. A Party that seeks to file

18 any Designated and/or Protected Material with redactions or under seal must comply

19 with Civil Local Rules 140 and 141. Designated and/or Protected Material may only

20 be filed under seal pursuant to a court order authorizing the sealing of the specific

21 Designated and/or Protected Material at issue. If a Party’s request to file Designated

22 and/or Protected Material under seal is denied by the court, then the Receiving Party

23 may file the information in the public record unless otherwise instructed by the court.

12.4. The failure to designate documents, information or material in accordance

25 with this Order and the failure to object to a designation at a given time shall not

26 preclude the filing of a motion at a later date seeking to impose such designation or

27 challenging the propriety thereof. The entry of this Order and/or the production of

28 documents, information and material hereunder shall in no way constitute a waiver of

12.5. Production of Designated Material by each of the Parties shall not be

deemed a publication of the documents, information and material (or the contents

thereof) produced so as to void or make voidable whatever claim the Parties may have

5 as to the proprietary and confidential nature of the documents, information or other

6 material or its contents.

12.6. Nothing in this Order shall be construed to effect an abrogation, waiver

or limitation of any kind on the rights of each of the Parties to assert any applicable

discovery or trial privilege.

11 12.7. Each of the Parties shall also retain the right to file a motion with the

Court (a) to modify this Order to allow disclosure of Designated Material to additional

persons or entities if reasonably necessary to prepare and present this Action and (b)

to apply for additional protection of Designated Material.

13. FINAL DISPOSITION

17 13.1. Within thirty (30) days of final termination of this Action, including any

18 appeals, all Designated Material, including all copies, duplicates, abstracts, indexes,

19 summaries, descriptions, and excerpts or extracts thereof (excluding excerpts or

20 extracts incorporated into any privileged memoranda of the Parties and materials

21 which have been admitted into evidence in this Action), shall at the producing Party’s

election either be returned to the producing Party or be destroyed. The receiving Party

shall verify the return or destruction by affidavit furnished to the producing Party,

upon the producing Party’s request.

25 13.2. Notwithstanding this provision, Counsel are entitled to retain an archival

26 copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal

27 memoranda, correspondence, deposition and trial exhibits, expert reports, attorney

28 work product, and consultant and expert work product, even if such materials contain

2 constitute Designated and/or Protected Material remain subject to this Protective

3 Order as set forth in Section 4 (DURATION).

13.3. Survival. This Order’s obligations regarding Confidential and Highly

5 Confidential information survive the conclusion of this case.

7 14. VIOLATION

Any Party knowing or believing that any other party is in violation of or intends

to violate this Order and has raised the question of violation or potential violation with

the opposing party and has been unable to resolve the matter by agreement may move

the Court for such relief as may be appropriate in the circumstances. Pending

disposition of the motion by the Court, the Party alleged to be in violation of or

intending to violate this Order shall discontinue the performance of and/or shall not

undertake the further performance of any action alleged to constitute a violation of

15 this Order.

16 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

18 DATED: August 21, 2024

19 By: /Marc E. Hankin/

Marc E. Hankin, Esq.

HANKIN PATENT LAW, APC

21 Marc@HankinPatentLaw.com

Elodie@HankinPatentLaw.com

Attorneys for Plaintiff,

23 Gearhead Productions, Inc.

24 DATED: August 21, 2024

25 By: /Michael Lane/

Michael Lane

LEWIS KOHN & WALKER, LLP

27 mlane@lewiskohn.com

Attorneys for Defendant

Gearhead Outfitters, Inc.

1 PURSUANT TO STIPULATION, AND FOR GOOD CAUSE SHOWN, IT IS SO

2 ORDERED.

3 IT IS FURTHER ORDERED that pursuant to Fed. R. Evid. 502(d), the

4 || production of any documents in this proceeding shall not, for the purposes of this

5 || proceeding or any other federal or state proceeding, constitute a waiver by the

6 || producing party of any privilege applicable to those documents, including the

7 || attorney-client privilege, attorney work-product protection, or any other privilege or

8 || protection recognized by law.

10 IT IS SO ORDERED.

ll ( 4

Dated: _ August 26, 2024 qQ_——

12 JEREMY D. PETERSON

13 UNITED STATES MAGISTRATE JUDGE

2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

5 I, ____________________________________ [print or type full name], of

6 ____________________________________ [print or type full address], declare

7 under penalty of perjury of the laws of the United States of America that:

8 1. I have received a copy of the Protective Order in this action. I have

9 carefully read in its entirety and understand the Protective Order that was issued by

10 the United States District Court for the Eastern District of California on [date] in the

11 case of Gearhead Productions, Inc. v. Gearhead Outfitters, Inc., Case No. 2:23-cv-

12 02331-KJM-JDP.

13 2. I agree to comply with and to be bound by all the terms of this Protective

14 Order and I understand and acknowledge that failure to so comply could expose me

15 to sanctions and punishment in the nature of contempt.

16 3. I solemnly promise that I will hold in confidence, will not disclose to

17 anyone not qualified under the Protective Order, and will use only for purposes of this

18 action any information designated as “CONFIDENTIAL” or “HIGHLY

19 CONFIDENTIAL - ATTORNEYS’ EYES ONLY” that is disclosed to me.

20 4. Promptly upon termination of these actions, I will return all documents

21 and things designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL -

22 ATTORNEYS’ EYES ONLY” that came into my possession, and all documents and

23 things that I have prepared relating thereto, to the outside counsel for the party by

24 whom I am employed.

2 enforcement of the Protective Order in this action even if such enforcement

3 proceedings occur after termination of this action.

5 Date: ________________ Signature: ____________________________

6 Printed Name: _________________________

7 City/State where sworn and signed:

8 _____________________________________

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.