distinguishing “good cause” showing for sealing documents 5 produced in discovery from “compelling reasons” standard when merits-related 6 documents are part of court record
How later courts described this case
- distinguishing “good cause” showing for sealing documents 5 produced in discovery from “compelling reasons” standard when merits-related 6 documents are part of court record
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9
CENTRAL DISTRICT OF CALIFORNIA
10
ALQOSH ENTERPRISES, INC., and
11 NMRM, INC. CASE NO. 2:25-cv-01327-MRA-JDE
12 Plaintiffs,
STIPULATED PROTECTIVE
13 v. ORDER
14
PEPSICO, INC. and FRITO-LAY
15 NORTH AMERICA, INC. [Note Changes by the Court]
16 Defendants.
17
18 Based on the Parti’s Stipulation (Dkt. 39) and for good cause shown, the
19 Court finds and orders as follows.
20 1. PURPOSES AND LIMITATIONS
21 Discovery in this action is likely to involve production of confidential,
22 proprietary or private information for which special protection from public
23 disclosure and from use for any purpose other than pursuing this litigation may be
24 warranted. This Order does not confer blanket protections on all disclosures or
25 responses to discovery and that the protection it affords from public disclosure and
26 use extends only to the limited information or items that are entitled to
27 confidential treatment under the applicable legal principles.
28 / / /
1 2. GOOD CAUSE STATEMENT
2 This action is likely to involve trade secrets, customer and pricing lists and
3 other valuable research, development, commercial, financial, technical and/or
4 proprietary information for which special protection from public disclosure and
5 from use for any purpose other than prosecution of this action is warranted. Such
6 confidential and proprietary materials and information consist of, among other
7 things, confidential business or financial information, information regarding
8 confidential business practices, or other confidential research, development, or
9 commercial information (including information implicating privacy rights of third
10 parties), information otherwise generally unavailable to the public, or which may be
11 privileged or otherwise protected from disclosure under state or federal statutes,
12 court rules, case decisions, or common law. Accordingly, to expedite the flow of
13 information, to facilitate the prompt resolution of disputes over confidentiality of
14 discovery materials, to adequately protect information the parties are entitled to
15 keep confidential, to ensure that the parties are permitted reasonable necessary uses
16 of such material in preparation for and in the conduct of trial, to address their
17 handling at the end of the litigation, and serve the ends of justice, a protective order
18 for such information is justified in this matter. It is the intent of the parties that
19 information will not be designated as confidential for tactical reasons and that
20 nothing be so designated without a good faith belief that it has been maintained in a
21 confidential, non-public manner, and there is good cause why it should not be part
22 of the public record of this case.
23 3. ACKNOWLEDGMENT OF UNDER SEAL FILING PROCEDURE
24 As set forth in Section 14.3, below, this Order does not entitle the Parties to
25 file confidential information under seal; Local Civil Rule 79-5 sets forth the
26 procedures that must be followed and the standards that will be applied when a
27 party seeks permission from the court to file material under seal. There is a strong
28 presumption that the public has a right of access to judicial proceedings and records
1 in civil cases. In connection with non-dispositive motions, good cause must be
2 shown to support a filing under seal. See Kamakana v. City and County of
3 Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors Corp., 307
4 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics, Inc., 187
5 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders require good
6 cause showing), and a specific showing of good cause or compelling reasons with
7 proper evidentiary support and legal justification, must be made with respect to
8 Protected Material that a party seeks to file under seal. The parties’ mere
9 designation of Disclosure or Discovery Material as CONFIDENTIAL does not—
10 without the submission of competent evidence by declaration, establishing that the
11 material sought to be filed under seal qualifies as confidential, privileged, or
12 otherwise protectable—constitute good cause.
13 Further, if a party requests sealing related to a dispositive motion or trial, then
14 compelling reasons, not only good cause, for the sealing must be shown, and the
15 relief sought shall be narrowly tailored to serve the specific interest to be protected.
16 See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir. 2010). For
17 each item or type of information, document, or thing sought to be filed or
18 introduced under seal, the party seeking protection must articulate compelling
19 reasons, supported by specific facts and legal justification, for the requested sealing
20 order. Again, competent evidence supporting the application to file documents
21 under seal must be provided by declaration.
22
Any document that is not confidential, privileged, or otherwise protectable in
23
its entirety will not be filed under seal if the confidential portions can be redacted.
24
If documents can be redacted, then a redacted version for public viewing, omitting
25
only the confidential, privileged, or otherwise protectable portions of the document,
26
27 shall be filed. Any application that seeks to file documents under seal in their
28 entirety should include an explanation of why redaction is not feasible.
1 4. DEFINITIONS
2 4.1 Action means the above-captioned matter, Alqosh Enterprises, Inc.,
3 and NMRM, Inc. v. Pepsico, Inc. and Frito-Lay North America, Inc., 2:25-cv-
4 01327-MRA-JDE.
5 4.2 Challenging Party means a Party or Non-Party that challenges the
6 designation of information or items under this Order.
7 4.3 CONFIDENTIAL means any Discovery Material, or any portion
8 thereof, designated as CONFIDENTIAL based on the Producing Party’s
9 reasonable and good faith belief that, in accordance with Federal Rule of Civil
10 Procedure 26(c), the information or items (regardless of how it is generated, stored
11 or maintained) or tangible things constitutes or reveals: (a) information prohibited
12 from disclosure by statute, contractual agreement, or orders of the Court or
13 regulatory agencies; (b) confidential trade secrets or proprietary business
14 information; (c) Sensitive, non-public personal, client, or customer information
15 concerning individuals or other entities, including but not limited to information
16 that would be considered personally identifiable information under any applicable
17 law; or (d) information that has been designated as Confidential or its equivalent
18 designation in any prior litigation or regulatory proceedings. Information or
19 documents that are available to the public may not be designated as
20 CONFIDENTIAL.
21 4.4 Consultant means a person with specialized knowledge or
22 experience in a matter pertinent to this Action, along with his or her employees
23 and support personnel, who has been retained by a Party or its Counsel to serve as
24 a non-testifying expert or a consultant in this Action, and who (i) is not a current
25 employee or current business consultant of a Party or of a Party’s competitor, or
26 otherwise currently involved in competitive decision-making for a Party or a
27 Party’s competitor, (ii) has not within the 12 months preceding the entry of this
28 Protective Order been an employee or business consultant of a Party or a Party’s
1 competitor, or otherwise been involved in competitive decision-making for a Party
2 or a Party’s competitor and (iii) at the time of retention is not anticipated to
3 become an employee or business consultant of a Party or a Party’s competitor, or
4 to be otherwise involved in competitive decision-making for a Party or a Party’s
5 competitor. This definition includes a professional jury or trial consultant retained
6 in connection with this Action.
7 4.5 Designating Party means a Party or Non-Party that designates
8 information or items that it produces in disclosures or in responses to discovery as
9 CONFIDENTIAL or HIGHLY CONFIDENTIAL.
10 4.6 Disclosure or Discovery Material means all items or information,
11 regardless of the medium or manner in which it is generated, stored, or maintained
12 (including, among other things, testimony, transcripts, and tangible things), that
13 are produced or generated in disclosures or responses to discovery.
14 4.7 Expert is a person with specialized knowledge or experience in a
15 matter pertinent to the litigation who has been retained, along with his or her
16 employees and support personnel, by a Party or its counsel to serve as an expert
17 witness or as a consultant in this Action.
18 4.8 HIGHLY CONFIDENTIAL means any Discovery Material, or any
19 portion thereof, designated as HIGHLY CONFIDENTIAL based on the Producing
20 Party’s reasonable and good faith belief that, in accordance with Federal Rule of
21 Civil Procedure 26(c), the information or items (regardless of how it is generated,
22 stored or maintained) or tangible things meets the criteria for CONFIDENTIAL
23 and disclosure of which would result in imminent competitive, commercial, or
24 financial harm to the Producing Party or its personnel, clients, or customers and
25 that risk of harm could not be avoided by less restrictive means. HIGHLY
26 CONFIDENTIAL information may include but is not limited to: (a) current or
27 future strategic plans, trade secrets, rates, cost data, or other competitively
28 sensitive information; (b) projections or plans regarding performance, budgets,
1 production, output, sales, marketing, or distribution practices; (c) research and
2 development information; (d) know-how or trade secrets; (e) board of directors
3 materials and presentations; (f) customer lists or information; (g) negotiation
4 strategies; (h) margin, cost, and pricing information; (i) intellectual property; (j)
5 Personal Data or Personally Identifiable Information; (l) income tax returns
6 (including attached schedules and forms), W-2 forms and 1099 forms; (m)
7 medical information concerning any individual; or (n) information that has been
8 designated as HIGHLY CONFIDENTIAL or its equivalent designation in any
9 prior litigation or regulatory proceedings. HIGHLY CONFIDENTIAL may also
10 include personnel files or other Personal Data or Personally Identifiable
11 Information if applicable privacy law requires heightened protection.
12 4.9 In-House Counsel means attorneys who are employees of a party to
13 this Action. In-House Counsel does not include Outside Counsel of Record or any
14 other outside counsel.
15 4.10 Non-Party is any natural person, partnership, corporation,
16 association or other legal entity not named as a Party to this action.
17 4.11 Outside Counsel of Record means attorneys who are not employees
18 of a party to this Action but are retained to represent a party to this Action and
19 have appeared in this Action on behalf of that party or are affiliated with a law
20 firm that has appeared on behalf of that party, and includes support staff.
21 4.12 Party is any party to this Action, including all of its officers,
22 directors, employees, consultants, retained experts, and Outside Counsel of
23 Record (and their support staffs).
24 4.13 Privileged Material means Discovery Material protected from
25 disclosure under the attorney-client privilege, attorney work product doctrine,
26 United States or foreign bank disclosure laws or regulations, and/or any other
27 applicable United States or foreign statute, law, regulation, privilege, or immunity
28 from disclosure.
1 4.14 Producing Party means a Party or Non-Party that produces
2 Disclosure or Discovery Material in this Action.
3 4.15 Professional Vendors are persons or entities that provide litigation
4 support services (e.g., photocopying, videotaping, translating, preparing exhibits
5 or demonstrations, and organizing, storing, or retrieving data in any form or
6 medium) and their employees and subcontractors.
7 4.16 Protected Material means any Disclosure or Discovery Material that
8 is designated as CONFIDENTIAL or HIGHLY CONFIDENTIAL, provided,
9 however, that the Protected Material does not include information that is publicly
10 available or that becomes publicly available other than as a result of a breach of
11 this Order or any other confidentiality agreement or undertaking.
12 4.17 Receiving Party means a Party that receives Disclosure or
13 Discovery Material from a Producing Party.
14 5. SCOPE
15 The protections conferred by this Stipulation and Order, and the limitations
16 on the use of information obtained during the course of discovery in this matter set
17 forth in this Order, cover not only Protected Material (as defined above), but also
18 (1) any information copied or extracted from Protected Material; (2) all copies,
19 excerpts, summaries, or compilations of Protected Material; and (3) any
20 testimony, conversations, or presentations by Parties or their Counsel that might
21 reveal Protected Material.
22 Any use of Protected Material at trial shall be governed by the orders of the
23 trial judge and other applicable authorities. This Order does not govern the use of
24 Protected Material at trial.
25 6. DURATION
26 Once a case proceeds to trial, information that was designated as
27 CONFIDENTIAL or HIGHLY CONFIDENTIAL or maintained pursuant to this
28 protective order used or introduced as an exhibit at trial becomes public and will
1 be presumptively available to all members of the public, including the press,
2 unless compelling reasons supported by specific factual findings to proceed
3 otherwise are made to the trial judge in advance of the trial. See Kamakana, 447
4 F.3d at 1180-81 (distinguishing “good cause” showing for sealing documents
5 produced in discovery from “compelling reasons” standard when merits-related
6 documents are part of court record). Accordingly, the terms of this protective
7 order do not extend beyond the commencement of the trial.
8 7. DESIGNATING PROTECTED MATERIAL
9 7.1 Exercise of Restraint and Care in Designating Material for Production
10 Each Party or Non-Party that designates information or items for protection
11 under this Order must take care to limit any such designation to specific material
12 that qualifies under the appropriate standards. The Designating Party must
13 designate for protection only those parts of material, documents, items or oral or
14 written communications that qualify so that other portions of the material,
15 documents, items or communications for which protection is not warranted are not
16 swept unjustifiably within the ambit of this Order.
17 Mass, indiscriminate or routinized designations are prohibited. Designations
18 that are shown to be clearly unjustified or that have been made for an improper
19 purpose (e.g., to unnecessarily encumber the case development process or to
20 impose unnecessary expenses and burdens on other parties) may expose the
21 Designating Party to sanctions.
22 If it comes to a Designating Party’s attention that information or items that
23 it designated for protection do not qualify for protection, that Designating Party
24 must promptly notify all other Parties that it is withdrawing the inapplicable
25 designation.
26 7.2 Manner and Timing of Designations. Except as otherwise provided in
27 this Order, or as otherwise stipulated or ordered, Disclosure of Discovery Material
28 that qualifies for protection under this Order must be clearly so designated before
1 the material is disclosed or produced. Designation in conformity with this Order
2 requires:
3 (a) for information in documentary form (e.g., paper or electronic
4 documents, but excluding transcripts of depositions or other pretrial or trial
5 proceedings), that the Producing Party affix at a minimum, the legend
6 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), or “HIGHLY
7 CONFIDENTIAL” (hereinafter “HIGHLY CONFIDENTIAL legend”), to each
8 page that contains protected material. If only a portion of the material on a page
9 qualifies for protection, the Producing Party also must clearly identify the
10 protected portion(s) (e.g., by making appropriate markings in the margins).
11 A Party or Non-Party that makes original documents available for
12 inspection need not designate them for protection until after the inspecting Party
13 has indicated which documents it would like copied and produced. During the
14 inspection and before the designation, all of the material made available for
15 inspection shall be deemed “HIGHLY CONFIDENTIAL.” After the inspecting
16 Party has identified the documents it wants copied and produced, the Producing
17 Party must determine which documents, or portions thereof, qualify for protection
18 under this Order. Then, before producing the specified documents, the Producing
19 Party must affix the “CONFIDENTIAL legend” or the “HIGHLY
20 CONFIDENTIAL legend” to each page that contains Protected Material. If only a
21 portion of the material on a page qualifies for protection, the Producing Party also
22 must clearly identify the protected portion(s) (e.g., by making appropriate
23 markings in the margins).
24 (b) for deposition transcripts, the Designating Party may designate
25 any portion of the testimony as CONFIDENTIAL or HIGHLY CONFIDENTIAL
26 in writing on or before the later of (i) thirty (30) calendar days after receipt of the
27 final transcript, or (ii) the date by which any review by the witness and statement
28 of changes to the transcript are to be completed under Federal Rule of Civil
1 Procedure 30(e). Only the portions of the testimony that are designated for
2 protection in accordance with the preceding sentence shall be Protected Material
3 under the provisions of this Order. The entire testimony shall be deemed to have
4 been designated HIGHLY CONFIDENTIAL until the time within which the
5 transcript may be designated has elapsed. If testimony is not designated within
6 the prescribed time period, then such testimony shall not be deemed
7 CONFIDENTIAL or HIGHLY CONFIDENTIAL except as ordered by the Court
8 or as provided in Section 7.3 (“Inadvertent Failures to Designate”). If all or a part
9 of a videotaped deposition is designated as CONFIDENTIAL or HIGHLY
10 CONFIDENTIAL, the DVD or other storage media, plus any container, shall be
11 so labeled. If there is a dispute arising from the confidentiality designation of
12 testimony given in deposition, the Parties shall meet and confer in an attempt to
13 resolve the dispute.
14 (c) for information produced in electronic, audio, or video format,
15 and for any other tangible items, that the Producing Party affix the
16 “CONFIDENTIAL legend” or “HIGHLY CONFIDENTIAL legend” in a
17 prominent place on the item itself or exterior of the container or containers in
18 which the information or item is store, or in the electronic file name, in any
19 suitable and readily viewable manner. Whenever a Receiving Party to whom
20 electronically stored discovery material so designated is produced reduces such
21 information to hard copy form, to the extent such pages have not previously been
22 marked by the Producing Party, such Receiving Party shall mark the hard copy by
23 affixing the designation “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” to
24 each page of such document. When possible, in order to minimize the likelihood
25 of inadvertent means, the Producing Party shall make a good faith effort to place
26 the appropriate confidentiality designation in the subject of the electronic mail
27 conveying the file or on the title of the digital document or media through which it
28 is conveyed or otherwise notify the Receiving Party of the fact that confidential
1 information is being conveyed. A Party may designate information produced by a
2 Non-Party as CONFIDENTIAL or HIGHLY CONFIDENTIAL to the extent
3 appropriate by notifying all other parties of the designation within a reasonable
4 period of time after the production of information by the Non-Party.
5 (d) for documents produced in native format, the Producing Party
6 shall include the confidentiality designation “CONFIDENTIAL” or “HIGHLY
7 CONFIDENTIAL” in the metadata produced for such documents and on any
8 placeholder page.
9 (e) for interrogatory answers and responses to requests to admit, and
10 the information contained therein, that the Producing Party affix the
11 “CONFIDENTIAL legend” or “HIGHLY CONFIDENTIAL legend” in a
12 prominent place on each page of such document prior to service or production.
13 (f) for reports created by an Expert or Consultant relying on or
14 incorporating Protected Material in whole or in part, the Party responsible for its
15 creation shall include the confidentiality designation “CONFIDENTIAL” or
16 “HIGHLY CONFIDENTIAL” on the report.
17 7.3 Inadvertent Failures to Designate. If a Producing Party discovers that
18 it produced material that was not designated as Protected Material or that it
19 produced material that was designated as Protected Material but had designated
20 that Protected Material in the incorrect category of Protected Material, or the
21 Receiving Party discovers such disclosure (in which case the Receiving Party shall
22 give the Producing Party prompt notice), the Producing Party may promptly notify
23 all Receiving Parties, in writing, of the error and identify (by production number)
24 the affected material and its new designation or re-designation. If timely
25 corrected, an inadvertent failure to designate qualified information or items does
26 not, standing alone, waive the Designating Party’s right to secure protection under
27 this Order for such material. Upon timely correction of a designation, the
28 Receiving Party must make reasonable efforts to assure that the material is treated
1 in accordance with the provisions of this Order (i.e., to delete and replace the
2 incorrectly designated material, and all copies thereof, with the newly designated
3 material and to destroy the incorrectly designated material). To the extent such
4 information may have been disclosed to anyone not authorized to receive
5 CONFIDENTIAL or HIGHLY CONFIDENTIAL Discovery Material under the
6 terms of this Order, the Receiving Party shall make reasonable efforts to retrieve
7 the Discovery Material promptly and to avoid any further disclosure.
8 7.4 Upward Designation and Greater Protection of Specific Documents.
9 A Party may upward designate (i.e., change any Discovery Material
10 produced without a designation of CONFIDENTIAL or HIGHLY
11 CONFIDENTIAL to one of those two designations, or change any Discovery
12 Material produced as CONFIDENTIAL to a designation of HIGHLY
13 CONFIDENTIAL) any Discovery Material produced by another Party or non-
14 party, provided that said Discovery Material contains the upward designating
15 Party’s CONFIDENTIAL or HIGHLY CONFIDENTIAL information, or
16 otherwise is entitled to protective treatment under Federal Rule of Civil Procedure
17 26(c) or other law, foreign or domestic, such that the upward designation is
18 appropriate under the terms of this Order. Upward designations shall be
19 accomplished by providing written notice to all Parties identifying (by Bates
20 number or other individually identifiable information) the Discovery Material to
21 be re-designated. Any Party may object to the upward designation of Discovery
22 Material pursuant to the procedures set forth in Section 8 regarding challenging
23 designations.
24 In the event that more than one Designating Party designates the same
25 Protected Material with different levels of treatment or confidentiality, all copies
26 of the Protected Material shall be treated as having the highest level of
27 confidentiality designated by any Designating Party pending any challenge to the
28 confidentiality designation as provided for in Section 8.
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 Joint Stipulation. Any challenge submitted to the Court shall be via a
8 joint stipulation pursuant to Local Rule 37-2.
9 8.4 The burden of persuasion in any such challenge proceeding shall be on
10 the Designating Party. Frivolous challenges, and those made for an improper
11 purpose (e.g., to harass or impose unnecessary expenses and burdens on other
12 parties) may expose the Challenging Party to sanctions. Unless the Designating
13 Party has waived or withdrawn the confidentiality designation, or until the Court
14 rules on the dispute, all Parties shall continue to afford the material in question the
15 level of protection to which it is entitled under the Designating Party’s
16 designation. In the event the Court rules that the challenged material’s
17 designation should be changed, the Designating Party shall reproduce copies of all
18 materials with their designations removed or changed in according with the ruling
19 within ten (10) business days of the ruling.
20
9. ACCESS TO AND USE OF PROTECTED MATERIAL
21
9.1 Basic Principles. Subject to any other written agreement among or
22
between Producing Parties and/or Receiving Parties, a Receiving Party may access
23
or use Protected Material that is disclosed or produced by another Party or by a
24
Non-Party in connection with this Action only for prosecuting, defending or
25
attempting to settle this Action. Except as required by law, Discovery Material
26
may not be used for any other purpose, including, without limitation, any business
27
or commercial purpose, contractual demands, any purpose relating to any other
28
investigation or proceeding, or the evaluation or prosecution of any potential
1 claims or counterclaims unrelated to or not arising out of the First Amended
2 Complaint. Such Protected Material may be disclosed only to the categories of
3 persons and under the conditions described in this Order. When the Action has
4 been terminated, a Receiving Party must comply with the provisions of section 15
5 below (FINAL DISPOSITION).
6 Protected Material must be stored and maintained by a Receiving Party at a
7 location and in a secure manner that ensures that access is limited to the persons
8 authorized under this Order. Protected Material shall not be copied, reproduced,
9 extracted, or abstracted, except to the extent that such copying, reproduction,
10 extraction, or abstraction is reasonably necessary for the conduct of this Action.
11 All such copies, reproductions, extractions, and abstractions shall be subject to the
12 terms of this Order and labeled in the same manner as the designated material on
13 which they are based.
14 9.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless
15 otherwise ordered by the Court or permitted in writing by the Designating Party, a
16 Receiving Party may disclose any information or item designated
17 “CONFIDENTIAL” only to:
18 (a) the Receiving Party’s Outside Counsel of Record in this Action,
19 as well as employees of said Outside Counsel of Record to whom it is reasonably
20 necessary to disclose the information for this Action;
21 (b) the officers, directors, and employees (including In-House
22 Counsel) of the Receiving Party to whom disclosure is reasonably necessary for
23 this Action and who have signed the “Acknowledgement and Agreement to Be
24 Bound” (Exhibit A);
25 (c) Experts or Consultants (as defined in this Order) of the Receiving
26 Party to whom disclosure is reasonably necessary for this Action and who have
27 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), provided
28 that Counsel, in good faith, requires their assistance in connection with this
1 Action; and provided further that any part of a report created by such expert or
2 consultant incorporating Protected Material in whole or in part shall be designated
3 appropriately by the Party responsible for its creation; and provided further that
4 experts or consultants may not use Protected Material for any purpose that does
5 not relate to this Action (including but not limited to other litigations and other
6 work in their respective fields);
7 (d) the court and its personnel;
8 (e) court reporters and their staff;
9 (f) professional jury or trial consultants, mock jurors, and
10 Professional Vendors to whom disclosure is reasonably necessary for this Action
11 and who have signed the “Acknowledgment and Agreement to Be Bound”
12 (Exhibit A);
13 (g) the author, addressees, or recipients of a document containing the
14 information or a custodian or other person who otherwise possessed or knew the
15 information;
16 (h) during their depositions, witnesses, and attorneys for witnesses, in
17 the Action to whom disclosure is reasonably necessary provided: (1) the deposing
18 party requests that the witness sign the form attached as Exhibit A hereto; and (2)
19 they will not be permitted to retain copies of the Protected Material after the
20 witness is examined regarding the Protected Material. Pages of transcribed
21 deposition testimony or exhibits to depositions that reveal Protected Material may
22 be separately bound by the court reporter and may not be disclosed to anyone
23 except as permitted under this Stipulated Protective Order; and
24 (i) any special masters, mediators, settlement officers, or other third
25 parties and their supporting personnel, who are appointed by the Court or retained
26 by the Parties for settlement purposes or resolution of discovery or other disputes
27 and their necessary personal and, in the case of persons retained by the Parties,
28
1 who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit
2 A);
3 (j) any other person agreed to by the Designating Party in writing;
4 and
5 (k) any other person to whom the Court compels disclosure of the
6 CONFIDENTIAL Material or to whom disclosure is required by law, subject to
7 the Requirements below.
8 9.3 Disclosure of “HIGHLY CONFIDENTIAL” Information or Items.
9 Unless otherwise ordered by the Court or permitted in writing by the Designating
10 Party, a Receiving Party may disclose any information or item designated
11 “HIGHLY CONFIDENTIAL” only to:
12 (a) the Receiving Party’s Outside Counsel of Record in this Action,
13 as well as employees of said Outside Counsel of Record to whom it is reasonably
14 necessary to disclose the information for this Action;
15 (b) no more than two (2) of the officers, directors, and employees
16 (including In-House Counsel) of the Receiving Party who (i) have direct
17 responsibilities with respect to this Action, (ii) have no involvement in the
18 Receiving Party’s competitive decision-making (except that In-House Counsel’s
19 involvement in giving competition-related legal and compliance advice to a
20 Receiving Party shall not be disqualifying), (iii) to whom disclosure is reasonably
21 necessary for this Action, and (iv) who have signed the “Acknowledgement and
22 Agreement to Be Bound” (Exhibit A). The Parties agree that In-House Counsel is
23 prohibited from using any information marked “HIGHLY CONFIDENTIAL” for
24 any business purpose and may use such information solely for the purpose of this
25 Action;
26 (c) Experts or Consultants (as defined in this Order) of the Receiving
27 Party to whom disclosure is reasonably necessary for this Action and who have
28 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), provided
1 that Counsel, in good faith, requires their assistance in connection with this
2 Action; and provided further that any part of a report created by such expert or
3 consultant incorporating Protected Material in whole or in part shall be designated
4 appropriately by the Party responsible for its creation; and provided further that
5 experts or consultants may not use Protected Material for any purpose that does
6 not relate to this Action (including but not limited to other litigations and other
7 work in their respective fields);
8 (d) the court and its personnel, provided that any material marked
9 “HIGHLY CONFIDENTIAL” is filed under seal in the first instance, thus
10 permitting the Designating Party sufficient opportunity to demonstrate good cause
11 that the material shall remain under seal;
12 (e) court reporters and their staff;
13 (f) any person who Counsel have a good faith basis to believe
14 authored or previously received the Protected Material, any person who is an
15 employee of the Designating Party, or a former employee of the Designating Party
16 (if they were employed by the Designating Party when the “HIGHLY
17 CONFIDENTIAL” Information was created), provided that such persons are not
18 permitted to retain such Protected Material;
19 (g) during the conduct of their depositions, to witnesses in the Action
20 for whom Counsel has a good-faith basis to believe disclosure is reasonably
21 necessary, who have signed the “Acknowledgment and Agreement to Be Bound”
22 (Exhibit A) and who are reasonably expected, based on the face of the documents
23 or prior testimony in this Action, to have personal knowledge of the document or
24 the specific Protected Material referenced in the document;
25 (h) any other person agreed to by the Designating Party in writing; and
26 (i) any other person to whom the Court compels disclosure of the
27 HIGHLY CONFIDENTIAL Material or to whom disclosure is required by law,
28 subject to the Requirements below.
1 10. RETENTION OF PROTECTED MATERIAL
2 Unless otherwise agreed to by the Producing party in writing or ordered by
3 the Court, persons described in Sections 9.2(h) and (j) who have been shown
4 Confidential Material shall not retain copies thereof longer than reasonably
5 necessary in light of the purpose for which the Confidential Material was
6 disclosed. Persons described in Sections 9.3(f), (g), and (h) who have been shown
7 Highly Confidential Information shall not retain copies thereof longer than
8 reasonably necessary in light of the purpose for which the Highly Confidential
9 Information was disclosed.
10
11. RETENTION OF EXHIBIT A
11
Counsel for the Party that obtains the signed “Acknowledgment and
12
Agreement to Be Bound” (Exhibit A), as required above, shall retain them for six
13
(6) months following the final termination of this Action, including any appeals,
14
and shall make them available to other Parties or the Court if good cause is shown.
15
16 12. A DESIGNATING OR PRODUCING PARTY’S USE OF ITS OWN
17 DOCUMENTS
18 Nothing in this Order shall be construed to limit in any way any Producing
19 Party’s, Receiving Party’s, or any other person’s use of its own documents,
20 including documents obtained independently and lawfully from sources other than
21 a Producing Party, nor shall it affect any Producing Party’s, Receiving Party’s, or
22 any other person’s subsequent waiver of its own prior designation with respect to
23 its own Confidential Material or Highly Confidential Information.
24
13. PROTECTED MATERIAL SUBPOENAED OR ORDERED
25
PRODUCED IN OTHER LITIGATION
26
If a Party is served with a discovery request, subpoena, or a court order
27
issued in other litigation, or receives some other form of legal process or request
28
from any court, federal, or state regulatory or administrative body or agency,
1 legislative body, regulatory organization, or other person or entity purporting to
2 have authority to require the production thereof, that compels disclosure of any
3 information or items designated in this Action as “CONFIDENTIAL” or
4 “HIGHLY CONFIDENTIAL” that Party must:
5 (a) promptly notify in writing the Designating Party to the extent
6 permitted by law and the rules, requirements, or requests of any relevant
7 governmental or regulatory organization. Such notification shall include a copy of
8 the discovery request, subpoena, court order, or other form of legal process;
9 (b) promptly notify in writing the party who caused the subpoena or
10 order to issue in the other litigation that some or all of the material covered by the
11 subpoena or order is subject to this Protective Order. Such notification shall
12 include a copy of this Stipulated Protective Order; and
13 (c) cooperate with respect to all reasonable procedures sought to be
14 pursued by the Designating Party whose Protected Material may be affected. If the
15 Designating Party timely seeks a protective order, the Party served with the
16 subpoena or court order shall not produce any information designated in this
17 action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” before a
18 determination by the court from which the subpoena or order issued, unless the
19 Party has obtained the Designating Party’s permission or the Designating Party
20 fails to file a motion to quash or fails to notify the Receiving Party in writing of its
21 intention to contest the production of the Protected Material prior to the date
22 designated for production of the Protected Material. The Designating Party shall
23 bear the burden and expense of seeking protection in that court of its confidential
24 material and nothing in these provisions should be construed as authorizing or
25 encouraging a Receiving Party in this Action to disobey a lawful directive from
26 another court.
27
In connection with any production of CONFIDENTIAL or HIGHLY
28
CONFIDENTIAL Information subject to this Order, the Receiving Party shall
1 request correspondingly CONFIDENTIAL or HIGHLY CONFIDENTIAL
2 treatment for the CONFIDENTIAL or HIGHLY CONFIDENTIAL Information.
3
14. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO
4
BE PRODUCED IN THIS LITIGATION
5
(a) The terms of this Order are applicable to information produced by
6
a Non-Party in this Action and designated as “CONFIDENTIAL” or “HIGHLY
7
CONFIDENTIAL.” Such information produced by Non-Parties in connection
8
with this litigation is protected by the remedies and relief provided by this Order.
9
Nothing in these provisions should be construed as prohibiting a Non-Party from
10
seeking additional protections.
11
(b) In the event that a Party is required, by a valid discovery request,
12
to produce a Non-Party’s confidential information in its possession, and the Party
13
is subject to an agreement with the Non-Party not to produce the Non-Party’s
14
confidential information, then the Party shall:
15
(1) promptly notify in writing the Requesting Party and the Non-
16
Party that some or all of the information requested is subject to a confidentiality
17
agreement with a Non-Party;
18
(2) promptly provide the Non-Party with a copy of the Stipulated
19
Protective Order in this Action, the relevant discovery request(s), and a reasonably
20
specific description of the information requested; and
21
(3) make the information requested available for inspection by the
22
Non-Party, if requested.
23
(c) If the Non-Party fails to seek a protective order from this court
24
within 14 days of receiving the notice and accompanying information, the
25
Receiving Party may produce the Non-Party’s confidential information responsive
26
to the discovery request. If the Non-Party timely seeks a protective order, the
27
Receiving Party shall not produce any information in its possession or control that
28
is subject to the confidentiality agreement with the Non-Party before a
1 determination by the court. Absent a court order to the contrary, the Non-Party
2 shall bear the burden and expense of seeking protection in this court of its
3 Protected Material.
4 15. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
5 If a Receiving Party learns that, by inadvertence or otherwise, it has
6 disclosed Protected Material to any person or in any circumstance not authorized
7 under this Order, the Receiving Party must immediately (a) notify in writing the
8 Designating Party of the unauthorized disclosures, (b) use its best efforts to
9 retrieve all unauthorized copies of the Protected Material, (c) inform the person or
10 persons to whom unauthorized disclosures were made of all the terms of this
11 Order, and (d) request such person or persons to execute the “Acknowledgment an
12 Agreement to Be Bound” attached hereto as Exhibit A.
13 16. INADVERTENT PRODUCTION OF PRIVILEGED OR
14 OTHERWISE PROTECTED MATERIAL
15 When a Producing Party gives notice to Receiving Parties that certain
16 inadvertently produced material is subject to a claim of privilege or other
17 protection, the obligations of the Receiving Parties are those set forth in Federal
18 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify
19 whatever procedure may be established in an e-discovery order that provides for
20 production without prior privilege review. Pursuant to Federal Rule of Evidence
21 502(d) and (e), the Parties agree that the inadvertent disclosure of a
22 communication or information covered by the attorney-client privilege or work
23 product protection shall not waive the privilege or protection.
24 17. CLAW BACK OF PRIVILEGED MATERIAL
25 In order to claw back Privileged Material that was produced inadvertently,
26 the Producing Party must provide notice in writing to the Receiving Party
27 specifying the production number of the Discovery Material it wishes to claw
28 back and the basis of the claim that it is Privileged Material.
1 Upon notice that a Producing Party wishes to claw back Discovery Material
2 protected as Privileged Material that was produced inadvertently, the Receiving
3 Party shall promptly undertake commercially reasonable efforts to immediately
4 cease review of the Discovery Material, shall return the Discovery Material to the
5 Producing Party and destroy all summaries or copies of the Discovery material,
6 shall provide to the Producing Party’s Counsel a signed verification certifying in
7 writing that all such information and copies of information have been returned or
8 destroyed, and shall not use such items for any purpose until further order of the
9 Court.
10 In all events, such return, destruction, and certification must occur within
11 ten (10) business days of receipt of the request, unless the Receiving Party
12 provides notice of its intent to challenge the assertion of a claim of protection
13 under Federal Rule of Civil Procedure 26(b)(5) (the “Challenge Notice”), in which
14 event the Receiving Party may retain no more copies (the “Retained Copies”) of
15 the disclosed material than are sufficient to prosecute its challenge to the assertion
16 of protection. Having provided a Challenge Notice, the Receiving Party must
17 raise a challenge with the Court within thirty (30) days of that Challenge Notice,
18 or otherwise return or destroy the Retained Copies within that period. Moreover,
19 in the event a Challenge Notice is provided, the Receiving Party shall make no use
20 of the Discovery Material subject to the request for return other than in connection
21 with the Receiving Party’s prosecution of its challenge to the assertion of privilege
22 until the challenge is resolved. However, for good cause shown, the Receiving
23 Party may request an extension of the deadline for the return or destruction of
24 Retained Copies of no longer than thirty (30) days, and a request for such an
25 extension shall not be unreasonably denied.
26 For the avoidance of doubt, nothing in this paragraph shall be construed as
27 restricting the right of any Party to challenge a claim of privilege at any time
28
1 permissible under the Federal Rules of Civil Procedure and other relevant laws
2 after the return or destruction of the Retained Copies.
3 Within ten (10) business days of the notification that reasonable efforts
4 have been taken to return or destroy the Privileged Material, the Producing Party
5 shall produce a privilege log with respect to the Privileged Material. The fact that
6 information was produced shall not be used in any manner as evidence in support
7 of any alleged Waiver. Alleged Privileged Material shall remain protected against
8 disclosure and use during the pendency of any dispute over its status.
9 If, during a deposition, a Party claims that a document being used in the
10 deposition (e.g., marked as an exhibit, shown to the witness, or made the subject
11 of examination) contains Privileged Material, it may at its sole election (a) allow
12 the document to be used in the deposition without waiver of its claim of privilege
13 or other protection or (b) instruct the witness not to answer questions concerning
14 the document pending a prompt resolution of any disagreement concerning the
15 document’s privileged or work-product protected status. If the Party allows the
16 examination concerning the document to proceed on a non-waiver basis, the
17 Parties shall sequester all copies of the purportedly privileged or work-product
18 protected document. Immediately following the deposition, the Parties will
19 commence the procedure outlined in the preceding paragraphs to address the claim
20 of privilege or other protection, including the notice requirement. Until the
21 dispute is resolved, all Parties and any other persons who have access to the
22 transcript of such deposition shall treat that transcript as Highly Confidential
23 Information. If any Party instructs the witness not to answer questions concerning
24 the document, the Parties will then cooperate in promptly submitting the issue of
25 the document’s status to the Court. If the document is ultimately determined not
26 to be privileged or subject to other protection, the Party or entity asserting the
27 claim of privilege will be responsible for ensuring that the deposing Party is given
28 an opportunity to depose the witness about the document within a reasonable time.
1 Pursuant to Federal Rule of Evidence 502(d), if a Party at any time notifies
2 any other Party that it, for any reason, disclosed documents, testimony,
3 information, and/or things that are protected as Privileged Material, or the
4 Receiving Party discovers such disclosure (in which case the Receiving Party shall
5 give the Producing Party prompt notice), the disclosure alone, pursuant to Rule
6 502(d), shall not be deemed a waiver – in the Action or in any other proceeding,
7 including in federal or state proceedings – of any applicable privilege or
8 protection.
9 18. ATTORNEY RENDERING ADVICE
10 Nothing in this Order will bar or otherwise restrict an attorney from
11 rendering advice to his or her client or from relying upon or generally referring to
12 Protected Material in rendering such advice provided; however, that, in rendering
13 such advice or in otherwise communicating with his or her client, the attorney
14 shall not reveal or disclose the contents of Protected Material if such disclosure is
15 not otherwise permitted under this Order.
16 19. MISCELLANEOUS
17 19.1 Notices. All notices required by this Order must be provided by
18 email to Outside Counsel of record for each Party. If applicable, notices to a Non-
19 Party will be in writing. Any of the notice requirements herein may be waived in
20 whole or in part, but only in writing by an attorney for the Designating Party.
21 19.2 Right to Further Relief. Nothing in this Order abridges the right of
22 any person to seek its modification by the Court in the future. Nor shall anything
23 herein preclude any Party or Non-Party from seeking additional or different
24 protection on a case-by-case basis, including, without limitation, an order that
25 certain information may not be discovered at all. The Court retains the right to
26 allow disclosure of any subject or Protected Discovery Material covered by this
27 Order and to modify or vacate this Order at any time in the interest of justice.
28 / / /
1 19.3 Right to Assert Other Objections. By stipulating to the entry of this
2 Protective Order, no Party waives any right it otherwise would have to object to
3 disclosing or producing any information or item on any ground not addressed in
4 this Stipulated Protective Order. Similarly, no Producing Party waives any right to
5 object on any ground to use in evidence of any of the material covered by this
6 Protective Order.
7 19.4 Filing Protected Material. A Party that seeks to file under seal any
8 Protected Material must comply with Local Civil Rule 79-5. Protected Material
9 may only be filed under seal pursuant to a court order authorizing the sealing of
10 the specific Protected Material. If a Party’s request to file Protected Material under
11 seal is denied by the court, then the Receiving Party may file the information in
12 the public record unless otherwise instructed by the court.
13 19.5 No Modifications or Privileges. Except as provided, nothing in this
14 Order shall modify the law regarding the attorney-client privilege, the attorney
15 work product doctrine, the joint defense privilege, and any other applicable
16 privilege or reason for non-disclosure with respect to trade secrets or other
17 confidential information to the extent such privilege or protection exists under
18 applicable law.
19 20. FINAL DISPOSITION
20 After the final disposition of this Action, as defined in paragraph 6, within
21 60 days of a written request by the Designating Party, each Receiving Party must
22 return all Protected Material to the Producing Party or destroy such material. As
23 used in this subdivision, “all Protected Material” includes all copies, abstracts,
24 compilations, summaries, and any other format reproducing or capturing any of
25 the Protected Material. Whether the Protected Material is returned or destroyed,
26 the Receiving Party must submit a written certification to the Producing Party
27 (and, if not the same person or entity, to the Designating Party) by the 60-day
28 deadline that (1) identifies (by category, where appropriate) all the Protected
1 || Material that was returned or destroyed and (2) affirms that the Receiving Party
2 ||has not retained any copies, abstracts, compilations, summaries or any other
3 || format reproducing or capturing any of the Protected Material. Notwithstanding
4 ||this provision, Counsel are entitled to retain an archival copy of all pleadings,
5 ||motion papers, trial, deposition, and hearing transcripts, legal memoranda,
6 correspondence, deposition and trial exhibits, expert reports, attorney work
7 || product, and consultant and expert work product, even if such materials contain
8 || Protected Material. Any such archival copies that contain or constitute Protected
9 || Material remain subject to this Protective Order as set forth in Section 6
10 (DURATION).
11 21. VIQLATION
12 Any violation of this Order may be punished by appropriate measures
13 |/including, without limitation, contempt proceedings and/or monetary sanctions.
14
15 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
16
| DATED: June 30, 2025 Lib. fe AG
JOHN D. EARLY
19 United States Magistrate Judge
20
21
22
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24
25
26
27
28
1
IN THE UNITED STATES DISTRICT COURT
2
FOR THE CENTRAL DISTRICT OF CALIFORNIA
3
4 ALQOSH ENTERPRISES, INC.,
and NMRM, INC.
5 CASE NO. 2:25-cv-01327-MRA-JDE
6
Plaintiffs, Judge Mónica Ramírez Almadani
7
Magistrate Judge John D. Early
8
v.
9
10
PEPSICO, INC. And FRITO-LAY
11 NORTH AMERICA, INC.
12
Defendants.
13
14
15 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
16
The undersigned hereby acknowledges that he/she has read the Protective
17
Order dated June 30, 2025, in the above-captioned action and attached hereto,
18
19 understands the terms thereof, and agrees to be bound by its terms. The undersigned
20
submits to the jurisdiction of the United States District Court for the Central District
21
22 of California in matters relating to the Protective Order and understands that the
23 terms of the Protective Order obligate him/her to use materials designated as
24
Confidential or Highly Confidential Information in accordance with the Order solely
25
26 for the purposes of the above-captioned action, and not to disclose any such
27
Confidential or Highly Confidential Information to any other person, firm or
28
concern.
1 The undersigned acknowledges that violation of the Confidentiality Order
2
may result in penalties for contempt of court.
3
4
5
Name:
6
7 Job Title:
8
Employer:
9
10 Business Address:
11
12
13
14
15
16
17 Date:
Signature
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