# Skechers USA, Inc. v. National Union Fire Insurance Company of Pittsburgh, PA

> District Court, C.D. California · September 3, 2019

URL: https://www.frixlaw.com/law-library/cases/9978737

## Case

- **Court:** District Court, C.D. California
- **Decided:** September 3, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9978737

## Opinion text

1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
11 ||}SKECHERS USA, INC., a corporation; Case No. 2:19-cv-04957-ODW-GJS
12 Plaintiff, DISCOVERY MATTER
13 Vv. PROPOSED | ORDER ON
TIPULATED PROTECTIVE
14 || NATIONAL UNION FIRE INSURANCE | ORDER
COMPANY OF PITTSBURG, PA., a
15 corporation, and DOES | through 50,
inclusive,
16
Defendants.
17
18
19
20
21
22
23
24
25
26
27
28

1 This Court, having read and considered the parties’ Stipulated Protective Order
2 ||(Dkt. No. 17), and finding good cause therefor, hereby enters the parties’ Stipulated
3 || Protective Order (Dkt. No. 17) as an order of the Court as follows:
4 || 1. A. PURPOSES AND LIMITATIONS
5 Discovery in this action is likely to involve production of confidential,
6 || proprietary or private information for which special protection from public disclosure
7 from use for any purpose other than prosecuting this litigation may be warranted.
8 || Accordingly, the parties hereby stipulate to and petition the Court to enter the
9 || following Stipulated Protective Order. The parties acknowledge that this Order does
10 ||not confer blanket protections on all disclosures or responses to discovery and that the
11 || protection it affords from public disclosure and use extends only to the limited
12 information or items that are entitled to confidential treatment under the applicable
13 legal principles.
14 B. GOOD CAUSE STATEMENT
15 This insurance coverage action is likely to involve private, commercial,
16 || financial, technical and/or proprietary information for which special protection from
17 || public disclosure and from use for any purpose other than prosecution of this action is
18 || warranted. Such confidential and proprietary materials and information consist of,
19 || among other things, confidential business or financial information, information
20 ||regarding confidential business practices, or other confidential research, development,
21 commercial information (including information potentially implicating privacy
22 rights of third parties), information otherwise generally unavailable to the public, or
23 || which may be privileged or otherwise protected from disclosure under state or federal
24 statutes, court rules, case decisions, or common law. Accordingly, to expedite the flow
25 || of information, to facilitate the prompt resolution of disputes over confidentiality of
26 discovery materials, to adequately protect information the parties are entitled to keep
27 confidential, to ensure that the parties are permitted reasonable necessary uses of such
28 || 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
2 |\information is justified in this matter. It is the intent of the parties that information will
3 ||not be designated as confidential for tactical reasons and that nothing be so designated
4 || without a good faith belief that it has been maintained in a confidential, non-public
5 ||manner, and there is good cause why it should not be part of the public record of this
6 || case.
7 C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL
8 The parties further acknowledge, as set forth in Section 12.3, below, that this
9 || Stipulated Protective Order does not entitle them to file confidential information under
10 || seal; Local Civil Rule 79-5 sets forth the procedures that must be followed and the
11 |/standards that will be applied when a party seeks permission from the court to file
12 material under seal.
13 There is a strong presumption that the public has a right of access to judicial
14 || proceedings and records in civil cases. In connection with non-dispositive motions,
15 || good cause must be shown to support a filing under seal. See Kamakana v. City and
16 || County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors
17 || Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics, Inc.,
18 || 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders require good
19 || cause showing), and a specific showing of good cause or compelling reasons with
20 || proper evidentiary support and legal justification, must be made with respect to
21 Protected Material that a party seeks to file under seal. The parties’ mere designation
22 ||of Disclosure or Discovery Material as CONFIDENTIAL does not—without the
23 ||submission of competent evidence by declaration, establishing that the material sought
24 be filed under seal qualifies as confidential, privileged, or otherwise protectable—
25 || constitute good cause.
26 Further, if a party requests sealing related to a dispositive motion or trial, then
27 ||compelling reasons, not only good cause, for the sealing must be shown, and the relief
28 sought shall be narrowly tailored to serve the specific interest to be protected. See

| || Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). For each item
2 || or type of information, document, or thing sought to be filed or introduced under seal
3 ||in connection with a dispositive motion or trial, the party seeking protection must
4 || articulate compelling reasons, supported by specific facts and legal justification, for the
5 requested sealing order. Again, competent evidence supporting the application to file
6 ||documents under seal must be provided by declaration.
7 Any document that is not confidential, privileged, or otherwise protectable in its
8 |}entirety will not be filed under seal if the confidential portions can be redacted. If
9 documents can be redacted, then a redacted version for public viewing, omitting only
10 || the confidential, privileged, or otherwise protectable portions of the document, shall be
11 || filed. Any application that seeks to file documents under seal in their entirety should
12 include an explanation of why redaction is not feasible.
13 |[2: DEFINITIONS
14 2.1 Action: this pending federal lawsuit.
15 2.2 Challenging Party: a Party or Non-Party that challenges the designation
16 of information or items under this Order.
7 2.3. “CONFIDENTIAL” Information or Items: information (regardless of
18 how it is generated, stored or maintained) or tangible things that qualify for protection
19 under Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause

30 Statement.
2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their
2! support staff).
22 2.5 Designating Party: a Party or Non-Party that designates information or
23 items that it produces in disclosures or in responses to discovery as
24 “CONFIDENTIAL.”
25 2.6 Disclosure or Discovery Material: all items or information, regardless of
26 the medium or manner in which it is generated, stored, or maintained (including,
27
28

| ||among other things, testimony, transcripts, and tangible things), that are produced or
2 || generated in disclosures or responses to discovery in this matter.
3 2.7 Expert: a person with specialized knowledge or experience in a matter
4 pertinent to the litigation who has been retained by a Party or its counsel to serve as an
5 || expert witness or as a consultant in this Action.
6 2.8 House Counsel: attorneys who are employees of a party to this Action.
7 || House Counsel does not include Outside Counsel of Record or any other outside
g counsel.
9 2.9 Non-Party: any natural person, partnership, corporation, association or
10 other legal entity not named as a Party to this action.
2.10 Qutside Counsel of Record: attorneys who are not employees of a party
2 to this Action but are retained to represent or advise a party to this Action and have
13 appeared in this Action on behalf of that party or are affiliated with a law firm that has
14 appeared on behalf of that party, and includes support staff.

5 2.11 Party: any party to this Action, including all of its officers, directors,
employees, consultants, retained experts, and Outside Counsel of Record (and their
'6 support staffs).
i 2.12 Producing Party: a Party or Non-Party that produces Disclosure or
I8 Discovery Material in this Action.
19 2.13 Professional Vendors: persons or entities that provide litigation support
20 services (e.g., photocopying, videotaping, translating, preparing exhibits or
21 demonstrations, and organizing, storing, or retrieving data in any form or medium) and
22 || their employees and subcontractors.
23 2.14 Protected Material: any Disclosure or Discovery Material that is
24 || designated as “CONFIDENTIAL.”
25 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material
26 || from a Producing Party.
27
28

1/3. SCOPE
2 The protections conferred by this Stipulation and Order cover not only Protected
3 || Material (as defined above), but also (1) any information copied or extracted from
4 || Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected
5 || Material; and (3) any testimony, conversations, or presentations by Parties or their
6 |} Counsel that might reveal Protected Material.
7 Any use of Protected Material at trial shall be governed by the orders of the trial
8 judge. This Order does not govern the use of Protected Material at trial.
9 4. DURATION
10 FINAL DISPOSITION of the action is defined as the conclusion of any
11 || appellate proceedings, or, if no appeal is taken, when the time for filing of an appeal
12 |{has run. Except as set forth below, the terms of this protective order apply through
13 || FINAL DISPOSITION of the action. The parties may stipulate that the they will be
14 || contractually bound by the terms of this agreement beyond FINAL DISPOSITION, but
15 || will have to file a separate action for enforcement of the agreement once all
16 || proceedings in this case are complete.
17 Once a case proceeds to trial, information that was designated as
1g ||} CONFIDENTIAL or maintained pursuant to this protective order used or introduced as
19 |{an exhibit at trial becomes public and will be presumptively available to all members
90 || of the public, including the press, unless compelling reasons supported by specific
91 || factual findings to proceed otherwise are made to the trial judge in advance of the trial.
97 See Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause” showing for sealing
93 documents produced in discovery from “compelling reasons” standard when merits-
94 ||related documents are part of court record). Accordingly, for such materials, the terms
95 || of this protective order do not extend beyond the commencement of the trial.
26 DESIGNATING PROTECTED MATERIAL
27 5.1 Exercise of Restraint and Care in Designating Material for Protection.
9g || Each Party or Non-Party that designates information or items for protection under this

1 Order must take care to limit any such designation to specific material that qualifies
2 under the appropriate standards. The Designating Party must designate for protection
3 || only those parts of material, documents, items or oral or written communications that
4 || qualify so that other portions of the material, documents, items or communications for
5 || which protection is not warranted are not swept unjustifiably within the ambit of this
6 || Order.
7 Mass, indiscriminate or routinized designations are prohibited. Designations
8 || that are shown to be clearly unjustified or that have been made for an improper purpose
9 || (e.g., to unnecessarily encumber the case development process or to impose
10 ||unnecessary expenses and burdens on other parties) may expose the Designating Party
I1 || to sanctions.
12 If it comes to a Designating Party’s attention that information or items that it
13 || designated for protection do not qualify for protection, that Designating Party must
14 || promptly notify all other Parties that it is withdrawing the inapplicable designation.
15 5.2. Manner and Timing of Designations. Except as otherwise provided in this
16 || Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated
17 || or ordered, Disclosure or Discovery Material that qualifies for protection under this
18 || Order must be clearly so designated before the material is disclosed or produced.
19 Designation in conformity with this Order requires:
20 (a) for information in documentary form (e.g., paper or electronic documents,
21 || but excluding transcripts of depositions or other pretrial or trial proceedings), that the
22 || Producing Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter
23 || “CONFIDENTIAL legend”), to each page that contains protected material. If only a
24 || portion of the material on a page qualifies for protection, the Producing Party also must
25 ||clearly identify the protected portion(s) (e.g., by making appropriate markings in the
26 || margins).
27 A Party or Non-Party that makes original documents available for inspection
28 ||need not designate them for protection until after the inspecting Party has indicated

1 || which documents it would like copied and produced. During the inspection and before
2 || the designation, all of the material made available for inspection shall be deemed
3 ||“CONFIDENTIAL.” After the inspecting Party has identified the documents it wants
4 || copied and produced, the Producing Party must determine which documents, or
5 || portions thereof, qualify for protection under this Order. Then, before producing the
6 || specified documents, the Producing Party must affix the “CONFIDENTIAL legend” to
7 ||each page that contains Protected Material. If only a portion of the material on a page
8 || qualifies for protection, the Producing Party also must clearly identify the protected
9 || portion(s) (e.g., by making appropriate markings in the margins).
10 (b) for testimony given in depositions that the Designating Party identifies the
11 || Disclosure or Discovery Material on the record, before the close of the deposition all
12 || protected testimony.
13 (c) for information produced in some form other than documentary and for any
14 || other tangible items, that the Producing Party affix in a prominent place on the exterior
15 || of the container or containers in which the information is stored the legend
16 ||“CONFIDENTIAL.” If only a portion or portions of the information warrants
17 || protection, the Producing Party, to the extent practicable, shall identify the protected
18 || portion(s).
19 5.3. Inadvertent Failures to Designate. If timely corrected, an inadvertent
20 || failure to designate qualified information or items does not, standing alone, waive the
21 || Designating Party’s right to secure protection under this Order for such material. Upon
22 ||timely correction of a designation, the Receiving Party must make reasonable efforts to
23 assure that the material is treated in accordance with the provisions of this Order.
24 CHALLENGING CONFIDENTIALITY DESIGNATIONS
25 6.1 Timing of Challenges. Any Party or Non-Party may challenge a
26 || designation of confidentiality at any time that is consistent with the Court’s Scheduling
27 || Order.
28 6.2. Meetand Confer. The Challenging Party shall initiate the dispute

1 ||resolution process under Local Rule 37.1 et seq.
2 6.3 The burden of persuasion in any such challenge proceeding shall be on the
3 || Designating Party. Frivolous challenges, and those made for an improper purpose
4 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may
5 expose the Challenging Party to sanctions. Unless the Designating Party has waived or
6 || withdrawn the confidentiality designation, all parties shall continue to afford the
7 ||material in question the level of protection to which it 1s entitled under the Producing
8 || Party’s designation until the Court rules on the challenge.
9 ACCESS TO AND USE OF PROTECTED MATERIAL
10 7.1 Basic Principles. A Receiving Party may use Protected Material that is
11 disclosed or produced by another Party or by a Non-Party in connection with this
12 || Action only for prosecuting, defending or attempting to settle this Action. Such
13 || Protected Material may be disclosed only to the categories of persons and under the
14 ||conditions described in this Order. When the Action has been terminated, a Receiving
15 || Party must comply with the provisions of section 13 below (FINAL DISPOSITION).
16 Protected Material must be stored and maintained by a Receiving Party at a
17 || location and in a secure manner that ensures that access is limited to the persons
18 authorized under this Order.
19 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless
20 || otherwise ordered by the court or permitted in writing by the Designating Party, a
21 Receiving Party may disclose any information or item designated “CONFIDENTIAL”
22 || only to:
23 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well as
24 ||employees of said Outside Counsel of Record to whom it is reasonably necessary to
25 || disclose the information for this Action;
26 (b) the officers, directors, and employees (including House Counsel) of the
27 || Receiving Party to whom disclosure is reasonably necessary for this Action;
28 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure

I ||is reasonably necessary for this Action and who have signed the “Acknowledgment
2 ||and Agreement to Be Bound” (Exhibit A);
3 (d) the court and its personnel;
4 (e) court reporters and their staff;
5 (f) professional jury or trial consultants, mock jurors, and Professional Vendors
6 ||to whom disclosure is reasonably necessary for this Action and who have signed the
7 ||“Acknowledgment and Agreement to Be Bound” (Exhibit A);
8 (g) the author or recipient of a document containing the information or a
9 || custodian or other person who otherwise possessed or knew the information;
10 (h) during their depositions, witnesses, and attorneys for witnesses, in the
11 || Action to whom disclosure is reasonably necessary provided: (1) the deposing party
12 ||requests that the witness sign the form attached as Exhibit | hereto; and (2) they will
13 ||not be permitted to keep any confidential information unless they sign the
14 ||“Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise agreed
15 || by the Designating Party or ordered by the court. Pages of transcribed deposition
16 || testimony or exhibits to depositions that reveal Protected Material may be separately
17 ||bound by the court reporter and may not be disclosed to anyone except as permitted
18 || under this Stipulated Protective Order; and
19 (1) any mediator or settlement officer, and their supporting personnel, mutually
20 agreed upon by any of the parties engaged in settlement discussions.
21 PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
22 OTHER LITIGATION
23 If a Party is served with a subpoena or a court order issued in other litigation that
24 ||compels disclosure of any information or items designated in this Action as
25 ||““CONFIDENTIAL,” that Party must:
26 (a) promptly notify in writing the Designating Party. Such notification shall
27 ||include a copy of the subpoena or court order;
28 (b) 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
2 || order is subject to this Protective Order. Such notification shall include a copy of this
3 || Stipulated Protective Order; and
4 (c) cooperate with respect to all reasonable procedures sought to be pursued by
5 the Designating Party whose Protected Material may be affected.
6 If the Designating Party timely seeks a protective order, the Party served with
7 ||the subpoena or court order shall not produce any information designated in this action
8 “CONFIDENTIAL” before a determination by the court from which the subpoena
9 || or order issued, unless the Party has obtained the Designating Party’s permission. The
10 || Designating Party shall bear the burden and expense of seeking protection in that court
11 || of its confidential material and nothing in these provisions should be construed as
12 authorizing or encouraging a Receiving Party in this Action to disobey a lawful
13 || directive from another court.
14 A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED
15 IN THIS LITIGATION
16 (a) The terms of this Order are applicable to information produced by a Non-
17 || Party in this Action and designated as “CONFIDENTIAL.” Such information produced
18 || by Non-Parties in connection with this litigation is protected by the remedies and relief
19 || provided by this Order. Nothing in these provisions should be construed as prohibiting
20 ||a Non-Party from seeking additional protections.
21 (b) In the event that a Party is required, by a valid discovery request, to produce
22 Non-Party’s confidential information in its possession, and the Party is subject to an
23 ||agreement with the Non-Party not to produce the Non-Party’s confidential information,
24 then the Party shall:
25 (1) promptly notify in writing the Requesting Party and the Non-Party
26 ||that some or all of the information requested is subject to a confidentiality agreement
27 || with a Non-Party;
28 (2) promptly provide the Non-Party with a copy of the Stipulated
10

| || Protective Order in this Action, the relevant discovery request(s), and a reasonably
2 ||specific description of the information requested; and
3 (3) make the information requested available for inspection by the Non-
4 || Party, if requested.
5 (c) If the Non-Party fails to seek a protective order from this court within 14
6 || days of receiving the notice and accompanying information, the Receiving Party may
7 || produce the Non-Party’s confidential information responsive to the discovery request.
8 the Non-Party timely seeks a protective order, the Receiving Party shall not produce
9 || any information in its possession or control that is subject to the confidentiality
10 ||agreement with the Non-Party before a determination by the court. Absent a court
11 || order to the contrary, the Non-Party shall bear the burden and expense of seeking
12 || protection in this court of its Protected Material.
13 |}10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
14 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
15 || Protected Material to any person or in any circumstance not authorized under this
16 || Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing
17 the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve
18 unauthorized copies of the Protected Material, (c) inform the person or persons to
19 |}whom unauthorized disclosures were made of all the terms of this Order, and (d)
20 ||request such person or persons to execute the “Acknowledgment and Agreement to Be
21 Bound” that is attached hereto as Exhibit A.
22 |}11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
23 PROTECTED MATERIAL
24 When a Producing Party gives notice to Receiving Parties that certain
25 ||inadvertently produced material is subject to a claim of privilege or other protection,
26 obligations of the Receiving Parties are those set forth in Federal Rule of Civil
27 || Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
28 ||may be established in an e-discovery order that provides for production without prior
11

| || privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the
2 || parties reach an agreement on the effect of disclosure of a communication or
3 ||information covered by the attorney-client privilege or work product protection, the
4 || parties may incorporate their agreement in the stipulated protective order submitted to
5 || the court.
6 |}12. MISCELLANEOUS
7 12.1 Right to Further Relief. Nothing in this Order abridges the right of any
8 || person to seek its modification by the Court in the future.
9 12.2 Right to Assert Other Objections. By stipulating to the entry of this
10 || Protective Order, no Party waives any right it otherwise would have to object to
11 disclosing or producing any information or item on any ground not addressed in this
12 ||Stipulated Protective Order. Similarly, no Party waives any right to object on any
13 || ground to use in evidence of any of the material covered by this Protective Order.
14 12.3 Filing Protected Material. A Party that seeks to file under seal any
15 || Protected Material must comply with Local Civil Rule 79-5. Protected Material may
16 || only be filed under seal pursuant to a court order authorizing the sealing of the specific
17 || Protected Material at issue. Ifa Party’s request to file Protected Material under seal is
18 || denied by the court, then the Receiving Party may file the information in the public
19 record unless otherwise instructed by the court.
20 ||}13. FINAL DISPOSITION
21 After the final disposition of this Action, as defined in paragraph 4, within 60
22 days of a written request by the Designating Party, each Receiving Party must return
23 Protected Material to the Producing Party, destroy such material or store the
24 || material in accordance with regulatory requirements. As used in this subdivision, “all
25 || Protected Material” includes all copies, abstracts, compilations, summaries, and any
26 || other format reproducing or capturing any of the Protected Material. Whether the
27 Protected Material is returned, destroyed or stored in accordance with regulatory
28 ||requirements, the Receiving Party must submit a written certification to the Producing
12

| || Party (and, if not the same person or entity, to the Designating Party) by the 60 day
2 || deadline that (1) identifies (by category, where appropriate) all the Protected Material
3 || that was returned, destroyed or stored in accordance with regulatory requirements and
4 || (2) affirms that the Receiving Party has not retained any copies, abstracts,
5 compilations, summaries or any other format reproducing or capturing any of the
6 || Protected Material (except as required by regulation). Notwithstanding this provision,
7 Counsel are entitled to retain an archival copy of all pleadings, motion papers, trial,
8 || deposition, and hearing transcripts, legal memoranda, correspondence, deposition and
9 || trial exhibits, expert reports, attorney work product, and consultant and expert work
10 || product, even if such materials contain Protected Material. Any such archival copies
11 |) that contain or constitute Protected Material remain subject to this Protective Order as
12 □□□ forth in Section 4 (DURATION).
13 ||}14. VIOLATION
14 Any violation of this Order may be punished by appropriate measures including,
15 || without limitation, contempt proceedings and/or monetary sanctions.
16 |}15. NON-WAIVER OF PRIVILEGE THROUGH PRODUCTION OF INVOICES
17 In this action, Skechers anticipates producing invoices for defense fees and costs
18 || (the “Invoices” incurred in connection with the underlying lawsuit entitled adidas
19 || America, Inc. et al. v. Skechers USA, Inc., United States District Court for the District
20 Oregon Case No. 3:15-cv-01741-HZ (the “adidas Action’). National Union agrees,
21 the Court orders, that production of the Invoices shall not constitute a waiver of (1)
22 ||the attorney-client privilege, the attorney work product doctrine, or any other privilege
23 || between Skechers and its attorneys with respect to the adidas Action other than with
24 respect to the specific written content of the Invoices themselves and/or (2) the
25 || attorney-client privilege, the attorney work product doctrine, or any other privilege
26 || between Skechers and its attorney with respect to any third party (including but not
27 || limited to the plaintiffs in the adidas Action). However, National Union reserves the
28 right to assert that any other act by Skechers (including but not limited to the filing of
13

1 || this action) constitutes a waiver of privilege. National Union agrees that the Invoices
2 || constitute “Protected Material” and that such Invoices may only be filed in this Action
3 || under seal pursuant to the terms and conditions set forth herein.
4 ||16. APPLICATION OF PROTECTIVE ORDER FROM ADIDAS ACTION
5 All documents designated as “Confidential” and/or “Attorneys’ Eyes Only”
6 || pursuant to the protective order entered in the adidas Action—a true and correct copy
7 which is attached hereto as Exhibit B—shall automatically constitute “Protected
8 || Material” under the meaning of this Stipulated Protective Order without the necessity
9 || of re-designation in this Action. Prior to receiving any documents designated as
10 “Confidential” and/or “Attorneys’ Eyes Only” pursuant to the protective order entered
11 |/in the adidas Action—and as a condition of receiving such documents—counsel for the
12 || Parties agree to execute and exchange copies of “Exhibit A” to the protective order in
13 || the adidas Action.
14
15 ||} FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
16
17 || DATED: September 3, 2019
18
19
20
21 UNITED STATES MAGISTRATE JUDGE
22
23
24
25
26
27
28
14

I EXHIBIT A
2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
3
4 I, [print or type full name], of
5 [print or type full address], declare under penalty of perjury that I
6 || have read in its entirety and understand the Stipulated Protective Order that was issued
7 the United States District Court for the Central District of California on [date] in the
8 ||case of Skechers USA, Inc. v. National Union Fire Insurance Company of Pittsburgh,
9 || Pa., United States District Court for the Central District of California Case No. 2:19-
10 ||cv-04957-ODW-GJS. I agree to comply with and to be bound by all the terms of this
11 || Stipulated Protective Order and I understand and acknowledge that failure to so
12 ||comply could expose me to sanctions and punishment in the nature of contempt. I
13 ||solemnly promise that I will not disclose in any manner any information or item that is
14 || subject to this Stipulated Protective Order to any person or entity except in strict
15 compliance with the provisions of this Order.
16 I further agree to submit to the jurisdiction of the United States District Court for
17 the Central District of California for enforcing the terms of this Stipulated Protective
18 || Order, even if such enforcement proceedings occur after termination of this action. I
19 || hereby appoint [print or type full name] of
20 [print or type full address and
21 ||telephone number] as my California agent for service of process in connection with
22 ||this action or any proceedings related to enforcement of this Stipulated Protective
23 || Order.
24 || Date:
25 City and State where sworn and signed:
26 || Printed name:
27 || Signature:
28

1
2
3
4
5
6
7
8
9
10
11
12
13
i EXHIBIT B
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Stephen M. Feldman, OSB No. 932674
SFeldman@perkinscoie.com
PERKINS COIE LLP
1120 NW Couch Street, Tenth Floor
Portiand, OR 97209-4128
Telephone: 503.727.2000
Facsimile: 503.737.2222
Mitchell G. Stockwell (admitted pro hac vice)
mstockwell@kilpatricktownsend.com
KILPATRICK TOWNSEND & STOCKTON LLP
1100 Peachtree Street, Suite 2800
Atlanta, GA 30309
Telephone: 404.815,6500
Facsimile: 404,815.6555
Matias Ferrario (admitted pro hac vice)
mferrario@kilpatricktownsend.com
Michael T. Morlock (admitted pro hac vice)
mmorlock@kilpatricktownsend.com
KILPATRICK TOWNSEND & STOCKTON LLP
1001 West Fourth Street
Winston-Salem, NC 27101-2400
Telephone: 336.607.7300
Facsimile: 336.607.7500
Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION
ADIDAS AMERICA, INC.,, a Delaware No. 3:16-cv-01400-AC
corporation; and ADIDAS AG, a foreign
enury, STIPULATED PROTECTIVE ORDER
Plaintiffs,
Vv.
SKECHERS USA, INC., a Delaware
corporation,
Defendant.

Perkins Coie tir
1- STIPULATED PROTECTIVE ORDER 1120 NW Couch Street, Tenth Floor
21184-O8 £7/132487689. 1 Portland, OR 97209-4128
Phone: 503.727.2222
Fax! 503.727.2222

The parties have requested the production of documents or information that at feast one
party considers to be or to contain confidential information, and that are subject to protection
under Federal Rule of Civil Procedure 26(c). The parties agree that good cause exists to protect
the confidential nature of the information contained in documents, interrogatory responses,
responses to requests for admission, or deposition testimony. This action concerns corporate
entities that directly compete in the marketplace and, therefore, the parties expect to exchange
and disclose documents and information related to their finances, business strategies, and other
confidential business information, including information of a highly sensitive nature. The parties
agree that the entry of this Stipulated Protective Order (the “Protective Order”) is warranted to
protect against public disclosure of such documents and information.
Based upon the stipulation of the parties, and the Court being duly advised,
IT IS HEREBY ORDERED as follows:
1. All documents, testimony, and other materials produced by the parties in this case
and labeled “Confidential” or “Attorneys’ Eyes Only” shall only be used in this proceeding.
2, Use of any information or documents labeled “Confidential” or “Attorneys’ Eyes
Only” and subject to this Protective Order, including all information derived therefrom, shall be
restricted solely to the litigation of this case and shall not be used by any party for any business,
commercial, or competitive purpose, This Protective Order, however, does not restrict the
disclosure or use of any information or documents lawfully obtained by the receiving party
through means or sources outside of this litigation. Should a dispute arise as to any specific
information or document, the burden shall be on the party claiming that such information or
documents was lawfully obtained through means or sources outside of this litigation.
3. The parties, and third parties subpoenaed by one of the parties, may designate as
“Confidential” or ‘Attorneys’ Eyes Only” documents, testimony, written responses, or other
materials produced in this case if they contain information that the producing party has a good
faith basis for asserting is confidential under the applicable legal standards. The party shall

Perkins Coie Lip
2+ STIPULATED PROTECTIVE ORDER 1120 NW Couch Street, Tenth Floor
21184-0117/132487689. 1 Portland, OR 97209-4128
Phone: 503.727.2222
_ Fax: 503.727.2222

designate each page of the document with a stamp identifying it as “Confidential” or “Attorneys”
Eyes Only,” if practical to do so.
4, If portions of documents or other materials deemed “Confidential” or “Attorneys”
Eyes Only” or any papers containing or making reference to such materials are filed with the
Court, they shall be filed under seal and marked as follows or in substantially similar form:
CONFIDENTIAL
IN ACCORDANCE WITH A PROTECTIVE ORDER, THE
ENCLOSURE(S) SHALL BE TREATED AS CONFIDENTIAL AND
SHALL NOT BE SHOWN TO ANY PERSON OTHER THAN
THOSE PERSONS DESIGNATED IN PARAGRAPH 7 OF THE
PROTECTIVE ORDER.
or
ATTORNEYS’ EYES ONLY
IN ACCORDANCE WITH A PROTECTIVE ORDER, THE
ENCLOSURE(S) SHALL BE TREATED AS FOR ATTORNEYS’
EYES ONLY AND SHALL NOT BE SHOWN TO ANY PERSON
OTHER THAN THOSE PERSONS DESIGNATED IN PARAGRAPH
8 OF THE PROTECTIVE ORDER.
If'a party is filing a document that it has itself designated as “Confidential” or “Attorneys’ Eyes
Only,” that party shall reference this Stipulated Protective Order in submitting the documents it
proposes to maintain under seal, If a non-designating party is filing a document that another
party has designated as “Confidential” or “Attorneys’ Eyes Only,” then the non-designating
party shall file the document under seal. Ifthe non-designating party makes a request in writing
to have the document unsealed and designating party does not file, within ten calendar days, a
motion that shows good cause to maintain the document under seal, then the Court shall unseal
the document. Before seeking to maintain the protection of documents filed with the Court, a
party must assess whether redaction is a viable alternative to complete nondisclosure.
3: Parties or third-parties providing testimony may designate transcripts, or portions
of transcripts, as “Confidential” or “Attorneys’ Eyes Only” by indicating the appropriate
designation on the record before the close of the deposition, hearing or other proceeding, or if no
Perkins Coie Lup
3- STIPULATED PROTECTIVE ORDER 1120 NW Couch Street, Tenth Floor
21184-0117/132487689.1 Portland, OR 97209-4128
Phone: 503.727.2222
Fax: 503.727.2222

designation is made on the record, within thirty (30) days after receipt of the final transcript of
any deposition, hearing or other proceeding, a party or the witness may designate as
“Confidential” or “Attorneys? Eyes Only” any portion of the transcript that the party or witness
contends discloses confidential information. Ifa transcript containing any such material is filed
with the Court, it shall be filed under seal and marked in the manner described in paragraph 4.
Unless otherwise agreed on the record or in writing, all deposition transcripts will be treated as
“Confidential” until the expiration of the thirty (30) day period.
6, “Confidential” or “Attorneys’ Eyes Only” information and documents subject to
this Protective Order shail not be filed with the Court or included in whole or in part in
pleadings, motions, briefs, etc., filed in this case, except when any portion(s) of such pleadings,
motions, briefs, etc. have been filed under seal by counsel and marked in the same manner as
described in paragraph 4 above. Such sealed portion(s) of pleadings, motions, briefs, documents,
etc., shall be opened only by the Court or by personnel authorized to do so by the Court,
7. Use of any information, documents, or portions of documents marked
“Confidential,” including all information derived therefrom, shall be restricted solely to the
following persons, who agree to be bound by the terms of this Protective Order, unless additional
persons are stipulated by counsel or authorized by the Court:
a. Outside counsel of record for the parties, and the administrative staff of
outside counsel’s firms.
b. In-house counsel for the parties who are responsible for this action and the
administrative staff for each in-house counsel.
c. Any employee, director, officer, or manager of any party to this action
who is called to testify at a deposition, hearing, or trial and up to five non-
testifying employees, directors, officers, or managers of any party, but
only to the extent necessary to further the interest of the parties in this
litigation.
d. Independent consultants or expert witnesses (including partners,
associates, and employees of the firm which employs such consultant or
expert) retained by a party or its attorneys for purposes of this litigation,
but only to the extent necessary to further the interest of the parties in this
litigation.
Perkins Coie LLP
4- STIPULATED PROTECTIVE ORDER 1120 NW Couch Street, ‘Tenth Floor
21184-0117/132487689,1 Portland, OR 97209-4128
Phone: 503.727.2222
Pax: 503.727.2222

The Court and its personnel, including, but not limited to, stenographic
reporters regularly employed by the Court and stenographic reporters not
regularly employed by the Court who are engaged by the Court or the
parties during the litigation of this action,
f The authors and the original recipients of the documents.
g. Any court reporter or videographer reporting a deposition.
hy Professionai litigation support vendors, including but not limited to copy
services, microfilming, or database services, trial support firms and/or
translators who are engaged by the parties during the litigation of this
action,
i. Mock jurors hired by trial consultants in connection with this litigation,
provided: (1) they are not affiliated with any party to this case or their
direct competitors; (2) they agree in writing to be bound by
contidentiality; and (3) they are not themselves given custody of any
protected materials, nor permitted to remove any presentations,
questionnaires or notes taken during the exercise from any room in which
the research is conducted.
f. While testifying at a deposition, hearing, or trial in this action: (i) any
current or former officer, director or employee of the producing party or
original source of the information; (ii) any person designated by the
producing party to provide testimony pursuant to Rule 30(b)(6) of the
Federal Rules of Civil Procedure; or (iii) any person who authored,
previously received or was directly involved in the specific matter(s)
addressed in the protected material, as evident from its face or reasonably
certain in view of other testimony or evidence.
8. Use of any information, documents, or portions of documents marked “Attorneys”
Eyes Only,” including all information derived therefrom, shall be restricted solely to the persons
listed in paragraphs 7(a), 7(b), 7(d), 7(e), 7(f), 7(g), 7(h), 7(), and 7(j) unless additional persons
are stipulated by counsel or authorized by the Court.
9, Prior to being shown any documents produced by another party marked
“Confidential” any person listed under paragraph 7(c) or 7(d) shall agree to be bound by the
terms of this Order by signing the agreement attached as Exhibit A to this Protective Order,
which shall be retained by the signing party’s outside counsel of record in this action.
10. Prior to disclosing any documents produced by another party marked “Attorneys’
Eyes Only” to any person listed under paragraph 7(d), the party seeking to disclose such
Perkins Coie Lup
5- STIPULATED PROTECTIVE ORDER . 1120 NW Couch Street, Tenth Floor
21184-0117/132487689.1 Portland, OR 97209-4128
' Phone: 303.727.2222
Fax: 503.727.2222

information shall provide written notice to any party to this action that produced “Attorneys”
Eyes Only,” material. The written notice shall include: (i) the name of the person; (ii) the present
employer and title of the person; (iii) an up-to-date curriculum vitae; (iv) a list of current and
past consulting relationships undertaken within the last four (4) years; (v) a list of all pending
foreign or domestic patent applications, whether published or unpublished, with which the
person has any substantive involvement, to be protected on a “Attorneys” Eyes Only” basis; and
(vi) a signed copy of the person’s agreement to be bound by protective order, attached as Exhibit
A to this Protective Order. Within three (3) business days of receiving this information, the party
who produced the “Attorneys’ Eyes Only” material may object in writing to its disclosure to the
proposed expert or consultant for good cause. The objection cannot be unreasonable. In the
absence of any objection at the end of the three (3) business day period, the expert or consultant
shall be deemed approved under this Protective Order. If an objection is made, the parties shall
meet and confer within three (3) business days after the objection and attempt in good faith to
resolve the dispute informally. If the dispute is not resolved, the party objecting to the disclosure
will have three (3) business days from the date of the meet and confer to seek relief from the
Court. Ifreliefis not sought from the Court within that time, the objection shall be deemed
withdrawn, If relief is sought, the “Attorneys’ Eyes Only” material shall not be disclosed to the
expert or consultant until the objection is resolved by the Court. In the event that an objection is
made to a person listed under paragraph 7(d) after that person has already been authorized to
receive Attorneys’ Eyes Only information pursuant to this paragraph, that person will continue to
have access to such information until the dispute is resolved by the parties or the Court.
11. Whenever information designated as “Confidential” or “Attorneys’ Eyes Only”
pursuant to this Protective Order is to be discussed by a party or disclosed in a deposition,
hearing, or pre-trial proceeding, the designating party may exclude from the room any person,
other than persons designated in Paragraphs 7 and 8, as appropriate, for that portion of the
deposition, hearing, or pre-trial proceeding.

Perkins Coie Eup
6- STIPULATED PROTECTIVE ORDER 1120 NW Couch Street, Tenth Floor
21184-0117/132487689.1 Portland, OR 97209-4128
Phone: 503.727.2222
Fax: 503.727,2222

12, Each party reserves the right to dispute the confidential status claimed by any
other party or subpoenaed party in accordance with this Protective Order. If a party believes that
any documents or materials have been inappropriately designated by another party or
subpoenaed party, that party shall confer with counse! for the designating party. As part of that
conferral, the designating party must assess whether redaction is a viable alternative to complete
non-disclosure. If the parties are unable to resolve the matter informally, a party may file an
appropriate motion before the Court requesting that the Court determine whether the Protective
Order covers the document in dispute. Regardless of which party files the motion, the party
secking to protect a document from disclosure bears the burden of establishing good cause for
why the document should not be disclosed. A party who disagrees with another party’s
designation must nevertheless abide by that designation until the matter is resolved by agreement
of the parties or by order of the Court.
13. The inadvertent failure to designate a document, testimony, or other material as
“Confidential” or “Attorneys’ Eyes Only” prior to disclosure shall not operate as a waiver of the
party’s right to later designate the document, testimony, or other material as “Confidential” or
“Attorneys” Eyes Only.” The receiving party or its counsel shall not disclose such documents or
materials if that party or counsel knows or reasonably should know that a claim of confidentiality
would be made by the producing party. Promptly after receiving notice from the producing party
ofa claim of confidentiality, the receiving party or its counsel shall inform the producing party
of all pertinent facts relating to the prior disclosure of the newly-designated documents or
materials, and shall make reasonable efforts to retrieve such documents and materials and to
prevent further disclosure.
14. Designation by either party of information or documents as “Confidential” or
“Attorneys’ Eyes Only,” or failure to so designate, will not constitute an admission that
information or documents are or are not confidential or trade secrets. Neither party may
introduce into evidence in any proceeding between the parties, other than a motion to determine
whether the Protective Order covers the information or documents in dispute, the fact that the
Perkins Coie Lip
7- STIPULATED PROTECTIVE ORDER. 1120 NW Couch Street, Tenth Floor
£84-0117/132487689. 1 Portland, OR 97209-4128
Phone: 503.727.2222
Fax: 503.727.2222

12, Each party reserves the right to dispute the confidential status claimed by any
other party or subpoenaed party in accordance with this Protective Order. If a party believes that
any documents or materials have been inappropriately designated by another party or
subpoenaed party, that party shall confer with counse! for the designating party. As part of that
conferral, the designating party must assess whether redaction is a viable alternative to complete
non-disclosure. If the parties are unable to resolve the matter informally, a party may file an
appropriate motion before the Court requesting that the Court determine whether the Protective
Order covers the document in dispute. Regardless of which party files the motion, the party
secking to protect a document from disclosure bears the burden of establishing good cause for
why the document should not be disclosed. A party who disagrees with another party’s
designation must nevertheless abide by that designation until the matter is resolved by agreement
of the parties or by order of the Court.
13. The inadvertent failure to designate a document, testimony, or other material as
“Confidential” or “Attorneys’ Eyes Only” prior to disclosure shall not operate as a waiver of the
party’s right to later designate the document, testimony, or other material as “Confidential” or
“Attorneys” Eyes Only.” The receiving party or its counsel shall not disclose such documents or
materials if that party or counsel knows or reasonably should know that a claim of confidentiality
would be made by the producing party. Promptly after receiving notice from the producing party
ofa claim of confidentiality, the receiving party or its counsel shall inform the producing party
of all pertinent facts relating to the prior disclosure of the newly-designated documents or
materials, and shall make reasonable efforts to retrieve such documents and materials and to
prevent further disclosure.
14. Designation by either party of information or documents as “Confidential” or
“Attorneys’ Eyes Only,” or failure to so designate, will not constitute an admission that
information or documents are or are not confidential or trade secrets. Neither party may
introduce into evidence in any proceeding between the parties, other than a motion to determine
whether the Protective Order covers the information or documents in dispute, the fact that the
Perkins Coie Lip
7- STIPULATED PROTECTIVE ORDER. 1120 NW Couch Street, Tenth Floor
£84-0117/132487689. 1 Portland, OR 97209-4128
Phone: 503.727.2222
Fax: 503.727.2222

other party designated or failed to designate information or documents as “Confidential” or
“Attorneys” Eyes Only.”
15. | Upon the request of the producing party or third party, within thirty (30) days
after the entry of a final judgment no longer subject to appeal on the merits of this case, or the
execution of any agreement between the parties to resolve amicably and settle this case, the
parties and any person authorized by this Protective Order to receive confidential information
shall return to the producing party or third party, or destroy, all information and documents
subject to this Protective Order. Returned materials shall be delivered in sealed envelopes
marked “Confidential” to respective counsel. The party requesting the return of materials shall
pay the reasonable costs of responding to its request. Notwithstanding the foregoing, counsel for
a party may retain archival copies of confidential documents.
16. The inadvertent production of document(s) or other material subject to the
attorney-client privilege, work product doctrine or any other privilege or immunity does not
constitute a waiver. Promptly upon learning of the inadvertent disclosure, however, the
producing party must notify the receiving party of the inadvertent production and request return
of the documents. The receiving party must promptly return or confirm destruction of all copies
of such materials; but doing so shall not preclude the receiving party from seeking to compel
production of those materials, nor constitute an admission that the materials were, in fact,
privileged, and the producing party must preserve any such documents. Any motion to compel
cannot rely on the inadvertent production. Pursuant to Fed, R, Evid. 502(d), the Court orders that □
the protections of this provision also extend to any other Federal or State proceeding,
17. This Protective Order shall not constitute a waiver of any party’s or non-party’s
right to oppose any discovery request or object to the admissibility of any document, testimony
or other information.
18. A third-party’s use of this Protective Order does not entitle that third-party access
to any “Confidential” or “Attorneys’ Eyes Only” material produced by any party in this case.

Perkins Coie LLP
STIPULATED PROTECTIVE ORDER 1120 NW Couch Street, Tenth Floor
21184-0117/132487689.1 Portland, OR 97209-4128
Phone: 503,727,2222
Fax: 303,727,2222

19. | Nothing in this Protective Order shall prejudice any party from seeking
amendments to expand or restrict the rights of access to and use of confidential information, or
other modifications, subject to order by the Court.
20.‘ The restrictions on disclosure and use of confidential information shall survive the
conclusion of this action, and this Court shall retain jurisdiction of this action after its conclusion
for the purpose of enforcing the terms of this Protective Order.
21, This Protective Order shall become effective as a stipulation between the parties
immediately upon the filing of the motion to enter protective order, notwithstanding the
pendency of approval by the Court, and the parties shall treat any protected materials produced
before Court approval as provided herein.
So stipulated:
PERKINS COIE LLP LANE POWELL PC
By:___/s/ Stephen M. Feldman By:___/s/ Parna A. Mehrbani
Stephen M. Feldman, OSB No. 932674 Kenneth R. Davis II, OSB No. 971132
SFeldman@perkinscoie.com □ davisk@lanepowell.com
1120 N.W, Couch Street, Tenth Floor Parna A. Mehrbani, OSB No. 053235
Portland, OR 97209-4128 mehrbanip@lanepowell.com
Telephone: 503.727.2000 601 SW Second Avenue, Suite 2100
Portland, OR 97204-3158
Mitchell G. Stockwell (admitted pro hac vice) Telephone: 503.778.2121
mstockwell@kilpatricktownsend.com
KILPATRICK TOWNSEND & STOCKTON LLP Mark A. Samuels (admitted pro hac vice}
1100 Peachtree Street, Suite 2800 msamuels@omm.com
Atlanta, GA 30309 Brian M. Berliner (admitted pro hac vice)
Telephone: 404.815.6500 bberliner@omm.com
Andrea LaFountain (admitted pro hac vice)
Matias Ferrario (admitted pro hac vice) alafountain@omm.com
mferrario@kilpatricktownsend.com Cameron W. Westin (admitted pro hac vice)
Michael T, Morlock (admitted pro hae vice) cwestin@omm.com
mmorlock@kilpatricktownsend.com O’MELVENY & MYERS LLP
KILPATRICK TOWNSEND & STOCKTON LLP South Hope Street - 18th Floor
1001 West Fourth Street Los Angeles, CA 90071-2899
Winston-Salem, NC 27101-2400 Telephone: 213.430.7424
Telephone: 336,607,7300
Att for Defendant
Attorneys for Plaintiffs aes Sher aeeSEED
Perkins Coie Lie
9- STIPULATED PROTECTIVE ORDER 1120 NW Couch Street, Tenth Floor
21184-01177132487689.1 Portland, OR 97209-4128
Phone: 503,727,2222
Fax: 503.727.2222

The Court has reviewed the reasons offered in support of entry of this Stipulated
Protective Order and finds that there is good cause to protect the confidential nature of certain
information, Accordingly, the Court adopts the above Stipulated Protective Order in this action.

ITIS SO ORDERED.
\
DATED: di aut Kon , 2016. □
f oo A 7 a
PN MK , Nef 7 ss
United States Magistrate Judge
□□

Perkins Coie LLP
10- STIPULATED PROTECTIVE ORDER 1120 NW Couch Street, Tenth Floor
21184-0117/132487689. 1 Portland, OR 97209-4128
Phone: 503.727.2222
Fax: 503,727,2222

EXHIBIT A
i , have been advised by counsel of record
for in
of the protective order governing the delivery, publication, and disclosure of confidential
documents and information produced in this litigation. I have read a copy of the protective order
and agree to abide by its terms.

Signed

Printed Name

Date

Perkins Coie Lup
11- STIPULATED PROTECTIVE ORDER 1120 NW Couch Street, Tenth Floor
21184-0117/132487689.1 Portland, OR 97209-4128
Phone: 503.727.2222
Fax: 503.727.2222

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9978737. Public record. Not legal advice.