Opinion

Pogi Beauty LLC v. UOMA Beauty Inc.

Court: District Court, C.D. California
Filed: Apr 5, 2022
Cited by: 0 cases
Authority: More cited than 16.3%

distinguishing “good cause” showing for 12 sealing documents produced in discovery from “compelling reasons” standard when 13 merits-related documents are part of court record

How later courts described this case

distinguishing “good cause” showing for 12 sealing documents produced in discovery from “compelling reasons” standard when 13 merits-related documents are part of court record
even stipulated protective orders require good 9 cause showing

Written by the judges who cited it.

The opinion

Case 2:21-cv-08217-FMO-PD Document 26 Filed 04/05/22 Page 1 of 16 Page ID #:129

IN THE UNITED STATES DISTRICT COURT

7 FOR THE CENTRAL DISTRICT OF CALIFORNIA

8 Case No. 2:21-cv-08217-FMO-PD

9 POGI BEAUTY LLC,

10 Plaintiff, STIPULATED PROTECTIVE

ORDER1

11 v.

12 UOMA BEAUTY INC.,

13 Defendant.

1. A. PURPOSES AND LIMITATIONS

Discovery in this action is likely to involve production of confidential,

proprietary, or private information for which special protection from public

disclosure and from use for any purpose other than prosecuting this litigation may be

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

the following Stipulated Protective Order. The parties acknowledge that this Order

does not confer blanket protections on all disclosures or responses to discovery and

that the protection it affords from public disclosure and use extends only to the

limited information or items that are entitled to confidential treatment under the

applicable legal principles.

1 This Stipulated Protective Order is substantially based on the model protective

28 order provided under Magistrate Judge Patricia Donahue’s Procedures.

Case 2:21-cv-08217-FMO-PD Document 26 Filed 04/05/22 Page 2 of 16 Page ID #:130

1 B. GOOD CAUSE STATEMENT

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

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

proprietary information for which special protection from public disclosure and from

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

confidential and proprietary materials and information consist of, among other

things, confidential business or financial information, information regarding

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

commercial information (including information implicating privacy rights of third

parties), information otherwise generally unavailable to the public, or which may be

privileged or otherwise protected from disclosure under state or federal statutes,

court rules, case decisions, or common law. Accordingly, to expedite the flow of

information, to facilitate the prompt resolution of disputes over confidentiality of

discovery materials, to adequately protect information the parties are entitled to keep

confidential, to ensure that the parties are permitted reasonable necessary uses of

such material in preparation for and in the conduct of trial, to address their handling

at the end of the litigation, and serve the ends of justice, the parties respectfully

submit that a protective order for such information is justified in this matter. It is the

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

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

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

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

C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL

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

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

27 under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed and

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1 the standards that will be applied when a party seeks permission from the court to

2 file material under seal.

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

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

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

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

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

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

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

proper evidentiary support and legal justification, must be made with respect to

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

of Disclosure or Discovery Material as CONFIDENTIAL does not—without the

submission of competent evidence by declaration, establishing that the material

sought to be filed under seal qualifies as confidential, privileged, or otherwise

protectable—constitute good cause.

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

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

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

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

must articulate compelling reasons, supported by specific facts and legal

justification, for the requested sealing order. Again, competent evidence supporting

the application to file documents under seal must be provided by declaration.

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

its entirety will not be filed under seal in its entirety if the confidential portions can

be redacted. If documents can be redacted, then a redacted version for public

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1 viewing, omitting only the confidential, privileged, or otherwise protectable portions

2 of the document, shall be filed. Any application that seeks to file documents under

3 seal in their entirety should include an explanation of why redaction is not feasible.

2. DEFINITIONS

2.1 Action: the above-captioned action.

2.2 Challenging Party: a Party or Non-Party that challenges

the designation of information or items under this Order.

2.3 “CONFIDENTIAL” Information or Items: information (regardless of

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

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

Good Cause Statement.

2.4 Counsel: Outside Counsel of Record and In-House Counsel (as well as

their support staff).

2.5 Designating Party: a Party or Non-Party that designates information or

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

“CONFIDENTIAL.”

2.6 Disclosure or Discovery Material: all items or information (including,

among other things, testimony, transcripts, and tangible things), regardless of the

medium or manner in which they are stored or maintained, that are produced or

generated in disclosures or responses to discovery in this matter.

2.7 Expert: a person with specialized knowledge or experience in a matter

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

an expert witness or consultant in this Action.

2.8 In-House Counsel: attorneys who are employees of a party to this

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

outside counsel.

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

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

2 2.10 Outside Counsel of Record: attorneys who are not employees of a party

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

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

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

6 2.11 Party: any party to this Action, including all of its officers, directors,

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

8 support staffs).

9 2.12 Producing Party: a Party or Non-Party that produces Disclosure or

10 Discovery Material in this Action.

11 2.13 Professional Vendors: persons or entities that provide litigation support

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

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

14 and their employees and subcontractors.

15 2.14 Protected Material: any Disclosure or Discovery Material that is

16 designated as “CONFIDENTIAL.”

17 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material

18 from a Producing Party.

3. SCOPE

The protections conferred by this Stipulation and Order cover not only

Protected Material (as defined above), but also (1) any information copied or

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

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

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

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

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

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1 4. DURATION

2 Final disposition of the action is defined as the conclusion of any appellate

3 proceedings, or, if no appeal is taken, when the time for filing of an appeal has run.

4 Except as set forth below, the terms of this Order apply through final disposition of

5 the action.

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

CONFIDENTIAL or maintained pursuant to this Order used or introduced as an

exhibit at trial becomes public and will be presumptively available to all members of

the public, including the press, unless compelling reasons supported by specific

factual findings to proceed otherwise are made to the trial judge in advance of the

trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause” showing for

sealing documents produced in discovery from “compelling reasons” standard when

merits-related documents are part of court record). Accordingly, for such materials,

the terms of this Order do not extend beyond the commencement of the trial.

16 5. DESIGNATING PROTECTED MATERIAL

17 5.1 Exercise of Restraint and Care in Designating Material for Protection.

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

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

20 qualifies under the appropriate standards. The Designating Party must designate for

21 protection only those parts of material, documents, items, or oral or written

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

23 or communications for which protection is not warranted are not swept unjustifiably

24 within the ambit of this Order.

Mass, indiscriminate, or routinized designations are prohibited. Designations

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

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

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

2 Party to sanctions.

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

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

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

5.2 Manner and Timing of Designations. Except as otherwise provided in

this Order (see, e.g., second paragraph of Section 5.2(a) below), or as otherwise

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

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

produced.

Designation in conformity with this Order requires:

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

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

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

“CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that

contains protected material. If only a portion or portions of the material on a page

qualifies for protection, the Producing Party also must clearly identify the protected

portion(s) (e.g., by making appropriate markings in the margins).

20 A Party or Non-Party that makes original documents available for inspection

21 need not designate them for protection until after the inspecting Party has indicated

22 which documents it would like copied and produced. During the inspection and

23 before the designation, all of the material made available for inspection shall be

24 deemed “CONFIDENTIAL.” After the inspecting Party has identified the

25 documents it wants copied and produced, the Producing Party must determine which

26 documents, or portions thereof, qualify for protection under this Order. Then, before

27 producing the specified documents, the Producing Party must affix the

28 “CONFIDENTIAL legend” to each page that contains Protected Material. If only a

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

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

3 markings in the margins).

(b) for testimony given in depositions that the Designating Party identify

the Disclosure or Discovery Material that is Protected Material on the record, before

the close of the deposition.

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

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

“CONFIDENTIAL.” If only a portion or portions of the information warrants

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

portion(s).

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

failure to designate qualified information or items as Protected Material does not,

standing alone, waive the Designating Party’s right to secure protection under this

Order for such material. Upon timely correction of a designation, the Receiving Party

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

the provisions of this Order.

6. CHALLENGING CONFIDENTIALITY DESIGNATIONS

21 6.1 Timing of Challenges. Any Party or Non-Party may challenge a

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

23 Scheduling Order.

24 6.2 Meet and Confer. The Challenging Party shall initiate the dispute

25 resolution process under Local Rule 37.1 et seq.

26 6.3 The burden of persuasion in any such challenge proceeding shall be on

27 the Designating Party. Frivolous challenges, and those made for an improper purpose

28 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may

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1 expose the Challenging Party to sanctions. Unless the Designating Party has waived

2 or withdrawn the confidentiality designation, all parties shall continue to afford the

3 material in question the level of protection to which it is entitled under the Producing

4 Party’s designation until the Court rules on the challenge.

7. ACCESS TO AND USE OF PROTECTED MATERIAL

7.1 Basic Principles. A Receiving Party may use Protected Material that is

disclosed or produced by another Party or by a Non-Party in connection with this

Action only for prosecuting, defending, or attempting to settle this Action. Such

Protected Material may be disclosed only to the categories of persons and under the

conditions described in this Order. When the Action has been terminated, a

Receiving Party must comply with the provisions of Section 13 below.

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

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

authorized under this Order.

7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless

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

Receiving Party may disclose any information or item designated

“CONFIDENTIAL” only to:

(a) the Receiving Party’s Outside Counsel of Record in this Action, as well

as employees of said Outside Counsel of Record to whom it is reasonably necessary

to disclose the information for this Action;

(b) the officers, directors, and employees (including In-House Counsel) of

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

disclosure is reasonably necessary for this Action and who have signed the

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

(d) the court and its personnel;

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1 (e) court reporters and their staff;

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

3 Vendors to whom disclosure is reasonably necessary for this Action and who have

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

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

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

7 (h) during their depositions, witnesses, and attorneys for witnesses, in the

8 Action to whom disclosure is reasonably necessary provided they sign the

9 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise

10 agreed by the Designating Party or ordered by the Court. Pages of transcribed

11 deposition testimony or exhibits to depositions that reveal Protected Material may

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

13 as permitted under this Stipulated Protective Order; and

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

15 mutually agreed upon by any of the parties engaged in settlement discussions.

8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

IN OTHER LITIGATION

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

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

“CONFIDENTIAL,” that Party must:

22 (a) promptly notify in writing the Designating Party. Such notification shall

23 include a copy of the subpoena or court order;

24 (b) promptly notify in writing the party who caused the subpoena or order

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

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

27 this Stipulated Protective Order; and

28 (c) cooperate with respect to all reasonable procedures sought to be pursued

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1 by the Designating Party whose Protected Material may be affected.

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

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

4 action as “CONFIDENTIAL” before a determination by the court from which the

5 subpoena or order issued, unless the Party has obtained the Designating Party’s

6 permission. The Designating Party shall bear the burden and expense of seeking

7 protection in that court of its confidential material and nothing in these provisions

8 should be construed as authorizing or encouraging a Receiving Party in this Action

9 to disobey a lawful directive from another court.

9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT

TO BE PRODUCED IN THIS LITIGATION

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

Non-Party in this Action and designated as “CONFIDENTIAL.” Such information

produced by Non-Parties in connection with this litigation is protected by the

remedies and relief provided by this Order. Nothing in these provisions should be

construed as prohibiting a Non-Party from seeking additional protections.

(b) In the event that a Party is required, by a valid discovery request, to

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

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

confidential information, then the Party shall:

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

that some or all of the information requested is subject to a confidentiality agreement

with a Non-Party;

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

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

specific description of the information requested; and

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

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1 Non-Party, if requested.

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

3 14 days of receiving the notice and accompanying information, the Receiving Party

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

5 request. If the Non-Party timely seeks a protective order, the Receiving Party shall

6 not produce any information in its possession or control that is subject to the

7 confidentiality agreement with the Non-Party before a determination by the court.

8 Absent a court order to the contrary, the Non-Party shall bear the burden and expense

9 of seeking protection in this court of its Protected Material.

10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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

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

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

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

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

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

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

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

20 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

21 PROTECTED MATERIAL

When a Producing Party gives notice to Receiving Parties that certain

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

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

Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure

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

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

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

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

3 parties may incorporate their agreement in the stipulated protective order submitted

4 to the Court.

12. MISCELLANEOUS

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

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

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

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

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

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

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

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

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

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

specific Protected Material at issue. If a Party’s request to file Protected Material

under seal is denied by the Court, then the Receiving Party may file the information

in the public record unless otherwise instructed by the Court.

20 13. FINAL DISPOSITION

21 After the final disposition of this Action, as defined in Section 4, within 60

22 days of a written request by the Designating Party, each Receiving Party must return

23 all Protected Material to the Producing Party or destroy such material. As used in

24 this subdivision, “all Protected Material” includes all copies, abstracts, compilations,

25 summaries, and any other format reproducing or capturing any of the Protected

26 Material. Whether the Protected Material is returned or destroyed, the Receiving

27 Party must submit a written certification to the Producing Party (and, if not the same

28 person or entity, to the Designating Party) by the 60 day deadline that (1) identifies

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1 (by category, where appropriate) all the Protected Material that was returned or

2 destroyed and (2) affirms that the Receiving Party has not retained any copies,

3 abstracts, compilations, summaries or any other format reproducing or capturing any

4 of the Protected Material. Notwithstanding this provision, Counsel are entitled to

5 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing

6 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert

7 reports, attorney work product, and consultant and expert work product, even if such

8 materials contain Protected Material. Any such archival copies that contain or

9 constitute Protected Material remain subject to this Protective Order as set forth in

10 Section 4.

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

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

sanctions.

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

18 DATED: April 4, 2022

ROPES & GRAY LLP

By: /s/ Rocky C. Tsai

Rocky C. Tsai (CSB #221452)

22 Three Embarcadero Center

San Francisco, CA 94111-4006

Tel: (415) 315-6300

24 Fax: (415) 315-6350

rocky.tsai@ropesgray.com

26 Evan Gourvitz

(admitted pro hac vice)

1211 Avenue of the Americas

28 New York, NY 10036-8704

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Case 4j21-cv-08217-FMO-PD Document 26 Filed 04/05/22 Page 15o0f16 Page ID #:143

1 Tel: (212) 596-9000

) Fax: (212) 596-9090

evan.gourvitz@ropesgray.com

4 Attorneys for Plaintiff

POGI BEAUTY LLC

4 DATED: April 4, 2022

8 RUSS, AUGUST & KABAT

9 By:__/s/Larry C. Russ

Larry C. Russ (SBN 082760)

10 lruss@raklaw.com

il Irene Y. Lee (SBN 213625)

ilee@raklaw.com

12 Nathan D. Meyer (SBN 239850)

B nmeyer@raklaw.com

Timothy M. Baumann (SBN 322982)

14 tbaumann@raklaw.com

15 12424 Wilshire Boulevard, 12th Floor

Los Angeles, California 90025

16 Telephone: (310) 826-7474

17 Facsimile: (310) 826-6991

18 Attorneys for Defendant UOMA

19 Beauty Inc.

91 || FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

DATED: April 05, 2022

x6 PF abuce Lona koe_

5 Patricia Donahue

7 United States Magistrate Judge

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Case 2:21-cv-08217-FMO-PD Document 26 Filed 04/05/22 Page 16 of 16 Page ID #:144

1 EXHIBIT A

2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

I, ________________________ [print or type full name], of

_________________ [print or type full address], declare under penalty of perjury

that I have read in its entirety and understand the Stipulated Protective Order that

was issued by the United States District Court for the Central District of California

on ______________ [date] in the case of Pogi Beauty LLC v. UOMA Beauty

Inc., Case No. 2:21-cv-08217-FMO-PD. I agree to comply with and to be bound

by all the terms of this Stipulated Protective Order and I understand and

acknowledge that failure to so comply could expose me to sanctions and

punishment in the nature of contempt. I solemnly promise that I will not disclose

in any manner any information or item that is subject to this Stipulated Protective

Order to any person or entity except in strict 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 the purpose of enforcing the terms of this

18 Stipulated Protective Order, even if such enforcement proceedings occur after

19 termination of this action. I hereby appoint ________________________ [print or

20 type full name] of _________ [print or type full address and telephone number] as

21 my California agent for service of process in connection with this action or any

22 proceedings related to enforcement of this Stipulated Protective Order.

23 Date: __________________________

City and State where sworn and signed: _____________________________

Printed name: ____________________________________

Signature: ________________________________

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