distinguishing “good cause” showing for sealing 4 documents produced in discovery from “compelling reasons” standard when merits- 5 related documents are part of court record
How later courts described this case
- distinguishing “good cause” showing for sealing 4 documents produced in discovery from “compelling reasons” standard when merits- 5 related documents are part of court record
- even stipulated protective orders 9 require good cause showing
Written by the judges who cited it.
The opinion
Case 2:21-cv-03463-FLA-JEM Document 91 Filed 09/20/22 Page 1 of 17 Page ID #:2177
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8 UNITED STATES DISTRICT COURT
9
CENTRAL DISTRICT OF CALIFORNIA
10 MURRAY COLIN CLARKE, an Case No. 2:21-cv-03463-FLA-JEM
individual, and BIOZEAL, LLC
11
Plaintiffs, [XPXRXOXPXOXSEXDX] ORDER
12 APPROVING STIPULATED
v. PROTECTIVE ORDER
13
TNSG HEALTH CO., LTD., a United
14 Kingdom Limited Company,
Defendant.
15
16 1. PRELIMINARY PROVISIONS
17 A. PURPOSES AND LIMITATIONS
18 Discovery in this action is likely to involve production of confidential,
19 proprietary, trade secret, and/or private information not generally known or provided
20 to the public and for which special protection from public disclosure and from use
21 for any purpose other than prosecuting and defending this litigation may be
22 warranted. Accordingly, the parties hereby stipulate to and petition the Court to
23 enter the following Stipulated Protective Order. The parties acknowledge that this
24 Order does not confer blanket protections on all disclosures or responses to
25 discovery and that the protection it affords from public disclosure and use extends
26 only to the limited information or items that are entitled to confidential treatment
27 under the applicable legal principles.
28
{F4679054.1 }
Case 2:21-cv-03463-FLA-JEM Document 91 Filed 09/20/22 Page 2 of 17 Page ID #:2178
1 B. GOOD CAUSE STATEMENT
2 This action, which relates to the use of trademarks in connection with
3 nutritional supplements, is likely to involve trade secrets, cost and pricing
4 information, and other valuable research, development, commercial, financial,
5 technical and/or proprietary information, for which special protection from public
6 disclosure and from use for any purpose other than prosecution of this action is
7 warranted. Such confidential and proprietary materials and information may consist
8 of, among other things, confidential business or financial information, information
9 regarding confidential business practices, or other confidential research,
10 development, or commercial information, information otherwise generally
11 unavailable to the public, or which may be privileged or otherwise protected from
12 disclosure under state or federal statutes, court rules, case decisions, contract(s) or
13 common law. Accordingly, to expedite the flow of information, to facilitate the
14 prompt resolution of disputes over confidentiality of discovery materials, to
15 adequately protect information the parties are entitled to keep confidential, to ensure
16 that the parties are permitted reasonable necessary uses of such material in
17 preparation for and in the conduct of trial, to address their handling at the end of the
18 litigation, and serve the ends of justice, a protective order for such information is
19 justified in this matter. It is the intent of the parties that information will not be
20 designated as confidential for tactical reasons and that nothing be so designated
21 without a good faith belief that it has been maintained in a confidential, non-public
22 manner, and there is good cause why it should not be part of the public record of this
23 case.
24 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
28
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{F4679054.1 }
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1 and the standards that will be applied when a party seeks permission from the court
2 to file material under seal.
3 There is a strong presumption that the public has a right of access to judicial
4 proceedings and records in civil cases. In connection with non-dispositive motions,
5 good cause must be shown to support a filing under seal. See Kamakana v. City and
6 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors
7 Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics,
8 Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders
9 require good cause showing), and a specific showing of good cause or compelling
10 reasons with proper evidentiary support and legal justification, must be made with
11 respect to Protected Material that a party seeks to file under seal. The parties’ mere
12 designation of Disclosure or Discovery Material as CONFIDENTIAL or HIGHLY
13 CONFIDENTIAL—ATTORNEYS’ EYES ONLY does not—without the
14 submission of competent evidence by declaration, establishing that the material
15 sought to be filed under seal qualifies as confidential, privileged, or otherwise
16 protectable—constitute good cause.
17 Further, if a party requests sealing related to a dispositive motion or trial, then
18 compelling reasons, not only good cause, for the sealing must be shown, and the
19 relief sought shall be narrowly tailored to serve the specific interest to be protected.
20 See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). For
21 each item or type of information, document, or thing sought to be filed or introduced
22 under seal in connection with a dispositive motion or trial, the party seeking
23 protection must articulate compelling reasons, supported by specific facts and legal
24 justification, for the requested sealing order. Again, competent evidence supporting
25 the application to file documents under seal must be provided by declaration.
26 Any document that is not confidential, privileged, or otherwise protectable in
27 its entirety will not be filed under seal if the confidential portions can be redacted.
28 If documents can be redacted, then a redacted version for public viewing, omitting
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{F4679054.1 }
Case 2:21-cv-03463-FLA-JEM Document 91 Filed 09/20/22 Page 4 of 17 Page ID #:2180
1 only the confidential, privileged, or otherwise protectable portions of the document,
2 shall be filed. Any application that seeks to file documents under seal in their
3 entirety should include an explanation of why redaction is not feasible.
4 2. DEFINITIONS
5 2.1 Action: Clarke et al. v. TNSG Health Co., Ltd., Case No. 2:21-cv-
6 03463-FLA-JEM.
7 2.2 Challenging Party: a Party or Non-Party that challenges the
8 designation of information or items under this Order.
9 2.3 “CONFIDENTIAL” Information or Items: information (regardless of
10 how it is generated, stored, or maintained and regardless of media) or tangible things
11 that qualify for protection under Federal Rule of Civil Procedure 26(c), and as
12 specified above in the Good Cause Statement. Certain limited types of
13 “CONFIDENTIAL” Information may be further designated, as defined and detailed
14 below, as “HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES ONLY.”
15 2.4 Counsel: Outside Counsel and House Counsel (as well as their legal
16 and non-legal support staff).
17 2.5 Designating Party: a Party or Non-Party that designates information or
18 items that it produces in disclosures or in responses to discovery as
19 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL-ATTORNEYS’ EYES ONLY.”
20 2.6 Disclosure or Discovery Material: all items or information, regardless
21 of the medium or manner in which it is generated, stored, or maintained (including,
22 among other things, testimony, transcripts, and tangible things), that are produced or
23 generated in disclosures or responses to discovery in this Action.
24 2.7 Expert: a person with specialized knowledge or experience in a matter
25 pertinent to the litigation who has been retained by a Party or its counsel to serve as
26 an expert witness or as a consultant in this Action.
27 2.8 “HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES ONLY”
28 Information or Items: extremely sensitive “CONFIDENTIAL” Information or Items,
4
{F4679054.1 }
Case 2:21-cv-03463-FLA-JEM Document 91 Filed 09/20/22 Page 5 of 17 Page ID #:2181
1 disclosure of which to another Party or Non-Party would create a substantial risk of
2 serious harm that could not be avoided by less restrictive means. This type of
3 information and items includes, but is not limited to, pending patent applications,
4 products currently in development and not yet commercially released, technical
5 specifications, current business/ strategic plans, future sales/financial projections,
6 future marketing plans, detailed sales and financial data, or other highly sensitive or
7 proprietary competitive or financial information. Notwithstanding the foregoing,
8 information contained in one of these categories is not “HIGHLY
9 CONFIDENTIAL—ATTORNEYS’ EYES ONLY” merely because it relates to one
10 or more of the designated categories, but only if disclosure of such
11 “CONFIDENTIAL” information would create a substantial risk of serious harm that
12 could not be avoided by less restrictive means.
13 2.9 House Counsel: attorneys who are employees of a party to this Action
14 and who are acting solely in their capacity as legal advisors and not in any business
15 or other capacity with respect to the Designated Material sought to be disclosed.
16 House Counsel does not include Outside Counsel.
17 2.10 Non-Party: any natural person, partnership, corporation, association, or
18 other legal entity not named as a Party to this action.
19 2.11 Outside Counsel: attorneys who are not employees of a party to this
20 Action but are retained to represent or advise a party to this Action including the
21 named attorneys and their firms; outside counsel who are providing advice and
22 support including foreign counsel regardless of whether they are admitted to the
23 court for purposes of the Action, are identified as counsel of record, or are otherwise
24 identified; counsel’s firm, all attorneys and support staff who work with said
25 counsel regardless of whether they formally appear in the Action.
26 2.12 Party: any party to this Action, including all of its officers, directors,
27 employees, consultants, and retained experts.
28 2.13 Producing Party: a Party or Non-Party that produces Disclosure or
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{F4679054.1 }
Case 2:21-cv-03463-FLA-JEM Document 91 Filed 09/20/22 Page 6 of 17 Page ID #:2182
1 Discovery Material in this Action.
2 2.14 Professional Vendors: court reporters, stenographers, and all other
3 persons or entities that provide litigation or other support services (e.g.,
4 photocopying, videotaping, translating, preparing transcripts, preparing exhibits or
5 demonstrations, and organizing, storing, or retrieving data in any form or medium)
6 and their employees and subcontractors.
7 2.15 Protected Material: any Disclosure or Discovery Material that is
8 designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL—ATTORNEYS’
9 EYES ONLY.”
10 2.16 Receiving Party: a Party that receives Disclosure or Discovery
11 Material from a Producing Party.
12 3. SCOPE
13 The protections conferred by this Stipulation and Order cover not only
14 Protected Material (as defined above), but also (1) any information copied or extracted
15 from Protected Material; (2) all copies, excerpts, summaries, or compilations of
16 Protected Material; and (3) any testimony, conversations, or presentations by Parties
17 or their Counsel that might reveal Protected Material.
18 Any use of Protected Material at trial shall be governed by the orders of the
19 trial judge. This Order does not govern the use of Protected Material at trial.
20 4. DURATION
21 FINAL DISPOSITION of the Action is defined as the conclusion of any
22 appellate proceedings, or, if no appeal is taken, when the time for filing an appeal
23 has run. Except as set forth below, the terms of this protective order apply through
24 FINAL DISPOSITION of the Action.
25 Once a case proceeds to trial, information that was designated as
26 CONFIDENTIAL or “HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES ONLY”
27 or maintained pursuant to this protective order used or introduced as an exhibit at
28 trial becomes public and will be presumptively available to all members of the
6
{F4679054.1 }
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1 public, including the press, unless compelling reasons supported by specific factual
2 findings to proceed otherwise are made to the trial judge in advance of the trial. See
3 Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause” showing for sealing
4 documents produced in discovery from “compelling reasons” standard when merits-
5 related documents are part of court record).
6 5. DESIGNATING PROTECTED MATERIAL
7 5.1 Exercise of Restraint and Care in Designating Material for Protection.
8 Each Party or Non-Party that designates information or items for protection under
9 this Order must take care to limit any such designation to specific material that
10 qualifies under the appropriate standards. The Designating Party must designate for
11 protection only those parts of material, documents, items, or oral or written
12 communications that qualify so that other portions of the material, documents,
13 items, or communications for which protection is not warranted are not swept
14 unjustifiably within the ambit of this Order.
15 Mass, indiscriminate, or routinized designations are prohibited. Designations
16 that are shown to be clearly unjustified or that have been made for an improper
17 purpose (e.g., to unnecessarily encumber the case development process or to impose
18 unnecessary expenses and burdens on other parties) may expose the Designating
19 Party to sanctions.
20 If it comes to a Designating Party’s attention that information or items that it
21 designated for protection do not qualify for protection at all, or do not qualify for the
22 level of protection initially asserted, that Designating Party must promptly notify all
23 other Parties that it is withdrawing the inapplicable designation.
24 5.2 Manner and Timing of Designations. Except as otherwise provided in
25 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
26 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
27 under this Order must be clearly so designated before the material is disclosed or
28 produced.
7
{F4679054.1 }
Case 2:21-cv-03463-FLA-JEM Document 91 Filed 09/20/22 Page 8 of 17 Page ID #:2184
1 Designation in conformity with this Order requires:
2 (a) For information in documentary form (e.g., paper or electronic
3 documents, but excluding transcripts of depositions or other pretrial or trial
4 proceedings), that the Producing Party affix at a minimum, the legend
5 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES ONLY”
6 (hereinafter the “CONFIDENTIAL legend” or the “HIGHLY CONFIDENTIAL—
7 ATTORNEYS’ EYES ONLY legend,” respectively), to each page that contains
8 Protected Material. If only a portion of the material on a page qualifies for protection,
9 the Producing Party also must clearly identify the protected portion(s) (e.g., by making
10 appropriate markings in the margins).
11 A Party or Non-Party that makes original documents available for inspection
12 need not designate them for protection until after the inspecting Party has indicated
13 which documents it would like copied and produced. During the inspection and
14 before the designation, all of the material made available for inspection shall be
15 deemed “HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES ONLY.” After the
16 inspecting Party has identified the documents it wants copied and produced, the
17 Producing Party must determine which documents, or portions thereof, qualify for
18 protection under this Order. Then, before producing the specified documents, the
19 Producing Party must affix the “CONFIDENTIAL legend” or “HIGHLY
20 CONFIDENTIAL—ATTORNEYS’ EYES ONLY legend” to each page that
21 contains Protected Material. If only a portion of the material on a page qualifies for
22 protection, the Producing Party also must clearly identify the protected portion(s)
23 (e.g., by making appropriate markings in the margins).
24 (b) For testimony given in depositions, the Designating Party can engage
25 in the following methods: First, the Designating Party may identify the Disclosure
26 or Discovery Material on the record, before the close of the deposition, and
27 specifically identify all protected testimony and exhibits together with the level of
28 protection being asserted. Second, the Designating Party may identify the
8
{F4679054.1 }
Case 2:21-cv-03463-FLA-JEM Document 91 Filed 09/20/22 Page 9 of 17 Page ID #:2185
1 Disclosure or Discovery Material within 14 days after delivery of the Transcript. all
2 Deposition Transcripts will be deemed “HIGHLY CONFIDENTIAL—
3 ATTORNEYS’ EYES ONLY” until 14 days after receipt of the Transcript by the
4 Designating Party.
5 Transcripts containing Protected Material shall have an obvious legend on
6 the title page that the transcript contains Protected Material, and the title page shall
7 be followed by a list of all pages (including line numbers as appropriate) that have
8 been designated as Protected Material and the level of protection being asserted by
9 the Designating Party. The Designating Party shall inform the court reporter of these
10 requirements.
11 (c) for information produced in some form other than documentary and
12 for any other tangible items, that the Producing Party affix in a prominent place on
13 the exterior of the container or containers in which the information is stored the
14 legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL—ATTORNEYS’
15 EYES ONLY.” If only a portion or portions of the information warrants protection,
16 the Producing Party, to the extent practicable, shall identify the protected portion(s)
17 and specify the level of protection being asserted.
18 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
19 failure to designate qualified information or items does not, standing alone, waive
20 the Designating Party’s right to secure protection under this Order for such material.
21 Upon timely correction of a designation, the Receiving Party must make reasonable
22 efforts to assure that the material is treated in accordance with the provisions of this
23 Order.
24 6. 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
27 Scheduling Order. Until any dispute is resolved, the designation of confidentiality
28 shall be maintained.
9
{F4679054.1 }
Case 2:21-cv-03463-FLA-JEM Document 91 Filed 09/20/22 Page 10 of 17 Page ID #:2186
1 6.2 Meet and Confer. The Challenging Party shall initiate the dispute
2 resolution process under Local Rule 37.1 et seq.
3 6.3 Burden of Persuasion. The burden of persuasion in any such challenge
4 proceeding shall be on the Designating Party. Frivolous challenges, and those made
5 for an improper purpose (e.g., to harass or impose unnecessary expenses and burdens
6 on other parties) may expose the Challenging Party to sanctions. Unless the
7 Designating Party has waived or withdrawn the confidentiality designation, all parties
8 shall continue to afford the material in question the level of protection to which it is
9 entitled under the Producing Party’s designation until the Court rules on the
10 challenge.
11 7. ACCESS TO AND USE OF PROTECTED MATERIAL
12 7.1 Basic Principles. Protected Material may be disclosed only to the
13 categories of persons and under the conditions described in this Order. When the
14 Action has been terminated, a Receiving Party must comply with the provisions of
15 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 Counsel;
24 (b) the officers, directors, and employees of the Receiving Party to whom
25 disclosure is reasonably necessary for this Action and who have signed the
26 “Acknowledgement and Agreement to Be Bound” (Exhibit A);
27 (c) Experts (as defined in this Order) of the Receiving Party to whom
28 disclosure is reasonably necessary for this Action and who have signed the
10
{F4679054.1 }
Case 2:21-cv-03463-FLA-JEM Document 91 Filed 09/20/22 Page 11 of 17 Page ID #:2187
1 “Acknowledgment and Agreement to Be Bound” (Exhibit A), and subject to
2 compliance with Section 7.4;
3 (d) the court and its personnel;
4 (e) court reporters and their staff and who have signed the
5 “Acknowledgement and Agreement to Be Bound” (Exhibit A);
6 (f) professional jury or trial consultants, mock jurors, and Professional
7 Vendors to whom disclosure is reasonably necessary for this Action and who have
8 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
9 (g) the author or recipient of a document containing the information or a
10 custodian or other person who otherwise possessed or knew the information;
11 (h) any mediator or settlement officer, and their supporting personnel,
12 mutually agreed upon by any of the parties engaged in settlement discussions.
13 7.3 Disclosure of “HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES
14 ONLY” Information or Items. Unless otherwise ordered by the court or permitted in
15 writing by the Designating Party, a Receiving Party may disclose any information or
16 item designated “HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES ONLY” to
17 the same categories of persons listed with respect to “CONFIDENTIAL Information
18 or Items” in Sections 7.2(a), (c)-(h) above.
19 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
20 IN OTHER LITIGATION
21 If a Party is served with a subpoena or a court order issued in other litigation
22 that compels disclosure of any information or items designated in this Action as
23 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES
24 ONLY” that Party must:
25 (a) promptly notify in writing the Designating Party. Such notification
26 shall include a copy of the subpoena or court order;
27 (b) promptly notify in writing the party who caused the subpoena or order
28 to issue in the other litigation that some or all of the material covered by the
11
{F4679054.1 }
Case 2:21-cv-03463-FLA-JEM Document 91 Filed 09/20/22 Page 12 of 17 Page ID #:2188
1 subpoena or order is subject to this Protective Order. Such notification shall include
2 a copy of this Stipulated Protective Order; and
3 (c) cooperate with respect to all reasonable procedures sought to be
4 pursued by the Designating Party whose Protected Material may be affected.
5 If the Designating Party timely seeks a protective order, the Party served with
6 the subpoena or court order shall not produce any information designated in this
7 action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL—ATTORNEYS’
8 EYES ONLY” before a determination by the court from which the subpoena or
9 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
11 court of its confidential material and nothing in these provisions should be construed
12 as authorizing or encouraging a Receiving Party in this Action to disobey a lawful
13 directive from another court.
14 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
15 PRODUCED IN THIS LITIGATION
16 (a) The terms of this Order are applicable to information produced by a
17 Non-Party in this Action and designated as “CONFIDENTIAL” or “HIGHLY
18 CONFIDENTIAL—ATTORNEYS’ EYES ONLY.” Such information produced by
19 Non-Parties in connection with this litigation is protected by the remedies and relief
20 provided by this Order. Nothing in these provisions should be construed as
21 prohibiting a Non-Party from seeking additional protections.
22 (b) In the event that a Party is required, by a valid discovery request, to
23 produce a Non-Party’s confidential information in its possession, and the Party is
24 subject to an agreement with the Non-Party not to produce the Non-Party’s
25 confidential information, then the Party shall:
26 (1) promptly notify in writing the Requesting Party and the Non-Party
27 that some or all of the information requested is subject to a confidentiality
28 agreement with a Non-Party;
12
{F4679054.1 }
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1 (2) promptly provide the Non-Party with a copy of the Stipulated
2 Protective Order in this Action, the relevant discovery request(s), and a reasonably
3 specific description of the information requested; and
4 (3) make the information requested available for inspection by the
5 Non-Party, if requested.
6 If the Non-Party fails to seek a protective order from this court within 14
7 days of receiving the notice and accompanying information, the Receiving Party
8 may not use the agreement with the Non-Party as a basis for failing to produce the
9 Non-Party’s confidential information responsive to the discovery request. If the
10 Non-Party timely seeks a protective order, the Receiving Party shall not produce any
11 information in its possession or control that is subject to the confidentiality
12 agreement with the Non-Party before a determination by the court. Absent a court
13 order to the contrary, the Non-Party shall bear the burden and expense of seeking
14 protection in this court of its Protected Material.
15 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
16 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
17 Protected Material to any person or in any circumstance not authorized under this
18 Stipulated Protective Order, the Receiving Party must immediately (a) notify in
19 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
20 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or
21 persons to whom unauthorized disclosures were made of all the terms of this Order,
22 and (d) request such person or persons to execute the “Acknowledgment and
23 Agreement to Be Bound” that is attached hereto as Exhibit A.
24 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
25 PROTECTED MATERIAL
26 When a Producing Party gives notice to Receiving Parties that certain
27 inadvertently produced material is subject to a claim of privilege or other protection,
28 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
13
{F4679054.1 }
Case 2:21-cv-03463-FLA-JEM Document 91 Filed 09/20/22 Page 14 of 17 Page ID #:2190
1 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
2 may be established in an e-discovery order that provides for production without prior
3 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the
4 parties reach an agreement on the effect of disclosure of a communication or
5 information covered by the attorney-client privilege or work product protection, the
6 parties may incorporate their agreement in the stipulated protective order submitted
7 to the court.
8 12. MISCELLANEOUS
9 12.1 Right to Further Relief. Nothing in this Order abridges the right of any
10 person to seek its modification by the Court in the future.
11 12.2 Right to Assert Other Objections. By stipulating to the entry of this
12 Protective Order, no Party waives any right it otherwise would have to object to
13 disclosing or producing any information or item on any ground not addressed in this
14 Stipulated Protective Order. Similarly, no Party waives any right to object on any
15 ground to use in evidence of any of the material covered by this Protective Order.
16 12.3 Filing Protected Material. A Party that seeks to file under seal any
17 Protected Material must comply with Local Civil Rule 79-5. Protected Material
18 may only be filed under seal pursuant to a court order authorizing the sealing of the
19 specific Protected Material at issue. If a Party’s request to file Protected Material
20 under seal is denied by the court, then the Receiving Party may file the information
21 in the public record unless otherwise instructed by the court.
22 13. FINAL DISPOSITION
23 Within 60 days after the final disposition of this Action, as defined in
24 paragraph 4, each Receiving Party must return all Protected Material to the
25 Producing Party or destroy such material. As used in this subdivision, “all Protected
26 Material” includes all copies, abstracts, compilations, summaries, and any other
27 format reproducing or capturing any of the Protected Material. Whether the
28 Protected Material is returned or destroyed, the Receiving Party must submit a
14
{F4679054.1 }
Case 2:21-cv-03463-FLA-JEM Document 91 Filed 09/20/22 Page 15 of 17 Page ID #:2191
1 written certification to the Producing Party (and, if not the same person or entity, to
2 the Designating Party) by the 60 day deadline that (1) identifies (by category, where
3 appropriate) all the Protected Material that was returned or destroyed and (2) affirms
4 that the Receiving Party has not retained any copies, abstracts, compilations,
5 summaries or any other format reproducing or capturing any of the Protected
6 Material. Notwithstanding this provision, Counsel are entitled to retain an archival
7 copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal
8 memoranda, correspondence, deposition and trial exhibits, expert reports, attorney
9 work product, and consultant and expert work product, even if such materials
10 contain Protected Material. Any such archival copies that contain or constitute
11 Protected Material remain subject to this Protective Order as set forth in Section 4
12 (DURATION).
13 14. VIOLATION
14 Any violation of this Order may be punished by appropriate measures
15 including, without limitation, contempt proceedings and/or monetary sanctions.
16 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
17 Dated: September 19, 2022 BARNES & THORNBURG LLP
18
By: /s/ Roya Rahmanpour
19 Seth A. Gold
Roya Rahmanpour
20 Jonathan J. Boustani
Attorneys for Plaintiffs
21 Murray Colin Clarke and Biozeal, LLC
22 Dated: September 19, 2022 KIRKLAND & ELLIS LLP
23 By: /s/ Diana Torres
Mark C. Holscher
24 Diana Torres
Lauren Schweitzer
25 Attorneys for Plaintiffs
Murray Colin Clarke and Biozeal, LLC
26
27
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{F4679054.1 }
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1 Dated: September 19, 2022 VENABLE LLP
3 Atowme i for Defendant TNSG HEALTH
4 CO., LTD.
5 || FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. yl EWedomal}—
6 || DATED: 9/20/22,
1 United States Magistrate Judge
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Case 2:21-cv-03463-FLA-JEM Document 91 Filed 09/20/22 Page 17 of 17 Page ID #:2193
1 EXHIBIT A
2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
3
4 I, _________________________________________ [print or type full
5 name], of __________________________ [print or type full address], declare under
6 penalty of perjury that I have read in its entirety and understand the Stipulated
7 Protective Order that was issued by the United States District Court for the Central
8 District of California in the case of Clarke et al. v. TNSG Health Co., Ltd., Case No.
9 2:21-cv-03463-FLA-JEM.. I agree to comply with and to be bound by all the terms
10 of this Stipulated Protective Order and I understand and acknowledge that failure to
11 so comply could expose me to sanctions and punishment in the nature of contempt.
12 I solemnly promise that I will not disclose in any manner any information or item
13 that is subject to this Stipulated Protective Order to any person or entity except in
14 strict compliance with the provisions of this Order.
15 I further agree to submit to the jurisdiction of the United States District Court
16 for the Central District of California for enforcing the terms of this Stipulated
17 Protective Order, even if such enforcement proceedings occur after termination of
18 this action. I hereby appoint __________________________ [print or type full
19 name] of _______________________________________ [print or type full address
20 and telephone number] as my California agent for service of process in connection
21 with this action or any proceedings related to enforcement of this Stipulated
22 Protective Order.
23 Date: ______________________________________
24 City and State where sworn and signed: _________________________________
25
26 Printed name: _______________________________
27
28 Signature: __________________________________
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