even stipulated protective orders 1 require good cause showing
How later courts described this case
- even stipulated protective orders 1 require good cause showing
Written by the judges who cited it.
The opinion
1 HANSON BRIDGETT LLP
RAFFI V. ZEROUNIAN, SBN 236388
2 rzerounian@hansonbridgett.com
777 S. Figueroa Street, Suite 4200
3 Los Angeles, California 90017
Telephone: (213) 395-7620
4 Facsimile: (213) 395-7615
5 HANSON BRIDGETT LLP
GARNER K. WENG, SBN 191462
6 gweng@hansonbridgett.com
ROSANNA W. GAN, SBN 325145
7 rgan@hansonbridgett.com
425 Market Street, 26th Floor
8 San Francisco, California 94105
Telephone: (415) 777-3200
9 Facsimile: (415) 541-9366
10 Attorneys for Defendants
THE FRAGRANCE OUTLET, INC.,
11 PERF OPCO, LLC and OBSESSION
HOLDINGS, INC.
12
[Additional Counsel Listed on Next Page]
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14
UNITED STATES DISTRICT COURT
15
CENTRAL DISTRICT OF CALIFORNIA
16
ABERCROMBIE & FITCH Case No. 2:23-cv-2051-SVW-PD
17 TRADING, CO., an Ohio Corporation,
STIPULATED PROTECTIVE
18 Plaintiff, ORDER1
19 v.
20 THE FRAGRANCE OUTLET, INC., a [DISCOVERY MATTER: Referred To
Florida Corporation; PERF OPCO, Magistrate Judge Patricia Donahue]
21 LLC, a Delaware Limited Liability
Company; and OBSESSION
22 HOLDINGS, INC., a Delaware
Corporation; and DOES 1-10, inclusive,
23
Defendant.
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1 This Stipulated Protective Order is substantially based on the model protective
27
order provided under Magistrate Judge Patricia Donahue’s Procedures.
1 HONIGMAN LLP
DEBORAH J. SWEDLOW (Admitted pro hac vice)
2 bswedlow@honigman.com
315 East Eisenhower Parkway, Suite 100
3 Ann Arbor, MI 48103
Telephone: (734) 418-4200
4 Facsimile: (734) 418-4201
5 Mary A. Hyde (Admitted pro hac vice)
mhyde@honigman.com
6 Jenna E. Saunders (Admitted pro hac vice)
jsaunders@honigman.com
7 155 N. Wacker Drive Suite 3100
Chicago, IL 60606-1734
8 Telephone: (312) 701-9360
Facsimile: (312) 701-9335
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1 A. PURPOSES AND LIMITATIONS
2 Disclosure and discovery activity in this action are likely to involve
3 production of confidential, proprietary, or private information for which special
4 protection from public disclosure and from use for any purpose other than
5 prosecuting this litigation may be warranted. Accordingly, the parties hereby
6 stipulate to and petition the court to enter the following Stipulated Protective
7 Order. The parties acknowledge that this Order does not confer blanket protections
8 on all disclosures or responses to discovery and that the protection it affords from
9 public disclosure and use extends only to the limited information or items that are
10 entitled to confidential treatment under the applicable legal principles. The parties
11 further acknowledge, as set forth in Section 11.3, below, that this Stipulated
12 Protective Order does not entitle them to file confidential information under seal;
13 Civil Local Rule 79-5 sets forth the procedures that must be followed and the
14 standards that will be applied when a party seeks permission from the court to file
15 material under seal.
16 B. GOOD CAUSE STATEMENT
17 In its Complaint, Plaintiff asserts causes of action against Defendant for 1)
18 trademark infringement and false designation of origin and false advertising under
19 the Lanham Act; 2) unfair competition; and 3) related claims under state statutory
20 and common law. Defendant denies all of Plaintiff’s claims and all liability in this
21 action. Accordingly, this action is likely to involve trade secrets, customer and
22 pricing lists and other valuable research, development, commercial, financial,
23 technical and/or proprietary information for which special protection from public
24 disclosure and from use for any purpose other than prosecution of this action is
25 warranted. Such confidential and proprietary materials and information consist of,
26 among other things, confidential business or financial information, information
27 regarding confidential business practices, or other confidential research,
1 development, or commercial information (including information implicating
2 privacy rights of third parties), information otherwise generally unavailable to the
3 public, or which may be privileged or otherwise protected from disclosure under
4 state or federal statutes, court rules, case decisions, or common law. Accordingly,
5 to expedite the flow of information, to facilitate the prompt resolution of disputes
6 over confidentiality of discovery materials, to adequately protect information the
7 parties are entitled to keep confidential, to ensure that the parties are permitted
8 reasonable necessary uses of such material in preparation for and in the conduct of
9 trial, to address their handling at the end of the litigation, and serve the ends of
10 justice, a protective order for such information is justified in this matter. It is the
11 intent of the parties that information will not be designated as CONFIDENTIAL
12 for tactical reasons and that nothing be so designated without a good faith belief
13 that it has been maintained in a confidential, non-public manner, and there is good
14 cause why it should not be part of the public record of this case.
15 C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER
16 SEAL
17 The parties further acknowledge, as set forth in Section 11.3, below, that this
18 Stipulated Protective Order does not entitle them to file confidential information
19 under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed
20 and the standards that will be applied when a party seeks permission from the court
21 to file material under seal.
22 There is a strong presumption that the public has a right of access to judicial
23 proceedings and records in civil cases. In connection with non-dispositive motions,
24 good cause must be shown to support a filing under seal. See Kamakana v. City and
25 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors
26 Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics,
27 Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders
1 require good cause showing), and a specific showing of good cause or compelling
2 reasons with proper evidentiary support and legal justification, must be made with
3 respect to Protected Material that a party seeks to file under seal. The parties’ mere
4 designation of Disclosure or Discovery Material as CONFIDENTIAL does not—
5 without the submission of competent evidence by declaration, establishing that the
6 material sought to be filed under seal qualifies as confidential, privileged, or
7 otherwise protectable—constitute good cause.
8 Further, if a party requests sealing related to a dispositive motion or trial,
9 then compelling reasons, not only good cause, for the sealing must be shown, and
10 the relief sought shall be narrowly tailored to serve the specific interest to be
11 protected. See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir.
12 2010). For each item or type of information, document, or thing sought to be filed
13 or introduced under seal in connection with a dispositive motion or trial, the party
14 seeking protection must articulate compelling reasons, supported by specific facts
15 and legal justification, for the requested sealing order. Again, competent evidence
16 supporting the application to file documents under seal must be provided by
17 declaration.
18 Any document that is not confidential, privileged, or otherwise protectable
19 in its entirety will not be filed under seal if the confidential portions can be
20 redacted. If documents can be redacted, then a redacted version for public viewing,
21 omitting only the confidential, privileged, or otherwise protectable portions of the
22 document, shall be filed. Any application that seeks to file documents under seal in
23 their entirety should include an explanation of why redaction is not feasible.
24 1. DEFINITIONS
25 1.1 Action: this pending lawsuit Abercrombie and Fitch Trading, Co. v.
26 The Fragrance Outlet; et al.; C.D. Cal. 2:23-cv-2051-SVW-PD.
27 1.2 Challenging Party: a Party or Non-Party that challenges the
1 designation of information or items under this Order.
2 1.3 “CONFIDENTIAL” Information or Items: information (regardless of
3 how it is generated, stored or maintained) or tangible things that qualify for
4 protection under Federal Rule of Civil Procedure 26(c).
5 1.4 Counsel (without qualifier): Outside Counsel of Record and House
6 Counsel (as well as their support staff).
7 1.5 Designated House Counsel: House Counsel who seek access to
8 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information in this
9 matter.
10 1.6 Designating Party: a Party or Non-Party that designates information or
11 items that it produces in disclosures or in responses to discovery as
12 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
13 ONLY.”
14 1.7 Disclosure or Discovery Material: all items or information, regardless
15 of the medium or manner in which it is generated, stored, or maintained (including,
16 among other things, testimony, transcripts, and tangible things), that are produced
17 or generated in disclosures or responses to discovery in this matter.
18 1.8 Expert: a person with specialized knowledge or experience in a matter
19 pertinent to the litigation who (1) has been retained by a Party or its counsel to
20 serve as an expert witness or as a consultant in this action, (2) is not a past or
21 current employee of a Party or of a Party’s competitor, and (3) at the time of
22 retention, is not anticipated to become an employee of a Party or of a Party’s
23 competitor.
24 1.9 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
25 Information or Items: extremely sensitive “Confidential Information or Items,”
26 disclosure of which to another Party or Non-Party would create a substantial risk of
27 serious harm that could not be avoided by less restrictive means.
1 1.10 House Counsel: attorneys who are employees of a party to this Action.
2 House Counsel does not include Outside Counsel of Record or any other outside
3 counsel.
4 1.11 Non-Party: any natural person, partnership, corporation, association,
5 or other legal entity not named as a Party to this Action.
6 1.12 Outside Counsel of Record: attorneys who are not employees of a
7 party to this Action but are retained to represent or advise a party to this action and
8 have appeared in this Action on behalf of that party or are affiliated with a law firm
9 which has appeared on behalf of that party, and includes support staff.
10 1.13 Party: any party to this Action, including all of its officers, directors,
11 employees, consultants, retained experts, and Outside Counsel of Record (and their
12 support staffs).
13 1.14 Producing Party: a Party or Non-Party that produces Disclosure or
14 Discovery Material in this Action.
15 1.15 Professional Vendors: persons or entities that provide litigation
16 support services (e.g., photocopying, videotaping, translating, preparing exhibits or
17 demonstrations, and organizing, storing, or retrieving data in any form or medium)
18 and their employees and subcontractors.
19 1.16 Protected Material: any Disclosure or Discovery Material that is
20 designated as “CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL –
21 ATTORNEYS’ EYES ONLY.”
22 1.17 Receiving Party: a Party that receives Disclosure or Discovery
23 Material from a Producing Party.
24 2. SCOPE
25 The protections conferred by this Stipulation and Order cover not only
26 Protected Material (as defined above), but also (1) any information copied or
27 extracted from Protected Material; (2) all copies, excerpts, summaries, or
1 compilations of Protected Material; and (3) any testimony, conversations, or
2 presentations by Parties or their Counsel that might reveal Protected Material.
3 However, the protections conferred by this Stipulation and Order do not cover the
4 following information: (a) any information that is in the public domain at the time
5 of disclosure to a Receiving Party or becomes part of the public domain after its
6 disclosure to a Receiving Party as a result of publication not involving a violation
7 of this Order, including becoming part of the public record through trial or
8 otherwise; and (b) any information known to the Receiving Party prior to the
9 disclosure or obtained by the Receiving Party after the disclosure from a source
10 who obtained the information lawfully and under no obligation of confidentiality to
11 the Designating Party. Any use of Protected Material at trial shall be governed by a
12 separate agreement or order.
13 3. DURATION
14 Even after final disposition of this litigation, the confidentiality obligations
15 imposed by this Order shall remain in effect until a Designating Party agrees
16 otherwise in writing or a court order otherwise directs. Final disposition shall be
17 deemed to be the later of (1) dismissal of all claims and defenses in this Action,
18 with or without prejudice; and (2) final judgment herein after the completion and
19 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,
20 including the time limits for filing any motions or applications for extension of
21 time pursuant to applicable law.
22 4. DESIGNATING PROTECTED MATERIAL
23 4.1 Exercise of Restraint and Care in Designating Material for Protection.
24 Each Party or Non-Party that designates information or items for protection under
25 this Order must take care to limit any such designation to specific material that
26 qualifies under the appropriate standards. To the extent it is practical to do so, the
27 Designating Party must designate for protection only those parts of material,
1 documents, items, or oral or written communications that qualify – so that other
2 portions of the material, documents, items, or communications for which
3 protection is not warranted are not swept unjustifiably within the ambit of this
4 Order.
5 Mass, indiscriminate, or routinized designations are prohibited. Designations
6 that are shown to be clearly unjustified or that have been made for an improper
7 purpose (e.g., to unnecessarily encumber the case development process or to
8 impose unnecessary expenses and burdens on other parties) expose the Designating
9 Party to sanctions.
10 If it comes to a Designating Party’s attention that information or items that it
11 designated for protection do not qualify for protection at all or do not qualify for
12 the level of protection initially asserted, that Designating Party must promptly
13 notify all other parties that it is withdrawing the mistaken designation.
14 4.2 Manner and Timing of Designations. Except as otherwise provided in
15 this Order (see, e.g., second paragraph of section 4.2(a) below), or as otherwise
16 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
17 under this Order must be clearly so designated before the material is disclosed or
18 produced.
19 Designation in conformity with this Order requires:
20 (a) for information in documentary form (e.g., paper or electronic
21 documents, but excluding transcripts of depositions or other pretrial or trial
22 proceedings), that the Producing Party affix the legend “CONFIDENTIAL” or
23 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” to each page that
24 contains protected material. If only a portion or portions of the material on a page
25 qualifies for protection, the Producing Party also must clearly identify the
26 protected portion(s) (e.g., by making appropriate markings in the margins) and
27 must specify, for each portion, the level of protection being asserted.
1 A Party or Non-Party that makes original documents or materials available
2 for inspection need not designate them for protection until after the inspecting
3 Party has indicated which material it would like copied and produced. During the
4 inspection and before the designation, all of the material made available for
5 inspection shall be deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
6 ONLY.” After the inspecting Party has identified the documents it wants copied
7 and produced, the Producing Party must determine which documents, or portions
8 thereof, qualify for protection under this Order. Then, before producing the
9 specified documents, the Producing Party must affix the appropriate legend
10 (“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
11 ONLY”) to each page that contains Protected Material. If only a portion or
12 portions of the material on a page qualifies for protection, the Producing Party also
13 must clearly identify the protected portion(s) (e.g., by making appropriate
14 markings in the margins) and must specify, for each portion, the level of protection
15 being asserted.
16 (b) for testimony given in deposition or in other pretrial or trial
17 proceedings, that the Designating Party identify on the record, before the close of
18 the deposition, hearing, or other proceeding, all protected testimony and specify
19 the level of protection being asserted. When it is impractical to identify separately
20 each portion of testimony that is entitled to protection and it appears that
21 substantial portions of the testimony may qualify for protection, the Designating
22 Party may invoke on the record (before the deposition, hearing, or other
23 proceeding is concluded) a right to have up to 21 days to identify the specific
24 portions of the testimony as to which protection is sought and to specify the level
25 of protection being asserted. Only those portions of the testimony that are
26 appropriately designated for protection within the 21 days shall be covered by the
27 provisions of this Stipulated Protective Order. Alternatively, a Designating Party
1 may specify, at the deposition or up to 21 days afterwards if that period is properly
2 invoked, that the entire transcript shall be treated as “CONFIDENTIAL” or
3 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”
4 Parties shall give the other parties notice if they reasonably expect a
5 deposition, hearing or other proceeding to include Protected Material so that the
6 other parties can ensure that only Parties bound to this Order and authorized
7 individuals who have signed the “Acknowledgment and Agreement to Be Bound”
8 (Exhibit A) are present at those proceedings. The use of a document as an exhibit
9 at a deposition shall not in any way affect its designation as “CONFIDENTIAL” or
10 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”
11 Transcripts containing Protected Material shall have an obvious legend on
12 the title page that the transcript contains Protected Material, and the title page shall
13 be followed by a list of all pages (including line numbers as appropriate) that have
14 been designated as Protected Material and the level of protection being asserted by
15 the Designating Party. The Designating Party shall inform the court reporter of
16 these requirements. Any transcript that is prepared before the expiration of a 21-
17 day period for designation shall be treated during that period as if it had been
18 designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its
19 entirety unless otherwise agreed. After the expiration of that period, the transcript
20 shall be treated only as actually designated.
21 (c) for information produced in some form other than documentary and
22 for any other tangible items, that the Producing Party affix in a prominent place on
23 the exterior of the container or containers in which the information or item is
24 stored the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
25 ATTORNEYS’ EYES ONLY”. If only a portion or portions of the information or
26 item warrant protection, the Producing Party, to the extent practicable, shall
27 identify the protected portion(s) and specify the level of protection being asserted.
1 4.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
2 failure to designate qualified information or items does not, standing alone, waive
3 the Designating Party’s right to secure protection under this Order for such
4 material. Upon timely correction of a designation, the Receiving Party must make
5 reasonable efforts to assure that the material is treated in accordance with the
6 provisions of this Order.
7 5. CHALLENGING CONFIDENTIALITY DESIGNATIONS
8 5.1 Timing of Challenges. Any Party or Non-Party may challenge a
9 designation of confidentiality at any time that is consistent with the Court’s
10 Scheduling Order. Unless a prompt challenge to a Designating Party’s
11 confidentiality designation is necessary to avoid foreseeable, substantial
12 unfairness, unnecessary economic burdens, or a significant disruption or delay of
13 the litigation, a Party does not waive its right to challenge a confidentiality
14 designation by electing not to mount a challenge promptly after the original
15 designation is disclosed.
16 5.2 Meet and Confer. The Challenging Party shall initiate the dispute
17 resolution process under Local Rule 37.1 et seq, by providing written notice of
18 each designation it is challenging and describing the basis for each challenge. To
19 avoid ambiguity as to whether a challenge has been made, the written notice must
20 recite that the challenge to confidentiality is being made in accordance with this
21 specific paragraph of the Protective Order. The parties shall attempt to resolve each
22 challenge in good faith and must begin the process by conferring directly (in voice
23 to voice dialogue; other forms of communication are not sufficient) within 10 days
24 of the date of service of notice. In conferring, the Challenging Party must explain
25 the basis for its belief that the confidentiality designation was not proper and must
26 give the Designating Party an opportunity to review the designated material, to
27 reconsider the circumstances, and, if no change in designation is offered, to explain
1 the basis for the chosen designation. A Challenging Party may proceed to the next
2 stage of the challenge process only if it has engaged in this meet and confer
3 process first or establishes that the Designating Party is unwilling to participate in
4 the meet and confer process in a timely manner.
5 The burden of persuasion in any such challenge proceeding shall be on the
6 Designating Party. Frivolous challenges and those made for an improper purpose
7 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may
8 expose the Challenging Party to sanctions. Unless the Designating Party has
9 waived the confidentiality designation by failing to file a motion to retain
10 confidentiality as described above, all parties shall continue to afford the material
11 in question the level of protection to which it is entitled under the Producing
12 Party’s designation until the court rules on the challenge.
13 6. ACCESS TO AND USE OF PROTECTED MATERIAL
14 6.1 Basic Principles. A Receiving Party may use Protected Material that is
15 disclosed or produced by another Party or by a Non-Party in connection with this
16 Action only for prosecuting, defending, or attempting to settle this Action. Such
17 Protected Material may be disclosed only to the categories of persons and under
18 the conditions described in this Order. When the litigation has been terminated, a
19 Receiving Party must comply with the provisions of section 12 below (FINAL
20 DISPOSITION).
21 Protected Material must be stored and maintained by a Receiving Party at a
22 location and in a secure manner that ensures that access is limited to the persons
23 authorized under this Order.
24 6.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless
25 otherwise ordered by the court or permitted in writing by the Designating Party, a
26 Receiving Party may disclose any information or item designated
27 “CONFIDENTIAL” only to:
1 (a) the Receiving Party’s Outside Counsel of Record in this Action, as
2 well as employees of said Outside Counsel of Record to whom it is reasonably
3 necessary to disclose the information for this Action;
4 (b) the officers, directors, and employees (including House Counsel) of
5 the Receiving Party to whom disclosure is reasonably necessary for this Action;
6 (c) Experts (as defined in this Order) of the Receiving Party to whom
7 disclosure is reasonably necessary for this Action and who have signed the
8 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
9 (d) the court and its personnel;
10 (e) court reporters and their staff, professional jury or trial consultants,
11 and Professional Vendors to whom disclosure is reasonably necessary for this
12 Action and who have signed the “Acknowledgment and Agreement to Be Bound”
13 (Exhibit A);
14 (f) during their depositions, witnesses in the Action to whom disclosure
15 is reasonably necessary and who have signed the “Acknowledgment and
16 Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the Designating
17 Party or ordered by the court. Pages of transcribed deposition testimony or exhibits
18 to depositions that reveal Protected Material must be separately bound by the court
19 reporter and may not be disclosed to anyone except as permitted under this
20 Stipulated Protective Order;
21 (g) the author or recipient of a document containing the information or a
22 custodian or other person who otherwise possessed or knew the information; and
23 (h) any mediator or settlement officer, and their supporting personnel,
24 mutually agreed upon by any of the parties engaged in settlement discussions.
25 6.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
26 ONLY” Information or Items. Unless otherwise ordered by the court or permitted
27 in writing by the Designating Party, a Receiving Party may disclose any
1 information or item designated “HIGHLY CONFIDENTIAL – ATTORNEYS’
2 EYES ONLY” only to:
3 (a) the Receiving Party’s Outside Counsel of Record in this Action, as
4 well as employees of said Outside Counsel of Record to whom it is reasonably
5 necessary to disclose the information for this Action;
6 (b) Designated House Counsel of the Receiving Party (1) who has no
7 involvement in competitive decision-making, (2) to whom disclosure is reasonably
8 necessary for this l Action, and (3) as to whom the procedures set forth in
9 paragraph 7.4(a)(1), below, have been followed;
10 (c) Experts of the Receiving Party (1) to whom disclosure is reasonably
11 necessary for this Action, (2) who have signed the “Acknowledgment and
12 Agreement to Be Bound” (Exhibit A), and (3) as to whom the procedures set forth
13 in paragraph 7.4(a)(2), below, have been followed;
14 (d) the court and its personnel and any other mediator, settlement officer,
15 or dispute resolution officer duly appointed or assigned in connection with this
16 Action;
17 (e) court reporters and their staff, professional jury or trial consultants,
18 and Professional Vendors to whom disclosure is reasonably necessary for this
19 Action and who have signed the “Acknowledgment and Agreement to Be Bound”
20 (Exhibit A); and
21 (f) the author or recipient of a document containing the information or a
22 custodian or other person who otherwise possessed or knew the information.
23 6.4 Procedures for Approving or Objecting to Disclosure of “HIGHLY
24 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items to
25 Designated House Counsel or Experts.
26 (a)(1) Unless otherwise ordered by the court or agreed to in writing by the
27 Designating Party, a Party that seeks to disclose to Designated House Counsel any
1 information or item that has been designated “HIGHLY CONFIDENTIAL –
2 ATTORNEYS’ EYES ONLY” pursuant to paragraph 7.3(b) first must make a
3 written request to the Designating Party that (1) sets forth the full name of the
4 Designated House Counsel and the city and state of his or her residence, and (2)
5 describes the Designated House Counsel’s current and reasonably foreseeable
6 future primary job duties and responsibilities in sufficient detail to determine if
7 House Counsel is involved, or may become involved, in any competitive decision-
8 making.
9 (a)(2) Unless otherwise ordered by the court or agreed to in writing by the
10 Designating Party, a Party that seeks to disclose to an Expert (as defined in this
11 Order) any information or item that has been designated “HIGHLY
12 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” pursuant to paragraph 7.3(c)
13 first must make a written request to the Designating Party that (1) identifies the
14 general categories of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
15 ONLY” information that the Receiving Party seeks permission to disclose to the
16 Expert, (2) sets forth the full name of the Expert and the city and state of his or her
17 primary residence, (3) attaches a copy of the Expert’s current resume, (4) identifies
18 the Expert’s current employer(s), (5) identifies each person or entity from whom
19 the Expert has received compensation or funding for work in his or her areas of
20 expertise or to whom the expert has provided professional services, including in
21 connection with a litigation, at any time during the preceding five years,2 and (6)
22 identifies (by name and number of the case, filing date, and location of court) any
23 litigation in connection with which the Expert has offered expert testimony,
24
25
26
2 If the Expert believes any of this information is subject to a confidentiality obligation to a third-party,
then the Expert should provide whatever information the Expert believes can be disclosed without
27 violating any confidentiality agreements, and the Party seeking to disclose to the Expert shall be available
to meet and confer with the Designating Party regarding any such engagement.
1 including through a declaration, report, or testimony at a deposition or trial, during
2 the preceding five years.
3 (b) A Party that makes a request and provides the information specified in
4 the preceding respective paragraphs may disclose the subject Protected Material to
5 the identified Designated House Counsel or Expert unless, within 14 days of
6 delivering the request, the Party receives a written objection from the Designating
7 Party. Any such objection must set forth in detail the grounds on which it is based.
8 (c) A Party that receives a timely written objection must meet and confer
9 with the Designating Party (through direct voice to voice dialogue) to try to resolve
10 the matter by agreement within seven days of the written objection. If no
11 agreement is reached, the Party seeking to make the disclosure to Designated
12 House Counsel or the Expert may file a motion as provided in Civil Local Rule 7
13 (and in compliance with Civil Local Rule 79-5, if applicable) seeking permission
14 from the court to do so. Any such motion must describe the circumstances with
15 specificity, set forth in detail the reasons why the disclosure to Designated House
16 Counsel or the Expert is reasonably necessary, assess the risk of harm that the
17 disclosure would entail, and suggest any additional means that could be used to
18 reduce that risk. In addition, any such motion must be accompanied by a competent
19 declaration describing the parties’ efforts to resolve the matter by agreement (i.e.,
20 the extent and the content of the meet and confer discussions) and setting forth the
21 reasons advanced by the Designating Party for its refusal to approve the disclosure.
22 In any such proceeding, the Party opposing disclosure to Designated House
23 Counsel or the Expert shall bear the burden of proving that the risk of harm that the
24 disclosure would entail (under the safeguards proposed) outweighs the Receiving
25 Party’s need to disclose the Protected Material to its Designated House Counsel or
26 Expert.
27
1 7. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
IN OTHER LITIGATION
2
If a Party is served with a subpoena or a court order issued in other litigation
3
that compels disclosure of any information or items designated in this Action as
4
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
5
ONLY” that Party must:
6
(a) promptly notify in writing the Designating Party. Such notification
7
shall include a copy of the subpoena or court order;
8
(b) promptly notify in writing the party who caused the subpoena or order
9
to issue in the other litigation that some or all of the material covered by the
10
subpoena or order is subject to this Protective Order. Such notification shall
11
include a copy of this Stipulated Protective Order; and
12
(c) cooperate with respect to all reasonable procedures sought to be
13
pursued by the Designating Party whose Protected Material may be affected.
14
If the Designating Party timely seeks a protective order, the Party served
15
with the subpoena or court order shall not produce any information designated in
16
this Action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
17
ATTORNEYS’ EYES ONLY” before a determination by the court from which the
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subpoena or order issued, unless the Party has obtained the Designating Party’s
19
permission. The Designating Party shall bear the burden and expense of seeking
20
protection in that court of its confidential material – and nothing in these
21
provisions should be construed as authorizing or encouraging a Receiving Party in
22
this Action to disobey a lawful directive from another court.
23
8. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
24 PRODUCED IN THIS LITIGATION
25 (a) The terms of this Order are applicable to information produced by a
26 Non-Party in this Action and designated as “CONFIDENTIAL” or “HIGHLY
27 CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Such information produced
1 by Non-Parties in connection with this litigation is protected by the remedies and
2 relief provided by this Order. Nothing in these provisions should be construed as
3 prohibiting a Non-Party from seeking additional protections.
4 (b) In the event that a Party is required, by a valid discovery request, to
5 produce a Non-Party’s confidential information in its possession, and the Party is
6 subject to an agreement with the Non-Party not to produce the Non-Party’s
7 confidential information, then the Party shall:
8 1. promptly notify in writing the Requesting Party and the Non-
9 Party that some or all of the information requested is subject to a confidentiality
10 agreement with a Non-Party;
11 2. promptly provide the Non-Party with a copy of the Stipulated
12 Protective Order in this litigation, the relevant discovery request(s), and a
13 reasonably specific description of the information requested; and
14 3. make the information requested available for inspection by the
15 Non-Party.
16 (c) If the Non-Party fails to object or seek a protective order from this
17 court within 14 days of receiving the notice and accompanying information, the
18 Receiving Party may produce the Non-Party’s confidential information responsive
19 to the discovery request. If the Non-Party timely seeks a protective order, the
20 Receiving Party shall not produce any information in its possession or control that
21 is subject to the confidentiality agreement with the Non-Party before a
22 determination by the court. Absent a court order to the contrary, the Non-Party
23 shall bear the burden and expense of seeking protection in this court of its
24 Protected Material.
25 9. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
26 If a Receiving Party learns that, by inadvertence or otherwise, it has
27 disclosed Protected Material to any person or in any circumstance not authorized
1 under this Stipulated Protective Order, the Receiving Party must immediately (a)
2 notify in writing the Designating Party of the unauthorized disclosures, (b) use its
3 best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform
4 the person or persons to whom unauthorized disclosures were made of all the terms
5 of this Order, and (d) request such person or persons to execute the
6 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit
7 A.
8 10. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
PROTECTED MATERIAL
9
When a Producing Party gives notice to Receiving Parties that certain
10
inadvertently produced material is subject to a claim of privilege or other
11
protection, the obligations of the Receiving Parties are those set forth in Federal
12
Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify
13
whatever procedure may be established in an e-discovery order that provides for
14
production without prior privilege review. Pursuant to Federal Rule of Evidence
15
502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure
16
of a communication or information covered by the attorney-client privilege or
17
work product protection, the parties may incorporate their agreement in the
18
stipulated protective order submitted to the court.
19
11. MISCELLANEOUS
20
11.1 Right to Further Relief. Nothing in this Order abridges the right of any
21
person to seek its modification by the court in the future.
22
11.2 Right to Assert Other Objections. By stipulating to the entry of this
23
Protective Order no Party waives any right it otherwise would have to object to
24
disclosing or producing any information or item on any ground not addressed in
25
this Stipulated Protective Order. Similarly, no Party waives any right to object on
26
any ground to use in evidence of any of the material covered by this Protective
27
1 Order.
2 11.3 Filing Protected Material. Without written permission from the
3 Designating Party or a court order secured after appropriate notice to all interested
4 persons, a Party may not file in the public record in this Action any Protected
5 Material. A Party that seeks to file under seal any Protected Material must comply
6 with Civil Local Rule 79-5. Protected Material may only be filed under seal
7 pursuant to a court order authorizing the sealing of the specific Protected Material
8 at issue. Pursuant to Civil Local Rule 79-5, a sealing order will issue only upon a
9 request establishing that the Protected Material at issue is privileged, protectable as
10 a trade secret, or otherwise entitled to protection under the law. If a Receiving
11 Party's request to file Protected Material under seal pursuant to Civil Local Rule
12 79-5 is denied by the court, then the Receiving Party may file the Protected
13 Material in the public record pursuant to Civil Local Rule 79-5 unless otherwise
14 instructed by the court.
15 12. FINAL DISPOSITION
16 Within 60 days after the final disposition of this Action, as defined in
17 paragraph 4, each Receiving Party must return all Protected Material to the
18 Producing Party or destroy such material. As used in this subdivision, “all
19 Protected Material” includes all copies, abstracts, compilations, summaries, and
20 any other format reproducing or capturing any of the Protected Material.
21 Notwithstanding this provision, Counsel are entitled to retain an archival copy of
22 all pleadings, motion papers, trial, deposition, and hearing transcripts, legal
23 memoranda, correspondence, deposition and trial exhibits, expert reports, attorney
24 work product, and consultant and expert work product, even if such materials
25 contain Protected Material. Any such archival copies that contain or constitute
26 Protected Material remain subject to this Protective Order as set forth in Section 4
27 (DURATION).
1 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD
2
3 DATED: June 15, 2023 HANSON BRIDGETT LLP
4
5
By: /s/ Deborah J. Swedlow
6
RAFFI V. ZEROUNIAN
7 GARNER K. WENG
8 ROSANNA W. GAN
9 HONIGMAN LLP
DEBORAH J. SWEDLOW
10 MARY A. HYDE
11 JENNA E. SAUNDERS
12 Attorneys for Defendants
13 THE FRAGRANCE OUTLET, INC.,
PERF OPCO, LLC, and OBSESSION
14 HOLDINGS, INC.
15
16 DATED: June 16, 2023 BLAKELY LAW GROUP
17
18
By: /s/ Jamie Fountain
19
BRENT H. BLAKELY
20 JAMIE FOUNTAIN
21
Attorneys for Plaintiff
22 ABERCROMBIE & FITCH TRADING,
CO.
23
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1 || FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
*|| DATED: June 16, 2023 Fatises Donatoe_
3 Hon. Patricia Donahue
4 United States Magistrate Judge
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-23- Case No. 2:23-cv-2051-SVW-PD
1 EXHIBIT A
2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
3 I, _____________________________ [print or type full name], of
4 _________________ [print or type full address], declare under penalty of perjury
5 that I have read in its entirety and understand the Stipulated Protective Order that
6 was issued by the United States District Court for the Central District of California
7 on [date] in the case of Abercrombie & Fitch Trading Co. v. The Fragrance Outlet,
8 Inc., et al.; Case No. 2:23-cv-2051-SVW-PD. I agree to comply with and to be
9 bound by all the terms of this Stipulated Protective Order and I understand and
10 acknowledge that failure to so comply could expose me to sanctions and
11 punishment in the nature of contempt. I solemnly promise that I will not disclose in
12 any manner any information or item that is subject to this Stipulated Protective
13 Order to any person or entity except in strict compliance with the provisions of this
14 Order.
15 I further agree to submit to the jurisdiction of the United States District
16 Court for the Central District of California for the purpose of enforcing the terms
17 of this Stipulated Protective Order, even if such enforcement proceedings occur
18 after termination of this action.
19 I 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: