distinguishing “good cause” showing for sealing 22 documents produced in discovery from “compelling reasons” standard when merits- 23 related documents are part of court record
How later courts described this case
- distinguishing “good cause” showing for sealing 22 documents produced in discovery from “compelling reasons” standard when merits- 23 related documents are part of court record
- even stipulated protective orders require 9 good cause showing
Written by the judges who cited it.
The opinion
1
MICHAEL A. JACOBS (CA SBN 111664)
2 || JOYCE LIOU (CA SBN 277 79
EOIN CONNOLLY (Ca SBN 300373)
3 || MORRISON & FOERSTER LLP
425 Market Street
4 || San Francisco, CA 94105-2482
Telephone: 268-7000
5 || Facsimile: (415) 268-7522
mjacobs@mofo.com
6 || jliou@mofo.com
5 econnolly@mofo.com
BENJAMIN J. FOX (Ca SBN 193374)
8 | MORRISON & FOERSTER LLP
707 Wilshire Boulevard
9 || Los Angeles, California 90017-3543
Telephone: 213.892.5200
10 || Facsimile: 213.892.5454
bfox@mofo.com
Attorneys for Plaintiff,
12 | CHAP MEI PLASTIC TOYS
3 MANUFACTORY LIMITED
14
15
UNITED STATES DISTRICT COURT
16 CENTRAL DISTRICT OF CALIFORNIA
17
18
19
CHAP MEI PLASTIC TOYS Case No. 2:22-cv-09403-FLA-PD
20 | MANUFACTORY LIMITED,
NOTICE OF LODGING OF
21 Plaintiff, PROPOSED STIPULATED
PROTECTIVE ORDER
22 V.
23 NKOK, INC.,
Trial Date: May 14, 2024
24 Defendant.
25
26
27
28
1 TO THE COURT, ALL PARTIES AND THEIR COUNSEL OF RECORD:
2 || PLEASE TAKE NOTICE that Plaintiff Chap Mei Plastic Toys Manufactory
3 || Limited lodges a Proposed Stipulated Protective Order for the Court’s approval.
4 || The Proposed Stipulated Protective Order is attached hereto as Exhibit A.
5
6 | Dated: Oct. 18, 2023 MORRISON & FOERSTER LLP
By: /s/ Eoin Connolly
8 Eoin Connolly
9 Attorney for Plaintiff
10 MANUFACTORY LIMITED
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Exhibit A
1 Douglas M. Lipstone, Esq. (Cal. SBN 141104)
2 doug@wgcounsel.com
Shanen R. Prout, Esq. (Cal. SBN 236137)
3 shanen@wgcounsel.com
4 WEINBERG GONSER LLP
10866 Wilshire Blvd., Ste. 1650
5 Los Angeles, CA 90024
6 Direct: (424) 239-2862
Fax: (424) 238-3060
7
8 Attorneys for Defendant NKOK, INC.
9
Michael A. Jacobs (CA SBN 111664)
10 Joyce Liou (CA SBN 277720)
Eoin Connolly (CA SBN 300373)
11
MORRISON & FOERSTER LLP
12 425 Market Street
San Francisco, CA 94105-2482
13
Telephone: (415) 268-7000
14 Facsimile: (415) 268-7522
mjacobs@mofo.com
15
jliou@mofo.com
16 econnolly@mofo.com
17
Benjamin J. Fox (CA SBN 193374)
18 MORRISON & FOERSTER LLP
707 Wilshire Boulevard
19
Los Angeles, CA 90017-3543
20 Telephone: 213.892.5200
Facsimile: 213.892.5454
21
bfox@mofo.com
22
Attorneys for Plaintiff
23
CHAP MEI PLASTIC TOYS
24 MANUFACTORY LIMITED
25
26
27
1 UNITED STATES DISTRICT COURT
2 CENTRAL DISTRICT OF CALIFORNIA
3
CHAP MEI PLASTIC TOYS Case No. 2:22-cv-09403-FLA-PD
4
MANUFACTORY LIMITED,
5 Hon. Fernando L. Aenlle-Rocha,
Plaintiff, Room 6B
6
7 v. STIPULATED PROTECTIVE
ORDER1
8
NKOK, INC.,
9 Case filed: 12-28-2022
10 Defendant.
11
12
13 1. A. PURPOSES AND LIMITATIONS
14 Discovery in this action is likely to involve production of confidential,
15 proprietary, or private information for which special protection from public
16 disclosure and from use for any purpose other than prosecuting this litigation may be
17 warranted. Accordingly, the parties hereby stipulate to and petition the Court to enter
18 the following Stipulated Protective Order. The parties acknowledge that this Order
19 does not confer blanket protections on all disclosures or responses to discovery and
20 that the protection it affords from public disclosure and use extends only to the
21 limited information or items that are entitled to confidential treatment under the
22 applicable legal principles.
23 B. GOOD CAUSE STATEMENT
24 This action is likely to involve trade secrets, customer and pricing lists and
25
26
27
1 This Stipulated Protective Order is substantially based on the model protective
other valuable research, development, commercial, financial, technical and/or
1
proprietary information for which special protection from public disclosure and from
2
use for any purpose other than prosecution of this action is warranted. Such
3
confidential and proprietary materials and information consist of, among other
4
things, confidential business or financial information, confidential information
5
concerning the identity of customers and customer preferences, the parties’ costs of
6
goods sold and pricing practices, information regarding confidential business
7
practices, or other confidential research, development, or commercial information
8
(including information implicating privacy rights of third parties), contracts, non-
9
public compilations of retail prices, supplier and vendor agreements, supplier and
10
vendor identities, supplier pricing information and commissions or fees paid to
11
suppliers, personnel files, nonpublic policies and procedures, as well as other
12
documents and information otherwise generally unavailable to the public, or which
13
may be privileged or otherwise protected from disclosure under state or federal
14
statutes, court rules, case decisions, or common law. Accordingly, to expedite the
15
flow of information, to facilitate the prompt resolution of disputes over
16
confidentiality of discovery materials, to adequately protect information the parties
17
are entitled to keep confidential, to ensure that the parties are permitted reasonable
18
necessary uses of such material in preparation for and in the conduct of trial, to
19
address their handling at the end of the litigation, and serve the ends of justice, a
20
protective order for such information is justified in this matter. It is the intent of the
21
parties that information will not be designated as confidential for tactical reasons
22
and that nothing be so designated without a good faith belief that it has been
23
maintained in a confidential, non-public manner, and there is good cause why it
24
should not be part of the public record of this case.
25
C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL
26
27 The parties further acknowledge, as set forth in Section 12.3, below, that this
under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed and
1
the standards that will be applied when a party seeks permission from the court to
2
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 require
9
good cause showing), and a specific showing of good cause or compelling reasons
10
with proper evidentiary support and legal justification, must be made with respect to
11
Protected Material that a party seeks to file under seal. The parties’ mere designation
12
of Disclosure or Discovery Material as CONFIDENTIAL does not—without the
13
submission of competent evidence by declaration, establishing that the material
14
sought to be filed under seal qualifies as confidential, privileged, or otherwise
15
protectable—constitute good cause.
16
Further, if a party requests sealing related to a dispositive motion or trial, then
17
compelling reasons, not only good cause, for the sealing must be shown, and the
18
relief sought shall be narrowly tailored to serve the specific interest to be protected.
19
See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). For each
20
item or type of information, document, or thing sought to be filed or introduced under
21
seal in connection with a dispositive motion or trial, the party seeking protection
22
must articulate compelling reasons, supported by specific facts and legal
23
justification, for the requested sealing order. Again, competent evidence supporting
24
the application to file documents under seal must be provided by declaration.
25
Any document that is not confidential, privileged, or otherwise protectable in
26
its entirety will not be filed under seal if the confidential portions can be redacted. If
27
the confidential, privileged, or otherwise protectable portions of the document, shall
1
be filed. Any application that seeks to file documents under seal in their entirety
2
should include an explanation of why redaction is not feasible.
3
4
2. DEFINITIONS
5
2.1 Action: the above-captioned pending federal law suit.
6
2.2 Challenging Party: a Party or Non-Party that challenges the designation
7
of information or items under this Order.
8
2.3 “CONFIDENTIAL” Information or Items: information (regardless of
9
how it is generated, stored or maintained) or tangible things that qualify for
10
protection under Federal Rule of Civil Procedure 26(c), and as specified above in the
11
Good Cause Statement.
12
2.4 Counsel: Outside Counsel of Record and House Counsel (as well as
13
their support staff).
14
2.5 Designating Party: a Party or Non-Party that designates information or
15
items that it produces in disclosures or in responses to discovery as
16
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
17
ONLY.”
18
2.6 Disclosure or Discovery Material: all items or information, regardless
19
of the medium or manner in which it is generated, stored, or maintained (including,
20
among other things, testimony, transcripts, and tangible things), that are produced or
21
generated in disclosures or responses to discovery in this matter.
22
2.7 Expert: a person with specialized knowledge or experience in a matter
23
pertinent to the litigation who has been retained by a Party or its counsel to serve as
24
an expert witness or as a consultant in this Action.
25
2.8 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
26
Information or Items: extremely sensitive “Confidential Information or Items,”
27
serious harm that could not be avoided by less restrictive means.
1
2.9 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
2.10 Non-Party: any natural person, partnership, corporation, association, or
5
other legal entity not named as a Party to this action.
6
2.11 Outside Counsel of Record: attorneys who are not employees of a party
7
to this Action but are retained to represent or advise a party to this Action and have
8
appeared in this Action on behalf of that party or are affiliated with a law firm which
9
has appeared on behalf of that party, and includes support staff.
10
2.12 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
2.13 Producing Party: a Party or Non-Party that produces Disclosure or
14
Discovery Material in this Action.
15
2.14 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
2.15 Protected Material: any Disclosure or Discovery Material that is
20
designated as “CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL –
21
ATTORNEYS’ EYES ONLY.”
22
2.16 Receiving Party: a Party that receives Disclosure or Discovery Material
23
from a Producing Party.
24
25
3. SCOPE
26
27 The protections conferred by this Stipulation and Order cover not only
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
Any use of Protected Material at trial shall be governed by the orders of the
4
trial judge. This Order does not govern the use of Protected Material at trial.
5
6
4. DURATION
7
8 FINAL DISPOSITION of the action is defined as the conclusion of any
9 appellate proceedings, or, if no appeal is taken, when the time for filing of an appeal
10 has run. Except as set forth below, the terms of this protective order apply through
11 FINAL DISPOSITION of the action. The parties may stipulate that they will be
12 contractually bound by the terms of this agreement beyond FINAL DISPOSITION,
13 but will have to file a separate action for enforcement of the agreement once all
14 proceedings in this case are complete.
15 Once a case proceeds to trial, information that was designated as
16 CONFIDENTIAL, HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY, or
17 maintained pursuant to this protective order used or introduced as an exhibit at trial
18 becomes public and will be presumptively available to all members of the public,
19 including the press, unless compelling reasons supported by specific factual findings
20 to proceed otherwise are made to the trial judge in advance of the trial. See
21 Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause” showing for sealing
22 documents produced in discovery from “compelling reasons” standard when merits-
23 related documents are part of court record). Accordingly, for such materials, the
24 terms of this protective order do not extend beyond the commencement of the trial.
25
26 5. DESIGNATING PROTECTED MATERIAL
27
5.1 Exercise of Restraint and Care in Designating Material for Protection.
Each Party or Non-Party that designates information or items for protection under
1
this Order must take care to limit any such designation to specific material that
2
qualifies under the appropriate standards. To the extent it is practical to do so, the
3
Designating Party must designate for protection only those parts of material,
4
documents, items, or oral or written communications that qualify so that other
5
portions of the material, documents, items, or communications for which protection
6
is not warranted are not swept unjustifiably within the ambit of this Order.
7
Mass, indiscriminate, or routinized designations are prohibited. Designations
8
that are shown to be clearly unjustified or that have been made for an improper
9
purpose (e.g., to unnecessarily encumber the case development process or to impose
10
unnecessary expenses and burdens on other parties) may expose the Designating
11
Party to sanctions.
12
If it comes to a Designating Party’s attention that information or items that it
13
designated for protection do not qualify for protection, that Designating Party must
14
promptly notify all other Parties that it is withdrawing the inapplicable designation.
15
5.2 Manner and Timing of Designations. Except as otherwise provided in
16
this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
17
stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
18
under this Order must be clearly so designated before the material is disclosed or
19
produced.
20
Designation in conformity with this Order requires:
21
(a) for information in documentary form (e.g., paper or electronic
22
documents, but excluding transcripts of depositions or other pretrial or trial
23
proceedings), that the Producing Party affix at a minimum, the legend
24
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
25
ONLY, (hereinafter “CONFIDENTIAL legend”), to each page that contains
26
protected material. If only a portion or portions of the material on a page qualifies
27
(e.g., by making appropriate markings in the margins) and must specify, for each
1
portion, the level of protection asserted.
2
A Party or Non-Party that makes original documents available for inspection
3
need not designate them for protection until after the inspecting Party has indicated
4
which documents it would like copied and produced. During the inspection and
5
before the designation, all of the material made available for inspection shall be
6
deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” After the
7
inspecting Party has identified the documents it wants copied and produced, the
8
Producing Party must determine which documents, or portions thereof, qualify for
9
protection under this Order. Then, before producing the specified documents, the
10
Producing Party must affix the appropriate legend (“CONFIDENTIAL” or
11
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”) to each page that
12
contains Protected Material. If only a portion or portions of the material on a page
13
qualifies for protection, the Producing Party also must clearly identify the protected
14
portion(s) (e.g., by making appropriate markings in the margins) and must specify,
15
for each portion, the level of protection asserted.
16
(b) for testimony given in depositions that the Designating Party identify
17
the Disclosure or Discovery Material on the record, before the close of the deposition
18
all protected testimony and specify the level of protection being asserted.
19
Alternatively, the Designating Party may designate information disclosed at the
20
deposition as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’
21
EYES ONLY” by notifying the court reporter and other parties in writing, within
22
fifteen (15) days of receipt of the transcript, of the specific pages and lines of the
23
transcript which are designated as “CONFIDENTIAL” or “HIGHLY
24
CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” The parties may agree to a
25
reasonable extension of the 15-day period for designation. Designations of transcripts
26
will apply to audio, video, or other recordings of the testimony. During such 15-day
27
ATTORNEYS’ EYES ONLY” treatment. Upon such designation, the court reporter
1
and each party shall affix the appropriate legend (“CONFIDENTIAL” or “HIGHLY
2
CONFIDENTIAL – ATTORNEYS’ EYES ONLY”) to the designated pages and
3
segregate them as appropriate.
4
(c) for information produced in some form other than documentary and for
5
any other tangible items, that the Producing Party affix in a prominent place on the
6
exterior of the container or containers in which the information is stored the legend
7
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
8
ONLY.” If only a portion or portions of the information warrants protection, the
9
Producing Party, to the extent practicable, shall identify the protected portion(s) and
10
specify the level of protection being asserted. The Receiving Party shall mark any
11
hard-copy printouts and the storage medium of any permissible copies of such
12
electronic material with the corresponding legend contained on the original and such
13
copies shall become subject to the same protections as the information or items from
14
which those copies were made.
15
5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
16
failure to designate qualified information or items does not, standing alone, waive
17
the Designating Party’s right to secure protection under this Order for such material.
18
Upon timely correction of a designation, the Receiving Party must make reasonable
19
efforts to assure that the material is treated in accordance with the provisions of this
20
Order.
21
5.4 Withholding of Information.
22
5.4.1. Redactions. The parties may redact (1) information that is
23
privileged or protected from discovery as work product or by reason of any other
24
applicable privilege or immunity; and (2) information subject to non-disclosure
25
obligations imposed by governmental authorities, law or regulation (e.g., protected
26
personal information). Privilege redactions will state, over the redacted portion,
27
or the subject line of the emails, unless the subject line is itself privileged or contains
1
the sensitive information described above, in which case only so much of the subject
2
line will be redacted as may be needed. The parties will produce redacted documents
3
in TIFF format (or searchable PDF if production format dictates; or in native format
4
for file types that do not convert well to TIFF/PDF, such as Excel files) with
5
corresponding searchable OCR text and the associated metadata for the document,
6
ensuring the redacted content is fully protected from disclosure.
7
8
6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
9
6.1 Timing of Challenges. Any Party or Non-Party may challenge a
10
designation of confidentiality at any time that is consistent with the Court’s
11
Scheduling Order.
12
6.2 Meet and Confer. The Challenging Party shall initiate the dispute
13
resolution process under Local Rule 37.1 et seq.
14
6.3 The burden of persuasion in any such challenge proceeding shall be on
15
the Designating Party. Frivolous challenges, and those made for an improper purpose
16
(e.g., to harass or impose unnecessary expenses and burdens on other parties) may
17
expose the Challenging Party to sanctions. Unless the Designating Party has waived
18
or withdrawn the confidentiality designation, all parties shall continue to afford the
19
material in question the level of protection to which it is entitled under the Producing
20
Party’s designation until the Court rules on the challenge.
21
22
7. ACCESS TO AND USE OF PROTECTED MATERIAL
23
7.1 Basic Principles. A Receiving Party may use Protected Material that is
24
disclosed or produced by another Party or by a Non-Party in connection with this
25
Action only for prosecuting, defending, or attempting to settle this Action. Such
26
Protected Material may be disclosed only to the categories of persons and under the
27
Receiving Party must comply with the provisions of section 13 below (FINAL
1
DISPOSITION).
2
Protected Material must be stored and maintained by a Receiving Party at a
3
location and in a secure manner that ensures that access is limited to the persons
4
authorized under this Order.
5
7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless
6
otherwise ordered by the court or permitted in writing by the Designating Party, a
7
Receiving Party may disclose any information or item designated
8
“CONFIDENTIAL” only to:
9
(a) the Receiving Party’s Outside Counsel of Record in this Action, as well
10
as employees of said Outside Counsel of Record to whom it is reasonably necessary
11
to disclose the information for this Action;
12
(b) the officers, directors, and employees (including House Counsel) of the
13
Receiving Party to whom disclosure is reasonably necessary for this Action;
14
(c) Experts (as defined in this Order) of the Receiving Party to whom
15
disclosure is reasonably necessary for this Action and who have signed the
16
“Acknowledgment and Agreement to Be Bound” (Exhibit A);
17
(d) the court and its personnel;
18
(e) court reporters and their staff;
19
(f) professional jury or trial consultants, mock jurors, and Professional
20
Vendors to whom disclosure is reasonably necessary for this Action and who have
21
signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
22
(g) the author or recipient of a document containing the information or a
23
custodian or other person who otherwise possessed or knew the information;
24
(h) during their depositions, witnesses, and attorneys for witnesses, in the
25
Action to whom disclosure is reasonably necessary provided: (1) the deposing party
26
requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will
27
“Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise
1
agreed by the Designating Party or ordered by the court. Pages of transcribed
2
deposition testimony or exhibits to depositions that reveal Protected Material may
3
be separately bound by the court reporter and may not be disclosed to anyone except
4
as permitted under this Stipulated Protective Order; and
5
(i) any mediator or settlement officer, and their supporting personnel,
6
mutually agreed upon by any of the parties engaged in settlement discussions.
7
7.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
8
ONLY” Information or Items. Unless otherwise ordered by the court or permitted in
9
writing by the Designating Party, a Receiving Party may disclose any information or
10
item designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only
11
to:
12
(a) the Receiving Party’s Outside Counsel of Record in this action, as well as
13
employees of said Outside Counsel of Record to whom it is reasonably necessary to
14
disclose the information for this litigation;
15
(b) Experts of the Receiving Party to whom disclosure is reasonably necessary
16
for this litigation and who have signed the “Acknowledgment and Agreement to Be
17
Bound” (Exhibit A);
18
(c) the court and its personnel;
19
(d) court reporters and their staff,
20
(e) professional jury or trial consultants, and Professional Vendors to whom
21
disclosure is reasonably necessary for this litigation and who have signed the
22
“Acknowledgment and Agreement to Be Bound” (Exhibit A); and
23
(f) the author or recipient of a document containing the information or a
24
custodian or other person who otherwise possessed or knew the information.
25
26 7.4 Notwithstanding the foregoing, Protected Material shall not be
27 disclosed to any current or former employees of, or current or former consultants,
1 advisors, or agents of, a direct competitor of any party named in the litigation. If a
2 Receiving Party is in doubt about whether a particular entity is a direct competitor of
3 a party named in this lawsuit, then before disclosing any Protected Material to a
4 current or former employee, consultant, advisor, or agent of that entity, the Receiving
5 Party’s counsel must confer with counsel for the Producing Party.
6 7.5 Data Security. The Parties agree to provide adequate security to protect
7 data produced by the other party(ies) or by non-parties. At a minimum, any Receiving
8 Party subject to the terms of this Protective Order, will provide reasonable measures
9 to protect non-client data consistent with the American Bar Association Standing
10 Committee on Ethics and Professional Responsibility, Formal Opinion 477R.Data
11 Security.
12
8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
13
IN OTHER LITIGATION
14
15 If a Party is served with a subpoena or a court order issued in other litigation
16 that compels disclosure of any information or items designated in this Action as
17 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
18 ONLY,” that Party must:
19 (a) promptly notify in writing the Designating Party. Such notification shall
20 include a copy of the subpoena or court order;
21 (b) promptly notify in writing the party who caused the subpoena or order
22 to issue in the other litigation that some or all of the material covered by the subpoena
23 or order is subject to this Protective Order. Such notification shall include a copy of
24 this Stipulated Protective Order; and
25 (c) cooperate with respect to all reasonable procedures sought to be pursued
26 by the Designating Party whose Protected Material may be affected.
27 If the Designating Party timely seeks a protective order, the Party served
with the subpoena or court order shall not produce any information designated in this
1
action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’
2
EYES ONLY” before a determination by the court from which the subpoena or order
3
issued, unless the Party has obtained the Designating Party’s permission. The
4
Designating Party shall bear the burden and expense of seeking protection in that
5
court of its confidential material and nothing in these provisions should be construed
6
as authorizing or encouraging a Receiving Party in this Action to disobey a lawful
7
directive from another court.
8
9
9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT
10
TO BE PRODUCED IN THIS LITIGATION
11
(a) The terms of this Order are applicable to information produced by a
12
Non-Party in this Action and designated as “CONFIDENTIAL” or “HIGHLY
13
CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Such information produced by
14
Non-Parties in connection with this litigation is protected by the remedies and relief
15
provided by this Order. Nothing in these provisions should be construed as
16
prohibiting a Non-Party from seeking additional protections.
17
(b) In the event that a Party is required, by a valid discovery request, to
18
produce a Non-Party’s confidential information in its possession, and the Party is
19
subject to an agreement with the Non-Party not to produce the Non-Party’s
20
confidential information, then the Party shall:
21
(1) promptly notify in writing the Requesting Party and the Non-Party
22
that some or all of the information requested is subject to a confidentiality agreement
23
with a Non-Party;
24
(2) promptly provide the Non-Party with a copy of the Stipulated
25
Protective Order in this Action, the relevant discovery request(s), and a reasonably
26
specific description of the information requested; and
27
Non-Party, if requested.
1
(c) If the Non-Party fails to seek a protective order from this court within
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14 days of receiving the notice and accompanying information, the Receiving Party
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may produce the Non-Party’s confidential information responsive to the discovery
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request. If the Non-Party timely seeks a protective order, the Receiving Party shall
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not produce any information in its possession or control that is subject to the
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confidentiality agreement with the Non-Party before a determination by the court.
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Absent a court order to the contrary, the Non-Party shall bear the burden and expense
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of seeking protection in this court of its Protected Material.
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10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
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12 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
13 Protected Material to any person or in any circumstance not authorized under this
14 Stipulated Protective Order, the Receiving Party must immediately (a) notify in
15 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
16 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or
17 persons to whom unauthorized disclosures were made of all the terms of this Order,
18 and (d) request such person or persons to execute the “Acknowledgment and
19 Agreement to Be Bound” that is attached hereto as Exhibit A.
20 Protected Material shall only be used for the purpose of litigating the Action
21 and shall not be used in other actions or proceedings.
22 Persons having knowledge of Protected Material and information due to their
23 participation in the conduct of this Action shall use such knowledge and information
24 only as permitted herein, and shall not disclose such Protected Material, their
25 contents or any portion or summary thereof to any person(s) not involved in the
26 conduct of the Action.
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11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
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PROTECTED MATERIAL
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3 The inadvertent production of privileged or work-product protected
4 documents, electronically stored information (ESI) or information is not a waiver of
5 the privilege or protection from discovery in this case or in any other federal or state
6 proceeding. When a Producing Party gives notice to Receiving Parties that certain
7 inadvertently produced material is subject to a claim of privilege or other protection,
8 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
9 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
10 may be established in an e-discovery order that provides for production without prior
11 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the
12 parties reach an agreement on the effect of disclosure of a communication or
13 information covered by the attorney-client privilege or work product protection, the
14 parties may incorporate their agreement in the stipulated protective order submitted
15 to the court.
16 This Order shall be interpreted to provide the maximum protection allowed by
17 Federal Rule of Evidence (FRE) 502(d) and shall be enforceable and granted full
18 faith and credit in all other state and federal proceedings by 28 U.S. Code § 1738. In
19 the event of any subsequent conflict of law, the law that is most protective of
20 privilege and work product shall apply.
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Nothing contained in this Order is intended to or shall serve to limit a party’s
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right to conduct a review of documents, ESI or information (including metadata) for
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relevance, responsiveness and/or segregation of privileged and/or protected
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information before production.
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If a Receiving Party has reason to believe that a produced document or other
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information may reasonably be subject to a claim of privilege, then the Receiving
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Party shall immediately sequester the document or information, cease using the
document or information and cease using any work product containing the
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information, and shall inform the producing party of the beginning BATES number
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of the document or, if no BATES number is available, shall otherwise inform the
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Producing Party of the information.
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5 A Producing Party must give written notice to any Receiving Party asserting
6 a claim of privilege, work-product protection, or other ground for reclaiming
7 documents or information (a “clawback request”). After a clawback request is
8 received, the Receiving Party shall immediately sequester the document (if not
9 already sequestered) and shall not review or use that document, or any work product
10 containing information taken from that document, for any purpose. The parties shall
11 meet and confer regarding any clawback request.
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13 12. MISCELLANEOUS
14 12.1 Right to Further Relief. Nothing in this Order abridges the right of any
15 person to seek its modification by the Court in the future.
16 12.2 Right to Assert Other Objections. By stipulating to the entry of this
17 Protective Order no Party waives any right it otherwise would have to object to
18 disclosing or producing any information or item on any ground not addressed in this
19 Stipulated Protective Order. Similarly, no Party waives any right to object on any
20 ground to use in evidence of any of the material covered by this Protective Order.
21 12.3 Filing Protected Material. A Party that seeks to file under seal any
22 Protected Material must comply with Civil Local Rule 79-5. Protected Material may
23 only be filed under seal pursuant to a court order authorizing the sealing of the
24 specific Protected Material at issue. If a Party's request to file Protected Material
25 under seal is denied by the court, then the Receiving Party may file the information
26 in the public record unless otherwise instructed by the court.
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After the final disposition of this Action, as defined in paragraph 4, within 60
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days of a written request by the Designating Party, each Receiving Party must return
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all Protected Material to the Producing Party or destroy such material. As used in
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this subdivision, “all Protected Material” includes all copies, abstracts, compilations,
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summaries, and any other format reproducing or capturing any of the Protected
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Material. Whether the Protected Material is returned or destroyed, the Receiving
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Party must submit a written certification to the Producing Party (and, if not the same
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person or entity, to the Designating Party) by the 60 day deadline that (1) identifies
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(by category, where appropriate) all the Protected Material that was returned or
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destroyed, including any copies of Protected Material provided to persons required
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to execute the Exhibit A (Affidavit), and (2) affirms that the Receiving Party has not
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retained any copies, abstracts, compilations, summaries or any other format
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reproducing or capturing any of the Protected Material. Notwithstanding this
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provision, Counsel are entitled to retain an archival copy of all pleadings, motion
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papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence,
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deposition and trial exhibits, expert reports, attorney work product, and consultant
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and expert work product, even if such materials contain Protected Material. Any such
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archival copies that contain or constitute Protected Material remain subject to this
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Protective Order as set forth in Section 4 (DURATION).
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14. Any violation of this Order may be punished by any and all appropriate
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measures including, without limitation, contempt proceedings and/or monetary
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sanctions.
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1 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
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3 Dated: October 18, 2023 WEINBERG GONSER LLP
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5 By: /s/ Shanen R. Prout
6 Douglas M. Lipstone
Shanen R. Prout
7 Attorneys for Defendant
8 NKOK, INC.
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10 Dated: October 18, 2023 MORRISON & FOERSTER LLP
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12 By: /s/ Eoin Connolly
Michael A. Jacobs
13
Joyce Liou
14 Eoin Connolly
Attorneys for Plaintiff
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CHAP MEI PLASTIC TOYS
16 MANUFACTORY LIMITED
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18 Pursuant to L.R. 5-4.3.4(a)(2)(i), the e-filer of this document hereby attests that all
19 other signatories listed, on whose behalf this stipulation is submitted, concur in the
20 filing’s content and have authorized the filing.
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1 || FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
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3 DATED: October 19, 2023
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5 Piaticcce Denafiir
Patricia Donahue
© |! United States Magistrate Judge
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a0)
EXHIBIT A
1
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
2
3 I, ________________________, of _______________________________,
4 declare under penalty of perjury that I have read in its entirety and understand the
5 Stipulated Protective Order that was issued by the United States District Court for
6 the Central District of California on November ___, 2021 in the case of Candace
7 Gomez, et al. v. Walmart, Inc., et al, case no. 2:21-cv-06425-MWF-PD. I agree to
8 comply with and to be bound by all the terms of this Stipulated Protective Order
9 and I understand and acknowledge that failure to so comply could expose me to
10 sanctions and punishment in the nature of contempt. I solemnly promise that I will
11 not disclose in any manner any information or item that is subject to this Stipulated
12 Protective Order to any person or entity except in strict compliance with the
13 provisions of this Order.
14 I further agree to submit to the jurisdiction of the United States District Court for
15 the Central District of California for the purpose of enforcing the terms of this
16 Stipulated Protective Order, even if such enforcement proceedings occur after
17 termination of this action. I hereby appoint ________________________ of
18 ________________________________________________________________as
19 my California agent for service of process in connection with this action or any
20 proceedings related to enforcement of this Stipulated Protective Order.
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22 Date: __________________________
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City and State where sworn and signed: _____________________________
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25 Printed name: ____________________________________
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27 Signature: ________________________________