Opinion
Case No.: SACV 8:12-0572 JVS (Ex)
01-30-2013
ACTIVE SPORTS LIFESTYLE USA, LLC dba ACTIVE RIDE SHOP, Plaintiff, v. OLD NAVY, LLC; OLD NAVY (APPAREL), LLC; and DOES 1-10, Defendants.
KEVIN A. DORSE (State Bar No. 146942) SCOTTK. BEHRENDT (State Bar No. 200217) THEODORA ORINGHER P.C. JAMES D. WEINBERGER (admitted pro hac vice) ANNA P. LEIPSIC (admitted pro hac vice) GISELLE C.W. HURON (admitted pro hac vice) ROSS ZELNICK LEHRMAN & ZISSU, P.C. Attorneys for Defendants OLD NAVY, LLC and OLD NAVY (APPAREL), LLC
KEVIN A. DORSE (State Bar No. 146942)
SCOTTK. BEHRENDT (State Bar No. 200217)
THEODORA ORINGHER P.C.
JAMES D. WEINBERGER (admitted pro hac vice)
ANNA P. LEIPSIC (admitted pro hac vice)
GISELLE C.W. HURON (admitted pro hac vice)
ROSS ZELNICK LEHRMAN & ZISSU, P.C.
Attorneys for Defendants OLD NAVY, LLC
and OLD NAVY (APPAREL), LLC
PROPOSED PROTECTIVE
ORDER
Complaint Filed: April 13, 2012
Amended Complaint Filed: August 17,
2012
Trial Date: October 29, 2013
Plaintiff ACTIVE SPORTS LIFESTYLE USA, LLC dba ACTIVE RIDE SHOP and Defendants OLD NAVY, LLC and OLD NAVY (APPAREL), LLC (collectively, the "Parties," and each individually, a "Party") agree that disclosure and discovery activity in this action are likely to involve production of confidential, proprietary, or private information for which special protection from public disclosure would be warranted.
GOOD CAUSE STATEMENT
The Parties respectfully believe that good cause exists to enter the instant Protective Order in order to protect confidential, proprietary or private information from public disclosure. The confidential, proprietary or private information at issue includes information and data that could be used by actual or potential competitors to gain an improper and unlawful competitive advantage in the marketplace. This Protective Order is necessary to prevent such harm to the Parties. The Parties have attempted to draft this Protective Order narrowly and in a manner no more restrictive than necessary to protect such confidential, proprietary or private information from public disclosure.
BASED ON THE FOREGOING, IT IS HEREBY STIPULATED AND AGREED AS FOLLOWS:
1. The Parties shall petition the Court for entry of the instant Protective Order for purposes of the above-captioned litigation. This Protective Order will remain in force unless modified by an order of this Court or by a written stipulation of the Parties lodged with this Court.
2. Nothing in this Protective Order will prevent any Party from applying to the Court for relief from any of the provisions hereof, or for such further or additional order as the Court may deem appropriate.
3. Applicability of Order: This Order will be applicable to and govern the handling of Discovery Materials, as that term is defined below, and will govern trial proceedings in this Litigation except as set forth in paragraph 30 below. As used herein, "producing Party" or "disclosing Party" shall refer to the parties to this action that give testimony or produce documents or other information, and "receiving Party" shall refer to the parties to this action that receive such information.
4. Designation of Material: In responding to a request for discovery, the Order any documents, testimony or other information the producing Party considers in good faith to be, or to reflect or reveal, CONFIDENTIAL MATERIAL or CONFIDENTIAL MATERIAL-ATTORNEYS' EYES ONLY, as those terms are defined below (such designated material, together, "Confidential Discovery Material"). Any other Party may object to such designation using the procedures noted herein. Each Party or Non-Party that designates information or items for protection under this Order must take care to limit any such designation to specific material that qualifies under the appropriate standards. Mass, indiscriminate, or routinized designations are prohibited.
5. CONFIDENTIAL MATERIAL: For purposes of this Protective Order, "CONFIDENTIAL MATERIAL" means and includes all non-public, confidential or proprietary information or material, whether personal or business related, which is produced for or disclosed to a receiving Party that a party believes in good faith to be confidential or sensitive information, including, but not limited to, trade secrets, proprietary research, design, development, financial, technical, marketing, planning, personal, or commercial information, as such terms are used in Rule 26(c)(1)(G) of the Federal Rules of Civil Procedure and any applicable case law interpreting Rule 26(c)(1)(G) or the former Rule 26(c)(7). CONFIDENTIAL MATERIAL may be embodied, among other things, in physical objects, documents (whether in hard copy or computer readable form), deposition testimony, interrogatory answers, responses to requests for admission and/or production, or the factual knowledge of persons (collectively, "Discovery Materials"). CONFIDENTIAL MATERIAL must be so designated by the producing Party in the manner set forth hereinafter, or otherwise agreed to in writing by the Parties. Discovery Materials designated CONFIDENTIAL MATERIAL shall be available only to those persons identified in Paragraph 10, below. Nothing in this Protective Order shall prevent a receiving Party from contending that any or all Discovery Materials designated as CONFIDENTIAL MATERIAL have been improperly designated.
6. CONFIDENTIAL MATERIAL-ATTORNEYS' EYES ONLY: CONFIDENTIAL MATERIAL that includes information relating to non-public financial information, marketing plans, and trade secrets (as such term is defined in California Civil Code § 3426.1), or extremely sensitive, highly confidential, nonpublic information, consisting either of trade secrets or proprietary or other highly confidential business, financial, regulatory, or strategic information (including information regarding business plans, technical data, and non-public designs), the disclosure of which would create a substantial risk of competitive or business injury to the Producing Party, may additionally be designated "ATTORNEYS' EYES ONLY." Discovery Materials designated CONFIDENTIAL MATERIAL-ATTORNEYS' EYES ONLY shall be available only to those persons identified in Paragraph 11, below. The Parties agree to use reasonable care when designating any Discovery Materials as CONFIDENTIAL MATERIAL-ATTORNEYS' EYES ONLY. Nothing in this Protective Order shall prevent a receiving Party from contending that any or all Discovery Materials designated as CONFIDENTIAL MATERIAL-ATTORNEYS' EYES ONLY have been improperly designated.
California Civil Code § 3426.1 provides that trade secret "means information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (1) Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and (2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy."
7. Challenging Designation of Materials: A receiving Party may at any time request that the producing Party change any CONFIDENTIAL MATERIAL-ATTORNEYS' EYES ONLY designation to CONFIDENTIAL MATERIAL, or to remove the CONFIDENTIAL MATERIAL designation entirely. Such a request shall be written, shall be served on counsel for the producing Party, shall particularly identify the Discovery Materials that the receiving Party contends have been improperly designated as CONFIDENTIAL MATERIAL or CONFIDENTIAL MATERIAL-ATTORNEYS' EYES ONLY, shall state briefly with respect to each disputed designation the receiving Party's position (and shall provide any legal authority that the receiving Party believes is dispositive of the dispute as to that designation), shall specify the terms of the discovery order to be sought if the producing Party refuses to change or remove the designation, and shall request a conference among the Parties' counsel, pursuant to Local Rule 37-1.
8. Unless relieved by written order of the Court upon good cause shown, counsel for the Parties shall confer within ten (10) days after the receiving Party serves the letter described in Paragraph 7, and shall confer in a good faith effort to eliminate the necessity of filing any motion or to eliminate as many of the disputes as possible, pursuant to Local Rule 37-1. If after such conference the Parties are unable to reach an agreement, the Parties shall prepare a written stipulation pursuant to Local Rules 37-2,37-2.1 and 37-2.2, and the receiving Party may file a motion asking the Court to remove the CONFIDENTIAL MATERIAL or CONFIDENTIAL MATERIAL-ATTORNEYS' EYES ONLY designation pursuant to Local Rule 37-2. The Parties also shall comply with the procedures and requirements relating to supplemental memoranda and a hearing on the motion set forth in Local Rules 37-2.3 and 37-3. If the receiving Party does not initiate the discovery motion process under Local Rule 37 within sixty (60) days of a challenge, the subject CONFIDENTIAL MATERIAL or CONFIDENTIAL MATERIAL-ATTORNEYS' EYES ONLY designation remains as originally designated. The Party designating the Discovery Materials as CONFIDENTIAL MATERIAL or CONFIDENTAL MATERIAL-ATTORNEYS' EYES ONLY shall bear the burden of establishing the confidentiality of such material pursuant to this Protective Order. The Receiving Party must make de-designation requests in good faith. Mass, indiscriminate, or routinized requests for de-designation are prohibited.
9. Designation of Confidential Discovery Material: The designation of any Discovery Materials shall be made in the following manner:
a. Any document or tangible thing containing or including any Confidential Discovery Material may be designated as such by the producing Party marking it with the legend "CONFIDENTIAL" or "CONFIDENTIAL-ATTORNEYS' EYES ONLY" near the Bates number, if practical, on each page containing Confidential Discovery Material (or in the case of computer medium on the medium and its label and/or cover) to which the designation applies prior to or at the time copies are furnished to the receiving Party.
b. With respect to deposition testimony or other pretrial testimony, in the case of depositions or other pre-trial testimony, designation of the portion of the transcript (including exhibits) which contains Confidential Discovery Material shall be made (i) by a statement on the record at the time of such disclosure by counsel for the deponent that such testimony is CONFIDENTIAL or CONFIDENTIAL-ATTORNEYS' EYES ONLY, or (ii) by written notice, sent by counsel for the deponent to all counsel for all Parties on or before the end of the thirty (30) days after receiving a copy of the transcript thereof. All deposition transcripts prepared in the action shall be deemed to be CONFIDENTIAL MATERIAL-ATTORNEYS' EYES ONLY in their entirety until the end of thirty (30) days after their receipt by counsel for the producing Party. Thereafter, only those portions of the deposition transcripts prepared in the action which have been designated by the producing Party as CONFIDENTIAL MATERIAL or CONFIDENTIAL MATERIAL-ATTORNEYS' EYES ONLY will be treated as such pursuant to the provisions of this Protective Order.
10. Persons Authorized to Receive CONFIDENTIAL MATERIAL: Discovery Materials designated CONFIDENTIAL MATERIAL and information contained therein may be disclosed, summarized, described, characterized or otherwise communicated or made available in whole or in part only to the following persons:
a. Officers, directors or employees of parties who have a need to know such information for purposes of this Litigation who have agreed to this Protective Order by signing through counsel;
b. outside counsel who represent Parties in this action, and regular and temporary employees of those counsel assisting in the representation for use in accordance with this Protective Order;
c. experts and consultants who have been engaged to assist counsel for a Party ("Technical Advisors") arid who are not employed by, were not employed by, are not anticipated to be employed in the next twelve (12) months by, and are not otherwise affiliated with the opposing Party, and who have agreed to this Protective Order by signature;
d. the Court, persons employed by the Court who are necessary for the handling of the Litigation, and court reporters transcribing the testimony or argument at a hearing, trial or deposition in this Litigation or any appeal therefrom;
e. any actual deponent or witness in this action who has previously received the CONFIDENTIAL MATERIAL in his or her capacity as a director, officer or employee of the Party who produced the material; has been informed previously of the CONFIDENTIAL MATERIAL in his or her capacity as a director, officer or employee of the Party who produced the material; is currently employed by the Party that produced the CONFIDENTIAL MATERIAL; or agrees to this Protective Order by signing through counsel; and
f. the court reporter engaged to report a deposition in which CONFIDENTIAL MATERIAL is disclosed and any service bureau. A "service bureau" is a person, agency or organization that is independent of the Parties and is engaged by counsel of record to perform clerical, copying, bate stamping, document handling, stenographic, computer data entry or other litigation support services.
11. Persons Authorized to Receive CONFIDENTIAL MATERIAL-ATTORNEYS' EYES ONLY: Discovery Materials designated CONFIDENTIAL MATERIAL-ATTORNEYS' EYES ONLY and information contained therein may be disclosed, summarized, described, characterized or otherwise communicated or made available in whole or in part only to the following persons:
a. in-house counsel of Parties and outside counsel who represent Parties in this action, and regular and temporary employees of those counsel assisting in the representation for use in accordance with this Protective Order;
b. Technical Advisors who are not employed by, were not employed by, are not anticipated to be employed in the next twelve (12) months by, and are not otherwise affiliated with the opposing Party, and who have agreed to this Protective Order by signature;
c. the Court, persons employed by the Court who are necessary for the handling of the Litigation, and court reporters transcribing the testimony or argument at a hearing, trial or deposition in this Litigation or any appeal therefrom;
d. any actual deponent or witness in this action who has previously received the CONFIDENTIAL MATERIAL-ATTORNEYS' EYES ONLY in his or her capacity as a director, officer or employee of the Party who produced the material; has been informed previously of the CONFIDENTIAL MATERIAL-ATTORNEYS' EYES ONLY in his or her capacity as a director, officer or employee of the Party who produced the material; is currently employed by the Party that produced the CONFIDENTIAL MATERIAL-ATTORNEYS' EYES ONLY; or agrees to this Protective Order by signing through counsel; and
e. the court reporter engaged to report a deposition in which CONFIDENTIAL MATERIAL-ATTORNEYS' EYES ONLY is disclosed and any service bureau.
12. The Parties described above in Paragraphs 10(a)-(f) and 11(a)-(e) are prohibited from disclosing, summarizing, describing, characterizing or otherwise communicating material designated as either CONFIDENTIAL MATERIAL or CONFIDENTIAL MATERIAL-ATTORNEYS' EYES ONLY, directly or indirectly, except in accordance with the terms of this Protective Order.
13. In the event that deposition testimony is designated CONFIDENTIAL MATERIAL-ATTORNEYS' EYES ONLY pursuant to Paragraph 9(b), all persons not identified in Paragraph 11 shall be excluded from the deposition and shall not reenter until the designating Party agrees that the testimony is no longer confidential and does not warrant the protection of the CONFIDENTIAL MATERIAL-ATTORNEYS' EYES ONLY designation. However, Parties opposing a CONFIDENTIAL MATERIAL-ATTORNEYS' EYES ONLY designation reserve the right to promptly challenge said designation, pursuant to the procedure set forth in Paragraphs 7 and 8.
14. Notwithstanding the terms of Paragraphs 10 and 11, the undersigned counsel may agree in writing to allow Discovery Materials designated as CONFIDENTIAL MATERIAL or CONFIDENTIAL MATERIAL-ATTORNEYS' EYES ONLY to be disclosed to a person or entity not listed Paragraphs 10(a)-(f) or 11(a)-(e). The Parties agree to meet and confer in good faith, pursuant to Local Rule 37, in the event that a Party wishes to disclose Discovery Materials designated as CONFIDENTIAL MATERIAL or CONFIDENTIAL MATERIAL-ATTORNEYS' EYES ONLY to a person or entity not listed Paragraphs 10(a)-(f) or 11(a)-(e). Should the Parties disagree as to whether such Discovery Materials may be disclosed to such a person or entity, the Parties shall follow the procedures set forth in Local Rule 37 regarding discovery disputes.
15. Before any Discovery Materials designated as CONFIDENTIAL MATERIAL or CONFIDENTIAL MATERIAL-ATTORNEYS' EYES ONLY, or information contained therein, may be disclosed to any person described in subparagraphs 10(c) or 11(b), that person shall be required to agree in writing or on the record to adhere to the terms of this Protective Order. Nothing contained in this Protective Order shall preclude Court officials or any certified reporter retained to transcribe depositions in this proceeding from access to designated Confidential Discovery Material during Court proceedings or depositions in this action.
16. Anyone who intends to disclose, summarize, characterize, otherwise communicate, give access to or make available CONFIDENTIAL MATERIAL or material designated as CONFIDENTIAL MATERIAL-ATTORNEYS' EYES ONLY to any person described in subparagraphs 10(c), 10(f), 11(b), and/or 11(e) must:
a. advise the person that the material or information is being disclosed pursuant and subject to the terms of this Protective Order and may not be disclosed, summarized, described, characterized, or otherwise communicated or made available in whole or in part to any other person except pursuant to the terms hereof; and
b. require the person to commit, in writing or on the record, to abide by and be bound by the terms of this Protective Order, by for example, executing a Confidentiality Agreement substantially in the form of the Attachment hereto.
17. Filing of Confidential Discovery Material: Without written permission from the Producing Party or a court order, a party may not file in the public record in this action any Confidential Discovery Material. The parties shall comply with Local Rule 79-5 when seeking to file Confidential Discovery Material under seal.
a. Counsel for any Party submitting to or lodging or filing with the Court any designated CONFIDENTIAL MATERIAL or CONFIDENTIAL MATERIAL-ATTORNEYS' EYES ONLY or any paper that contains, reflects or reveals CONFIDENTIAL MATERIAL or CONFIDENTIAL MATERIAL-ATTORNEYS' EYES ONLY, shall apply to the Court to file all such documents under seal pursuant to Local Rule 79-5.1. The party desiring to place any Confidential Discovery Material before the Court shall lodge the information in a sealed envelope along with an application to file the papers or the portion thereof containing Confidential Discovery Material under seal and a copy of a Proposed Order Sealing Documents. Said envelope shall be endorsed with the title of the Litigation, an indication of the nature of the contents of such sealed envelope, the identity of the party filing the materials, the phrase CONFIDENTIAL MATERIAL or CONFIDENTIAL MATERIAL-ATTORNEYS' EYES ONLY, and a statement substantially in the following form: THIS ENVELOPE CONTAINS MATERIALS SUBJECT TO A PROTECTIVE ORDER ENTERED IN THIS LITIGATION. IT IS NOT TO BE OPENED NOR ARE ITS CONTENTS TO BE DISPLAYED, REVEALED, OR MADE PULBIC, EXCEPT BY ORDER OF THE COURT. UNLESS THE COURT ORDERS THAT IT NOT BE FILED, IT SHALL BE FILED UNDER SEAL.
b. Additionally, within seven (7) days from the date that the papers (or portions thereof) were filed under seal consistent with the above procedures, the party who filed the papers under seal also shall file in the public record a version of the papers that has been redacted to omit the Confidential Discovery Material (or any references thereto).
c. The parties shall also comply with Local Rule 79-5.4 with respect to the appropriate treatment of personal identifier information in connection with any filing with the Court.
d. All subsequent papers that refer to or rely upon such evidence shall designate the particular aspects that are CONFIDENTIAL MATERIAL or CONFIDENTIAL MATERIAL-ATTORNEYS' EYES ONLY, so that the Court, in drafting orders, may determine whether there is evidence which the Court should attempt not to disclose. Absent such advance notification, the Court will be free to incorporate all such evidence in its written and oral rulings.
18. Entering into, agreeing to, or producing or receiving CONFIDENTIAL MATERIAL or CONFIDENTIAL MATERIAL-ATTORNEYS' EYES ONLY, or otherwise complying with the terms of this Protective Order shall not:
a. operate as an admission that any particular Confidential Discovery Material is relevant or admissible at trial;
b. prejudice in any way the rights of a producing Party to object to the production or admissibility of any Confidential Discovery Material, or operate as an admission by any party that the restrictions and procedures set forth herein constitute adequate protection for any particular information deemed by any party to be deemed CONFIDENTIAL MATERIAL or CONFIDENTIAL MATERIAL-ATTORNEYS' EYES ONLY;
c. prevent the Parties from seeking a determination by the Court whether any Confidential Discovery Material should be subject to this Order, or from petitioning the Court for a protective order relating to any purportedly confidential . information; or
d. prevent the Parties to this Protective Order from agreeing in writing to amend, alter or waive the provisions or protections provided for herein with respect to any Confidential Discovery Material.
19. This Protective Order has no effect upon, and shall not apply to any producing Party's use of its own Confidential Discovery Material for any purpose.
20. Inadvertent Disclosure: If a document or other information is inadvertently produced without any designation of confidentiality, a Party nevertheless may assert the confidentiality of the document or other information and the Parties must thereafter treat the document or other information as CONFIDENTIAL MATERIAL or CONFIDENTIAL MATERIAL-ATTORNEYS' EYES ONLY, as asserted. After such an assertion, each Party shall affix the legend "CONFIDENTIAL" or "CONFIDENTIAL-ATTORNEYS' EYES ONLY" to each copy of the newly designated document or other information in its possession and shall make all reasonable efforts to ensure that every entity or individual to whom that Party has disclosed the information also affixes the appropriate legend to each copy of the newly designated document or other information in its possession.
21. All documents (including physical objects) may be made available for initial inspection by counsel for the receiving Party prior to producing copies of selected items. At the request of the producing Party, these documents made available for initial inspection shall initially be considered, as a whole, to constitute CONFIENTIAL MATERIAL-ATTORNEYS' EYES ONLY and shall be subject to this Protective Order. Thereafter, the producing Party shall have a reasonable time to review and designate the appropriate documents as CONFIDENTIAL MATERIAL or CONFIDENTIAL MATERIAL-ATTORNEYS' EYES ONLY prior to furnishing copies to the receiving Party. Such initial inspection of documents (including physical objects) shall not constitute a waiver of the attorney-client privilege or work product immunity with respect to any document so inspected.
22. No Waiver of Privilege: This Order is intended to provide the full protection afforded by Federal Rule of Evidence 502(d), providing that "A Federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court - in which event the disclosure also is not a waiver in any other Federal or State proceeding." Furnishing of copies to the receiving Party shall not constitute a waiver of the attorney-client privilege or work product immunity with respect to any document or physical object so furnished, if within ten (10) business days after learning of an inadvertent production of documents or things properly within the attorney-client privilege or work product immunity, the producing Party designates any such documents as within either the attorney-client privilege or work product immunity and requests return of any such documents to the producing Party. Upon a reasonable request by the receiving Party as to whether a document was inadvertently produced, the producing Party shall have ten (10) business days to respond. The producing Party's response shall: (1) state whether the document was or was not inadvertently produced, (2) if applicable, designate the document as within the attorney-client privilege or work product immunity, and (3) state whether return of the document is requested. Upon request by the producing Party for return of any such documents designated as within either the attorney-client privilege or work product immunity, the receiving Party immediately shall return to the producing Party all copies of such documents provided the producing Party make an adequate showing of the privilege or work product immunity. Nothing herein shall prevent the receiving Party from challenging the proprietary of the attorney-client privilege or work product immunity designation by filing an appropriate motion with the Court.
23. In the event of disclosure of any Confidential Discovery Material to a person not authorized to receive it under the terms of this Protective Order, the Party responsible for having made, and any Party with knowledge of, such disclosure shall immediately inform counsel for the producing Party of all information concerning the nature and the circumstances of the disclosure. The responsible Party also must promptly take all reasonable measures to ensure that no further or greater unauthorized disclosure of such information or materials is made by anyone, and each Party will cooperate in good faith in that effort.
24. Additional Parties or Attorneys: In the event any additional Party joins or is joined in this action, the newly joined Party shall not have access to CONFIDENTIAL MATERIAL until the newly joined Party, by its counsel, has executed and filed with the Court its agreement to be bound fully by this Protective Order by executing and delivering to the Parties hereto an agreement to be bound by its terms. At no time will a Party (other than a Party's in-house counsel, as per 11(a)) have access to CONFIDENTIAL MATERIAL-ATTORNEYS' EYES ONLY.
25. Conclusion of Litigation: Within thirty (30) calendar days after the conclusion of this action in its entirety, all persons receiving Confidential Discovery Material must either return such material and all copies thereof to counsel for the Party that produced it, or must destroy all such material in a manner that ensures that such material will not be disclosed to other person. Counsel for the Parties are entitled to retain all court papers, deposition and trial transcripts, exhibits used in affidavits, at depositions and at trial, and attorney work product (except for certain litigation database, as set forth in the third sentence in this paragraph), including materials containing, quoting, discussing or analyzing Confidential Discovery Material, provided that such outside counsel, and employees of such outside counsel, shall not disclose such court papers, deposition and trial transcripts, exhibits or attorney work product to any person except on reasonable notice to the producing Party and pursuant to a court order, or agreement by the producing Party. All materials returned to the Parties or their counsel by the Court shall be disposed of in accordance with this paragraph. "Conclusion of this action" means after all appeal periods have expired or after the execution of a settlement among all the Parties finally disposing of this action.
26. In the event that any person ceases to be engaged in the litigation and/or settlement of this action, such person's access to documents, testimony and information designated as CONFIDENTIAL MATERIAL or CONFIDENTIAL MATERIAL-ATTORNEYS' EYES ONLY shall be terminated. However, the provisions of this Protective Order shall remain in full force and effect as to any person or Party who has obtained access to documents, testimony or information designated as CONFIDENTIAL MATERIAL or CONFIDENTIAL MATERIAL-ATTORNEYS' EYES ONLY hereunder, except as may be specifically ordered by the Court or consented to by the producing Party. In addition, any such person who ceases to be engaged in the litigation and/or settlement of this action and who has had access to documents, testimony or information designated as CONFIDENTIAL MATERIAL or CONFIDENTIAL MATERIAL-ATTORNEYS' EYES ONLY must return or destroy such material in accordance with Paragraph 25 of this Protective Order.
27. Storage of Confidential Discovery Material: Confidential Discovery Material and all copies or reproductions thereof in the possession of counsel shall be maintained in a secure manner with reasonable precautions taken to ensure that access is restricted in accordance with the terms of this agreement..
28. If the production of Confidential Discovery Material is sought by means of legal process, the recipient of the legal process shall (a) notify the originator of the Confidential Discovery Material and (b) cooperate with the originator of the Confidential Discovery Material to use all reasonable legal means to avoid production or, in the alternative, insure that production is subject to this Protective Order or similar provisions of confidentiality and non-disclosure.
29. In order to facilitate the prompt exchange of documents, the terms of this Protective Order are binding on a Party and its Technical Advisors immediately upon signing this Protective Order. When and if this Protective Order is entered by the Court, such entry shall be deemed retroactive to the date of execution of this Protective Order by representatives for all Parties.
30. Documents designated CONFIDENTIAL MATERIAL or CONFIDENTIAL-ATTORNEYS' EYES ONLY may be used by any Party without limitation at trial. However, any Party who wishes to have such documents treated as CONFIDENTIAL or CONFIDENTIAL-ATTORNEYS' EYES ONLY during trial may renew its request for confidentiality before the trial judge at a pretrial conference and/or through a motion in limine in advance of trial. Any Party who wishes to have such documents treated as CONFIDENTIAL or CONFIDENTIAL-ATTORNEYS' EYES ONLY during trial must show sufficient cause for such treatment.
31. Miscellaneous
a. By stipulating to the entry of this Protective Order, no Party waives any right it otherwise would have to object to disclosing or producing any information or item on any ground not addressed in this Protective Order. Similarly, no Party waives any right to object on any ground to use in evidence of any of the material covered by this Protective Order. Moreover, this Protective Order shall not preclude or limit any Party's right to seek further and additional protection against or limitation upon production of documents produced in response to discovery.
b. Nothing in this Protective Order shall require disclosure of materials a Party contends are protected from disclosure by the attorney-client privilege or the attorney work-product doctrine. This provision shall not, however, be construed to preclude any Party from moving the Court for an order directing the disclosure of such materials where it disputes the claim of attorney-client privilege or attorney work-product doctrine.
c. This Protective Order shall not prevent a Party from applying to the Court for relief therefrom, or from applying to the Court for a modification of this Protective Order or further protective orders, or from agreeing between themselves to modification of this Protective Order.
d. This Protective Order may be executed in counterparts, which taken together shall be deemed to constitute one and the same document. Facsimile, photocopy and PDF signatures shall be considered original signatures.
e. The Court's jurisdiction to enforce the terms of this Order expires six (6) months after final termination of this action unless otherwise ordered by the Court.
f. The headings herein are provided only for the convenience of the Parties and are not intended to define or limit the scope of the express terms of this Protective Order. IT IS SO STIPULATED.
Attorneys for Plaintiff:
Dated: Newport Beach, California
January 23, 2013
CALL & JENSEN P.C.
By: _______________
Wayne W. Call
(SBN 56676)
wcall@calljensen.com
Scott P. Shaw
(SBN 223592)
sshaw@calljensen.com
Deborah A. Gubernick
(SBN 242483)
dgubernick@calljensen.com
610 Newport Center Drive
Suite 700
Newport Beach, CA 92660
Tel.: (949) 717-3000
Attorneys for Defendant:
Dated: New York, New York
January 23, 2013
Dated: Costa Mesa, California
January 23, 2013
FROSS ZELNICK LEHRMAN &
ZISSU, P.C.
By: _______________
James D. Weinberger
(jweinberger@fzlz.com)
Anna P. Leipsic
(aleipsic@fzlz.com)
Giselle C.W. Huron
(ghuron@fzIz.com)
866 United Nations Plaza
New York, NY 10017
Tel.: (212) 813-5900
THEODORA ORINGHER P.C.
By: _______________
Kevin A Dorse
(SBN 146942)
(kdorse@tocounsel.com)
Scott K. Behrendt
(SBN 200217)
(sbehrendt@tocounsel.com)
535 Anton Boulevard
Ninth Floor
Costa Mesa, CA 92626
Tel.: (714) 549-6200
SO ORDERED: _______________
Hon. James V. Selna, U.S.D.J.
EXHIBIT TO PROTECTIVE ORDER
ACTIVE SPORTS LIFESTYLE USA, LLC dba ACTIVE RIDE SHOP, Plaintiff,
v. OLD NAVY, LLC; OLD NAVY (APPAREL), LLC; and DOES 1-10, Defendants.
Case No.: SACV 8:12-0572 JVS (Ex)
DECLARATION REGARDING
PROTECTIVE ORDER
Complaint Filed: April 13, 2012
Amended Complaint Filed: August 17,
2012
Trial Date: October 29, 2013
I, _______________, HEREBY DECLARE:
1. I am over the age of 18. I have received and read a copy of the Protective Order entered by the Court on January __, 2013, and am familiar with its terms.
2. I agree to comply with and be bound by the Protective Order until relieved by further Order of the Court or by written agreement of all the parties to this Action.
3. If I receive documents or information designated as CONFIDENTIAL MATERIAL or CONFIDENTIAL MATERIAL- ATTORNEYS' EYES ONLY, (as those terms are defined in the Protective Order),' I understand that such information is provided to me pursuant to the terms and restrictions of the Protective Order.
4. I agree to hold in confidence and not further disclose or use for any purpose (other than is permitted by the Protective Order) any information disclosed to me pursuant to the terms of the Protective Order.
5. I agree to submit to the jurisdiction of this Court if any dispute arises over my use of the Confidential Information covered under the Protective Order or over any other issues raised under the Protective Order.
6. My address and telephone number is: ______________________________.
I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct.
Executed on this __ day of ____, 201_, in the City of _______________, State of _______________.
Signature: _______________