Merkamerica Inc. v. Dell Marketing LP

Opinion

8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10

11 MERKAMERICA INC., a California corporation, Case No. 2:20-cv-05408-ODW 12 (RAOx) Plaintiff,

v. DELL MARKETING LP, a Texas 15 limited partnership, also known as ORDER1 DELL OUTLET; and DOES 1 through 16 100, inclusive,

17 Defendants.

18 DELL MARKETING LP, a Texas limited partnership, 19 Counterclaimant, 20 vs. 21 MERKAMERICA INC., a California corporation, 22 Counterdefendant. 23 24 25 26

27 1 This Stipulated Protective Order is substantially based on the model protective 1 1. A. PURPOSES AND LIMITATIONS 2 Discovery in this action is likely to involve production of confidential, 3 proprietary or private information for which special protection from public 4 disclosure and from use for any purpose other than prosecuting this litigation may 5 be warranted. Accordingly, the parties hereby stipulate to and petition the Court to 6 enter the following Stipulated Protective Order. The parties acknowledge that this 7 Order does not confer blanket protections on all disclosures or responses to 8 discovery and that the protection it affords from public disclosure and use extends 9 only to the limited information or items that are entitled to confidential treatment 10 under the applicable legal principles. 11 13 This action is likely to involve trade secrets, customer and pricing lists and 14 other valuable commercial, financial, technical and/or proprietary information for 15 which special protection from public disclosure and from use for any purpose other 16 than prosecution or defense of this action is warranted. Such confidential and 17 proprietary materials and information consist of, among other things, confidential 18 business or financial information, customer lists, pricing, information regarding 19 confidential business practices, or other confidential commercial information 20 (including information implicating privacy rights of third parties), information 21 otherwise generally unavailable to the public, or which may be privileged or 22 otherwise protected from disclosure under state or federal statutes, court rules, case 23 decisions, or common law. 24 Accordingly, to expedite the flow of information, to facilitate the prompt 25 resolution of disputes over confidentiality of discovery materials, to adequately 26 protect information the parties are entitled to keep confidential, to ensure that the 27 parties are permitted reasonable necessary uses of such material in preparation for 1 serve the ends of justice, a protective order for such information is justified in this 2 matter. It is the intent of the parties that information will not be designated as 3 confidential for tactical reasons and that nothing be so designated without a good 4 faith belief that it has been maintained in a confidential, non-public manner, and 5 there is good cause why it should not be part of the public record of this case. 6 7 C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL 8 The parties further acknowledge, as set forth in Section 12.3, below, that this 9 Stipulated Protective Order, alone, does not entitle them to file confidential 10 information under seal; Local Civil Rule 79-5 sets forth the procedures that must be 11 followed and the standards that will be applied when a party seeks permission from 12 the court to file material under seal. 13 There is a strong presumption that the public has a right of access to judicial 14 proceedings and records in civil cases. In connection with non-dispositive motions, 15 good cause must be shown to support a filing under seal. See Kamakana v. City and 16 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006); Phillips v. Gen. Motors 17 Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002); Makar-Welbon v. Sony Electrics, 18 Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders 19 require good cause showing), and a specific showing of good cause or compelling 20 reasons with proper evidentiary support and legal justification, must be made with 21 respect to Protected Material that a party seeks to file under seal. The parties’ mere 22 designation of Disclosure or Discovery Material as CONFIDENTIAL does not— 23 without the submission of competent evidence by declaration, establishing that the 24 material sought to be filed under seal qualifies as confidential, privileged, or 25 otherwise protectable—constitute good cause. 26 Further, if a party requests sealing related to a dispositive motion or trial, then 27 compelling reasons, not only good cause, for the sealing must be shown, and the 1 See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). For 2 each item or type of information, document, or thing sought to be filed or introduced 3 under seal in connection with a dispositive motion or trial, the party seeking 4 protection must articulate compelling reasons, supported by specific facts and legal 5 justification, for the requested sealing order. Again, competent evidence supporting 6 the application to file documents under seal must be provided by declaration. 7 Any document that is not confidential, privileged, or otherwise protectable in 8 its entirety will not be filed under seal if the confidential portions can be redacted. 9 If documents can be redacted, then a redacted version for public viewing, omitting 10 only the confidential, privileged, or otherwise protectable portions of the document 11 shall be filed. Any application that seeks to file documents under seal in their 12 entirety should include an explanation of why redaction is not feasible. 13 If a Receiving Party seeks to file in court any information that a Producing 14 Party has designated as Protected Material, the Producing Party bears the burden to 15 establish the good cause or compelling reasons, as applicable, for filing such 16 Protected Material under seal. A Receiving Party shall apply to file such Protected 17 Material under seal by submitting a declaration indicating that the filing includes 18 information that the Producing Party has designated as Protected Material under this 19 Order. In such event, the Producing Party must make the required showing for 20 filing under seal in a timely response to the application in order for the burden to be 21 satisfied. 22 23 2. DEFINITIONS 24 2.1 Action: this pending lawsuit, MerkAmerica Inc., a California 25 corporation v. Dell Marketing LP, a Texas limited partnership, also known as Dell 26 Outlet, et al., No. 20SMCV00664 (C.D. Cal.). 27 2.2 Challenging Party: a Party or Non-Party that challenges the 1 2.3 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS’ 2 EYES ONLY” Information or Items: information (regardless of how it is generated, 3 stored or maintained) or tangible things that qualify for protection under Federal 4 Rule of Civil Procedure 26(c), and as specified above in the Good Cause Statement. 5 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as 6 their support staff). 7 2.5 Designating Party: a Party or Non-Party that designates information or 8 items that it produces in disclosures or in responses to discovery as Protected 9 Material. 10 2.6 Disclosure or Discovery Material: all items or information, regardless 11 of the medium or manner in which it is generated, stored, or maintained (including, 12 among other things, testimony, transcripts, and tangible things) that are produced or 13 generated in disclosures or responses to discovery in this matter. 14 2.7 Expert: a person with specialized knowledge or experience in a matter 15 pertinent to the litigation who has been retained by a Party or its counsel to serve as 16 an expert witness or as a consultant in this Action. 17 2.8 House Counsel: attorneys who are employees of a party to this Action. 18 House Counsel does not include Outside Counsel of Record or any other outside 19 counsel. 20 2.9 Non-Party: any natural person, partnership, corporation, association or 21 other legal entity not named as a Party to this action. 22 2.10 Outside Counsel of Record: attorneys who are not employees of a 23 party to this Action but are retained to represent or advise a party to this Action and 24 have appeared in this Action on behalf of that party or are affiliated with a law firm 25 that has appeared on behalf of that party, including support staff. 26 2.11 Party: any party to this Action, including all of its officers, directors, 27 employees, consultants, retained experts, and Outside Counsel of Record (and their 1 2.12 Producing Party: a Party or Non-Party that produces Disclosure or 2 Discovery Material in this Action. 3 2.13 Professional Vendors: persons or entities that provide litigation 4 support services (e.g., photocopying, videotaping, translating, preparing exhibits or 5 demonstrations, and organizing, storing, or retrieving data in any form or medium) 6 and their employees and subcontractors. 7 2.14 Protected Material: any Disclosure or Discovery Material that is 8 designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - 9 ATTORNEYS’ EYES ONLY.” 10 2.15 Receiving Party: a Party that receives Disclosure or Discovery 11 Material from a Producing Party. 12 13 3. SCOPE 14 The protections conferred by this Stipulation and Order cover not only 15 Protected Material (as defined above), but also (1) any information copied or 16 extracted from Protected Material; (2) all copies, excerpts, summaries, or 17 compilations of Protected Material; and (3) any testimony, conversations, or 18 presentations by Parties or their Counsel that might reveal Protected Material. 19 Any use of Protected Material at trial shall be governed by the orders of the 20 trial judge. This Order does not govern the use of Protected Material at trial, which 21 shall be governed by a separate agreement or order. 22 23 4. DURATION 24 The parties agree that, even after final disposition of this litigation, the 25 confidentiality obligations imposed by this Order shall remain in effect until a 26 designating Party agrees otherwise in writing or a court order otherwise directs. 27 Final disposition shall be deemed to be the later of (a) dismissal of all claims and 1 the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews 2 of this action, including the time limits for filing any motions or applications for 3 extension of time pursuant to applicable law. 4 The parties acknowledge and understand that, once a case proceeds to trial, 5 information that was designated as Protected Material or maintained pursuant to this 6 protective order that was used or introduced as an exhibit at trial will be 7 presumptively available to all members of the public, including the press, unless 8 compelling reasons supported by specific factual findings to proceed otherwise are 9 made to the trial judge in advance of the trial. See Kamakana, 447 F.3d at 1180-81 10 (distinguishing “good cause” showing for sealing documents produced in discovery 11 from “compelling reasons” standard when merits-related documents are part of court 12 record). 13 14 5. DESIGNATING PROTECTED MATERIAL 15 5.1 Exercise of Restraint and Care in Designating Material for Protection. 16 Each Party or Non-Party that designates information or items for protection under 17 this Order must take care to limit any such designation to specific material that 18 qualifies under the appropriate standards. The Designating Party must designate for 19 protection only those parts of material, documents, items or oral or written 20 communications that qualify so that other portions of the material, documents, items 21 or communications for which protection is not warranted are not swept unjustifiably 22 within the ambit of this Order. 23 Mass, indiscriminate or routinized designations are prohibited. Designations 24 that are shown to be clearly unjustified or that have been made for an improper 25 purpose (e.g., to unnecessarily encumber the case development process or to impose 26 unnecessary expenses and burdens on other parties) may expose the Designating 27 Party to sanctions. 1 If it comes to a Designating Party’s attention that information or items that it 2 designated for protection do not qualify for protection, that Designating Party must 3 promptly notify all other Parties that it is withdrawing the inapplicable designation. 4 5.2 Manner and Timing of Designations. Except as otherwise provided in 5 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 6 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 7 under this Order must be clearly so designated before the material is disclosed or 8 produced. 9 Designation in conformity with this Order requires: 10 (a) for information in documentary form (e.g., paper or electronic 11 documents, but excluding transcripts of depositions or other pretrial or trial 12 proceedings), that the Producing Party affix at a minimum, the legend 13 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 14 ONLY” (hereinafter “CONFIDENTIAL Legend”), to each page that contains 15 protected material. For production of ESI, the CONFIDENTIAL Legend shall be 16 placed in the metadata field assigned to indicate the confidentiality designation, 17 and/or in the filename, unless the parties stipulate to an alternate procedure in an 18 ESI protocol. 19 A Party or Non-Party that makes original documents available for inspection 20 need not designate them for protection until after the inspecting Party has indicated 21 which documents it would like copied and produced. During the inspection and 22 before the designation, all of the material made available for inspection shall be 23 deemed Protected Material. After the inspecting Party has identified the documents 24 it wants copied and produced, the Producing Party must determine which 25 documents, or portions thereof, qualify for protection under this Order. Then, 26 before producing the specified documents, the Producing Party must affix the 27 appropriate “CONFIDENTIAL Legend” as set forth in the preceding paragraph. 1 (b) for testimony given in depositions or in other pretrial or trial 2 proceedings, that the Designating Party identify, either verbally on the record or in a 3 writing served on all Parties and the court reporter within 21 days after the close of 4 the deposition, hearing, or other proceeding, all protected testimony. Only those 5 portions of the testimony that are appropriately designated for protection shall be 6 covered by the provisions of this Stipulated Protective Order. Any exhibits used in 7 a Deposition that were designated as Protected Material shall retain that designation 8 and protection when being used as exhibits in a deposition. 9 (c) for information produced in some form other than documentary and 10 for any other tangible items, that the Producing Party affix in a prominent place on 11 the exterior of the container or containers in which the information is stored the 12 appropriate “CONFIDENTIAL Legend.” If only a portion or portions of the 13 information warrants protection, the Producing Party, to the extent practicable, shall 14 identify the protected portion(s). 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 Following a correction of a designation, the Producing Party shall provide re- 22 labeled copies of the information or items to each Receiving Party reflecting the 23 change in designation. 24 25 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 26 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 27 designation of confidentiality at any time that is consistent with the Court’s 1 6.2 Meet and Confer. The Challenging Party shall initiate the dispute 2 resolution process under Local Rule 37.1 et seq. 3 6.3 Burden of Persuasion. The burden of persuasion in any such challenge 4 proceeding shall be on the Designating Party. Frivolous challenges, and those made 5 for an improper purpose (e.g., to harass or impose unnecessary expenses and 6 burdens on other parties) may expose the Challenging Party to sanctions. Unless the 7 Designating Party has waived or withdrawn the confidentiality designation, all 8 parties shall continue to afford the material in question the level of protection to 9 which it is entitled under the Producing Party’s designation until the Court rules on 10 the challenge. 11 12 7. ACCESS TO AND USE OF PROTECTED MATERIAL 13 7.1 Basic Principles. A Receiving Party may use Protected Material that is 14 disclosed or produced by another Party or by a Non-Party in connection with this 15 Action only for prosecuting, defending or attempting to settle this Action, including 16 any related appellate proceeding. Such Protected Material may be disclosed only to 17 the categories of persons and under the conditions described in this Order. When 18 the Action has been terminated, a Receiving Party must comply with the provisions 19 of Section 13 below. 20 Protected Material must be stored and maintained by a Receiving Party at a 21 location and in a secure manner that ensures that access is limited to the persons 22 authorized under this Order. The Receiving Party shall have and maintain 23 appropriate physical, organizational, and technical processes, security standards, 24 guidelines, controls, and procedures (“Appropriate Safeguards”) to protect against a 25 data breach, including in the form of accidental, unlawful, or unauthorized 26 destruction, alteration, disclosure, misuse, loss, theft, access, copying, use, 27 modification, disposal, compromise, or access to Protected Material or any act or 1 safeguards put in place by the Receiving Party in processing or possessing the 2 Producing Party’s protected material. The Receiving Party shall ensure that its 3 professional vendors, experts, and any other person or entity that receives protected 4 material pursuant to the Stipulated Protective Order implements and maintains 5 Appropriate Safeguards. 6 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 7 otherwise ordered by the court or permitted in writing by the Designating Party, a 8 Receiving Party may disclose any information or item designated 9 “CONFIDENTIAL” only to: 10 (a) the Receiving Party’s Outside Counsel of Record in this Action, as 11 well as employees of said Outside Counsel of Record to whom it is reasonably 12 necessary to disclose the information for this Action; 13 (b) the officers, directors, and employees (including House Counsel) of 14 the Receiving Party to whom disclosure is reasonably necessary for this Action and 15 who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 16 (c) Experts (as defined in this Order) of the Receiving Party to whom 17 disclosure is reasonably necessary for this Action and who have signed the 18 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 19 (d) the court and its personnel; 20 (e) court reporters and their staff who have signed the “Acknowledgment 21 and Agreement to Be Bound” (Exhibit A); 22 (f) professional jury or trial consultants, mock jurors, and Professional 23 Vendors to whom disclosure is reasonably necessary for this Action and who have 24 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 25 (g) the Designating Party or its employees, the author or recipient of a 26 document containing the information, or a custodian or other person who otherwise 27 possessed or knew the information; 1 (h) during their depositions or in preparation for their testimony, 2 witnesses, and attorneys for witnesses, in the Action to whom disclosure is 3 reasonably necessary provided: (1) the deposing party requests that the witness sign 4 the form attached as Exhibit A hereto; and (2) they will not be permitted to keep any 5 confidential information unless they sign the “Acknowledgment and Agreement to 6 Be Bound” (Exhibit A), unless otherwise agreed by the Designating Party or ordered 7 by the court. Pages of transcribed deposition testimony or exhibits to depositions 8 that reveal Protected Material may be separately bound by the court reporter and 9 may not be disclosed to anyone except as permitted under this Stipulated Protective 10 Order; and 11 (i) any mediator or settlement officer, and their supporting personnel, 12 mutually agreed upon by any of the parties engaged in settlement discussions. 13 7.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 14 ONLY” Information or Items. Unless otherwise ordered by the court or permitted in 15 writing by the Designating Party, a Receiving Party may disclose any information 16 from or document or item designated as “HIGHLY CONFIDENTIAL – 17 ATTORNEYS’ EYES ONLY” only to the individuals identified in Paragraphs 18 7.2(a), and (c)-(i). 19 7.4 Disclosure of Financial Information and Summaries. A Producing 20 Party that produces financial information or summaries may produce those 21 documents in password-protected format. The Receiving Party must be able to open 22 the password-protected document and review the information within that document 23 using commonly-available software, for example, Adobe Acrobat or Microsoft 24 Excel. Any such financial information or summaries that are produced in password- 25 protected format must be maintained by the Receiving Party in password-protected 26 format, and may transmit that material to or from authorized recipients (who have 27 executed the “Acknowledgment and Agreement to Be Bound” (Exhibit A) as 1 Federal Express). The data shall, at all times, be safeguarded and maintained in 2 password-protected form. Notwithstanding the foregoing, all such password- 3 protected documents must permit the Receiving Party to print all of the information 4 within such documents, both in hard copy and in Adobe PDF format with 5 dimensions of 8-1/2" by 11", for use as exhibits for motion practice or trial. If any 6 password-protected material is reduced to hard copy format, those copies shall be 7 maintained in a secure location and shall be marked appropriately to avoid 8 dissemination to anyone who is not authorized to view the material under the terms 9 of this Order. 10 11 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 13 If a Party is served with a subpoena or a court order issued in other litigation 14 that compels disclosure of any information or items designated in this Action as 15 Protected Material, that Party must: 16 (a) promptly notify in writing the Designating Party. Such notification 17 shall include a copy of the subpoena or court order; 18 (b) promptly notify in writing the party who caused the subpoena or order 19 to issue in the other litigation that some or all of the material covered by the 20 subpoena or order is subject to this Protective Order. Such notification shall include 21 a copy of this Stipulated Protective Order; and 22 (c) cooperate with respect to all reasonable procedures sought to be 23 pursued by the Designating Party whose Protected Material may be affected. 24 If the Designating Party timely seeks a protective order, the Party served with 25 the subpoena or court order shall not produce any information designated in this 26 action as Protected Material before a determination by the court from which the 27 subpoena or order issued, unless the Party has obtained the Designating Party’s 1 protection in that court of its confidential material and nothing in these provisions 2 should be construed as authorizing or encouraging a Receiving Party in this Action 3 to disobey a lawful directive from another court. 4 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 6 (a) The terms of this Order are applicable to information produced by a 7 Non-Party in this Action and designated as Protected Material. Such information 8 produced by Non-Parties in connection with this litigation is protected by the 9 remedies and relief provided by this Order. Nothing in these provisions should be 10 construed as prohibiting a Non-Party from seeking additional protections. 11 (b) In the event that a Party is required, by a valid discovery request, to 12 produce a Non-Party’s confidential information in its possession, and the Party is 13 subject to an agreement with the Non-Party not to produce the Non-Party’s 14 confidential information, then the Party shall: 15 (1) promptly notify in writing the Requesting Party and the Non-Party 16 that some or all of the information requested is subject to a confidentiality 17 agreement with a Non-Party; 18 (2) promptly provide the Non-Party with a copy of the Stipulated 19 Protective Order in this Action, the relevant discovery request(s), and a reasonably 20 specific description of the information requested; and 21 (3) make the information requested available for inspection by the 22 Non-Party, if requested. 23 (c) If the Non-Party fails to seek a protective order from this court within 24 14 days of receiving the notice and accompanying information, the Receiving Party 25 may produce the Non-Party’s confidential information responsive to the discovery 26 request. If the Non-Party timely seeks a protective order, the Receiving Party shall 27 not produce any information in its possession or control that is subject to the 1 Absent a court order to the contrary, the Non-Party shall bear the burden and 2 expense of seeking protection in this court of its Protected Material. 3 4 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 5 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 6 Protected Material to any person or in any circumstance not authorized under this 7 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 8 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts 9 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or 10 persons to whom unauthorized disclosures were made of all the terms of this Order, 11 and (d) request such person or persons to execute the “Acknowledgment and 12 Agreement to Be Bound” that is attached hereto as Exhibit A. 13 14 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 16 When a Producing Party gives notice to Receiving Parties that certain 17 inadvertently produced material is subject to a claim of privilege or other protection, 18 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 19 Procedure 26(b)(5)(B). Any inadvertent production of privileged or otherwise 20 protected material that satisfies Federal Rule of Evidence 502(b) shall not be 21 deemed to have waived the privilege or protection. 22 This provision is not intended to limit any party’s rights in any agreed upon 23 procedure that may be established in an e-discovery order that provides for 24 production without prior privilege review or with limited privilege review. Pursuant 25 to Federal Rule of Evidence 502(d) and (e), insofar as the parties reach an 26 agreement on the effect of disclosure of a communication or information covered by 27 the attorney-client privilege or work product protection, the parties may incorporate 1 2 12. MISCELLANEOUS 3 12.1 Right to Further Relief. Nothing in this Order abridges the right of any 4 person to seek its modification by the Court in the future. 5 12.2 Right to Assert Other Objections. By stipulating to the entry of this 6 Protective Order, no Party waives any right it otherwise would have to object to 7 disclosing or producing any information or item on any ground not addressed in this 8 Stipulated Protective Order. Similarly, no Party waives any right to object on any 9 ground to use in evidence of any of the material covered by this Protective Order. 10 12.3 Filing Protected Material. Without written permission from the 11 Designating Party or a court order entered after appropriate notice to all Parties, a 12 Party may not file in the public record in this action any Protected Material. A Party 13 that seeks to file under seal any Protected Material must comply with Local Civil 14 Rule 79-5. Protected Material may only be filed under seal pursuant to a court order 15 authorizing the sealing of the specific Protected Material at issue. If a Party’s 16 request to file Protected Material under seal is denied by the court, then the 17 Receiving Party may file the information in the public record unless otherwise 18 instructed by the court. 19 20 13. FINAL DISPOSITION 21 Within 60 days after the final disposition of this Action, as defined in 22 paragraph 4, each Receiving Party must return all Protected Material to the 23 Producing Party or destroy such material. As used in this subdivision, “all Protected 24 Material” includes all copies, abstracts, compilations, summaries, and any other 25 format reproducing or capturing any of the Protected Material. Whether the 26 Protected Material is returned or destroyed, if requested, the Receiving Party must 27 submit a written certification to the Producing Party (and, if not the same person or 1 where appropriate) all the Protected Material that was returned or destroyed and (2) 2 affirms that the Receiving Party has not retained any copies, abstracts, compilations, 3 summaries or any other format reproducing or capturing any of the Protected 4 Material. Notwithstanding this provision, Counsel are entitled to retain an archival 5 copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal 6 memoranda, correspondence, deposition and trial exhibits, expert reports, attorney 7 work product, and consultant and expert work product, even if such materials 8 contain Protected Material. Any such archival copies that contain or constitute 9 Protected Material remain subject to this Protective Order as set forth in Section 4 10 (DURATION). 11 // 12 // 13 // 14 // 15 // 16 // 17 // 18 // 19 // 20 // 21 // 22 // 23 // 24 // 25 // 26 // 27 // 1 |} 14. VIOLATION 2 || Any violation of this Order may be punished by appropriate measures including, 3 || without limitation, contempt proceedings and/or monetary sanctions. 4 5 || SO STIPULATED, THROUGH COUNSEL OF RECORD. 6 ; DATED: June 10, 2021 ALSTON & BIRD LLP /s/ 8 By: 9 Jesse Steinbach Attorneys for Defendant 10 DELL MARKETING LP 11 DATED: June 10, 2021 LAW OFFICES OF JOHN A. CASE, JR. /s/ 13 By: John A. Case, Jr. 14 Attorneys for Plaintiff 15 MERKAMERICA INC., a California corporation 16 17 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 18 19 DATED: June 10, 2021 20 21 ° Rapti, a. OC 22 || HON. ROZELLA A. OLIVER 33 United States Magistrate Judge 24 25 26 27 28

3 4 I, _____________________________ [print or type full name], of 5 _________________ [print or type full address], declare under penalty of perjury 6 that I have read in its entirety and understand the Stipulated Protective Order that 7 was issued by the United States District Court for the Central District of California 8 on ____________, 2021 in the case of MerkAmerica Inc., a California corporation 9 v. Dell Marketing LP, a Texas limited partnership also known as Dell Outlet, et al., 10 Case No. 2:20-cv-05408-ODW (RAOx) (C.D. Cal). I agree to comply with and to 11 be bound by all the terms of this Stipulated Protective Order and I understand and 12 acknowledge that failure to so comply could expose me to sanctions and punishment 13 in the nature of contempt. I solemnly promise that I will not disclose in any manner 14 any information or item that is subject to this Stipulated Protective Order to any 15 person or entity except in strict compliance with the provisions of this Order. 16 I further agree to submit to the jurisdiction of the United States District Court for the 17 Central District of California for enforcing the terms of this Stipulated Protective 18 Order, even if such enforcement proceedings occur after termination of this action. 19 I hereby appoint ______________________________ [print or type full name] of 20 ___________________________________ [print or type full address and telephone 21 number] as my California agent for service of process in connection with this action 22 or any proceedings related to enforcement of this Stipulated Protective Order. 23 Date: ______________________________________ 24 City and State where sworn and signed: _________________________________ 25 Printed name: _______________________________ 26 27 Signature: __________________________________ 2 I, John A. Case, Jr., attest that all the signatures listed, and on whose 3 behalf the filing is submitted, concur in the filing's content and have authorized the 4 filing. 5 6 DATED: June 10, 2021 7 /s/ _____________________________ 8 John A. Case, Jr. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27