Mike's Novelties, Inc. v. PIV Enterprises, Inc.

Opinion

3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 5

6 MIKE’S NOVELTIES, INC., a Texas Case No. 1:23-CV-01309-JLT-SAB 7 corporation, ORDER RE: STIPULATED 8 Plaintiff, PROTECTIVE ORDER 9 vs. (ECF No. 49) 10 PIV ENTERPRISES, INC., a California corporation, 11

12 Defendants. 13

14 15 1. A. PURPOSES AND LIMITATIONS 16 As the parties have represented that discovery in this action is likely to involve 17 production of confidential, proprietary, or private information for which special 18 protection from public disclosure and from use for any purpose other than prosecuting 19 this litigation may be warranted, this Court enters the following Protective Order. This 20 Order does not confer blanket protections on all disclosures or responses to discovery. 21 The protection it affords from public disclosure and use extends only to the limited 22 information or items that are entitled to confidential treatment under the applicable 23 legal principles. Further, as set forth in Section 12.3, below, this Protective Order does 24 not entitle the parties to file confidential information under seal. Rather, when the 25 parties seek permission from the court to file material under seal, the parties must 26 comply with Civil Local Rule 141 and with any pertinent orders of the assigned District 27 Judge and Magistrate Judge. 1 B. GOOD CAUSE STATEMENT 2 In light of the nature of the claims and allegations in this case, this action is 3 likely to involve sensitive commercial, financial, and/or proprietary information for 4 which special protection from public disclosure and from use for any purpose other 5 than prosecution of this action is warranted. Such confidential and proprietary 6 materials and information consist of, among other things, competitively sensitive 7 business information and practices, financial records of entities and individuals, 8 customer information and information otherwise generally unavailable to the public, 9 or which may be privileged or otherwise protected from disclosure under state or 10 federal statutes, court rules, case decisions, or common law. Additionally, information 11 implicating privacy rights of third parties may also be disclosed.

12 Accordingly, to expedite the flow of information, to facilitate the prompt 13 resolution of disputes over confidentiality of discovery materials, to adequately protect 14 information the parties are entitled to keep confidential, to ensure that the parties are 15 permitted reasonable necessary uses of such material in connection with this action, to 16 address their handling of such material at the end of the litigation, and to serve the ends 17 of justice, a protective order for such information is justified in this matter. The parties 18 shall not designate any information/documents as confidential without a good faith 19 belief that such information/documents have been maintained in a confidential, non- 20 public manner, and that there is good cause or a compelling reason why it should not 21 be part of the public record of this case. 22 2. DEFINITIONS 23 2.1 Action: The instant action: Mike Novelties, Inc. v. PIV 24 Enterprises, Inc., USDC Case No. 1:23-CV-01309-JLT-SAB. 25 2.2 Challenging Party: a Party or Non-Party that challenges the designation 26 of information or items under this Order. 27 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 1 under Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause 2 Statement. 3 2.4 “HIGHLY CONFIDENTIAL -- ATTORNEYS’ EYES ONLY” 4 Information or Items: extremely sensitive “CONFIDENTIAL” Information or 5 Items, the disclosure of which to another Party or Non-Party would create a substantial 6 risk of serious harm that could not be avoided by less restrictive means. 7 2.5 Counsel: Outside Counsel of Record and House Counsel (as well as their 8 support staff). 9 2.6 Designating Party: a Party or Non-Party that designates information or 10 items that it produces in disclosures or in responses to discovery as 11 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL -- ATTORNEYS’ EYES

12 ONLY.” 13 2.7 Disclosure or Discovery Material: all items or information, regardless of 14 the medium or manner in which it is generated, stored, or maintained (including, 15 among other things, testimony, transcripts, and tangible things), that are produced or 16 generated in disclosures or responses to discovery in this matter. 17 2.8 Expert: a person with specialized knowledge or experience in a matter 18 pertinent to the litigation who has been retained by a Party or its counsel to serve as an 19 expert witness or as a consultant in this Action. 20 2.9 House Counsel: attorneys who are employees of a party to this Action. 21 House Counsel does not include Outside Counsel of Record or any other outside 22 counsel. 23 2.10 Non-Party: any natural person, partnership, corporation, association, or 24 other legal entity not named as a Party to this action. 25 2.11 Outside Counsel of Record: attorneys who are not employees of a party 26 to this Action but are retained to represent or advise a party to this Action and have 27 appeared in this Action on behalf of that party or are affiliated with a law firm which 1 2.12 Party: any party to this Action, including all of its officers, directors, 2 employees, consultants, retained experts, and Outside Counsel of Record (and their 3 support staffs). 4 2.13 Producing Party: a Party or Non-Party that produces Disclosure or 5 Discovery Material in this Action. 6 2.14 Professional Vendors: persons or entities that provide litigation support 7 services (e.g., photocopying, videotaping, translating, preparing exhibits or 8 demonstrations, and organizing, storing, or retrieving data in any form or medium) and 9 their employees and subcontractors. 10 2.15 Protected Material: any Disclosure or Discovery Material that is 11 designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL -- ATTORNEYS’

12 EYES ONLY.” 13 2.16 Receiving Party: a Party that receives Disclosure or Discovery Material 14 from a Producing Party. 15 3. SCOPE 16 The protections conferred by this Order cover not only Protected Material (as 17 defined above), but also (1) any information copied or extracted from Protected 18 Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; 19 and (3) any deposition testimony, conversations, or presentations by Parties or their 20 Counsel that might reveal Protected Material, other than during a court hearing or at 21 trial. 22 Any use of Protected Material during a court hearing or at trial shall be governed 23 by the orders of the presiding judge. This Order does not govern the use of Protected 24 Material during a court hearing or at trial. 25 4. DURATION 26 Even after final disposition of this litigation, the confidentiality obligations 27 imposed by this Order shall remain in effect until a Designating Party agrees otherwise 1 the later of (1) dismissal of all claims and defenses in this Action, with or without 2 prejudice; and (2) final judgment herein after the completion and exhaustion of all 3 appeals, rehearings, remands, trials, or reviews of this Action, including the time limits 4 for filing any motions or applications for extension of time pursuant to applicable law. 5 5. DESIGNATING PROTECTED MATERIAL 6 5.1 Exercise of Restraint and Care in Designating Material for Protection. 7 Each Party or Non-Party that designates information or items for protection under this 8 Order must take care to limit any such designation to specific material that qualifies 9 under the appropriate standards. The Designating Party must designate for protection 10 only those parts of material, documents, items, or oral or written communications that 11 qualify so that other portions of the material, documents, items, or communications for

12 which protection is not warranted are not swept unjustifiably within the ambit of this 13 Order. 14 Mass, indiscriminate, or routinized designations are prohibited. Designations 15 that are shown to be clearly unjustified or that have been made for an improper purpose 16 (e.g., to unnecessarily encumber the case development process or to impose 17 unnecessary expenses and burdens on other parties) may expose the Designating Party 18 to sanctions. 19 If it comes to a Designating Party’s attention that information or items that it 20 designated for protection do not qualify for protection, that Designating Party must 21 promptly notify all other Parties that it is withdrawing the inapplicable designation. 22 5.2 Manner and Timing of Designations. Except as otherwise provided in this 23 Order (see, e.g., second paragraph of Section 5.2(a) below), or as otherwise stipulated 24 or ordered, Disclosure or Discovery Material that qualifies for protection under this 25 Order must be clearly so designated before the material is disclosed or produced. 26 Designation in conformity with this Order requires: 27 (a) for information in documentary form (e.g., paper or electronic 1 affix at a minimum, the legend “CONFIDENTIAL” or “HIGHLY 2 CONFIDENTIAL -- ATTORNEYS’ EYES ONLY” to each page that contains 3 protected material. If only a portion or portions of the material on a page 4 qualifies for protection, the Producing Party also must clearly identify the 5 protected portion(s) (e.g., by making appropriate markings in the margins). 6 A Party or Non-Party that makes original documents available for 7 inspection need not designate them for protection until after the inspecting Party 8 has indicated which documents it would like copied and produced. During the 9 inspection and before the designation, all of the material made available for 10 inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has 11 identified the documents it wants copied and produced, the Producing Party

12 must determine which documents, or portions thereof, qualify for protection 13 under this Order. Then, before producing the specified documents, the 14 Producing Party must affix the “CONFIDENTIAL”, or “HIGHLY 15 CONFIDENTIAL -- ATTORNEYS’ EYES ONLY” legend to each page that 16 contains Protected Material. If only a portion or portions of the material on a 17 page qualifies for protection, the Producing Party also must clearly identify the 18 protected portion(s) (e.g., by making appropriate markings in the margins). 19 (b) for testimony given in depositions that the Designating Party 20 identifies on the record, before the close of the deposition as protected testimony. 21 (c) for information produced in some form other than documentary and 22 for any other tangible items, that the Producing Party affix in a prominent place 23 on the exterior of the container or containers in which the information is stored 24 the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL -- 25 ATTORNEYS’ EYES ONLY.” If only a portion or portions of the information 26 warrants protection, the Producing Party, to the extent practicable, shall identify 27 the protected portion(s). 1 failure to designate qualified information or items does not, standing alone, waive the 2 Designating Party’s right to secure protection under this Order for such material. Upon 3 timely correction of a designation, the Receiving Party must make reasonable 4 efforts to assure that the material is treated in accordance with the provisions of this 5 Order. 6 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 7 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 8 designation of confidentiality at any time that is consistent with the Court’s Scheduling 9 Order. 10 6.2 Meet and Confer. The Challenging Party shall initiate the dispute 11 resolution process under Local Rule 251.

12 6.3 The burden of persuasion in any such challenge proceeding shall be on 13 the Designating Party. Frivolous challenges, and those made for an improper purpose 14 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may 15 expose the Challenging Party to sanctions. Unless the Designating Party has waived 16 or withdrawn the confidentiality designation, all parties shall continue to afford the 17 material in question the level of protection to which it is entitled under the Producing 18 Party’s designation until the Court rules on the challenge. 19 7. ACCESS TO AND USE OF PROTECTED MATERIAL 20 7.1 Basic Principles. A Receiving Party may use Protected Material that is 21 disclosed or produced by another Party or by a Non-Party in connection with this 22 Action only for prosecuting, defending, or attempting to settle this Action. Such 23 Protected Material may be disclosed only to the categories of persons and under the 24 conditions described in this Order. When the Action has been terminated, a Receiving 25 Party must comply with the provisions of Section 13 below. 26 Protected Material must be stored and maintained by a Receiving Party at a 27 location and in a secure manner that ensures that access is limited to the persons 1 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 2 otherwise ordered by the court or permitted in writing by the Designating Party, a 3 Receiving Party may disclose any information or item designated “CONFIDENTIAL” 4 only to: 5 (a) the Receiving Party’s Outside Counsel of Record in this Action, as 6 well as employees of said Outside Counsel of Record to whom it is reasonably 7 necessary to disclose the information for this Action; 8 (b) the officers, directors, and employees (including House Counsel) of 9 the Receiving Party to whom disclosure is reasonably necessary for this Action; 10 (c) Experts (as defined in this Order) of the Receiving Party to whom 11 disclosure is reasonably necessary for this Action and who have signed the

12 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 13 (d) the court and its personnel; 14 (e) private court reporters and their staff to whom disclosure is reasonably 15 necessary for this Action and who have signed the “Acknowledgment and 16 Agreement to Be Bound” (Exhibit A); 17 (f) professional jury or trial consultants, mock jurors, and Professional 18 Vendors to whom disclosure is reasonably necessary for this Action and who 19 have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 20 (g) the author or recipient of a document containing the information or a 21 custodian or other person who otherwise possessed or knew the information; 22 (h) during their depositions, witnesses, and attorneys for witnesses, in the 23 Action to whom disclosure is reasonably necessary provided: (1) the deposing 24 party requests that the witness sign the “Acknowledgment and Agreement to Be 25 Bound” (Exhibit A); and (2) they will not be permitted to keep any confidential 26 information unless they sign the “Acknowledgment and Agreement to Be 27 Bound” (Exhibit A), unless otherwise agreed by the Designating Party or 1 depositions that reveal Protected Material may be separately bound by the court 2 reporter and may not be disclosed to anyone except as permitted under this 3 Protective Order; and 4 (i) any mediator or settlement officer, and their supporting personnel, 5 mutually agreed upon by any of the parties engaged in settlement discussions. 6 7.3 Disclosure of “HIGHLY CONFIDENTIAL -- ATTORNEYS’ EYES 7 ONLY” Information or Items. Unless otherwise ordered by the court or permitted in 8 writing by the Designating Party, a Receiving Party may disclose any information or 9 item designated “HIGHLY 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) Experts (as defined in this Order) of the Receiving Party to whom 14 disclosure is reasonably necessary for this Action and who have signed the 15 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 16 (c) the court and its personnel; 17 (d) private court reporters and their staff to whom disclosure is reasonably 18 necessary for this Action and who have signed the “Acknowledgment and 19 Agreement to Be Bound” (Exhibit A); 20 (e) professional jury or trial consultants, mock jurors, and Professional 21 Vendors to whom disclosure is reasonably necessary for this Action and who 22 have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 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; and 25 (g) any mediator or settlement officer, and their supporting personnel, 26 mutually agreed upon by any of the parties engaged in settlement discussions. 27 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED 1 If a Party is served with a subpoena or a court order issued in other litigation that 2 compels disclosure of any information or items designated in this Action as 3 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL -- ATTORNEYS’ EYES 4 ONLY,” that Party must: 5 (a) promptly notify in writing the Designating Party. Such notification shall 6 include a copy of the subpoena or court order unless prohibited by law; 7 (b) promptly notify in writing the party who caused the subpoena or order to 8 issue in the other litigation that some or all of the material covered by the subpoena or 9 order is subject to this Protective Order. Such notification shall include a copy of this 10 Protective Order; and 11 (c) cooperate with respect to all reasonable procedures sought to be pursued by

12 the Designating Party whose Protected Material may be affected. 13 If the Designating Party timely seeks a protective order, the Party served with 14 the subpoena or court order shall not produce any information designated in this action 15 as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL -- ATTORNEYS’ EYES 16 ONLY” before a determination by the court from which the subpoena or order issued, 17 unless the Party has obtained the Designating Party’s permission, or unless otherwise 18 required by the law or court order. The Designating Party shall bear the burden and 19 expense of seeking protection in that court of its confidential material and nothing in 20 these provisions should be construed as authorizing or encouraging a Receiving Party 21 in this Action to disobey a lawful directive from another court. 22 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 23 PRODUCED IN THIS LITIGATION 24 (a) The terms of this Order are applicable to information produced by a Non- 25 Party in this Action and designated as “CONFIDENTIAL” or “HIGHLY 26 CONFIDENTIAL -- ATTORNEYS’ EYES ONLY.” Such information produced by 27 Non-Parties in connection with this litigation is protected by the remedies and relief 1 a Non-Party from seeking additional protections. 2 (b) In the event that a Party is required, by a valid discovery request, to produce 3 a Non-Party’s confidential information in its possession, and the Party is subject to an 4 agreement with the Non-Party not to produce the Non-Party’s confidential 5 information, then the Party shall: 6 (1) promptly notify in writing the Requesting Party and the Non-Party 7 that some or all of the information requested is subject to a confidentiality 8 agreement with a Non-Party; 9 (2) promptly provide the Non-Party with a copy of the Protective Order 10 in this Action, the relevant discovery request(s), and a reasonably specific 11 description of the information requested; and

12 (3) make the information requested available for inspection by the Non- 13 Party, if requested. 14 (c) If a Non-Party represented by counsel fails to object to or seek a protective 15 order from the court within 14 days of receiving the notice and accompanying 16 information or fails contemporaneously to notify the Receiving Party that it has done 17 so, the Receiving Party may produce the Non-Party’s confidential information 18 responsive to the discovery request. If an unrepresented Non-Party fails to seek a 19 protective order from this court within 14 days of receiving the notice and 20 accompanying information, the Receiving Party may produce the Non-Party’s 21 confidential information responsive to the discovery request. If the Non-Party timely 22 seeks a protective order, the Receiving Party shall not produce any information in its 23 possession or control that is subject to the confidentiality agreement with the Non- 24 Party before a determination by the court unless otherwise required by the law or court 25 order. Absent a court order to the contrary, the Non-Party shall bear the burden and 26 expense of seeking protection in this court of its Protected Material. 27 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 1 Protected Material to any person or in any circumstance not authorized under this 2 Protective Order, the Receiving Party must immediately (a) notify in writing the 3 Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve all 4 unauthorized copies of the Protected Material, (c) inform the person or persons to 5 whom unauthorized disclosures were made of all the terms of this Order, and (d) 6 request such person or persons to execute the “Acknowledgment and Agreement to Be 7 Bound” (Exhibit A). 8 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 9 PROTECTED MATERIAL 10 When a Producing Party gives notice to Receiving Parties that certain 11 inadvertently produced material is subject to a claim of privilege or other protection,

12 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 13 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure 14 may be established in an e-discovery order that provides for production without prior 15 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the 16 parties reach an agreement on the effect of disclosure of a communication or 17 information covered by the attorney-client privilege or work product protection, the 18 parties may incorporate their agreement into this Protective Order. 19 12. MISCELLANEOUS 20 12.1 Right to Further Relief. Nothing in this Order abridges the right of any 21 person to seek its modification by the Court in the future. 22 12.2 Right to Assert Other Objections. No Party waives any right it otherwise 23 would have to object to disclosing or producing any information or item on any ground 24 not addressed in this Protective Order. Similarly, no Party waives any right to object 25 on any ground to use in evidence of any of the material covered by this Protective 26 Order. 27 12.3 Filing Protected Material. A Party that seeks to file under seal any 1 orders of the assigned District Judge and Magistrate Judge. Protected Material may 2 only be filed under seal pursuant to a court order authorizing the sealing of the specific 3 Protected Material at issue. If a Party’s request to file Protected Material under seal is 4 denied by the court, then the Receiving Party may file the information in the public 5 record unless otherwise instructed by the court. 6 13. FINAL DISPOSITION 7 After the final disposition of this Action, as defined in Section 4, within 60 days 8 of a written request by the Designating Party, each Receiving Party must return all 9 Protected Material to the Producing Party or destroy such material. As used in this 10 subdivision, “all Protected Material” includes all copies, abstracts, compilations, 11 summaries, and any other format reproducing or capturing any of the Protected

12 Material. Whether the Protected Material is returned or destroyed, the Receiving Party 13 must submit a written certification to the Producing Party (and, if not the same person 14 or entity, to the Designating Party) by the 60 day deadline that (1) identifies (by 15 category, where appropriate) all the Protected Material that was returned or destroyed 16 and (2) affirms that the Receiving Party has not retained any copies, abstracts, 17 compilations, summaries or any other format reproducing or capturing any of the 18 Protected Material. Notwithstanding this provision, Counsel are entitled to retain an 19 archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, 20 legal memoranda, correspondence, deposition and trial exhibits, expert reports, 21 attorney work product, and consultant and expert work product, even if such materials 22 contain Protected Material. Any such archival copies that contain or constitute 23 Protected Material remain subject to this Protective Order as set forth in Section 4. 24 14. Any violation of this Order may be punished by any and all appropriate 25 measures including, without limitation, contempt proceedings and/or monetary 26 sanctions. 27 /// 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 4 I, [print or type full name], of [print 5 or type full address], declare under penalty of perjury that I have read in its entirety and 6 understand the Protective Order that was issued by the United States District Court 7 for the Eastern District of California on in the case of 8 . I agree to comply with and to be bound by 9 all the terms of this Protective Order and I understand and acknowledge that failure to 10 so comply could expose me to sanctions and punishment in the nature of contempt. 11 I solemnly promise that I will not disclose in any manner any information or item

12 that is subject to this Protective Order to any person or entity except in strict compliance 13 with the provisions of this Order. 14 I further agree to submit to the jurisdiction of the United States District Court 15 for the Eastern District of California for the purpose of enforcing the terms of this 16 Protective Order, even if such enforcement proceedings occur after termination of 17 this action. I hereby appoint [print or type full 18 name] of [print or type full address and telephone 19 number] as my California agent for service of process in connection with this action 20 or any proceedings related to enforcement of this Protective Order. 21 Date: 22 City and State where sworn and signed: 23 Printed name: 24 Signature: 25 26 27 1 COURT ORDER ENTERING STIPULATED PROTECTIVE ORDER 2 Pursuant to the stipulation of the parties and good cause appearing, IT IS HEREBY 3 ORDERED that: 4 1. The above stipulated protective order is ENTERED; 5 2. The provisions of the parties’ stipulation and this protective order shall remain in 6 effect until further order of the Court; 7 3. The parties are advised that pursuant to the Local Rules of the United States District 8 Court, Eastern District of California, any documents which are to be filed under seal 9 will require a written request which complies with Local Rule 141; 10 4. The party making a request to file documents under seal shall be required to show 11 either good cause or compelling reasons to seal the documents, depending on the type

12 of filing, Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 677–78 (9th Cir. 2009); Ctr. 13 for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1101 (9th Cir. 2016); and 14 5. If a party’s request to file Protected Material under seal is denied by the Court, then 15 the previously filed material shall be immediately accepted by the court and become 16 information in the public record and the information will be deemed filed as of the 17 date that the request to file the Protected Information under seal was made. 18 19 20 21 22 23 24 25 26 27 1 Additionally, the parties shall consider resolving any dispute arising under the protective 2 || order according to the Court’s informal discovery dispute procedure. 3 4 IS SO ORDERED. A (re 5 lI pated: _ July 14, 2025 OF 6 STANLEY A. BOONE United States Magistrate Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28