Pacific Packaging Concepts, Inc. v. Nutrisystem, Inc.

Opinion

Case 211L9-cv-04755-ODW-E Document 28-1 Filed 01/23/20 Page 1of 22 Page ID #:168

Michael K. Friedland (SBN 157,217) Michael.Friedland@knobbe.com 2\|| Lauren Keller Katzénellenbogen (SBN 223,370) Lauren.keller@knobbe.com 3|| Jason A. Champion (SBN 259,207) Jason, Champion @knobbe-com 4\| KNOBBE, MARTENS, OLSON & BEAR, LLP 2040 Main Street, Fourteenth Floor 5|| Irvine, CA 92614 Telephone: (949) 760-0404 6|| Facsimile: (949) 760-9502 7 Attorneys for Plaintiff Pacific Packaging Concepts, Inc. 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE CENTRAL DISTRICT OF CALIFORNIA 11 WESTERN DIVISION RD PACIFIC PACKAGING CONCEPTS, Civil Action No. INC., 2:19-cv-04755-ODW-Ex 13 Plaintiff, RORSSED] STIPULATED ROTECTIVE ORDER 14 v. 151 NUTRISYSTEM, INC., Hon. Otis D. Wright II 16 NURTISYSTEM IPHC, INC., 17 Defendants. 18 19

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1 Pursuant to Federal Rule of Evidence 26(c) and to facilitate the production 2|| and receipt of information in discovery in this action, Plaintiff Pacific Packaging 3|| Concepts, Inc. (“PPCI”), and Defendant Nutrisystem, Inc. (“Nutrisystem”), have 4|| agreed and stipulated, through their respective counsel, to the entry of an order 5|| for the protection of trade secret, proprietary, and other confidential research, 6|| development, financial, business, or commercial information that may be 7\| produced or otherwise disclosed by them during the course of this action. 8 Upon consideration of the record and proceedings herein, the parties hereby 9]|| stipulate to the following terms: 10\| I. PURPOSES AND LIMITATIONS 11 1.1 Disclosure and discovery activity in this action are likely to involve 12|| the production of confidential, proprietary, or private information that may 13|| warrant special protection from public disclosure and from use for purposes other 14|| than those specifically set forth in this Order. The parties acknowledge that this 15|| Order does not confer blanket protections on all disclosures or responses to 16\| discovery and that the protection it affords from public disclosure and use extends 17\| only to the limited information or items that are entitled to confidential treatment 18 |} under the applicable legal principles. 19) If. GOOD CAUSE STATEMENT 20 2.1 This action is likely to involve trade secrets, customer and pricing lists 21|| and other valuable research, development, commercial, financial, technical and/or 22|| proprietary information that warrants special protection from public disclosure 23|| and from use for any purpose other than the litigation or settlement of this action. 24{| Such confidential and proprietary materials and information include, among other 25|| things, confidential business or financial information, information regarding 26|| confidential business practices, or other confidential research, development, or 2711 commercial information (including information implicating privacy rights of third parties), information otherwise generally unavailable to the public, or which

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1|\ may be privileged or otherwise protected from disclosure under state or federal 2|| statutes, court rules, case decisions, or common law. The parties stipulate that 31 disclosure of this information would cause competitive harm to the parties. For 4|| example, the parties believe that competitors will gain an unfair advantage if they 5|| learn the parties’ Protected Material, such as financial information, accounting 6\|| information, customer lists, vendor lists, costs or profits structure, sales 7\| information, product lines, business and marketing strategy or information about 8|| operations. Accordingly, to expedite the flow of information, to facilitate the 9|| prompt resolution of disputes over confidentiality of discovery materials, to 10\| adequately protect information the parties are entitled to keep confidential, to ensure that the parties are permitted reasonable necessary uses of such material in 12|| preparation for and in the conduct of trial, to address their handling at the end of 13|| the litigation, and to serve the ends of justice, a protective order for such 14 || information is justified in this matter. It is the intent of the parties that information 15|| will not be designated as confidential for tactical reasons and that nothing will be 16|| so designated without a good faith belief that it has been maintained in a 17\| confidential, non-public manner, and there is good cause why it should not be part of the public record of this case. 19|| 1011. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER 20 SEAL 21 3.1 The parties further acknowledge, as set forth in Section 14.3, below, 22|| that this Stipulated Protective Order does not entitle them to file confidential 23\| information under seal; Local Civil Rule 79-5 sets forth the procedures that must 241) be followed and the standards that will be applied when a party seeks permission 251) from the Court to file material under seal. 26 3.2 There is a strong presumption that the public has a right of access to 27\| judicial proceedings and records in civil cases. In connection with non- 28|| dispositive motions, good cause must be shown to support a filing under seal. See

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1|| Kamakana vy. City and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), 2\| Phillips v. Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar- 3|| Wellbon v. Sony Electronics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even 4|| stipulated protective orders require good cause showing), and a specific showing 5]| of good cause or compelling reasons with proper evidentiary support and legal 6|| justification, must be made with respect to Protected Material that a party seeks 7\\ to file under seal. The parties’ mere designation of Disclosure or Discovery 8|| Material as Protected Material does not—without the submission of competent 9|| evidence by declaration, establishing that the material sought to be filed under 10\| seal qualifies as confidential, privileged, or otherwise protectable—constitute good cause. 12 3.3 Further, if a party requests sealing of material used in connection with 131|| a dispositive motion or trial, then compelling reasons, not only good cause, for 14|) the sealing must be shown, and the relief sought must be narrowly tailored to 15|| serve the specific interest to be protected. See Pintos v. Pacific Creditors □□□□□□ 16|| 605 F.3d 665, 677-79 (9th Cir. 2010). For each item or type of information, 17|| document, or thing sought to be filed or introduced under seal in connection with 18|| a dispositive motion or trial, the party seeking protection must articulate 19|| compelling reasons, supported by specific facts and legal justification, for the 20|| requested sealing order. Again, competent evidence supporting the application to 21|| file documents under seal must be provided by declaration. 22 3.4 Any document that is not confidential, privileged, or otherwise 23|| protectable in its entirety will not be filed under seal if the confidential portions 24|| can be redacted. If documents can be redacted, then a redacted version for public 25|| viewing, omitting only the confidential, privileged, or otherwise protectable 26|| portions of the document, shall be filed. Any application that seeks to file 27\| documents under seal in their entirety should include an explanation of why 28 || redaction is not feasible.

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1|| IV. DEFINITIONS 2 4.1 Challenging Party: a Party or Non-Party that challenges the 3|| designation of information or items under this Order. 4 4.2 “CONFIDENTIAL” Information or Items: information (regardless 5|| of how it is generated, stored, or maintained) or tangible things that qualify for 6|| protection under Federal Rule of Civil Procedure 26(c), and as specified above in 7 || the Good Cause Statement. 8 4.3. Designating Party: a Party or Non-Party that designates Disclosure 9|} or Discovery Material as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL— 10|| ATTORNEYS’ EYES ONLY.” Il 4.4 Disclosure or Discovery Material: all items or information, 12|| regardless of the medium or manner in which it is generated, stored, or maintained 13|| (including, among other things, testimony, transcripts, and tangible things), that 14|) are produced or generated for purposes of litigation in this matter, including 15|) documents, data and information, answers to interrogatories, answers to 16|\ deposition questions, responses to requests for admission, affidavits, expert 17\\ reports, any information copied or extracted therefrom, as well as all copies, 18|| excerpts, summaries, or compilations thereof, plus testimony, conversations or 19|| presentations by parties or counsel to or in court or in other settings. 20 4.5 Expert: a person with specialized knowledge or experience in a 21|| matter pertinent to the litigation who (1) has been retained by a Party or its counsel 22\| to serve as an expert witness or as a consultant in this action, (2) is not a current 23|| employee of a Party and (3) at the time of retention, is not anticipated to become 24|| an employee of a Party or a Party’s competitor. 25 46 “HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES ONLY” 26|| Information or Items: Extremely sensitive “Confidential Information or Items,” 27\| the disclosure of which to another Party or Non-Party would create a substantial 281| risk of serious harm that could not be avoided by less restrictive means. It

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1\| includes, without limitation, (1) highly sensitive settlement and/or licensing 2|| agreements (including drafts thereof) that are subject to a third-party 3) confidentiality agreement requiring Highly Confidential—Attorneys’ Eyes Only 4{| designation; (2) highly sensitive corporate strategy data; (3) highly sensitive 5|| product information containing information not available to competitors or the 6|| public concerning present products, anticipated products or products in 7|| development; (4) pending but unpublished patent applications; (5) customers’ 8 || identities and personal information; and (6) other highly confidential technical, 9\| research and development, and financial information. 10 4.7 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 12 4.8 Outside Counsel: attorneys and their support staff who are not 13|| employees of a party to this action and who (i) have appeared in this action on 14|| behalf of such party; (ii) are retained to represent or advise a party regarding this 15|) action, have signed the “Acknowledgment and Agreement to be Bound” (Exhibit 16\| A) before receiving any CONFIDENTIAL or HIGHLY CONFIDENTIAL— 171 ATTORNEYS’ EYES ONLY material, and, by the close of each calendar quarter, 18|| have returned the signed the “Acknowledgment and Agreement to be Bound” to 19|| all counsel of record in this action; (iii) are employed with a law firm which has 20]| appeared on behalf of a party; or (iv) are employed with a law firm that is retained 21\| to represent or advise a party regarding this action, have signed the 22\| “Acknowledgment and Agreement to be Bound” (Exhibit A) before receiving any 23|| CONFIDENTIAL or HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES 24|| ONLY material, and, by the close of each calendar quarter, have returned the 25|| signed the “Acknowledgment and Agreement to be Bound” to all counsel of 26) record in this action. 27 4.9 House Counsel: attorneys who are employees of a party to this 28 || Action (as well as their support staff). House Counsel does not include Outside

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|| Counsel or any other counsel. 2 4.10 Party: any party to this action, including all of its officers, directors, 3|| employees, consultants, retained experts, and Outside Counsel (and their support 4} staffs). 5 4.11 Producing Party: a Party or Non-Party that produces Disclosure or 6|| Discovery Material in this action. 7 4.12 Professional Vendors: persons or entities that provide litigation 8|| support services (including but not limited to: photocopying, videotaping, 9|| translating, preparing and reviewing discovery material, exhibits or 10\| demonstrations, and organizing, storing, or retrieving data in any form or 11 || medium) and their employees and subcontractors. 12 4.13 Protected Material: any Disclosure or Discovery Material that is 13|\ designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL— 14) ATTORNEYS’ EYES ONLY.” 15 4.14 Receiving Party: a Party that has signed this Stipulation that receives 16\|| Disclosure or Discovery Material from a Producing Party. 17|| V. SCOPE 18 5.1 The protections conferred by this Stipulation and Order cover not only 19|| Protected Material (as defined above), but also (1) any information copied or 20\| extracted from Protected Material; (2) all copies, excerpts, summaries, or 21|| compilations of Protected Material; and (3) any testimony, conversations, or 22|| presentations by Parties or their Counsel that might reveal Protected Material. 23|| However, the protections conferred by this Stipulation and Order do not cover the 24|| following information: (a) any information that is in the public domain at the time 25|| of disclosure to a Receiving Party or becomes part of the public domain after its 26|| disclosure to a Receiving Party as a result of publication not involving a violation 27\| of this Order, including information that has become part of the public record 28|| through trial or otherwise; and (b) any information known to the Receiving Party

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prior to the disclosure or obtained by the Receiving Party after the disclosure from 211 a source who obtained the information lawfully and under no obligation of 3|| confidentiality to the Designating Party or Producing Party. 4|| VI. DURATION 5 6.1 The confidentiality obligations imposed by this Order shall remain in 6|| effect until a Designating Party agrees otherwise in writing or a court order 7\\ otherwise directs. Final disposition shall be deemed to be the later of: (1) dismissal of all claims and defenses in this action, with or without prejudice; or 9|| (2) final judgment herein after the completion and exhaustion of all appeals, 10|| rehearings, remands, trials, or reviews of this action, including expiration of the 11|| time limits for filing any motions or applications for extension of time pursuant 12} to applicable law. 13|| VII. DESIGNATING PROTECTED MATERIAL 14 7.1 Exercise of Restraint and Care in Designating Material for 15\|| Protection. Each Party or Non-Party that designates information or items for 16\| protection under this Order must take care to limit any such designation to specific 17\|| material that qualifies under the appropriate standards. To the extent it is practical 18|| to do so, the Designating Party must designate for protection only those parts of 19|| material, documents, items, or oral or written communications that qualify — so 20|| that other portions of the material, documents, items, or communications for 21\) which protection is not warranted are not swept unjustifiably within the ambit of 22|| this Order. 23 7.2 Mass, indiscriminate or routinized designations are prohibited. 24|| Designations that are shown to be clearly unjustified or that have been made for 25|| an improper purpose (e.g., to unnecessarily encumber the case development 26|| process or to impose unnecessary expenses and burdens on other parties) may 27|| expose the Designating Party to sanctions. 28 7.3 If it comes to a Designating Party’s attention that information or items

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1|| that it has designated for protection do not qualify for any protection or do not 2|| qualify for the level of protection initially asserted, that Designating Party must 3|| promptly notify all other parties that it is withdrawing or altering the mistaken 4}| designation. 5 7.4. Manner and Timing of Designations. Except as otherwise provided 6|| in this Order (see, e.g., sections 7.5(a) and 7.5(b) below), or as otherwise 7\| stipulated or ordered, Disclosure or Discovery Material that qualifies for 8 | protection under this Order must be clearly so designated before the material is 9|| disclosed or produced. 10 7.5 Designation in conformity with this Order requires: 11 (a) for information in documentary form (e.g., paper or electronic 12\|| documents, but excluding transcripts of depositions or other pretrial or trial 13|| proceedings), that the Producing Party affix the legend “CONFIDENTIAL” or 14\| “HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES ONLY” to each page of 15|| the document that contains protected material. 16 A Party or Non-Party that makes original documents or materials available 17|| for inspection need not designate them for protection until after the inspecting 18\| Party has indicated which material it would like copied and produced. During the 19|| inspection and before the designation, all of the material made available for 20|) inspection shall be deemed “HIGHLY CONFIDENTIAL—ATTORNEYS’ 21|| EYES ONLY.” After the inspecting Party has identified the documents that it 22]! wishes to have copied and produced, the Producing Party must determine which 23|| documents, or portions thereof, qualify for protection under this Order. Then, 24|| before producing the specified documents, the Producing Party must affix the 25|| appropriate legend (“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL— 26|| ATTORNEYS’ EYES ONLY”) to each page of the document that contains Protected Material. 28 (b) for transcripts of depositions or other pretrial or trial proceedings,

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1 || that the original and all copies of any transcript, in whole or in part, be marked 211 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES 3{| ONLY” by the court reporter at the request of any party. This request may be 4|| made orally during the proceeding or in writing within thirty (30) days of receipt 5|| of the transcript of the proceeding. Deposition transcripts shall be treated by 6|| default as “HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES ONLY” until 7|| the expiration of the time to make a confidentiality designation. Any portions so 8|| designated shall thereafter be treated in accordance with the terms of this Order. 9 Transcripts containing Protected Material shall have an obvious legend with 10|) the appropriate designation on the title page and every subsequent page that the 11|) transcript contains Protected Material. If only portions of a transcript are 12|| designated as Protected Material, then the title page shall be followed by a list of 13|| all pages (including line numbers as appropriate) that have been designated as 14|| Protected Material and the level of protection being asserted by the Designating 15|| Party. The Designating Party shall inform the court reporter of these 16\| requirements. 17 (c) for information produced in an electronic form with a load file, the 18|| Designating Party shall note the degree of confidentiality of the Protected 19) Material in the load file. 20 (d) for information and items not produced in documentary form, that the Producing Party affix in a prominent place on the exterior of the container or 221| containers in which the information or item is stored the legend 23|| “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES 24\| ONLY.” If only a portion or portions of the information or item warrant 25|) protection, the Producing Party, to the extent practicable, shall identify the 26|| protected portion(s) and specify the level of protection being asserted. 27 7.6 Failure to Designate. A failure to designate qualified information or 28\| items, whether by inadvertence or otherwise, does not, standing alone, waive in

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whole or in part the Designating Party’s right to secure protection under this Order 2\| for such material. Upon subsequent correction of a designation, the Receiving 3|| Party must make reasonable efforts to assure that the material is treated in 4]| accordance with any revised designations under the provisions of this Order and 5} promptly collect any copies of the material that have been provided to individuals 6\| other than those authorized under Paragraph 9 of this Order. The Designating 7|| Party may also request the individuals to execute the “Acknowledgment and 8|| Agreement to Be Bound” that is attached hereto as Exhibit A. 9| VII CHALLENGING CONFIDENTIALITY DESIGNATIONS 10 8.1 Timing of Challenges. Any Party or Non-Party may challenge a 11|| designation of confidentiality at any time. Unless a prompt challenge to a 12|| Designating Party’s confidentiality designation is necessary to avoid foreseeable, 13|| substantial unfairness, unnecessary economic burdens, or a significant disruption 14|| or delay of the litigation, a Party does not waive its right to challenge a 15|| confidentiality designation by electing not to mount a challenge promptly after 16|| the original designation is disclosed. 17 8.2 Meet and Confer. The Challenging Party shall initiate the dispute 18|| resolution process by providing written notice of each designation it is 19|| challenging and describing the basis for each challenge. To avoid ambiguity as 20\|| to whether a challenge has been made, the written notice must recite that the 21|| challenge to confidentiality is being made in accordance with this specific 22|| paragraph of the Protective Order. The parties shall attempt to resolve each 23|| challenge in good faith and must begin the process by conferring directly (in 24|| voice-to-voice dialogue; other forms of communication are not sufficient) within 25|| seven (7) days of the date of service of notice. In conferring, the Challenging 26|| Party must explain the basis for its belief that the confidentiality designation was 27|| not proper and must give the Designating Party an opportunity to review the 28|| designated material, to reconsider the circumstances, and, if no change in

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1|| designation is offered, to explain the basis for the chosen designation. A 2|| Challenging Party may proceed to the next stage of the challenge process only if 3|| it has first engaged in this meet and confer process or has established that the 4|| Designating Party is unwilling to participate in the meet and confer process ina 5 || timely manner. 6 8.3 Judicial Intervention. Subject to Paragraph 8.2, the Challenging 7\| Party shall initiate the dispute resolution process under Local Rule 37 et seq. 8 8.4 The burden of persuasion in any such challenge proceeding shall be 9|| on the Designating Party. Frivolous challenges, and those made for an improper 10\| purpose (e.g., to harass or impose unnecessary expenses and burdens on other 11|| parties) may expose the Challenging Party to sanctions. Unless the Designating 12|) Party has waived or withdrawn the confidentiality designation, all parties shall 13|| continue to afford the material in question the level of protection to which it is 14\| entitled under the Producing Party’s designation until the Court rules on the 15}, challenge. 16|| IX. ACCESS TO AND USE OF PROTECTED MATERIAL 17 9.1 Basic Principles. A Receiving Party may use Protected Material that 18|| is disclosed or produced by another Party or by a Non-Party in connection with 19|| this case only for litigating or attempting to settle their present dispute. Protected 20\\ Material may be disclosed only to the categories of persons and under the 21\| conditions described in this Order. When the litigation has been terminated, a 22|| Receiving Party must comply with the provisions of Section 15 below (FINAL 23|| DISPOSITION). 24 9.2 Protected Material must be stored and maintained by a Receiving 25\| Party at a location and in a secure manner that ensures that access is limited to the 26|| persons authorized under this Order. 27 9.3 Disclosure of “CONFIDENTIAL” Information or Items. Unless 28|| otherwise ordered by the court or permitted in writing by the Designating Party,

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1|| a Receiving Party may disclose information or items designated “CONFIDENTIAL” only to: 3 (a) the Receiving Party’s Outside Counsel; as well as employees of said 4\| Outside Counsel to whom it is reasonably necessary to disclose the information 5\| for this litigation; 6 (b) the officers, directors, or employees (including House Counsel) for 7\| the Receiving Party to whom disclosure is reasonably necessary for this litigation; & (c) Experts (as defined in this Order) of the Receiving Party (1) to whom 9|| disclosure is reasonably necessary for purposes of this litigation, (2) who have 10|| signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 11 (d) the court and its personnel; 12 (e) court reporters and their staff, including stenographic, 13|| videographic, and clerical personnel; 14 (f) professional jury or trial consultants and mock jurors who have signed the “Acknowledgment and Agreement to be Bound” (Exhibit A); 16 (g) Professional Vendors to whom disclosure is reasonably necessary 17|| for this litigation and who have signed the “Acknowledgment and Agreement to 18\| be Bound” (Exhibit A); 19 (h) during their depositions or in court proceedings, witnesses to whom 20 disclosure is reasonably necessary and who have signed the “Acknowledgment 21\| and Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the 22\| Designating Party or ordered by the court; 23 (i) the author or recipient of a document containing the information or 24\| a custodian or other person who otherwise possessed or knew the information, 25) and 26 (Gj) any mediator or settlement officer, and their supporting personnel 27\| mutually agreed upon by any of the parties engaged in settlement discussions. 28 9.4 Disclosure of “HIGHLY CONFIDENTIAL—ATTORNEYS’

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1|| EYES ONLY” Information or Items. Unless otherwise ordered by the Court or 2|| permitted in writing by the Designating Party, a Receiving Party may disclose 3 any information or item designated “HIGHLY CONFIDENTIAL— 4|| ATTORNEYS’ EYES ONLY” only to: 5 (a) the Receiving Party’s Outside Counsel, as well as employees of said 6|| Outside Counsel to whom it is reasonably necessary to disclose the information 7 || for this litigation; 8 (b) no more than three (3) House Counsel of the Receiving Party, that 9|| has previously been identified to the other side in writing, to (1) whom disclosure 10|| is reasonably necessary for this litigation, and (2) who have no involvement in 11\| competitive decision-making. 12 (c) Experts of the Receiving Party (1) to whom disclosure is reasonably 13|| necessary for purposes of this litigation, (2) who have signed the 14|| “Acknowledgment and Agreement to Be Bound,” Exhibit A. 15 (d) the Court and its personnel; 16 (e) court reporters and their staff, including stenographic, videographic, 17|| and clerical personnel; 18 (f) professional jury or trial consultants and mock jurors who have 19|| signed the “Acknowledgment and Agreement to be Bound” (Exhibit A); 20 (g) Professional Vendors to whom disclosure is reasonably necessary 21|| for this litigation and who have signed the “Acknowledgment and Agreement to 22|, be Bound” (Exhibit A); 23 (h) the author or recipient of a document containing the information or 24|| a custodian or other person who otherwise possessed or knew the information; 25|| and 26 (i) any mediator or settlement officer, and their supporting personnel 27|| mutually agreed upon by any of the parties engaged in settlement discussions. 28

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X. PROTECTED MATERIAL SUBPOENAED OR ORDERED 2 PRODUCED IN OTHER LITIGATION 3 10.1 Ifa Party is served with a discovery request, subpoena, or a court 4|| order from another litigation that compels disclosure of any information or items 5|| designated in this action as Protected Material, that Party must: 6 (a) promptly notify in writing the Designating Party. Such notification 7\| shall include a copy of the subpoena or court order; 8 (b) promptly notify in writing the party who caused the subpoena or 91) order to issue in the other litigation that some or all of the material covered by the 10|| subpoena or order is subject to this Protective Order. Such notification shall 11 || include a copy of this Stipulated Protective Order; and 12 (c) cooperate with respect to all reasonable procedures sought to be 13|\ pursued by the Designating Party whose Protected Material may be affected. 14 10.2 If the Designating Party timely seeks a protective order, the Party 15|| served with the discovery request, subpoena, or court order shall not produce any 16|| information designated in this action as Protected Material before a determination 17|| by the court from which the subpoena or order issued, unless the Party has 18|| obtained the Designating Party’s permission. The Designating Party shall bear 19\| the burden and expense of seeking protection in that court of its confidential 20\| material — and nothing in these provisions should be construed as authorizing or 21|| encouraging a Receiving Party in this action to disobey a lawful directive from 22\| another court. 23|| XI. ANON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 24 PRODUCED IN THIS LITIGATION 25 11.1. A Non-Party’s protected material sought to be produced in this 26}| litigation. 27 (a) The terms of this Order are applicable to information produced by a 28 || Non-Party in this action and designated as Protected Material. Such information

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1|| produced by Non-Parties in connection with this litigation is protected by the 2|| remedies and relief provided by this Order. Nothing in these provisions should 3|| be construed as prohibiting a Non-Party from seeking additional protections. 4 (b) Both Parties shall be treated as a Receiving Party with respect to any 5]| information produced by a Non-Party in this action. To the extent that a Party 6|| obtains information from a Non-Party via subpoena, or otherwise, the Party shall 7|| produce the information to the other Party within 5 business days, unless the Party 8 || can demonstrate good reason why it is not possible to do so. 9 (c) In the event that a Party is required, by a valid discovery request, to 10}| produce a Non-Party’s confidential information in its possession (other than 11|| information produced in this litigation by a Non-Party), and the Party is subject 12|| to an agreement with the Non-Party not to produce the Non-Party’s confidential 13\| information, then the Party shall: 14 1. promptly notify in writing the Requesting Party and the Non- 15|| Party that some or all of the information requested is subject to a confidentiality 16|| agreement with a Non-Party; 17 2. promptly provide the Non-Party with a copy of the Stipulated 18\| Protective Order in this litigation, the relevant discovery request(s), and a 19|) reasonably specific description of the information requested; and 20 3. make the information requested available for inspection by the 21), Non-Party. 22 (d) If the Non-Party fails to object or seek a protective order from the 23|\ Court within fourteen (14) days of receiving the notice and accompanying 24\| information, the Receiving Party may produce the Non-Party’s confidential 25|| information responsive to the discovery request. If the Non-Party timely seeks a 26|| protective order, the Receiving Party shall not produce any information in its 27|| possession or control that is subject to the confidentiality agreement with the Non- 28|| Party before a determination by the court. Absent a court order to the contrary,

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1|| the Non-Party shall bear the burden and expense of seeking protection in this 2\| court of its Protected Material. 3|| xl. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 4 12.1 Ifa Receiving Party learns that, by inadvertence or otherwise, it has 5|| disclosed Protected Material to any person or in any circumstance not authorized 6|\ under this Stipulated Protective Order, the Receiving Party must immediately (a) 7\| notify in writing the Designating Party of the unauthorized disclosures, (b) use its 8|| best efforts to retrieve all unauthorized copies of the Protected Material, (c) 9|| inform the person or persons to whom unauthorized disclosures were made of all 10\| the terms of this Order, and (d) request such person or persons to execute the 11|| “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit 12} A. 13|| XII. PRODUCTION OF PRIVILEGED OR OTHERWISE 14 PROTECTED MATERIAL 15 13.1 When a Producing Party gives notice to Receiving Parties that 16|| certain inadvertently produced material is subject to a claim of privilege or other 17|| protection, the obligations of the Receiving Parties are those set forth in Federal 18|} Rule of Civil Procedure 26(b)(5)(B). In accordance with Federal Rule of 19|| Evidence 502(d), the attorney-client privilege or work-product protection is not 20\| waived as a result of the disclosure of information in connection with this 21|| litigation through inadvertence or error. Such production of documents or 22|| information subject to attorney-client privilege, work-product immunity, or any 23|| other applicable privilege shall not constitute a waiver of, nor a prejudice to, any 24\| claim that such or related material is Protected Material, privileged or protected 25|| by the work-product immunity or any other applicable privilege, provided that 26|) the Producing Party notifies the Receiving Party in writing promptly upon 27\) discovery of such information. Within five (5) business days of receiving such 28\\ notice, the Receiving Party shall return such information or documents or confirm

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1|| in writing that it has taken reasonable steps to permanently delete all electronic 2|| copies of such documents from electronic records and to destroy all paper copies. 31] If the Receiving Party has disclosed the information to others before being 4|| notified of the claim of privilege or protection, the Receiving Party must take 5|| reasonable steps to retrieve and return or destroy the disclosed information. No 6|| use shall be made of such documents or information during deposition or at trial, 7\| nor shall such documents or information be shown to anyone after the request that 8|| they be returned. The Receiving Party may move the court for an order 9|| compelling production of such information (based on information independent of 10|| the content of the allegedly privileged materials in question), but the motion shall 11|| not assert as a ground for production the fact or circumstances of the inadvertent 12|) production. Ifa claim is disputed, the Receiving Party shall not use or disclose a 13|| document or information for which a claim of privilege or immunity is made 14|| pursuant to this paragraph for any purpose until the matter is resolved by 15|| agreement of the parties or by a decision of this Court. If a party becomes aware 16|| that it has received documents that are clearly privileged, the party receiving the 17|| privileged documents will promptly notify the Producing Party of receipt of the 18|| documents and return or destroy all copies of the privileged documents, if the 19|| Producing Party so requests within ten (10) business days after being advised of 20|| the inadvertent production. If the Producing Party does not request return or 21\| destruction of the identified privileged documents within this ten (10) business 22|| day time period, the Producing Party will be deemed to have waived the privilege, 23|| but only with respect to the specific documents identified. 24) XIV. MISCELLANEOUS 25 14.1 Right to Further Relief. Nothing in this Order abridges the right of 26|| any person to seek its modification by the Court in the future. 27 14.2 Right to Assert Other Objections. By stipulating to the entry of this □□ □□ Protective Order, no Party waives any right it otherwise would have to object to

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1|| disclosing or producing any information or item on any ground not addressed in 2|| this Stipulated Protective Order. Similarly, no Party waives any right to object 3]) on any ground to the use in evidence of any of the material covered by this 4|| Protective Order. 5 14.3 Filing Protected Material. A Party that seeks to file under seal any 6|| Protected Material must comply with Local Civil Rule 79-5. Protected Material 7\| may only be filed under seal pursuant to a court order authorizing the sealing of 8|| the specific Protected Material at issue. If a Party’s request to file Protected 9|| Material under seal is denied by the court, then the Receiving Party may file the 10|| information in the public record unless otherwise instructed by the court. 11 14.4 Use Party’s Own Protected Material. Nothing in this Stipulation 12\| and Protective Order restricts in any way a Party’s use or disclosure of its own Protected Material. 14 14.5 No Presumption as to Confidentiality. The fact that information is 15|| marked with a confidentiality designation under the Protective Order shall not be 16|| deemed to be determinative of what a trier of fact may determine to be 17\| confidential, proprietary, or a trade secret. The fact that any information is □□ □□ disclosed used, or produced in this Action with a confidentiality designation shall 19}| not be offered in any Action or proceeding before any court, agency, or tribunal 20) as evidence of or concerning whether or not such information is admissible, 21|| confidential, or proprietary. 22 14.6. No Modification of Existing Rights. This Protective Order shall not 23|| abrogate or diminish any contractual, statutory, or other legal obligation or right 24|| of any Party or person with respect to any Protected Material. 25\| XV. FINAL DISPOSITION 26 15.1 Within sixty (60) days after the latest of any final disposition, as 27|| defined in Section 6, of this action, each Receiving Party must return all Protected 28|) Material to the Producing Party or destroy such material. As used in this

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subdivision, “all Protected Material” includes all copies, abstracts, compilations, 2|| summaries, and any other format reproducing or capturing any of the Protected 3|| Material. Whether the Protected Material is returned or destroyed, the Receiving 4|| Party must submit a written certification to the Producing Party (and, if not the 5]| same person or entity, to the Designating Party) by the 60-day deadline that (1) 6|| identifies (by category, where appropriate) all the Protected Material that was 7\| returned or destroyed and (2) affirms that the Receiving Party has not retained 8 || any copies, abstracts, compilations, summaries, or any other format reproducing 9|| or capturing any of the Protected Material. Notwithstanding this provision, 10|| Counsel are entitled to retain archival copies of all pleadings, motion papers, trial, 11|| deposition, and hearing transcripts, legal memoranda, correspondence, deposition 12|) and trial exhibits, expert reports, and associated exhibits, attorney work product, 13|| and consultant and expert work product, even if such materials contain Protected 14|| Material. Any such archival copies that contain or constitute Protected Material 15|| remain subject to this Protective Order as set forth in Section 6. In addition, this 16|| provision does not require the Receiving Party to search through or delete 17|| automatically generated computer backup files that are created for disaster 18|| recovery purposes (e.g., computer backup tapes), if such files are not readily 19|| accessible. 20 21\| ITIS SO STIPULATED, THROUGH COUNSEL OF RECORD. 22 23 Respectfully submitted, 24 KNOBBE, MARTENS, OLSON & BEAR, LLP 2 By: /s/ Lauren Keller Katzenellenbogen 70 Lauren Keller Katzenellenbogen 27 Jason A. Champion 28 Attorneys for Plaintiff

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1 Pacific Packaging Concepts, Inc. FENWICK & WEST LLP 4 By: /s/ Meghan Fenzel (with permission) Eric Ba 5 Meghan Fenzel Sapna S. Mehta Attorneys for Defendants 7 NutriSystem, Inc., and NutriSystem IPHC, Inc. 9 FILER’S ATTESTATION 10 Pursuant to Local Rule 5-4.3.4 regarding signatures, I hereby attest that 11|| concurrence in the filing of this document has been obtained from all signatories 12|| above. 13|| Dated: December 18, 2019 /s/ Lauren Keller Katzenellenbogen 14 Lauren Keller Katzenellenbogen 15|| FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 16 72 — ” patees 123/20 18 Hon. Otis D-Wright Charis Eck 19 District-Court Judge Judge nite. SP aies Vropastale Tre 20 7 “ge 21 22 23 24 25 26 27 28

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I EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 4|| I, [print or type full name], of 5 [print or type full address], declare 6|| under penalty of perjury that I have read in its entirety and understand the 7\| Stipulated Protective Order that was issued by the United States District Court for 8&|| the Central District of California on [date] in the matter of Pacific Packaging 9|| Concepts, Inc. v. Nutrisystem, Inc., Civil Action No. 2:19-cv-04755-ODW-Ex. I 10|| agree to comply with and to be bound by all the terms of this Stipulated Protective Order and I understand and acknowledge that failure to so comply could expose 12|| me to sanctions and punishment in the nature of contempt. I solemnly promise □□ □□ that I will not disclose in any manner any information or item that is subject to 14|| this Stipulated Protective Order to any 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 Central District of California for the purpose of enforcing the terms □□ □□ of this Stipulated Protective Order, even if such enforcement proceedings occur 19 after termination of this action. 20 21\| Date: City and State where sworn and signed: 23 24|| Printed name: 25 26|| Signature: 27 28 |, *1793!