Hansen Beverage Company v. GMAX LLC
Filing
15
STIPULATED PROTECTIVE ORDER by Magistrate Judge Oswald Parada. (See document for specifics) (mrgo)
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Lynda J. Zadra-Symes (SBN 156511)
2ljs@kmob.com
Lauren K. Katzenellenbogen (SBN 223370)
lkeller@kmob.com
KNOBBE, MARTENS, OLSON & BEAR, LLP
2040 Main Street
Fourteenth Floor
Irvine, CA 92614
Phone: (949) 760-0404
Facsimile: (949) 760-9502
Attorneys for Plaintiff,
MONSTER ENERGY COMPANY f/k/a
HANSEN BEVERAGE COMPANY d/b/a
MONSTER BEVERAGE COMPANY
William E. Thomson, Jr. (State Bar #47195)
wthomson@brookskushman.com
BROOKS KUSHMAN P.C.
601 South Figueroa Street, Suite 2080
Los Angeles, CA 90017
Telephone: (213) 622- 3003
Facsimile: (213) 622-3053
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Attorneys for Defendant,
GMAX, LLC
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IN THE UNITED STATES DISTRICT COURT
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FOR THE CENTRAL DISTRICT OF CALIFORNIA
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HANSEN BEVERAGE COMPANY
d/b/a MONSTER BEVERAGE
COMPANY, a Delaware corporation,
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Plaintiff,
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v.
GMAX, LLC, a Michigan limited
liability company,
Defendant.
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Civil Action No.
CV12-00612 ODW (OPx)
STIPULATED PROTECTIVE
ORDER
Hon. Otis D. Wright III
Magistrate Judge Oswald Parada
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Plaintiff Monster Energy Company f/k/a Hansen Beverage Company
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d/b/a Monster Beverage Company (“Monster Energy”) and Defendant GMAX,
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LLC (“GMAX”) recognizing that each may have materials containing trade
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secret or other confidential research, technical, cost, price, marketing or other
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commercial information, as is contemplated by Federal Rule of Civil Procedure
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26(c), have agreed to the terms of the Protective Order (“Order”) as set forth
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below. The purpose of this Order is to protect the confidentiality of such
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materials as much as practical during the litigation. THEREFORE IT IS
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HEREBY ORDERED:
1.
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This Order shall apply to all information produced during
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discovery in this action that shall be designated by the party or person producing
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it as “Confidential” or “Confidential-Attorneys Eyes Only” (collectively
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“Confidential Information”). This Order shall not apply to information that,
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before disclosure, is properly in the possession or knowledge of the party to
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whom such disclosure is made, or is public knowledge.
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contained in this Order shall not apply to information that is, or after disclosure
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becomes, public knowledge other than by an act or omission of the party to
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whom such disclosure is made, or that is legitimately acquired from a source not
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subject to this Order.
2.
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The restrictions
If a document or thing produced in response to a document request
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or in connection with a deposition, interrogatory answer, or admission
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(collectively “discovery response”), or a deposition transcript, contains
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information considered confidential by a party, such discovery response, or
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deposition transcript shall be designated “Confidential” or “Confidential-
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Attorneys Eyes Only” by the party contending there is confidential information
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therein.
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3.
In connection with a discovery response or deposition transcript,
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the legend “Confidential” or “Confidential-Attorneys Eyes Only” (in such a
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manner as will not interfere with the legibility thereof) shall be affixed before
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the production or service upon a party.
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4.
As a general guideline, a document should be designated
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“Confidential” when it contains confidential business, technical or other
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information that may be reviewed by the receiving party, the parties’ experts,
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and other representatives, but must be protected against disclosure to third
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parties. A document may be designated “Confidential-Attorneys Eyes Only”
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only when it contains the following highly sensitive information: financial
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information; cost information; pricing information; sales information; customer,
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license, supplier, and vendor information; software and firmware for a party’s
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products; technical and development information about a party’s products;
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comparative product test results; business plans; marketing strategies; new
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product plans and competitive strategies; or any other information that would
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put the producing party at a competitive disadvantage if the information became
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known to employees of the receiving party or third parties.
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5.
All Confidential Information (i.e., “Confidential” or “Confidential-
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Attorneys Eyes Only” information) that has been obtained from a party during
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the course of this proceeding shall be used only for the purpose of this litigation
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and not for any other business, proceeding, litigation, or other purpose
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whatsoever. Further, such information may not be disclosed to anyone except
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as provided in this Order. Counsel for a party may give advice and opinions to
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their client based on evaluation of information designated as Confidential
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Information produced by the other party.
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“Confidential-Attorneys Eyes Only,” such rendering of advice and opinions
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shall not reveal the content of such information except by prior agreement with
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opposing counsel.
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For information designated
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6.
All documents, or any portion thereof, produced for inspection only
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(i.e., copies have not yet been provided to the receiving party) shall be deemed
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“Confidential-Attorneys Eyes Only.”
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requested after inspection, the document shall be deemed “Confidential” or
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“Confidential-Attorneys Eyes Only” only if labeled or marked in conformity
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with paragraph 2, with access and dissemination limited as set forth in
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paragraphs 10-13.
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7.
If a copy of any such document is
Information disclosed at a deposition may be designated as
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“Confidential” or “Confidential-Attorneys Eyes Only” at the time of the
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deposition, or within ten (10) days following receipt of the transcript, and shall
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be subject to the provisions of this Order. Additional information disclosed
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during a deposition may be designated as “Confidential” or “Confidential-
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Attorneys Eyes Only” by notifying the other party, in writing, within ten (10)
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days after receipt of the transcript, of the specific pages of the transcript that
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should also be so designated. Unless otherwise agreed on the record of the
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deposition, all transcripts shall be treated as “Confidential-Attorneys Eyes
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Only” for a period of ten (10) days after their receipt, and the transcript shall not
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be disclosed by a non-designating party to persons other than those persons
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named or approved according to paragraphs 11-13 to review documents or
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materials designated “Confidential-Attorneys Eyes Only” on behalf of that non-
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designating party.
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8.
If any party or their counsel is served with a subpoena requiring
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production of any Confidential Information or Confidential – Attorneys’ Eyes
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Only Information such party shall send via facsimile or email, within three (3)
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business days (excluding legal and court holidays), a copy of the subpoena to
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the attorney for the producing party. The parties agree that the producing party
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shall have five (5) business days (excluding legal and court holidays) within
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which to file a motion objecting to the subpoena or to seek other relief after
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receiving the notice referred to above. If a motion objecting to the subpoena is
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timely filed, the subpoenaed party shall not produce the material until after the
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court rules on such motion, unless required to do so pursuant to court order
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(other than the subpoena itself) or other applicable law.
9.
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In accordance with Local Rule 79-5.1, if any papers to be filed with
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the Court contain information and/or documents that have been designated as
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“Confidential” or “Confidential – Attorneys’ Eyes Only,” the proposed filing
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shall be accompanied by an application to file the papers or the portion thereof
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containing the designated information or documents (if such portion is
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segregable) under seal; and the application shall be directed to the judge to
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whom the papers are directed. For motions, the parties shall file a redacted
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version of the motion and supporting papers.
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10.
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following:
(a)
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As used in this Order, “Trial Counsel” refers exclusively to the
For Plaintiff: The attorneys, paralegals, agents, and support staff of
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Knobbe, Martens, Olson & Bear, LLP, but shall not under any circumstances
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include any current or former officer, director, or employee of Monster Energy.
(b)
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For Defendant: The attorneys, paralegals, agents, and support staff
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of Brooks Kushman P.C. and Blue Filament Intellectual Property LLC, but shall
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not under any circumstances include any current or former officer, director, or
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employee of GMAX.
(c)
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Others: Such additional attorneys as may be ordered by the Court,
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or subsequently may be agreed upon by the parties, such agreement not to be
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unreasonably withheld.
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11.
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Material designated as “Confidential” that has been obtained from
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a party during the course of this proceeding may be disclosed or made available
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only to the Court, to Trial Counsel for either party, and to the persons
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designated below and only subject to paragraphs 12-13:
(a)
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an officer, director, or designated employee of a party, including
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insurers, deemed necessary by Trial Counsel to aid in the prosecution, defense,
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or settlement of this action;
(b)
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independent experts or consultants (together with their clerical
staff) retained by such Trial Counsel to assist in the prosecution, defense, or
settlement of this action;
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(c)
court reporter(s) employed in this action;
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(d)
agents of Trial Counsel needed to perform various services such as,
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for example, copying, drafting of exhibits, and support and management
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services, including vendors retained by the parties, or by counsel for parties, for
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the purpose of encoding, loading into a computer and storing and maintaining
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for information control and retrieval purposes, transcripts of depositions,
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hearings, trials, pleadings, exhibits marked by a party, or attorneys' work
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product, all of which may contain material designated Confidential;
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(e)
witnesses in any deposition or other proceeding of this action;
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(f)
any persons who appear on the face of the Confidential Information
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as an author or prior recipient thereof.
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Material designated as “Confidential-Attorneys Eyes Only” that
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has been obtained from Monster Energy or GMAX during the course of this
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proceeding may be disclosed or made available only to the Court, to Trial
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Counsel for either party, and to the persons designated below and subject to
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paragraphs 12-14:
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(a)
independent experts or consultants (together with their clerical
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staff) retained by such Trial Counsel to assist in the prosecution, defense, or
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settlement of this action;
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(b)
authors and prior recipients of any material bearing a
“Confidential-Attorneys Eyes Only” legend;
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(c)
court reporter(s) employed in this action;
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(d)
agents of Trial Counsel needed to perform various services such as,
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for example, copying, drafting of exhibits, and support and management
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services, including vendors retained by the parties, or by counsel for parties, for
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the purpose of encoding, loading into a computer and storing and maintaining
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for information control and retrieval purposes, transcripts of depositions,
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hearings, trials, pleadings, exhibits marked by a party, or attorneys' work
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product, all of which may contain material designated Confidential-Attorneys
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Eyes Only;
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(e)
witnesses in any deposition or other proceeding in this action (i)
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who are the author or recipient of the “Confidential-Attorneys Eyes Only”
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material, (ii) who, based on evidence, have seen the material in the past, or (iii)
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who counsel for a party reasonably believes has knowledge of the contents of
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the document or the specific events, transactions, discussions, or data reflected
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in the document, and upon the witness being advised of the need and agreeing to
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keep the records confidential; and
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(f)
any other persons as to whom the parties in writing agree.
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13.
Any officer, director, or designated employee of a party under
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paragraph 10(a) or individuals identified under paragraphs 10(b) and 11(a)
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having access to Confidential Information shall be given a copy of this Order
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before being shown such Confidential Information, and its provisions shall be
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explained to them by an attorney. Each person identified under paragraphs
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11(a), 11(b), 11(e), 11(f) and 12(a), 12(e), 12(f), before having access to the
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Confidential Information, shall agree not to disclose to anyone not exempted by
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this Order any Confidential Information and not to make use of any such
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Confidential Information other than solely for purpose of this litigation, and
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shall acknowledge in writing by signing a document in the form of Exhibit A
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attached hereto, that he or she is fully conversant with the terms of this Order
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and agrees to comply with it and be bound by it.
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14.
For the purpose of this Order, an independent expert or consultant
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shall be defined as a person, who has not been and is not an employee of a party
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or scheduled to become an employee in the near future, and who is retained or
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employed as a consultant or expert for purposes of this litigation, either full or
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part-time, by or at the direction of counsel of a party.
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15.
Any Confidential Information may be used in the course of any
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deposition taken of the party producing such Confidential Information or its
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employees without consent, or otherwise used in any deposition with the
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consent of the party producing such Confidential Information, subject to the
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condition that when such Confidential Information is so used, the party who
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made the designation may notify the reporter that the portion of the deposition
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in any way pertaining to such Confidential Information or any portion of the
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deposition relevant thereto is being taken pursuant to this Order.
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whenever any Confidential Information is to be discussed or disclosed in a
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deposition, any party claiming such confidentiality may exclude from the room
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any person not entitled to receive such confidential information pursuant to the
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terms of this Order.
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16.
Further,
A Receiving Party who objects to the designation of any discovery
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response, or deposition testimony as “Confidential” or “Confidential-Attorneys
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Eyes Only” shall state the objection by letter which complies with the
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requirements of Local Rule 37-1 to counsel for the Producing Party. Pursuant to
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Local Rule 37-1, counsel for the parties shall confer within ten (10) days
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following receipt of the letter stating the objection. If the objection is not
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resolved through the parties’ meeting pursuant to Local Rule 37-1, the
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Receiving Party may move the Court to determine whether the discovery
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response or deposition testimony at issue qualifies for treatment as
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“Confidential” or “Confidential-Attorneys Eyes Only.” The Receiving Party’s
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motion must be accompanied by a written stipulation of the parties as required
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by Local Rule 37-2. If the Receiving Party files such a motion, the discovery
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response, or deposition testimony at issue will continue to be entitled to the
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protections accorded by this Order until and unless the Court rules otherwise. If
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the Receiving Party files such a motion, the Producing Party shall bear the
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burden of establishing that the discovery response or deposition testimony at
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issue qualifies for treatment as “Confidential” or “Confidential-Attorneys Eyes
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Only.” Nothing herein shall operate as an admission by any Party that any
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particular discovery response, or deposition testimony contains “Confidential”
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or “Confidential-Attorneys Eyes Only.”
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determining the merits of the claims in this litigation. A party shall not be
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obligated to challenge the propriety of the designation of any discovery response
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or deposition testimony at the time such designation is made; failure to do so
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shall not preclude a subsequent challenge within a reasonable time. Further, a
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Party’s failure to challenge a designation during pretrial discovery shall not
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preclude a subsequent challenge of such designation at trial or in connection
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with the submission of any discovery response or deposition testimony to the
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Court for any purpose.
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17.
Information for purposes of
Notwithstanding anything contrary herein, if a party through
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inadvertence or mistake produces discovery of any Confidential Information
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without marking it with the legend “Confidential” or “Confidential-Attorneys
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Eyes Only,” or by designating it with an incorrect level of confidentiality, the
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producing party may give written notice to the receiving party that the discovery
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response, or deposition testimony contains Confidential Information and should
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be treated as such in accordance with the provisions of this Order. Upon receipt
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of such notice, and upon receipt of properly marked materials, the receiving
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party shall return said unmarked materials and not retain copies thereof, and
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must treat such discovery responses, or deposition testimony as Confidential
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Information and shall cooperate in restoring the confidentiality of such
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Confidential Information. The inadvertent or unintentional disclosure by a party
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of Confidential Information, regardless of whether the information was so
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designated at the time of disclosure, shall not be deemed a waiver in whole or in
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part of a party's claim of confidentiality either as to the specific information
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disclosed or as to any other information relating thereto or on the same or
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related subject matter, provided that the non-producing party is notified and
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properly marked documents are supplied as provided herein. The receiving
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party shall not be responsible for the disclosure or other distribution of belatedly
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designated Confidential Information as to such disclosure or distribution that
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may occur before the receipt of such notification of a claim of confidentiality
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and such disclosure or distribution shall not be deemed to be a violation of this
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Order.
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18.
Documents and things produced or made available for inspection
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may be subject to redaction, in good faith by the producing party, of sensitive
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material that is subject to the attorney-client privilege or to work-product
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immunity. Each such redaction, regardless of size, will be clearly labeled. This
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paragraph shall not be construed as a waiver of any party's right to seek
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disclosure of redacted information.
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19.
Neither the taking or the failure to take any action to enforce the
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provisions of this Order, nor the failure to object to any designation or any such
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action or omission, shall constitute a waiver of any signatory's right to seek and
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obtain protection or relief, with respect to any claim or defense in this action or
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any other action including, but not limited to, the claim or defense that any
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information is or is not proprietary to any party, is or is not entitled to particular
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protection or that such information embodies trade secret or other confidential
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information of any party. The procedures set forth herein shall not affect the
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rights of the parties to object to discovery on grounds other than those related to
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trade secrets or other confidential information claims, nor shall it relieve a party
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of the necessity of proper responses to discovery requests.
20.
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This Order shall not abrogate or diminish any contractual,
statutory, or other legal obligation or right of any party to this Order, as to any
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third party, with respect to any Confidential Information.
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Information is designated “Confidential” or “Confidential-Attorneys Eyes
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Only” under this Order shall not be deemed to be determinative of what a trier
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of fact may determine to be confidential or proprietary. This Order shall be
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without prejudice to the right of any party to bring before the Court the question
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of:
(a)
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whether any particular information is or is not Confidential
Information;
(b)
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The fact that
whether any particular information is or is not entitled to a greater
or lesser degree of protection than provided hereunder; or
(c)
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whether any particular information is or is not relevant to any issue
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in this case; provided that in doing so the party complies with the foregoing
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procedures.
21.
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The terms of the Order are applicable to Confidential Information
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produced by a non-party, and Confidential Information produced by a non-party
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in connection with this litigation is protected by the remedies and relief
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provided by the Order. To protect its own Confidential Information, a party
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may ask a non-party to execute a document in the form of Exhibit A.
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22.
Within thirty (30) days following the conclusion of this litigation,
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all information designated as Confidential Information, except such documents
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or information which incorporate or are incorporated into attorney work product
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(a single copy of which may be retained in counsel's file), shall, upon request,
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be returned to the producing party, or disposed of pursuant to the instructions of
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the producing party.
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23.
The restrictions provided for above shall not terminate upon the
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conclusion of this lawsuit. This Order is without prejudice to the right of a party
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hereto to seek relief from the Court, upon good cause shown, from any of the
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provisions or restrictions provided herein.
24.
Nothing in this Order is intended or should be construed as
authorizing a party to disobey a lawful subpoena issued in another action.
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GOOD CAUSE EXISTS TO ENTER INTO THE
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STIPULATED PROTECTIVE ORDER
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1.
Good cause exists for this Court to enter the Stipulated Protective
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Order, because disclosure of any Confidential Information would harm the
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parties financially and allow competitors to gain unfair advantage. Competitors
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will gain an unfair advantage over the parties if they learn the parties’
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Confidential Information, such as their financial information, accounting
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information, customer lists, vendor lists, costs or profit structure, sales
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information and sources, vendor sources, retail channels, product lines, business
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and marketing strategy, or information concerning distribution or operations.
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The Confidential Information should be protected, because it reveals the parties’
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current
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opportunities and efforts, the quality of the products, the manufacturing times
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and sources, and retail prices and costs. This information will give others an
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unfair price and time advantage and allow them to unfairly compete in the
financial
status,
business
strategy,
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business
structure,
future
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market and usurp the parties’ business opportunities, to the detriment of the
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parties.
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Good cause further exists in that this Stipulation would allow for
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both parties to disclose documents required for the litigation of this matter
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without suffering from both an economic and business detriment that would
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result from the disclosure of Confidential Information to their competitors
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and/or to the public.
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SO STIPULATED BY:
KNOBBE, MARTENS, OLSON & BEAR, LLP
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Dated: May 17, 2012
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By: /s/ Lauren Keller Katzenellenbogen
Lynda J. Zadra-Symes
Lauren Keller Katzenellenbogen
Attorneys for Plaintiff
HANSEN BEVERAGE COMPANY d/b/a
MONSTER BEVERAGE COMPANY
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BROOKS KUSHMAN P.C.
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Dated: May 17, 2012
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By:/s/ William E. Thomson, Jr. (with permission)
William E. Thomson, Jr.
Attorneys for Defendant,
GMAX, LLC
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IT IS SO ORDERED.
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Dated:
UNITED STATES MAGISTRATE JUDGE
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5/23/12
13300983
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EXHIBIT A
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ACKNOWLEDGEMENT AND AGREEMENT TO BE BOUND
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I,
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1.
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, declare and say that:
I am employed as ________________________________ by
_____________________________________________________________.
2.
I have read the Stipulated Protective Order in Hansen Beverage
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Company d/b/a Monster Energy Company v. GMAX, LLC, CV12-00612 ODW
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(OPx), pending in the United States District Court for the Central District of
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California, and have received a copy of the Stipulated Protective Order
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(“Protective Order”). I hereby agree to comply with and be bound by the terms
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and conditions of that Order unless and until modified by court order.
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3.
I promise that I will use any and all “Confidential” or
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“Confidential – Attorneys Eyes Only” information, as defined in the Protective
14
Order, given to me only in a manner authorized by the Protective Order, and
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only to assist counsel in the litigation of this matter.
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4.
I promise that I will not disclose or discuss such “Confidential” or
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“Confidential – Attorneys Eyes Only” information with anyone other than the
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persons authorized in accordance with Paragraphs 9-11 of the Protective Order.
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5.
When I have completed my assigned or legal duties relating to this
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litigation, I will return all confidential documents and things that come into my
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possession, or that I have prepared relating to such documents and things, to
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counsel for the party by whom I am employed or retained. I acknowledge that
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such return or the subsequent destruction of such materials shall not relieve me
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from any of the continuing obligations imposed on me by the Confidentiality
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Agreement.
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6.
I understand that any disclosure or use of “Confidential” or
“Confidential – Attorneys Eyes Only” information in any manner contrary to
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the provisions of the Protective Order may subject me to sanctions for contempt
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of court.
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I declare under penalty of perjury that the foregoing is true and correct.
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Executed this
day of
, 2012 at
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13300983
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