1 Eric C. Lauritsen (SBN 301219) [email protected] 2 822 S. Windsor Blvd., Suite 202 Los Angeles, CA 90005 3 (323) 454-2004

4 Attorney for Plaintiff Brandyn Love

5

6

7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA - EASTERN DIVISION 9 10 BRANDYN LOVE, an individual, Case No. 5:20-cv-00124-PSG (KKx)

11 Plaintiff, Hon. Philip S. Gutierrez

12 vs. STIPULATED PROTECTIVE ORDER 13 NUCLEAR BLAST AMERICA, INC., a Nevada corporation; LUCAS Trial Date: None Set 14 MANN, an individual; CENTRAL TEXAS RINGS OF SATURN, LLC; 15 and DOES 1-10 inclusive

16 Defendants.

17 18 19 20 21 22 23 24 25 26 27 1 1. PURPOSES AND LIMITATIONS 2 Discovery in this action is likely to involve production of confidential, 3 proprietary or private information for which special protection from public 4 disclosure and from use for any purpose other than pursuing this litigation may be 5 warranted. Accordingly, the parties hereby stipulate to and petition the Court to 6 enter the following Stipulated Protective Order. The parties acknowledge that this 7 Order does not confer blanket protections on all disclosures or responses to 8 discovery and that the protection it affords from public disclosure and use extends 9 only to the limited information or items that are entitled to confidential treatment 10 under the applicable legal principles. 11 2. GOOD CAUSE STATEMENT 12 This action is likely to involve trade secrets, customer and pricing lists and 13 other valuable research, development, commercial, financial, technical and/or 14 proprietary information for which special protection from public disclosure and 15 from use for any purpose other than prosecution of this action is warranted. Such 16 confidential and proprietary materials and information consist of, among other 17 things, confidential business or financial information, information regarding 18 confidential business practices, or other confidential research, development, or 19 commercial information (including information implicating privacy rights of third 20 parties), information otherwise generally unavailable to the public, or which may be 21 privileged or otherwise protected from disclosure under state or federal statutes, 22 court rules, case decisions, or common law. Accordingly, to expedite the flow of 23 information, to facilitate the prompt resolution of disputes over confidentiality of 24 discovery materials, to adequately protect information the parties are entitled to keep 25 confidential, to ensure that the parties are permitted reasonable necessary uses of 26 such material in preparation for and in the conduct of trial, to address their handling 27 at the end of the litigation, and serve the ends of justice, a protective order for such 1 will not be designated as confidential for tactical reasons and that nothing be so 2 designated without a good faith belief that it has been maintained in a confidential, 3 non-public manner, and there is good cause why it should not be part of the public 4 record of this case. 5 3. ACKNOWLEDGMENT OF UNDER SEAL FILING PROCEDURE 6 The parties further acknowledge, as set forth in Section 14.3, below, that this 7 Stipulated Protective Order does not entitle them to file confidential information 8 under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed 9 and the standards that will be applied when a party seeks permission from the court 10 to file material under seal. There is a strong presumption that the public has a right 11 of access to judicial proceedings and records in civil cases. In connection with non- 12 dispositive motions, good cause must be shown to support a filing under seal. See 13 Kamakana v. City and County of Honolulu,

(9th Cir. 2006), 14 Phillips v. Gen. Motors Corp.,

, 1210-11 (9th Cir. 2002), Makar- 15 Welbon v. Sony Electrics, Inc.,

(E.D. Wis. 1999) (even 16 stipulated protective orders require good cause showing), and a specific showing of 17 good cause or compelling reasons with proper evidentiary support and legal 18 justification, must be made with respect to Protected Material that a party seeks to 19 file under seal. The parties’ mere designation of Disclosure or Discovery Material as 20 CONFIDENTIAL does not— without the submission of competent evidence by 21 declaration, establishing that the material sought to be filed under seal qualifies as 22 confidential, privileged, or otherwise protectable—constitute good cause. 23 Further, if a party requests sealing related to a dispositive motion or trial, then 24 compelling reasons, not only good cause, for the sealing must be shown, and the 25 relief sought shall be narrowly tailored to serve the specific interest to be protected. 26 See Pintos v. Pacific Creditors Ass’n.,

(9th Cir. 2010). For 27 each item or type of information, document, or thing sought to be filed or introduced 1 supported by specific facts and legal justification, for the requested sealing order. 2 Again, competent evidence supporting the application to file documents under seal 3 must be provided by declaration. 4 Any document that is not confidential, privileged, or otherwise protectable in 5 its entirety will not be filed under seal if the confidential portions can be redacted. If 6 documents can be redacted, then a redacted version for public viewing, omitting 7 only the confidential, privileged, or otherwise protectable portions of the document, 8 shall be filed. Any application that seeks to file documents under seal in their 9 entirety should include an explanation of why redaction is not feasible. 10 4. DEFINITIONS 11 4.1 Action: The above captioned lawsuit, Love v. Nuclear Blast America, 12 Inc., et al., Case No. 5:20-cv-00124-PSG. 13 4.2 Challenging Party: a Party or Non-Party that challenges the 14 designation of information or items under this Order. 15 4.3 “CONFIDENTIAL” Information or Items: information (regardless of 16 how it is generated, stored or maintained) or tangible things that qualify for 17 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 18 the Good Cause Statement. 19 4.4 Counsel: Outside Counsel of Record and House Counsel (as well as 20 their support staff). 21 4.5 Designating Party: a Party or Non-Party that designates 22 information or items that it produces in disclosures or in responses to discovery as 23 “CONFIDENTIAL.” 24 4.6 Disclosure or Discovery Material: all items or information, regardless 25 of the medium or manner in which it is generated, stored, or maintained (including, 26 among other things, testimony, transcripts, and tangible things), that are produced or 27 generated in disclosures or responses to discovery. 1 pertinent to the litigation who has been retained by a Party or its counsel to serve as 2 an expert witness or as a consultant in this Action. 3 4.8 House Counsel: attorneys who are employees of a party to this Action. 4 House Counsel does not include Outside Counsel of Record or any other outside 5 counsel. 6 4.9 Non-Party: any natural person, partnership, corporation, association or 7 other legal entity not named as a Party to this action. 8 4.10 Outside Counsel of Record: attorneys who are not employees of a party 9 to this Action but are retained to represent a party to this Action and have appeared 10 in this Action on behalf of that party or are affiliated with a law firm that has 11 appeared on behalf of that party, and includes support staff. 12 4.11 Party: any party to this Action, including all of its officers, directors, 13 employees, consultants, retained experts, and Outside Counsel of Record (and their 14 support staffs). 15 4.12 Producing Party: a Party or Non-Party that produces Disclosure or 16 Discovery Material in this Action. 17 4.13 Professional Vendors: persons or entities that provide litigation support 18 services (e.g., photocopying, videotaping, translating, preparing exhibits or 19 demonstrations, and organizing, storing, or retrieving data in any form or medium) 20 and their employees and subcontractors. 21 4.14 Protected Material: any Disclosure or Discovery Material that is 22 designated as “CONFIDENTIAL.” 23 4.15 Receiving Party: a Party that receives Disclosure or Discovery Material 24 from a Producing Party. 25 5. SCOPE 26 The protections conferred by this Stipulation and Order cover not only 27 Protected Material (as defined above), but also (1) any information copied or 1 compilations of Protected Material; and (3) any testimony, conversations, or 2 presentations by Parties or their Counsel that might reveal Protected Material. 3 Any use of Protected Material at trial shall be governed by the orders of the 4 trial judge and other applicable authorities. This Order does not govern the use of 5 Protected Material at trial. 6 6. DURATION 7 Once a case proceeds to trial, information that was designated as 8 CONFIDENTIAL or maintained pursuant to this protective order used or introduced 9 as an exhibit at trial becomes public and will be presumptively available to all 10 members of the public, including the press, unless compelling reasons supported by 11 specific factual findings to proceed otherwise are made to the trial judge in advance 12 of the trial. See Kamakana,

(distinguishing “good cause” 13 showing for sealing documents produced in discovery from “compelling reasons” 14 standard when merits-related documents are part of court record). Accordingly, the 15 terms of this protective order do not extend beyond the commencement of the trial. 16 7. DESIGNATING PROTECTED MATERIAL 17 7.1 Exercise of Restraint and Care in Designating Material for Protection. 18 Each Party or Non-Party that designates information or items for protection under 19 this Order must take care to limit any such designation to specific material that 20 qualifies under the appropriate standards. The Designating Party must designate for 21 protection only those parts of material, documents, items or oral or written 22 communications that qualify so that other portions of the material, documents, items 23 or communications for which protection is not warranted are not swept unjustifiably 24 within the ambit of this Order. 25 Mass, indiscriminate or routinized designations are prohibited. Designations 26 that are shown to be clearly unjustified or that have been made for an improper 27 purpose (e.g., to unnecessarily encumber the case development process or to impose 1 unnecessary expenses and burdens on other parties) may expose the Designating 2 Party to sanctions. 3 If it comes to a Designating Party’s attention that information or items that it 4 designated for protection do not qualify for protection, that Designating Party must 5 promptly notify all other Parties that it is withdrawing the inapplicable designation. 6 7.2 Manner and Timing of Designations. Except as otherwise provided in 7 this Order, or as otherwise stipulated or ordered, Disclosure of Discovery Material 8 that qualifies for protection under this Order must be clearly so designated before 9 the material is disclosed or produced. 10 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 at a minimum, the legend 14 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that 15 contains protected material. If only a portion of the material on a page qualifies for 16 protection, the Producing Party also must clearly identify the protected portion(s) 17 (e.g., by making appropriate markings in the margins). 18 A Party or Non-Party that makes original documents available for inspection 19 need not designate them for protection until after the inspecting Party has indicated 20 which documents it would like copied and produced. During the inspection and 21 before the designation, all of the material made available for inspection shall be 22 deemed “CONFIDENTIAL.” After the inspecting Party has identified the 23 documents it wants copied and produced, the Producing Party must determine which 24 documents, or portions thereof, qualify for protection under this Order. Then, before 25 producing the specified documents, the Producing Party must affix the 26 “CONFIDENTIAL legend” to each page that contains Protected Material. If only a 27 portion of the material on a page qualifies for protection, the Producing Party also 1 in the margins). 2 (b) for testimony given in depositions that the Designating Party 3 identifies the Disclosure or Discovery Material on the record, before the close of the 4 deposition all protected testimony. 5 (c) for information produced in some form other than documentary 6 and for any other tangible items, that the Producing Party affix in a prominent place 7 on the exterior of the container or containers in which the information is stored the 8 legend “CONFIDENTIAL.” If only a portion or portions of the information 9 warrants protection, the Producing Party, to the extent practicable, shall identify the 10 protected portion(s). 11 7.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 12 failure to designate qualified information or items does not, standing alone, waive 13 the Designating Party’s right to secure protection under this Order for such material. 14 Upon timely correction of a designation, the Receiving Party must make reasonable 15 efforts to assure that the material is treated in accordance with the provisions of this 16 Order. 17 8. CHALLENGING CONFIDENTIALITY DESIGNATIONS 18 8.1. Timing of Challenges. Any Party or Non-Party may challenge a 19 designation of confidentiality at any time that is consistent with the Court’s 20 Scheduling Order. 21 8.2 Meet and Confer. The Challenging Party shall initiate the dispute 22 resolution process under Local Rule 37-1 et seq. 23 8.3 Joint Stipulation. Any challenge submitted to the Court shall be via a 24 joint stipulation pursuant to Local Rule 37-2. 25 8.4 The burden of persuasion in any such challenge proceeding shall be on 26 the Designating Party. Frivolous challenges, and those made for an improper 27 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 1 Party has waived or withdrawn the confidentiality designation, all parties shall 2 continue to afford the material in question the level of protection to which it is 3 entitled under the Producing Party’s designation until the Court rules on the 4 challenge. 5 9. ACCESS TO AND USE OF PROTECTED MATERIAL 6 9.1 Basic Principles. A Receiving Party may use Protected Material that is 7 disclosed or produced by another Party or by a Non-Party in connection with this 8 Action only for prosecuting, defending or attempting to settle this Action. Such 9 Protected Material may be disclosed only to the categories of persons and under the 10 conditions described in this Order. When the Action has been terminated, a 11 Receiving Party must comply with the provisions of section 15 below (FINAL 12 DISPOSITION). Protected Material must be stored and maintained by a Receiving 13 Party at a location and in a secure manner that ensures that access is limited to the 14 persons authorized under this Order. 15 9.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 16 otherwise ordered by the court or permitted in writing by the Designating Party, a 17 Receiving Party may disclose any information or item designated 18 “CONFIDENTIAL” only to: 19 (a) the Receiving Party’s Outside Counsel of Record in this Action, 20 as well as employees of said Outside Counsel of Record to whom it is reasonably 21 necessary to disclose the information for this Action; 22 (b) the officers, directors, and employees (including House Counsel) 23 of the Receiving Party to whom disclosure is reasonably necessary for this Action; 24 (c) Experts (as defined in this Order) of the Receiving Party to 25 whom disclosure is reasonably necessary for this Action and who have signed the 26 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 27 (d) the court and its personnel; 1 (f) professional jury or trial consultants, mock jurors, and 2 Professional Vendors to whom disclosure is reasonably necessary for this Action 3 and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit 4 A); 5 (g) the author or recipient of a document containing the information 6 or a custodian or other person who otherwise possessed or knew the information; 7 (h) during their depositions, witnesses, and attorneys for witnesses, 8 in the Action to whom disclosure is reasonably necessary provided: (1) the deposing 9 party requests that the witness sign the form attached as Exhibit A hereto; and (2) 10 they will not be permitted to keep any confidential information unless they sign the 11 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 12 agreed by the Designating Party or ordered by the court. Pages of transcribed 13 deposition testimony or exhibits to depositions that reveal Protected Material may 14 be separately bound by the court reporter and may not be disclosed to anyone except 15 as permitted under this Stipulated Protective Order; and 16 (i) any mediators or settlement officers and their supporting staffs, 17 mutually agreed upon by any of the parties engaged in settlement discussions. 18 10. PROTECTED MATERIAL SUBPOENAED OR ORDERED 19 PRODUCED IN OTHER LITIGATION 20 If a Party is served with a subpoena or a court order issued in other litigation 21 that compels disclosure of any information or items designated in this Action as 22 “CONFIDENTIAL,” that Party must: 23 (a) promptly notify in writing the Designating Party. Such 24 notification shall include a copy of the subpoena or court order; 25 (b) promptly notify in writing the party who caused the subpoena or 26 order to issue in the other litigation that some or all of the material covered by the 27 subpoena or order is subject to this Protective Order. Such notification shall include 1 (c) cooperate with respect to all reasonable procedures sought to be 2 pursued by the Designating Party whose Protected Material may be affected. If the 3 Designating Party timely seeks a protective order, the Party served with the 4 subpoena or court order shall not produce any information designated in this action 5 as “CONFIDENTIAL” before a determination by the court from which the 6 subpoena or order issued, unless the Party has obtained the Designating Party’s 7 permission. The Designating Party shall bear the burden and expense of seeking 8 protection in that court of its confidential material and nothing in these provisions 9 should be construed as authorizing or encouraging a Receiving Party in this Action 10 to disobey a lawful directive from another court. 11 11. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 12 PRODUCED IN THIS LITIGATION 13 (a) The terms of this Order are applicable to information produced 14 by a Non-Party in this Action and designated as “CONFIDENTIAL.” Such 15 information produced by Non-Parties in connection with this litigation is protected 16 by the remedies and relief provided by this Order. Nothing in these provisions 17 should be construed as prohibiting a Non-Party from seeking additional protections. 18 (b) In the event that a Party is required, by a valid discovery request, 19 to produce a Non-Party’s confidential information in its possession, and the Party is 20 subject to an agreement with the Non-Party not to produce the Non-Party’s 21 confidential information, then the Party shall: 22 (1) promptly notify in writing the Requesting Party and the 23 Non-Party that some or all of the information requested is subject to a 24 confidentiality agreement with a Non-Party; 25 (2) promptly provide the Non-Party with a copy of the 26 Stipulated Protective Order in this Action, the relevant discovery request(s), and a 27 reasonably specific description of the information requested; and 1 (3) make the information requested available for inspection by 2 the Non-Party, if requested. 3 (c) If the Non-Party fails to seek a protective order from this court 4 within 14 days of receiving the notice and accompanying information, the Receiving 5 Party may produce the Non-Party’s confidential information responsive to the 6 discovery request. If the Non-Party timely seeks a protective order, the Receiving 7 Party shall not produce any information in its possession or control that is subject to 8 the confidentiality agreement with the Non-Party before a determination by the 9 court. Absent a court order to the contrary, the Non-Party shall bear the burden and 10 expense of seeking protection in this court of its Protected Material. 11 12. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 12 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 13 Protected Material to any person or in any circumstance not authorized under this 14 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 15 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts 16 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or 17 persons to whom unauthorized disclosures were made of all the terms of this Order, 18 and (d) request such person or persons to execute the “Acknowledgment an 19 Agreement to Be Bound” attached hereto as Exhibit A. 20 13. INADVERTENT PRODUCTION OF PRIVILEGED OR 21 OTHERWISE PROTECTED MATERIAL 22 When a Producing Party gives notice to Receiving Parties that certain 23 inadvertently produced material is subject to a claim of privilege or other protection, 24 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 25 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure 26 may be established in an e-discovery order that provides for production without 27 prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar 1 information covered by the attorney-client privilege or work product protection, the 2 parties may incorporate their agreement in the stipulated protective order submitted 3 to the court. 4 14. MISCELLANEOUS 5 14.1 Right to Further Relief. Nothing in this Order abridges the right of any 6 person to seek its modification by the Court in the future. 7 14.2 Right to Assert Other Objections. By stipulating to the entry of this 8 Protective Order, no Party waives any right it otherwise would have to object to 9 disclosing or producing any information or item on any ground not addressed in this 10 Stipulated Protective Order. Similarly, no Party waives any right to object on any 11 ground to use in evidence of any of the material covered by this Protective Order. 12 14.3 Filing Protected Material. A Party that seeks to file under seal any 13 Protected Material must comply with Local Civil Rule 79-5. Protected Material may 14 only be filed under seal pursuant to a court order authorizing the sealing of the 15 specific Protected Material. If a Party’s request to file Protected Material under seal 16 is denied by the court, then the Receiving Party may file the information in the 17 public record unless otherwise instructed by the court. 18 15. FINAL DISPOSITION 19 After the final disposition of this Action, as defined in paragraph 6, within 60 20 days of a written request by the Designating Party, each Receiving Party must return 21 all Protected Material to the Producing Party or destroy such material. As used in 22 this subdivision, “all Protected Material” includes all copies, abstracts, compilations, 23 summaries, and any other format reproducing or capturing any of the Protected 24 Material. Whether the Protected Material is returned or destroyed, the Receiving 25 Party must submit a written certification to the Producing Party (and, if not the same 26 person or entity, to the Designating Party) by the 60-day deadline that (1) identifies 27 (by category, where appropriate) all the Protected Material that was returned or 1 abstracts, compilations, summaries or any other format reproducing or capturing any 2 of the Protected Material. Notwithstanding this provision, Counsel are entitled to 3 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing 4 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert 5 reports, attorney work product, and consultant and expert work product, even if such 6 materials contain Protected Material. Any such archival copies that contain or 7 constitute Protected Material remain subject to this Protective Order as set forth in 8 Section 6 (DURATION). 9 16. VIOLATION 10 Any violation of this Order may be punished by appropriate measures including, 11 without limitation, contempt proceedings and/or monetary sanctions. 12 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 13 DATED: October 5, 2020 /s/ Eric Lauritsen 14 Attorney for Brandyn Love 15 DATED: October 5, 2020 /s/ Michael Kuznetsky 16 Attorney for Nuclear Blast 17 America, Inc. 18 DATED: October 5, 2020 /s/ Russell Gelvin 19 Attorney for Lucas Mann and Central Texas Rings of Saturn, 20 LLC 21 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 22 23 DATED: October 23, 2020 __________________________ Hon. Kenly Kiya Kato 24 United States Magistrate Judge 25 26 27 1 EXHIBIT A TO STIPULATED PROTECTIVE ORDER 2 I hereby acknowledge that I, ___________________________________ [NAME], ______________________________________________ [POSITION 3 AND EMPLOYER], am about to receive Confidential Materials supplied in 4 connection with the proceeding Love v. Nuclear Blast America, Inc. et al., Case No. 5:20-cv-00124. I certify that I understand that the Confidential Materials are 5 provided to me subject to the terms and restrictions of the Stipulation and Protective 6 Order filed in this proceeding. I have been given a copy of the Stipulation and Protective Order; I have read it, and I agree to be bound by its terms. 7

8 I understand that Confidential Materials, as defined in the Stipulation and Protective Order, including any notes or other records that may be made regarding 9 any such materials, shall not be Disclosed to anyone except as expressly permitted 10 by the Stipulation and Protective Order. I will not copy or use, except solely for the purposes of this Proceeding, any Confidential Materials obtained pursuant to this 11 Protective Order, except as provided therein or otherwise ordered by the Court in the 12 Proceeding.

13 I further understand that I am to retain all copies of all Confidential Materials 14 provided to me in the Proceeding in a secure manner, and that all copies of such Materials are to remain in my personal custody until termination of my participation 15 in this Proceeding, whereupon the copies of such Materials will be returned to 16 counsel who provided me with such Materials.

17 I declare under penalty of perjury, under the laws of the State of California, 18 that the foregoing is true and correct. Executed this _____ day of ______, 20__, at __________________. 19

20 DATED:_____________________ BY: Signature __________________________ Title 21 ______________________________ 22 Address _____________________________ City, State, Zip _______________________ 23 Telephone Number ____________________ 24 25 26 27