1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 TERRY FABRICANT, individually ) Case No. 2:19-cv-02451-ODW(ASx) ) 11 and on behalf of all others similarly ) situated, ) PROTECTIVE ORDER 12 ) Plaintiff, ) 13 ) ) 14 v. ) ) 15 PAYMENTCLUB INC., ) ) 16 Defendants. ) ) 17 1. PURPOSES AND LIMITATIONS 18 Discovery in this action is likely to involve production of confidential, 19 proprietary or private information for which special protection from public 20 disclosure and from use for any purpose other than pursuing this litigation may 21 be warranted. Accordingly, the parties hereby stipulate to and petition the 22 Court to enter the following Stipulated Protective Order. The parties 23 acknowledge that this Order does not confer blanket protections on all 24 disclosures or responses to discovery and that the protection it affords from 25 public disclosure and use extends only to the limited information or items that 26 are entitled to confidential treatment under the applicable legal principles. 27 28 1 2. GOOD CAUSE STATEMENT 2 This action is likely to involve trade secrets, customer and pricing lists 3 and other valuable research, development, commercial, financial, technical 4 and/or proprietary information for which special protection from public 5 disclosure and from use for any purpose other than prosecution of this action is 6 warranted. Such confidential and proprietary materials and information 7 consist of, among other things, confidential business or financial information, 8 information regarding confidential business practices, or other confidential 9 research, development, or commercial information (including information 10 implicating privacy rights of third parties), information otherwise generally 11 unavailable to the public, or which may be privileged or otherwise protected 12 from disclosure under state or federal statutes, court rules, case decisions, or 13 common law. With respect to Defendant in particular, such confidential and 14 proprietary materials and information consist of, among other things, 15 information regarding its business and sales tactics and practices, including its 16 leads lists, call metrics. and other materials and information that is valuable to 17 Defendant. Disclosure of such materials and information would create 18 19 substantial risk of serious financial or other injury that cannot be avoided by 20 less restrictive means. 21 Accordingly, to expedite the flow of information, to facilitate the prompt 22 resolution of disputes over confidentiality of discovery materials, to adequately 23 protect information the parties are entitled to keep confidential, to ensure that 24 the parties are permitted reasonable necessary uses of such material in 25 preparation for and in the conduct of trial, to address their handling at the end 26 of the litigation, and serve the ends of justice, a protective order for such 27 information is justified in this matter. It is the intent of the parties that 28 information will not be designated as confidential for tactical reasons and that 1 nothing be so designated without a good faith belief that it has been 2 maintained in a confidential, non-public manner, and there is good cause why 3 it should not be part of the public record of this case. 4 3. ACKNOWLEDGMENT OF UNDER SEAL FILING 5 PROCEDURE 6 The parties further acknowledge, as set forth in Section 14.3, below, that 7 this Stipulated Protective Order does not entitle them to file confidential 8 information under seal; Local Civil Rule 79-5 sets forth the procedures that 9 must be followed and the standards that will be applied when a party seeks 10 permission from the court to file material under seal. There is a strong 11 presumption that the public has a right of access to judicial proceedings and 12 records in civil cases. In connection with non-dispositive motions, good cause 13 must be shown to support a filing under seal. See Kamakana v. City and 14 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. 15 Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony 16 Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated 17 protective orders require good cause showing), and a specific showing of good 18 cause or compelling reasons with proper evidentiary support and legal 19 justification, must be made with respect to Protected Material that a party 20 seeks to file under seal. The parties’ mere designation of Disclosure or 21 Discovery Material as CONFIDENTIAL does not— without the submission 22 of competent evidence by declaration, establishing that the material sought to 23 be filed under seal qualifies as confidential, privileged, or otherwise 24 protectable—constitute good cause. 25 Further, if a party requests sealing related to a dispositive motion or trial, 26 then compelling reasons, not only good cause, for the sealing must be shown, 27 and the relief sought shall be narrowly tailored to serve the specific interest to 28 1 be protected. See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th 2 Cir. 2010). For each item or type of information, document, or thing sought to 3 be filed or introduced under seal, the party seeking protection must articulate 4 compelling reasons, supported by specific facts and legal justification, for the 5 requested sealing order. Again, competent evidence supporting the application 6 to file documents under seal must be provided by declaration. 7 Any document that is not confidential, privileged, or otherwise 8 protectable in its entirety will not be filed under seal if the confidential portions 9 can be redacted. If documents can be redacted, then a redacted version for 10 public viewing, omitting only the confidential, privileged, or otherwise 11 protectable portions of the document, shall be filed. Any application that seeks 12 to file documents under seal in their entirety should include an explanation of 13 why redaction is not feasible. 14 4. DEFINITIONS 15 4.1 Action: This pending federal lawsuit. 16 4.2 Challenging Party: a Party or Non-Party that challenges the 17 designation of information or items under this Order. 18 19 4.3 “CONFIDENTIAL” Information or Items: information 20 (regardless of how it is generated, stored or maintained) or tangible things that 21 qualify for protection under Federal Rule of Civil Procedure 26(c), and as 22 specified above in the Good Cause Statement. 23 4.4 Counsel: Outside Counsel of Record and House Counsel (as well 24 as their support staff). 25 4.5 Designating Party: a Party or Non-Party that designates 26 information or items that it produces in disclosures or in responses to discovery 27 as “CONFIDENTIAL.” 28 1 4.6 Disclosure or Discovery Material: all items or information, 2 regardless of the medium or manner in which it is generated, stored, or 3 maintained (including, among other things, testimony, transcripts, and tangible 4 things), that are produced or generated in disclosures or responses to discovery. 5 4.7 Expert: a person with specialized knowledge or experience in a 6 matter pertinent to the litigation who has been retained by a Party or its 7 counsel to serve as an expert witness or as a consultant in this Action. 8 4.8 House Counsel: attorneys who are employees of a party to this 9 Action. House Counsel does not include Outside Counsel of Record or any 10 other outside counsel. 11 4.9 Non-Party: any natural person, partnership, corporation, 12 association or other legal entity not named as a Party to this action. 13 4.10 Outside Counsel of Record: attorneys who are not employees of a 14 party to this Action but are retained to represent a party to this Action and 15 have appeared in this Action on behalf of that party or are affiliated with a law 16 firm that has appeared on behalf of that party, and includes support staff. 17 4.11 Party: any party to this Action, including all of its officers, 18 19 directors, employees, consultants, retained experts, and Outside Counsel of 20 Record (and their support staffs). 21 4.12 Producing Party: a Party or Non-Party that produces Disclosure or 22 Discovery Material in this Action. 23 4.13 Professional Vendors: persons or entities that provide litigation 24 support services (e.g., photocopying, videotaping, translating, preparing 25 exhibits or demonstrations, and organizing, storing, or retrieving data in any 26 form or medium) and their employees and subcontractors. 27 4.14 Protected Material: any Disclosure or Discovery Material that is 28 1 designated as “CONFIDENTIAL.” 2 4.15 Receiving Party: a Party that receives Disclosure or Discovery 3 Material from a Producing Party. 4 5. SCOPE 5 The protections conferred by this Stipulation and Order cover not only 6 Protected Material (as defined above), but also (1) any information copied or 7 extracted from Protected Material; (2) all copies, excerpts, summaries, or 8 compilations of Protected Material; and (3) any testimony, conversations, or 9 presentations by Parties or their Counsel that might reveal Protected Material. 10 Any use of Protected Material at trial shall be governed by the orders of 11 the trial judge and other applicable authorities. This Order does not govern the 12 use of Protected Material at trial. 13 6. DURATION 14 Even after final disposition of this litigation, the confidentiality 15 obligations imposed by this Order shall remain in effect until a Designating 16 Party agrees otherwise in writing or a court order otherwise directs. Final 17 disposition shall be deemed to be the later of (1) dismissal of all claims and 18 19 defenses in this Action, with or without prejudice; and (2) final judgment 20 herein after the completion and exhaustion of all appeals, rehearings, remands, 21 trials, or reviews of this Action, including the time limits for filing any motions 22 or applications for extension of time pursuant to applicable law. 23 7. DESIGNATING PROTECTED MATERIAL 24 7.1 Exercise of Restraint and Care in Designating Material for 25 Protection. Each Party or Non-Party that designates information or items for 26 protection under this Order must take care to limit any such designation to 27 specific material that qualifies under the appropriate standards. The 28 Designating Party must designate for protection only those parts of material, 1 documents, items or oral or written communications that qualify so that other 2 portions of the material, documents, items or communications for which 3 protection is not warranted are not swept unjustifiably within the ambit of this 4 Order. 5 Mass, indiscriminate or routinized designations are prohibited. 6 Designations that are shown to be clearly unjustified or that have been made 7 for an improper purpose (e.g., to unnecessarily encumber the case development 8 process or to impose unnecessary expenses and burdens on other parties) may 9 expose the Designating Party to sanctions. 10 If it comes to a Designating Party’s attention that information or items 11 that it designated for protection do not qualify for protection, that Designating 12 Party must promptly notify all other Parties that it is withdrawing the 13 inapplicable designation. 14 7.2 Manner and Timing of Designations. Except as otherwise 15 provided in this Order (see, e.g., second paragraph of section 7.2(a) below), or as 16 otherwise stipulated or ordered, Disclosure of Discovery Material that qualifies 17 for protection under this Order must be clearly so designated before the 18 19 material is disclosed or produced. 20 Designation in conformity with this Order requires: 21 (a) for information in documentary form (e.g., paper or 22 electronic documents, but excluding transcripts of depositions or other pretrial 23 or trial proceedings), that the Producing Party affix at a minimum, the legend 24 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page 25 that contains protected material. If only a portion of the material on a page 26 qualifies for protection, the Producing Party also must clearly identify the 27 protected portion(s) (e.g., by making appropriate markings in the margins). 28 A Party or Non-Party that makes original documents available for 1 inspection need not designate them for protection until after the inspecting 2 Party has indicated which documents it would like copied and produced. 3 During the inspection and before the designation, all of the material made 4 available for inspection shall be deemed “CONFIDENTIAL.” After the 5 inspecting Party has identified the documents it wants copied and produced, 6 the Producing Party must determine which documents, or portions thereof, 7 qualify for protection under this Order. Then, before producing the specified 8 documents, the Producing Party must affix the “CONFIDENTIAL legend” to 9 each page that contains Protected Material. If only a portion of the material on 10 a page qualifies for protection, the Producing Party also must clearly identify 11 the protected portion(s) (e.g., by making appropriate markings in the margins). 12 (b) for testimony given in depositions that the Designating Party 13 identifies the Disclosure or Discovery Material on the record, before the close 14 of the deposition all protected testimony. 15 (c) for information produced in some form other than 16 documentary and for any other tangible items, that the Producing Party affix 17 in a prominent place on the exterior of the container or containers in which the 18 19 information is stored the legend “CONFIDENTIAL.” If only a portion or 20 portions of the information warrants protection, the Producing Party, to the 21 extent practicable, shall identify the protected portion(s). 22 7.3 Inadvertent Failures to Designate. If timely corrected, an 23 inadvertent failure to designate qualified information or items does not, 24 standing alone, waive the Designating Party’s right to secure protection under 25 this Order for such material. Upon timely correction of a designation, the 26 Receiving Party must make reasonable efforts to assure that the material is 27 treated in accordance with the provisions of this Order. 28 1 8. CHALLENGING CONFIDENTIALITY DESIGNATIONS 2 8.1. Timing of Challenges. Any Party or Non-Party may challenge a 3 designation of confidentiality at any time that is consistent with the Court’s 4 Scheduling Order. 5 8.2 Meet and Confer. The Challenging Party shall initiate the dispute 6 resolution process under Local Rule 37-1 et seq. 7 8.3 Joint Stipulation. Any challenge submitted to the Court shall be 8 via a joint stipulation pursuant to Local Rule 37-2. 9 8.4 The burden of persuasion in any such challenge proceeding shall 10 be on the Designating Party. Frivolous challenges, and those made for an 11 improper purpose (e.g., to harass or impose unnecessary expenses and burdens 12 on other parties) may expose the Challenging Party to sanctions. Unless the 13 Designating Party has waived or withdrawn the confidentiality designation, all 14 parties shall continue to afford the material in question the level of protection 15 to which it is entitled under the Producing Party’s designation until the Court 16 rules on the challenge. 17 9. ACCESS TO AND USE OF PROTECTED MATERIAL 18 19 9.1 Basic Principles. A Receiving Party may use Protected Material 20 that is disclosed or produced by another Party or by a Non-Party in connection 21 with this Action only for prosecuting, defending or attempting to settle this 22 Action. Such Protected Material may be disclosed only to the categories of 23 persons and under the conditions described in this Order. When the Action has 24 been terminated, a Receiving Party must comply with the provisions of section 25 15 below (FINAL DISPOSITION). 26 Protected Material must be stored and maintained by a Receiving Party 27 at a location and in a secure manner that ensures that access is limited to the 28 persons authorized under this Order. 1 9.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 2 otherwise ordered by the court or permitted in writing by the Designating 3 Party, a Receiving Party may disclose any information or item designated 4 “CONFIDENTIAL” only to: 5 (a) the Receiving Party’s Outside Counsel of Record in this 6 Action, as well as employees of said Outside Counsel of Record to whom it is 7 reasonably necessary to disclose the information for this Action; 8 (b) the officers, directors, and employees (including House 9 Counsel) of the Receiving Party to whom disclosure is reasonably necessary 10 for this Action; 11 (c) Experts (as defined in this Order) of the Receiving Party to 12 whom disclosure is reasonably necessary for this Action and who have signed 13 the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 14 (d) the court and its personnel; 15 (e) court reporters and their staff; 16 (f) professional jury or trial consultants, mock jurors, and 17 Professional Vendors to whom disclosure is reasonably necessary for this 18 19 Action and who have signed the “Acknowledgment and Agreement to Be 20 Bound” (Exhibit A); 21 (g) the author or recipient of a document containing the 22 information or a custodian or other person who otherwise possessed or knew 23 the information; 24 (h) during their depositions, witnesses, and attorneys for 25 witnesses, in the Action to whom disclosure is reasonably necessary provided: 26 (1) the deposing party requests that the witness sign the form attached as 27 Exhibit A hereto; and (2) they will not be permitted to keep any confidential 28 information unless they sign the “Acknowledgment and Agreement to Be 1 Bound” (Exhibit A), unless otherwise agreed by the Designating Party or 2 ordered by the court. Pages of transcribed deposition testimony or exhibits to 3 depositions that reveal Protected Material may be separately bound by the 4 court reporter and may not be disclosed to anyone except as permitted under 5 this Stipulated Protective Order; and 6 (i) any mediators or settlement officers and their supporting 7 personnel, mutually agreed upon by any of the parties engaged in settlement 8 discussions. 9 10. PROTECTED MATERIAL SUBPOENAED OR ORDERED 10 PRODUCED IN OTHER LITIGATION 11 If a Party is served with a subpoena or a court order issued in other 12 litigation that compels disclosure of any information or items designated in this 13 Action as “CONFIDENTIAL,” that Party must: 14 (a) promptly notify in writing the Designating Party. Such notification 15 shall include a copy of the subpoena or court order; 16 (b) promptly notify in writing the party who caused the subpoena or 17 order to issue in the other litigation that some or all of the material covered by 18 19 the subpoena or order is subject to this Protective Order. Such notification 20 shall include a copy of this Stipulated Protective Order; and 21 (c) cooperate with respect to all reasonable procedures sought to be 22 pursued by the Designating Party whose Protected Material may be affected. 23 If the Designating Party timely seeks a protective order, the Party served 24 with the subpoena or court order shall not produce any information designated 25 in this action as “CONFIDENTIAL” before a determination by the court from 26 which the subpoena or order issued, unless the Party has obtained the 27 Designating Party’s permission. The Designating Party shall bear the burden 28 and expense of seeking protection in that court of its confidential material and 1 nothing in these provisions should be construed as authorizing or encouraging 2 a Receiving Party in this Action to disobey a lawful directive from another 3 court. 4 11. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO 5 BE PRODUCED IN THIS LITIGATION 6 (a) The terms of this Order are applicable to information produced by 7 a Non-Party in this Action and designated as “CONFIDENTIAL.” Such 8 information produced by Non-Parties in connection with this litigation is 9 protected by the remedies and relief provided by this Order. Nothing in these 10 provisions should be construed as prohibiting a Non-Party from seeking 11 additional protections. 12 13 (b) In the event that a Party is required, by a valid discovery request, 14 to produce a Non-Party’s confidential information in its possession, and the 15 Party is subject to an agreement with the Non-Party not to produce the Non- 16 Party’s confidential information, then the Party shall: 17 (1) promptly notify in writing the Requesting Party and the 18 Non-Party that some or all of the information requested is subject to a 19 confidentiality agreement with a Non-Party; 20 (2) promptly provide the Non-Party with a copy of the 21 Stipulated Protective Order in this Action, the relevant discovery request(s), 22 and a reasonably specific description of the information requested; and 23 (3) make the information requested available for inspection by 24 the Non-Party, if requested. 25 (c) If the Non-Party fails to seek a protective order from this court 26 within 14 days of receiving the notice and accompanying information, the 27 Receiving Party may produce the Non-Party’s confidential information 28 1 responsive to the discovery request. If the Non-Party timely seeks a protective 2 order, the Receiving Party shall not produce any information in its possession 3 or control that is subject to the confidentiality agreement with the Non-Party 4 before a determination by the court. Absent a court order to the contrary, the 5 Non-Party shall bear the burden and expense of seeking protection in this court 6 of its Protected Material. 7 12. UNAUTHORIZED DISCLOSURE OF PROTECTED 8

MATERIAL

9 10 If a Receiving Party learns that, by inadvertence or otherwise, it has 11 disclosed Protected Material to any person or in any circumstance not 12 authorized under this Stipulated Protective Order, the Receiving Party must 13 immediately (a) notify in writing the Designating Party of the unauthorized 14 disclosures, (b) use its best efforts to retrieve all unauthorized copies of the 15 Protected Material, (c) inform the person or persons to whom unauthorized 16 disclosures were made of all the terms of this Order, and (d) request such 17 person or persons to execute the “Acknowledgment an Agreement to Be 18 Bound” attached hereto as Exhibit A. 19 13. INADVERTENT PRODUCTION OF PRIVILEGED OR

OTHERWISE PROTECTED MATERIAL

20 21 When a Producing Party gives notice to Receiving Parties that certain 22 inadvertently produced material is subject to a claim of privilege or other 23 protection, the obligations of the Receiving Parties are those set forth in 24 Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to 25 modify whatever procedure may be established in an e-discovery order that 26 provides for production without prior privilege review. Pursuant to Federal 27 Rule of Evidence 502(d) and (e), insofar as the parties reach an agreement on 28 1 the effect of disclosure of a communication or information covered by the 2 attorney-client privilege or work product protection, the parties may 3 incorporate their agreement in the stipulated protective order submitted to the 4 court. 5 14. MISCELLANEOUS 6 14.1 Right to Further Relief. Nothing in this Order abridges the right of 7 any person to seek its modification by the Court in the future. 8 14.2 Right to Assert Other Objections. By stipulating to the entry of this 9 Protective Order, no Party waives any right it otherwise would have to object 10 to disclosing or producing any information or item on any ground not 11 addressed in this Stipulated Protective Order. Similarly, no Party waives any 12 right to object on any ground to use in evidence of any of the material covered 13 by this Protective Order. 14 14.3 Filing Protected Material. A Party that seeks to file under seal any 15 Protected Material must comply with Local Civil Rule 79-5. Protected 16 Material may only be filed under seal pursuant to a court order authorizing the 17 sealing of the specific Protected Material at issue. If a Party’s request to file 18 19 Protected Material under seal is denied by the court, then the Receiving Party 20 may file the information in the public record unless otherwise instructed by the 21 court. 22 15. FINAL DISPOSITION 23 After the final disposition of this Action, as defined in paragraph 6, 24 within 60 days of a written request by the Designating Party, each Receiving 25 Party must return all Protected Material to the Producing Party or destroy such 26 material. As used in this subdivision, “all Protected Material” includes all 27 copies, abstracts, compilations, summaries, and any other format reproducing 28 or capturing any of the Protected Material. Whether the Protected Material is 1 returned or destroyed, the Receiving Party must submit a written certification 2 to the Producing Party (and, if not the same person or entity, to the 3 Designating Party) by the 60-day deadline that (1) identifies (by category, 4 where appropriate) all the Protected Material that was returned or destroyed 5 and (2) affirms that the Receiving Party has not retained any copies, abstracts, 6 compilations, summaries or any other format reproducing or capturing any of 7 the Protected Material. Notwithstanding this provision, Counsel are entitled to 8 retain an archival copy of all pleadings, motion papers, trial, deposition, and 9 hearing transcripts, legal memoranda, correspondence, deposition and trial 10 exhibits, expert reports, attorney work product, and consultant and expert 11 work product, even if such materials contain Protected Material. Any such 12 archival copies that contain or constitute Protected Material remain subject to 13 this Protective Order as set forth in Section 6 (DURATION). 14 16. VIOLATION 15 Any violation of this Order may be punished by appropriate measures 16 including, without limitation, contempt proceedings and/or monetary 17 sanctions. 18 19 //// 20 //// 21 //// 22 //// 23 //// 24 //// 25 //// 26 //// 27 //// 28 //// 1

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

2 3 DATED: _9/10/19________ _/s/Anthony Paronich, Esq. _______ 4 Attorneys for Plaintiff 5 6 7 DATED: _9/10/19________ __/s/ Joshua J. Herndon, Esq.___ 8 Attorneys for Defendant 9 10 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 11 12 DATED: _S_e_p_t_em__b_e_r_ 1_3_,_ 2_0_1__9 13 14 ____________/_ _s _/_ _________________ 15 The Hon. Alka Sagar 16 United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _____________________________ [print or type full name], of 4 _______________________ [print or type full address], declare under penalty of 5 perjury that I have read in its entirety and understand the Stipulated Protective 6 Order that was issued by the United States District Court for the Central 7 District of California on [date] in the case of Terry Fabricant v. Net Element, 8 Inc. 2:19-cv-02451-ODW(ASx). I agree to comply with and to be bound by 9 all the terms of this Stipulated Protective Order and I understand and 10 acknowledge that failure to so comply could expose me to sanctions and 11 punishment in the nature of contempt. I solemnly promise that I will not 12 disclose in any manner any information or item that is subject to this 13 Stipulated Protective Order to any person or entity except in strict compliance 14 with the provisions of this Order. I further agree to submit to the jurisdiction of 15 the United States District Court for the Central District of California for the 16 purpose of enforcing the terms of this Stipulated Protective Order, even if such 17 enforcement proceedings occur after termination of this action. I hereby 18 appoint __________________________ [print or type full name] of 19 _______________________________________ [print or type full address and 20 telephone number] as my California agent for service of process in connection 21 with this action or any proceedings related to enforcement of this Stipulated 22 Protective Order. 23 Date: ______________________________________ 24 City and State where sworn and signed: ______________________________ 25 Printed name: _______________________________ 26 Signature: __________________________________ 27 28