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 1 PROTECTIVE ORDER 

CASE NO. 4:17-CV-00205-HSG 

Nitin Gambhir (SBN 259906) 

ngambhir@mwe.com 

MCDERMOTT WILL & EMERY LLP 

275 Middlefield Road, Suite 100

Menlo Park, CA 94025

Telephone: 650.815.7400 

Fax: 650.815.7401 

Krista Vink Venegas (SBN 6298753) 

kvinkvenegas@mwe.com 

MCDERMOTT WILL & EMERY LLP

444 West Lake Street, Suite 4000 

Chicago, IL 60606-0029 

Telephone: 312.372.2000 

Fax: 312.984.7700 

Attorneys for Plaintiffs

Thomas Edward Moore, III (SBN 115107) 

tmoore@rroyselaw.com 

ROYSE LAW FIRM, PC 

149 Commonwealth Drive, Suite 1001 

Menlo Park, California 94025 

Telephone: 650.813.9700 

Fax: 650.813.9777 

Attorneys For Defendants Mr. Scott and 

Eureka

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

OAKLAND DIVISION 

BESTWAY (USA), INC.; 

BESTWAY (HONG KONG) 

INTERNATIONAL LTD.; and 

BESTWAY INFLATABLES AND 

MATERIAL CORPORATION; 

 Plaintiffs, 

vs. 

PIETRO PASQUALE-ANTONIO SGROMO 

(a/k/a PETER ANTHONY SGROMO); 

WAGMORE & BARKLESS LLC, 

LEONARD GREGORY SCOTT, 

EUREKA INVENTIONS LLC, 

 Defendants. 

Case No. 4:17-cv-00205-HSG 

PROTECTIVE ORDER FOR 

STANDARD LITIGATION 

 Judge: Haywood S. Gilliam, Jr. 

 Ctrm: 2 - 4th Floor 

On the basis of the parties’ Case Management Statement (D.I. 56), and the Court’s 

considered assessment of the Proposed Protective Order for Standard Litigation1, submitted by 

Plaintiffs Bestway (USA), Inc. (“Bestway USA”), Bestway (Hong Kong) International Ltd. 

(“Bestway International”) and Bestway Inflatables and Material Corporation (“Bestway 

 

1

 Modeled based on protective order obtained from the Court’s website on January 24, 2017: 

http://www.cand.uscourts.gov/model-protective-orders 
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 2 PROTECTIVE ORDER 

CASE NO. 4:17-CV-00205-HSG 

Inflatables”) (collectively, “the Bestway Companies” or “Plaintiffs”) and Defendants Mr. 

Leonard Gregory Scott and Eureka Inventions LLC (“Eureka,” of which Mr. Scott is a principle) , 

IT IS ORDERED: 

1. PURPOSES AND LIMITATIONS 

Disclosure and discovery activity in this action are likely to involve production of 

confidential, proprietary, or private information for which special protection from public 

disclosure and from use for any purpose other than prosecuting this litigation may be warranted. 

Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulated 

Protective Order. The parties acknowledge that this Order does not confer blanket protections on 

all disclosures or responses to discovery and that the protection it affords from public disclosure 

and use extends only to the limited information or items that are entitled to confidential treatment 

under the applicable legal principles. The parties further acknowledge, as set forth in Section 

12.3, below, that this Stipulated Protective Order does not entitle them to file confidential 

information under seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and 

the standards that will be applied when a party seeks permission from the court to file material 

under seal. 

2. DEFINITIONS 

2.1 Challenging Party: a Party or Non-Party that challenges the designation of 

information or items under this Order. 

2.2 “CONFIDENTIAL” Information or Items: information (regardless of how 

it is generated, stored or maintained) or tangible things that qualify for protection under Federal 

Rule of Civil Procedure 26(c). 

2.3 Counsel (without qualifier): Outside Counsel of Record and House 

Counsel (as well as their support staff). 

2.4 Designating Party: a Party or Non-Party that designates information or 

items that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 
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 3 PROTECTIVE ORDER 

CASE NO. 4:17-CV-00205-HSG 

2.5 Disclosure or Discovery Material: all items or information, regardless of 

the medium or manner in which it is generated, stored, or maintained (including, among other 

things, testimony, transcripts, and tangible things), that are produced or generated in disclosures 

or responses to discovery in this matter. 

2.6 Expert: a person with specialized knowledge or experience in a matter 

pertinent to the litigation who has been retained by a Party or its counsel to serve as an expert 

witness or as a consultant in this action. 

2.7 House Counsel: attorneys who are employees of a party to this action. 

House Counsel does not include Outside Counsel of Record or any other outside counsel. 

2.8 Non-Party: any natural person, partnership, corporation, association, or 

other legal entity not named as a Party to this action. 

2.9 Outside Counsel of Record: attorneys who are not employees of a party to 

this action but are retained to represent or advise a party to this action and have appeared in this 

action on behalf of that party or are affiliated with a law firm which has appeared on behalf of 

that party. 

2.10 Party: any party to this action, including all of its officers, directors, 

employees, consultants, retained experts, and Outside Counsel of Record (and their support 

staffs). 

2.11 Producing Party: a Party or Non-Party that produces Disclosure or 

Discovery Material in this action. 

2.12 Professional Vendors: persons or entities that provide litigation support 

services (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and 

organizing, storing, or retrieving data in any form or medium) and their employees and 

subcontractors. 

2.13 Protected Material: any Disclosure or Discovery Material that is 

designated as “CONFIDENTIAL.” 
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 4 PROTECTIVE ORDER 

CASE NO. 4:17-CV-00205-HSG 

2.14 Receiving Party: a Party that receives Disclosure or Discovery Material 

from a Producing Party. 

3. SCOPE 

The protections conferred by this Stipulation and Order cover not only Protected Material 

(as defined above), but also (1) any information copied or extracted from Protected Material; (2) 

all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 

conversations, or presentations by Parties or their Counsel that might reveal Protected Material. 

However, the protections conferred by this Stipulation and Order do not cover the following 

information: (a) any information that is in the public domain at the time of disclosure to a 

Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as 

a result of publication not involving a violation of this Order, including becoming part of the 

public record through trial or otherwise; and (b) any information known to the Receiving Party 

prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who 

obtained the information lawfully and under no obligation of confidentiality to the Designating 

Party. Any use of Protected Material at trial shall be governed by a separate agreement or order. 

4. DURATION 

Even after final disposition of this litigation, the confidentiality obligations imposed by 

this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court 

order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all 

claims and defenses in this action, with or without prejudice; and (2) final judgment herein after 

the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, 

including the time limits for filing any motions or applications for extension of time pursuant to 

applicable law. 

5. DESIGNATING PROTECTED MATERIAL 

5.1 Exercise of Restraint and Care in Designating Material for Protection. Each 

Party or Non-Party that designates information or items for protection under this Order must take 
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 5 PROTECTIVE ORDER 

CASE NO. 4:17-CV-00205-HSG 

care to limit any such designation to specific material that qualifies under the appropriate 

standards. The Designating Party must designate for protection only those parts of material, 

documents, items, or oral or written communications that qualify – so that other portions of the 

material, documents, items, or communications for which protection is not warranted are not 

swept unjustifiably within the ambit of this Order. 

Mass, indiscriminate, or routinized designations are prohibited. Designations that 

are shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 

unnecessarily encumber or retard the case development process or to impose unnecessary 

expenses and burdens on other parties) expose the Designating Party to sanctions. 

If it comes to a Designating Party’s attention that information or items that it 

designated for protection do not qualify for protection, that Designating Party must promptly 

notify all other Parties that it is withdrawing the mistaken designation. 

5.2 Manner and Timing of Designations. Except as otherwise provided in this 

Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, 

Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so 

designated before the material is disclosed or produced. 

Designation in conformity with this Order requires: 

(a) for information in documentary form (e.g., paper or electronic documents, 

but excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing 

Party affix the legend “CONFIDENTIAL” to each page that contains protected material. If only a 

portion or portions of the material on a page qualifies for protection, the Producing Party also 

must clearly identify the protected portion(s) (e.g., by making appropriate markings in the 

margins). 

A Party or Non-Party that makes original documents or materials available for 

inspection need not designate them for protection until after the inspecting Party has indicated 

which material it would like copied and produced. During the inspection and before the 

designation, all of the material made available for inspection shall be deemed 
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 6 PROTECTIVE ORDER 

CASE NO. 4:17-CV-00205-HSG 

“CONFIDENTIAL.” After the inspecting Party has identified the documents it wants copied and 

produced, the Producing Party must determine which documents, or portions thereof, qualify for 

protection under this Order. Then, before producing the specified documents, the Producing Party 

must affix the “CONFIDENTIAL” legend to each page that contains Protected Material. If only a 

portion or portions of the material on a page qualifies for protection, the Producing Party also 

must clearly identify the protected portion(s) (e.g., by making appropriate markings in the 

margins). 

(b) for testimony given in deposition or in other pretrial or trial proceedings, 

that the Designating Party identify on the record, before the close of the deposition, hearing, or 

other proceeding, all protected testimony. 

(c) for information produced in some form other than documentary and for any 

other tangible items, that the Producing Party affix in a prominent place on the exterior of the 

container or containers in which the information or item is stored the legend “CONFIDENTIAL.” 

If only a portion or portions of the information or item warrant protection, the Producing Party, to 

the extent practicable, shall identify the protected portion(s). 

5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 

failure to designate qualified information or items does not, standing alone, waive the Designating 

Party’s right to secure protection under this Order for such material. Upon timely correction of a 

designation, the Receiving Party must make reasonable efforts to assure that the material is 

treated in accordance with the provisions of this Order. 

6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 

6.1 Timing of Challenges. Any Party or Non-Party may challenge a 

designation of confidentiality at any time. Unless a prompt challenge to a Designating Party’s 

confidentiality designation is necessary to avoid foreseeable, substantial unfairness, unnecessary 

economic burdens, or a significant disruption or delay of the litigation, a Party does not waive its 

right to challenge a confidentiality designation by electing not to mount a challenge promptly 

after the original designation is disclosed. 
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 7 PROTECTIVE ORDER 

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6.2 Meet and Confer. The Challenging Party shall initiate the dispute 

resolution process by providing written notice of each designation it is challenging and describing 

the basis for each challenge. To avoid ambiguity as to whether a challenge has been made, the 

written notice must recite that the challenge to confidentiality is being made in accordance with 

this specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge 

in good faith and must begin the process by conferring directly (in voice to voice dialogue; other 

forms of communication are not sufficient) within 14 days of the date of service of notice. In 

conferring, the Challenging Party must explain the basis for its belief that the confidentiality 

designation was not proper and must give the Designating Party an opportunity to review the 

designated material, to reconsider the circumstances, and, if no change in designation is offered, 

to explain the basis for the chosen designation. A Challenging Party may proceed to the next 

stage of the challenge process only if it has engaged in this meet and confer process first or 

establishes that the Designating Party is unwilling to participate in the meet and confer process in 

a timely manner. 

6.3 Judicial Intervention. If the Parties cannot resolve a challenge without 

court intervention, the Designating Party shall file and serve a motion to retain confidentiality 

under Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) within 21 

days of the initial notice of challenge or within 14 days of the parties agreeing that the meet and 

confer process will not resolve their dispute, whichever is earlier. Each such motion must be 

accompanied by a competent declaration affirming that the movant has complied with the meet 

and confer requirements imposed in the preceding paragraph. Failure by the Designating Party to 

make such a motion including the required declaration within 21 days (or 14 days, if applicable) 

shall automatically waive the confidentiality designation for each challenged designation. In 

addition, the Challenging Party may file a motion challenging a confidentiality designation at any 

time if there is good cause for doing so, including a challenge to the designation of a deposition 

transcript or any portions thereof. Any motion brought pursuant to this provision must be 
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 8 PROTECTIVE ORDER 

CASE NO. 4:17-CV-00205-HSG 

accompanied by a competent declaration affirming that the movant has complied with the meet 

and confer requirements imposed by the preceding paragraph. 

The burden of persuasion in any such challenge proceeding shall be on the Designating 

Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose 

unnecessary expenses and burdens on other parties) may expose the Challenging Party to 

sanctions. Unless the Designating Party has waived the confidentiality designation by failing to 

file a motion to retain confidentiality as described above, all parties shall continue to afford the 

material in question the level of protection to which it is entitled under the Producing Party’s 

designation until the court rules on the challenge. 

7. ACCESS TO AND USE OF PROTECTED MATERIAL 

7.1 Basic Principles. A Receiving Party may use Protected Material that is 

disclosed or produced by another Party or by a Non-Party in connection with this case only for 

prosecuting, defending, or attempting to settle this litigation. Such Protected Material may be 

disclosed only to the categories of persons and under the conditions described in this Order. 

When the litigation has been terminated, a Receiving Party must comply with the provisions of 

section 13 below (FINAL DISPOSITION). 

Protected Material must be stored and maintained by a Receiving Party at a 

location and in a secure manner that ensures that access is limited to the persons authorized under 

this Order. 

7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise 

ordered by the court or permitted in writing by the Designating Party, a Receiving Party may 

disclose any information or item designated “CONFIDENTIAL” only to: 

(a) the Receiving Party’s Outside Counsel of Record in this action, as 

well as employees of said Outside Counsel of Record to whom it is reasonably necessary to 

disclose the information for this litigation and who have signed the “Acknowledgment and 

Agreement to Be Bound” that is attached hereto as Exhibit A; 
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CASE NO. 4:17-CV-00205-HSG 

(b) the officers, directors, and employees (including House Counsel) of 

the Receiving Party to whom disclosure is reasonably necessary for this litigation and who have 

signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 

(c) Experts (as defined in this Order) of the Receiving Party to whom 

disclosure is reasonably necessary for this litigation and who have signed the “Acknowledgment 

and Agreement to Be Bound” (Exhibit A); 

(d) the court and its personnel; 

(e) court reporters and their staff, professional jury or trial consultants, 

mock jurors, and Professional Vendors to whom disclosure is reasonably necessary for this 

litigation and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 

(f) during their depositions, witnesses in the action to whom disclosure 

is reasonably necessary and who have signed the “Acknowledgment and Agreement to Be 

Bound” (Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court. 

Pages of transcribed deposition testimony or exhibits to depositions that reveal Protected Material 

must be separately bound by the court reporter and may not be disclosed to anyone except as 

permitted under this Stipulated Protective Order. 

(g) the author or recipient of a document containing the information or 

a custodian or other person who otherwise possessed or knew the information. 

8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN 

OTHER LITIGATION 

If a Party is served with a subpoena or a court order issued in other litigation that compels 

disclosure of any information or items designated in this action as “CONFIDENTIAL,” that Party 

must: 

(a) promptly notify in writing the Designating Party. Such notification shall 

include a copy of the subpoena or court order; 

(b) promptly notify in writing the party who caused the subpoena or order to 

issue in the other litigation that some or all of the material covered by the subpoena or order is 
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 10 PROTECTIVE ORDER 

CASE NO. 4:17-CV-00205-HSG 

subject to this Protective Order. Such notification shall include a copy of this Stipulated 

Protective Order; and 

(c) cooperate with respect to all reasonable procedures sought to be pursued by 

the Designating Party whose Protected Material may be affected. 

If the Designating Party timely seeks a protective order, the Party served with the 

subpoena or court order shall not produce any information designated in this action as 

“CONFIDENTIAL” before a determination by the court from which the subpoena or order 

issued, unless the Party has obtained the Designating Party’s permission. The Designating Party 

shall bear the burden and expense of seeking protection in that court of its confidential material – 

and nothing in these provisions should be construed as authorizing or encouraging a Receiving 

Party in this action to disobey a lawful directive from another court. 

9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED 

IN THIS LITIGATION 

(a) The terms of this Order are applicable to information produced by a NonParty in this action and designated as “CONFIDENTIAL.” Such information produced by NonParties in connection with this litigation is protected by the remedies and relief provided by this 

Order. Nothing in these provisions should be construed as prohibiting a Non-Party from seeking 

additional protections. 

(b) In the event that a Party is required, by a valid discovery request, to 

produce a Non-Party’s confidential information in its possession, and the Party is subject to an 

agreement with the Non-Party not to produce the Non-Party’s confidential information, then the 

Party shall: 

(1) promptly notify in writing the Requesting Party and the Non-Party 

that some or all of the information requested is subject to a confidentiality agreement with a NonParty; 
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 11 PROTECTIVE ORDER 

CASE NO. 4:17-CV-00205-HSG 

(2) promptly provide the Non-Party with a copy of the Stipulated 

Protective Order in this litigation, the relevant discovery request(s), and a reasonably specific 

description of the information requested; and 

(3) make the information requested available for inspection by the 

Non-Party. 

(c) If the Non-Party fails to object or seek a protective order from this court 

within 14 days of receiving the notice and accompanying information, the Receiving Party may 

produce the Non-Party’s confidential information responsive to the discovery request. If the NonParty timely seeks a protective order, the Receiving Party shall not produce any information in its 

possession or control that is subject to the confidentiality agreement with the Non-Party before a 

determination by the court. Absent a court order to the contrary, the Non-Party shall bear the 

burden and expense of seeking protection in this court of its Protected Material. 

10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 

If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 

Material to any person or in any circumstance not authorized under this Stipulated Protective 

Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the 

unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the 

Protected Material, (c) inform the person or persons to whom unauthorized disclosures were 

made of all the terms of this Order, and (d) request such person or persons to execute the 

“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A. 

11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 

PROTECTED MATERIAL 

When a Producing Party gives notice to Receiving Parties that certain inadvertently 

produced material is subject to a claim of privilege or other protection, the obligations of the 

Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This 

provision is not intended to modify whatever procedure may be established in an e-discovery 

order that provides for production without prior privilege review. Pursuant to Federal Rule of 
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 12 PROTECTIVE ORDER 

CASE NO. 4:17-CV-00205-HSG 

Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a 

communication or information covered by the attorney-client privilege or work product 

protection, the parties may incorporate their agreement in the stipulated protective order 

submitted to the court. 

12. MISCELLANEOUS 

12.1 Right to Further Relief. Nothing in this Order abridges the right of any 

person to seek its modification by the court in the future. 

12.2 Right to Assert Other Objections. By stipulating to the entry of this 

Protective Order no Party waives any right it otherwise would have to object to disclosing or 

producing any information or item on any ground not addressed in this Stipulated Protective 

Order. Similarly, no Party waives any right to object on any ground to use in evidence of any of 

the material covered by this Protective Order. 

12.3 Filing Protected Material. Without written permission from the Designating 

Party or a court order secured after appropriate notice to all interested persons, a Party may not 

file in the public record in this action any Protected Material. A Party that seeks to file under seal 

any Protected Material must comply with Civil Local Rule 79-5. Protected Material may only be 

filed under seal pursuant to a court order authorizing the sealing of the specific Protected Material 

at issue. Pursuant to Civil Local Rule 79-5, a sealing order will issue only upon a request 

establishing that the Protected Material at issue is privileged, protectable as a trade secret, or 

otherwise entitled to protection under the law. If a Receiving Party's request to file Protected 

Material under seal pursuant to Civil Local Rule 79-5(d) is denied by the court, then the 

Receiving Party may file the information in the public record pursuant to Civil Local Rule 79-5(e) 

unless otherwise instructed by the court. 

13. FINAL DISPOSITION 

Within 60 days after the final disposition of this action, as defined in paragraph 4, each 

Receiving Party must return all Protected Material to the Producing Party or destroy such 

material. As used in this subdivision, “all Protected Material” includes all copies, abstracts, 
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in subject to

, Jr. 
MCDERMOTT 

WILL 

& EMERY LLP 

ATTORNEYS AT LAW

MENLO PARK

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 - 1 - PROTECTIVE ORDER 

CASE NO. 4:17-CV-00205-HSG 

EXHIBIT A 

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 

I, _____________________________ [print or type full name], of _________________ [print or 

type full address], declare under penalty of perjury that I have read in its entirety and understand the 

Stipulated Protective Order that was issued by the United States District Court for the Northern 

District of California on [date] in the case of ___________ [insert formal name of the case and 

the number and initials assigned to it by the court]. I agree to comply with and to be bound by 

all the terms of this Stipulated Protective Order and I understand and acknowledge that failure to so 

comply could expose me to sanctions and punishment in the nature of contempt. I solemnly promise 

that I will not disclose in any manner any information or item that is subject to this Stipulated 

Protective Order to any person or entity except in strict compliance with the provisions of this 

Order. 

I further agree to submit to the jurisdiction of the United States District Court for the Northern 

District of California for the purpose of enforcing the terms of this Stipulated Protective Order, even 

if such enforcement proceedings occur after termination of this action. 

I hereby appoint __________________________ [print or type full name] of 

_______________________________________ [print or type full address and telephone number] 

as my California agent for service of process in connection with this action or any proceedings 

related to enforcement of this Stipulated Protective Order. 

Date: ______________________________________ 

City and State where sworn and signed: _________________________________ 

Printed name: _______________________________ 

Signature: __________________________________ 

DM_US 86690794-2.100680.0024