Advertise.com, Inc. v. AOL, LLC et al

Filing 266

PROTECTIVE ORDER (second amended) by Magistrate Judge Carla Woehrle re Stipulation for Protective Order 264 (dt)

6 VENABLE LLP Daniel S. Silverman (SBN 137864) Brett A. Garner (SBN 215043) Tamany Vinson Bentz (SBN 258600) Email: dssilverman@venable.com bagarner@venable.com tjbentz@venable.com 2049 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone: (310) 229-9900 Facsimile: (310) 229-9901 7 Attorneys for ADVERTISE.COM 1 2 3 4 5 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ADVERTISE.COM, INC. 12 13 14 15 16 Plaintiff, v. AOL INC., AOL ADVERTISING, INC., f/k/a PLATFORM-A, INC. and DOES 110 CASE NO. Case No. CV 09-5983 VBF (CWx) Lead Case Hon. The Honorable Carla Woehrle Courtroom [PROPOSED] SECOND AMENDED PROTECTIVE ORDER Defendants. 17 18 19 20 21 22 23 24 25 26 27 28 AOL INC, and AOL ADVERTISING INC., Plaintiffs, v. ADVERTISE.COM, INC. f/k/a INTERNEXT MEDIA CORP., Defendant. Consolidated with Case No. CV 097374 VBF (CWx) 1 AOL Inc. and AOL Advertising, Inc. f/k/a Platform-A, Inc. (“AOL”), and 2 Advertise.com, Inc. f/k/a Internext Media Corp. (“Advertise.com”) (collectively 3 referred to as the “Parties”), anticipate that the discovery process in this case will 4 involve documents and other information containing trade secrets or other 5 confidential research, development, or commercial information that may be subject 6 to protection pursuant to Fed. R. Civ. P. 26(c)(7). 7 IT IS HEREBY ORDERED THAT: 8 1. 9 A party or third party may designate any document, thing or information, including without limitation written discovery responses (collectively believes that such material contains or reveals information falling within the 13 310-229-9900 Eyes Only” under the terms of this Order, if counsel for such party in good faith 12 LOS ANGELES, CA 90067 VENABLE LLP “material”), in whole or in part, as “Confidential” or “Confidential – Attorneys’ 11 2049 CENTURY PARK EAST, SUITE 2100 10 categories described below corresponding to such designations and could cause 14 substantial harm to the producing party if disclosed to persons other than those 15 designated in paragraphs 8 and 9 below. 16 (a) 17 confidential, proprietary, commercially-sensitive, or trade secret 18 information; and 19 (b) 20 reserved for especially sensitive or confidential materials – namely computer 21 programs, databases and source code; business financial information; 22 marketing strategies; marketing expenditures; client lists; business forecasts; 23 business plans and strategies and research regarding marketing and 24 consumer behavior. 25 Such designation shall be made, where practical, by marking each page of a the designation “Confidential” may be used for any non-public the designation “Confidential – Attorneys’ Eyes Only” shall be 26 document, each separate part or component of a thing, or each separate item of 27 other information in a conspicuous manner. If it is not practical to so mark the 28 material itself, a container for or a tag attached to the material shall be so marked. 1 [PROPOSED] SECOND AMENDED PROTECTIVE ORDER 1 The marking shall state: “CONFIDENTIAL” or “CONFIDENTIAL – 2 ATTORNEYS’ EYES ONLY” or a substantially similar legend (hereinafter 3 “CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” as 4 applicable). Nothing in this paragraph shall be construed as an express or implied 5 agreement by the non-producing party that material designated as “Confidential” 6 or “Confidential-Attorneys Eyes Only” is confidential. However, material so 7 designated shall be treated in accordance with its designation, unless the non- 8 producing party challenges the designation under Paragraph 7, below. 9 2. In lieu of marking the original of a document or the original of other document or other material being produced for inspection by counsel for a party as 13 310-229-9900 prior to inspection, the producing party or its counsel may orally designate any 12 LOS ANGELES, CA 90067 VENABLE LLP material CONFIDENTIAL or CONFIDENTIAL – ATTORNEYS’ EYES ONLY 11 2049 CENTURY PARK EAST, SUITE 2100 10 CONFIDENTIAL or CONFIDENTIAL – ATTORNEYS’ EYES ONLY, thereby 14 making it, and the information it contains, temporarily subject to this Order. 15 However, each copy of such document or other material must be marked by the 16 producing party as CONFIDENTIAL or CONFIDENTIAL – ATTORNEYS’ 17 EYES ONLY as required by this Order at the time it is subsequently delivered to 18 receiving counsel in order to make the document and copies subject to this Order; 19 provided, however, that all documents shall be deemed CONFIDENTIAL – 20 ATTORNEYS’ EYES ONLY and temporarily subject to this Order for seven (7) 21 days from such delivery to permit the producing party to correct any inadvertent 22 failure to mark delivered documents. 23 3. Information disclosed at a deposition may be designated as 24 CONFIDENTIAL or CONFIDENTIAL – ATTORNEYS’ EYES ONLY under the 25 following circumstances: (a) by indicating on the record during the deposition that 26 the testimony is CONFIDENTIAL or CONFIDENTIAL – ATTORNEYS’ EYES 27 ONLY and subject to the provisions of this Order, in which case the court reporter 28 will be directed to produce a separate, confidential transcript or to indicate on the 2 [PROPOSED] SECOND AMENDED PROTECTIVE ORDER 1 caption page of the transcript that some or all of its contents are governed by this 2 Order and by marking such pages containing CONFIDENTIAL or 3 CONFIDENTIAL – ATTORNEYS’ EYES ONLY material as CONFIDENTIAL 4 or CONFIDENTIAL – ATTORNEYS’ EYES ONLY; or (b) within seven (7) days 5 following receipt of the transcript by counsel for the designating party, by 6 notifying all parties in writing of the specific pages of the transcript that are to be 7 treated CONFIDENTIAL or CONFIDENTIAL – ATTORNEYS’ EYES ONLY 8 thereafter. 9 4. Party Customer Communication. To the extent any documents or and/or contact information of a party’s customers and/or clients (“Customers”), 13 310-229-9900 ATTORNEYS’ EYES ONLY, or subject to this Order, and contains identifying 12 LOS ANGELES, CA 90067 VENABLE LLP information is identified as CONFIDENTIAL or CONFIDENTIAL 11 2049 CENTURY PARK EAST, SUITE 2100 10 notwithstanding the protections and requirements provided under the Federal Rules 14 of Civil Procedure, no person, inclusive of counsel, shall issue or serve upon, or 15 send to, a Customer, a deposition or document subpoena, or otherwise demand a 16 Customer to appear to testify, or provide documents, for purposes of, or relative to, 17 this litigation, without at least five (5) business days prior written notice to counsel 18 of the respective other party before serving the Customer. Notice of the Customer 19 subpoenas contemplated in this paragraph shall be effective upon receipt between 20 9:00 a.m. and 5:00 p.m. PST. Service upon counsel of such notice by electronic 21 mail (e-mail) shall constitute proper and sufficient service. 22 5. The inadvertent or unintentional disclosure by the producing party of 23 CONFIDENTIAL or CONFIDENTIAL – ATTORNEYS’ EYES ONLY 24 information, either by way of document production or deposition testimony, 25 regardless of whether the information was so designated at the time of disclosure, 26 shall not be deemed a waiver in whole or in part of a party’s claim of 27 confidentiality, either as to the specific information disclosed or as to any other 28 information relating thereto on the same or related subject matter. Any such 3 [PROPOSED] SECOND AMENDED PROTECTIVE ORDER 1 inadvertently or unintentionally disclosed CONFIDENTIAL or CONFIDENTIAL 2 – ATTORNEYS’ EYES ONLY information not designated as such pursuant to 3 paragraphs 1 through 4 shall be so designated, by giving written notice to all 4 parties, as soon as reasonably possible after the producing party becomes aware of 5 the inadvertent or unintentional disclosure. Upon such notice, and receipt of 6 substitute copies bearing the appropriate confidentiality legend, the receiving party 7 shall return said documents and things and not retain copies thereof, and shall 8 thereafter treat information contained in said documents and any summaries or 9 notes thereof as CONFIDENTIAL or CONFIDENTIAL – ATTORNEYS’ EYES has already been publicly disclosed, such as in a court filing. 12 6. If, in connection with this litigation any Party discloses 13 310-229-9900 LOS ANGELES, CA 90067 VENABLE LLP ONLY, as designated by the producing party, except to the extent such information 11 2049 CENTURY PARK EAST, SUITE 2100 10 information subject to a claim of attorney-client privilege, attorney work product 14 protection, or any other privilege or protection provided ("Protected Information"), 15 pursuant to Federal Rule of Evidence 502, the disclosure of such information shall 16 not constitute or be deemed a waiver or forfeiture of any claim of privilege or work 17 product protection that the producing party would otherwise be able to assert with 18 respect to the Protected Information and its subject matter. If a claim of privilege 19 is made by a producing party with respect to Protected Information, the receiving 20 party shall, within five (5) business days, return or destroy all copies of the 21 Protected Information and provide a certification of counsel that all such Protected 22 Information has been returned or destroyed. If the receiving party believes that it 23 has received Protected Information, the receiving party shall notify the producing 24 party within five (5) business days of the receipt of such information. The 25 receiving party shall, within ten (10) business days, return or destroy all copies of 26 the Protected Information and provide a certification of counsel that all such 27 Protected Information has been returned or destroyed. The receiving party may 28 request that the producing party produce a privilege log with respect to Protected 4 [PROPOSED] SECOND AMENDED PROTECTIVE ORDER 1 Information, which the producing party shall produce within ten (10) business days 2 of any such request. Any motion compelling production of Protected Information 3 shall be filed under seal and shall not assert as a ground for its motion the fact or 4 circumstance of the disclosure of the Protected Information. Nothing in this 5 paragraph shall limit the right of any party to petition the Court for an in camera 6 review of Protected Information. 7 7. Nothing in this Order shall be construed to prevent a party to this 8 action at any time from opposing the designation of materials as CONFIDENTIAL 9 or CONFIDENTIAL – ATTORNEYS’ EYES ONLY. A party opposing the of the grounds for the objection, on the designating party. The designating party 13 310-229-9900 ATTORNEYS’ EYES ONLY shall serve a written objection, including a statement 12 LOS ANGELES, CA 90067 VENABLE LLP designation of materials as CONFIDENTIAL or CONFIDENTIAL – 11 2049 CENTURY PARK EAST, SUITE 2100 10 will have ten (10) days following the receipt of the objection to withdraw its 14 CONFIDENTIAL or CONFIDENTIAL – ATTORNEYS’ EYES ONLY 15 designation. If the CONFIDENTIAL or CONFIDENTIAL – ATTORNEYS’ 16 EYES ONLY designation is not withdrawn, the objecting party may move the 17 Court for an order removing the CONFIDENTIAL or CONFIDENTIAL – 18 ATTORNEYS’ EYES ONLY designation. The designating party has the burden 19 of proof to establish the confidentiality of the CONFIDENTIAL or 20 CONFIDENTIAL – ATTORNEYS’ EYES ONLY information. 21 8. “Confidential” Material – Material designated “Confidential” may 22 only be disclosed, summarized, described, or otherwise communicated or made 23 available in whole or in part, for the purposes set forth above, to the following 24 persons: 25 a. 26 Eisenberg, LLP; Mitchell, Silberberg & Knupp LLP; Williams & Connolly 27 LLP; Buchanan Ingersoll & Rooney PC; and Howard Rice Nemerovski 28 Canady Falk & Rabkin, A Professional Corporation; and their respective attorneys of Venable LLP, Jenner & Block LLP, Neal, Gerber & 5 [PROPOSED] SECOND AMENDED PROTECTIVE ORDER AOL’s in-house “point-of-contact” attorney assigned to the Advertising.com 5 business unit; 6 c. 7 Representative”), as necessary to provide assistance in the conduct and 8 evaluation of this Action, provided that each Party Representative shall be 9 identified by delivering to the Producing Party the name and position of the 10 Party Representative in writing at least five (5) business days prior to such 11 disclosure. If, within five (5) business days following receipt of such written 12 identification, the Producing Party objects to such disclosure, the Party 13 310-229-9900 attorneys, secretaries, legal assistants, and clerks) with the exception of 4 LOS ANGELES, CA 90067 b. 3 VENABLE LLP vendors. 2 2049 CENTURY PARK EAST, SUITE 2100 1 seeking disclosure must seek relief from the Court, either following Local 14 Rule 7-19 or Local Rule 37. No disclosure shall be made to that Party 15 Representative until the Court has ruled. 16 d. 17 secretaries, legal assistants, and clerks) actually assisting such counsel in 18 preparation of this case; provided, however, that such employees have 19 access to CONFIDENTIAL material only to the extent necessary to perform 20 their duties; 21 e. 22 this case, subject to compliance with paragraph 10(a) below; 23 f. 24 proceedings in this litigation, provided that they agree to be subject to the 25 terms of this Order and provided that they are provided CONFIDENTIAL 26 information only to the extent necessary to perform the transcription; 27 g. 28 received a copy of the Confidential information; AOL’s and Advertise.com’s respective in-house legal staff (including no more than five (5) employees of each of the parties (“Party The employees of counsel listed in 8(a) above (including partners, Non-party experts or consultants retained to assist counsel of record in Court reporters involved in transcribing depositions or other Persons who were the author of or are shown to have lawfully 6 [PROPOSED] SECOND AMENDED PROTECTIVE ORDER 1 h. The Court; 2 i. Court personnel involved with this case; and 3 j. Members of the jury, if any, in this case. 4 9. “Confidential – Attorneys’ Eyes Only” Material. Material Maureen Del Duca, Christopher Day, Sarah Harris, Anne Cornelius, Courtney 9 Barton, Marissa Gahafer, (and their individual secretaries and legal assistants 10 provided, however, that such support staff have access to CONFIDENTIAL – 11 ATTORNEYS’ EYES ONLY material only to the extent necessary to perform 12 their duties) (collectively, the “AOL AEO In-House Counsel”). Party 13 310-229-9900 and the following members of the AOL in-house legal department: Jeffrey Novak; 8 LOS ANGELES, CA 90067 persons qualifying under paragraphs 8(a), 8(d), 8(e), 8(f), 8(g), 8(h), 8(i), or 8(j), 7 VENABLE LLP designated “Confidential – Attorneys’ Eyes Only” may be disclosed to only 6 2049 CENTURY PARK EAST, SUITE 2100 5 Representatives designated in paragraph 8(c) shall not receive access to or 14 disclosure of CONFIDENTIAL – ATTORNEYS’ EYES ONLY material, absent 15 the written consent of the producing party or order of the Court. 16 10. (a) Prior to disclosing any material designated as 17 CONFIDENTIAL or CONFIDENTIAL – ATTORNEYS’ EYES ONLY to any 18 person described in Paragraph 8(e) above, a party shall provide a written 19 identification of any such person to the opposing party, setting forth the name of 20 the person, his or her occupation, business address, and a curriculum vitae. The 21 parties shall be allowed to disclose materials designated as CONFIDENTIAL or 22 CONFIDENTIAL – ATTORNEYS’ EYES ONLY to such persons unless, within 23 seven (7) days after the identification of the retained person has been provided to 24 the opposing party, the opposing party objects to the disclosure of materials 25 designated as CONFIDENTIAL or CONFIDENTIAL – ATTORNEYS’ EYES 26 ONLY to the particular person. If objection to disclosure is made within the seven 27 (7) days, the objecting party shall, no later than three (3) days after objection, 28 comply with either Local Rule 7-19 or Local Rule 37. If an objection is made and 7 [PROPOSED] SECOND AMENDED PROTECTIVE ORDER 1 the objecting party petitions the Court for an order prohibiting the disclosure at 2 issue, no materials designated as CONFIDENTIAL or CONFIDENTIAL – 3 ATTORNEYS’ EYES ONLY shall be made available to the particular person until 4 after the Court rules that disclosure can be made. If the objecting party fails to 5 timely petition the Court for an order prohibiting the disclosure at issue, then 6 materials designated as CONFIDENTIAL or CONFIDENTIAL – ATTORNEYS’ 7 EYES ONLY may be made available to the particular person. Notwithstanding 8 anything contained in this Order, discovery of experts will be governed by Federal 9 Rule of Civil Procedure 26(b)(4). 10 (b) All persons authorized by Paragraph 8(e) above to have access to EYES ONLY must sign an Undertaking in the form of Exhibit A attached to this 13 310-229-9900 material designated as CONFIDENTIAL or CONFIDENTIAL – ATTORNEYS’ 12 LOS ANGELES, CA 90067 VENABLE LLP 2049 CENTURY PARK EAST, SUITE 2100 11 Order before gaining access to such material or information. 14 11. Each recipient of the CONFIDENTIAL or CONFIDENTIAL – 15 ATTORNEYS’ EYES ONLY material shall maintain such material in a secure, 16 safe area and shall exercise the same standard of care with respect to the storage, 17 custody, use and dissemination of such material as is exercised by the recipient 18 with respect to its own confidential and proprietary material. CONFIDENTIAL - 19 ATTORNEYS' EYES ONLY material stored at AOL is to be segregated from 20 other produced documents, password protected, and only accessible to the AOL 21 AEO In-House Counsel. 22 12. Except upon consent of the designating party or upon order of the 23 Court, any and all CONFIDENTIAL or CONFIDENTIAL – ATTORNEYS’ 24 EYES ONLY materials produced, served or otherwise made available by the 25 designating party to another party during the course of this action, together with all 26 reproductions, copies, abstracts, indices, or summaries of those materials, shall be 27 used only for preparation and presentation of this action and for no other purpose 28 whatsoever. 8 [PROPOSED] SECOND AMENDED PROTECTIVE ORDER 1 13. Any papers filed with the Court that contain or reveal materials 2 designated as CONFIDENTIAL or CONFIDENTIAL – ATTORNEYS’ EYES 3 ONLY shall be filed with an application to have the documents filed under seal in 4 accordance with the procedures outlined in the Local Rules and shall not be 5 publicly disclosed, except upon consent of the designating party or upon further 6 order of the Court. 7 14. Within sixty (60) days after final determination of this action, all 8 materials designated as CONFIDENTIAL or CONFIDENTIAL – ATTORNEYS’ 9 EYES ONLY that have been served or otherwise made available by the those materials, shall be destroyed or delivered to counsel for the designating 13 310-229-9900 reproductions, copies, abstracts, indices, summaries or any other embodiment of 12 LOS ANGELES, CA 90067 VENABLE LLP designating party to another party during the course of this action, together with all 11 2049 CENTURY PARK EAST, SUITE 2100 10 party. Notwithstanding the above or the Undertaking in Exhibit A, counsel 14 designated under paragraph 8(a) above may retain one copy of such material to 15 maintain a complete file of the litigation; provided, however, that all further copies 16 of CONFIDENTIAL and CONFIDENTIAL – ATTORNEYS’ EYES ONLY 17 documents of the designating party shall be destroyed or delivered to counsel for 18 the designating party. 19 15. If material or information designated CONFIDENTIAL or 20 CONFIDENTIAL – ATTORNEYS’ EYES ONLY is disclosed to any person other 21 than in the manner authorized by this Order, the party responsible for the 22 disclosure must immediately bring all pertinent facts relating to such disclosure to 23 the attention of the opposing party and the designating party, and without prejudice 24 to the rights and remedies of the designating party, make every effort to prevent 25 further unauthorized disclosure on its own part or on the part of the recipient of 26 such information or material. 27 28 16. Nothing in this Order shall be construed as requiring disclosure of privileged materials, materials subject to protection under the work product 9 [PROPOSED] SECOND AMENDED PROTECTIVE ORDER 1 2 doctrine, or materials that are otherwise beyond the scope of permissible discovery. 17. Nothing in this Order shall be construed to prevent a party or third 3 party from seeking such further provisions regarding confidentiality, as may be 4 appropriate. 5 18. Nothing in this Order shall be construed as a waiver by a party of any 6 objections that might be raised as to the admissibility at trial of any evidentiary 7 materials. 8 19. 9 10 Nothing in this Order shall be construed to restrict a designating party in its use of its own CONFIDENTIAL or CONFIDENTIAL – ATTORNEYS’ EYES ONLY materials. 12 13 310-229-9900 LOS ANGELES, CA 90067 VENABLE LLP 2049 CENTURY PARK EAST, SUITE 2100 11 20. This Order shall remain in effect after the final determination of this action, unless otherwise ordered by the Court. 14 15 IT IS SO ORDERED, 16 Dated: July 26, 2011 17 18 ____________/s/_____________________ 19 The Honorable Carla Woehrle 20 UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 10 [PROPOSED] SECOND AMENDED PROTECTIVE ORDER 1 EXHIBIT A 2 3 I, _______________________, declare and say that: 1. I live at _____________________________________. I am 4 employed as [state position] ________________________ by [state name and 5 address of employer] __________________________________. 6 2. I have read the Protective Order entered in ADVERTISE.COM, INC. 7 v. AOL INC., AOL ADVERTISING, INC. f/k/a PLATFORM-A, INC., Case No. 8 CV09-5983 VBF (CWx); and AOL INC. and AOL ADVERTISING INC., f/k/a/ 9 Platform-A, Inc. v. ADVERTISE.COM, INC. f/k/a InterNext Media Corp., Case 10 3. I agree to be bound by the terms of the Protective Order and agree that any CONFIDENTIAL or CONFIDENTIAL – ATTORNEYS’ EYES ONLY 13 310-229-9900 12 LOS ANGELES, CA 90067 VENABLE LLP 2049 CENTURY PARK EAST, SUITE 2100 11 No. CV 09-7374 VBF (CWx) and a copy of Protective Order has been given to me. material within the meaning of the Protective Order will be used by me only in 14 connection with the furtherance of the above-referenced litigation. 15 4. I agree that I will not disclose or discuss CONFIDENTIAL or 16 CONFIDENTIAL – ATTORNEYS’ EYES ONLY material with anyone other than 17 the persons allowed access to such CONFIDENTIAL or CONFIDENTIAL – 18 ATTORNEYS’ EYES ONLY material as set forth in Paragraphs 8 and 9 of the 19 Order. 20 5. I understand that any disclosure or use of CONFIDENTIAL or 21 CONFIDENTIAL – ATTORNEYS’ EYES ONLY material in any manner 22 contrary to the provisions of the Protective Order may subject me to sanctions for 23 contempt of the Court’s Order. 24 6. I agree to return all CONFIDENTIAL or CONFIDENTIAL – 25 ATTORNEYS’ EYES ONLY material to counsel who provided it to me upon the 26 conclusion of this action. 27 28 7. I agree to be subject in person to the rules and jurisdiction of this Court in connection with any proceeding relating to the enforcement of the 11 [PROPOSED] SECOND AMENDED PROTECTIVE ORDER 1 2 Protective Order. I declare under penalty of perjury that the foregoing is true and correct, and 3 that this Declaration was executed this _____ day of __________ 20__, at 4 ____________________ [location]. 5 6 7 ______________________________ 8 [NAME] 9 10 12 13 310-229-9900 LOS ANGELES, CA 90067 VENABLE LLP 2049 CENTURY PARK EAST, SUITE 2100 11 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 [PROPOSED] SECOND AMENDED PROTECTIVE ORDER