Gallion v. Apple, Inc

Filing 58

STIPULATION Stipulated Protective Order Governing Production by Non-Party AT&T Mobility LLC by Charlene Gallion. (Kralowec, Kimberly) (Filed on 8/18/2011)

1 2 3 4 5 6 7 8 9 10 Jeffrey L. Fazio (146043) jlf@fazmiclaw.com Dina E. Micheletti (184141) dem@fazmiclaw.com FAZIO | MICHELETTI LLP 2410 Camino Ramon, Suite 315 San Ramon, CA 94583 T: 925-543-2555 F: 925-369-0344 Steven A. Schwartz (pro hoc vice) SAS@chimicles.com Timothy N. Mathews (pro hoc vice) TNM@chimicles.com CHIMICLES & TIKELLIS LLP 361 W. Lancaster Avenue Haverford, PА 19041 Telephone: (610) 642-8500 Interim Co-Lead Class Counsel 11 12 IN RE APPLE IPHONE/IPOD WARRANTY LITIGATION STIPULATED PROTECTIVE ORDER GOVERNING PRODUCTION BY NONPARTY AT&T MOBILITY LLC 13 14 This Document Relates To: 15 No. CV 10-01610-RS 16 17 CHARLENE GALLION, on behalf of herself and all others similarly situated, Plaintiff, 18 v. 19 20 21 APPLE, INC., a California corporation, and DOES 1-100, inclusive, Defendants. No. CV 10-03316-RS 22 23 CHRISTOPHER CORSI, on behalf of himself and all others similarly situated, Plaintiff, 24 v. 25 26 No. CV 10-01610-RS APPLE, INC. Defendant. 27 28 1 Stipulated Protective Order Governing Production by Non-Party AT&T Mobility LLC Case Nos. 3:10-cv-01610-RS, 3:10-cv-03316-RS, 3:10-cv-05895-RS 1 2 No. CV 10-05895-RS DANIEL CALIX, individually and on behalf of all others similarly situated, Plaintiff, 3 v. 4 5 APPLE, INC. Defendant. 6 7 The undersigned parties to this litigation hereby agree to the terms of this 8 Stipulated Protective Order Governing Production by Non-Party AT&T Mobility LLC 9 (“ATTM”) (hereafter, “Protective Order”), as set forth below, and to submit it to the 10 Court for adoption as an Order upon full execution by counsel on behalf of their 11 respective clients: 12 I. 13 14 DEFINITIONS A. Material Subject Тo This Protective Order 1. This Protective Order shall govern all “Discovery Materials” 15 produced or disclosed during this litigation by ATTM. The term “Discovery Materials” 16 shall mean and include Documents, expert reports, briefs, memoranda, any other writings 17 submitted to or otherwise supplied to the Court; and such other materials and information 18 as may be produced or disclosed during the course of discovery in this litigation. The 19 term “Document” has the broadest possible meaning permissible, and includes, without 20 limitation, electronically stored information, and any compilations of data from which 21 information can be obtained and/or translated through detection or recovery devices into 22 a reasonably usable form, if necessary, by the responding party or person upon whom the 23 request or subpoena is served. A draft or non-identical copy is a separate Document 24 within the meaning of that term. 25 26 27 28 2 Stipulated Protective Order Governing Production by Non-Party AT&T Mobility LLC Case Nos. 3:10-cv-01610-RS, 3:10-cv-03316-RS, 3:10-cv-05895-RS 1 B. Party or Parties 2 2. 3 Representatives. 4 C. Designating Party 3. 5 “Party” or “Parties” means any party to this action or his, her, or its “Designating Party” means ATTM, if it designates any Discovery 6 Material as Confidential Information or Highly Confidential—Attorneys’ Eyes Only 7 Information. 8 D. 4. 9 10 11 Receiving Party “Receiving Party” means a Party or his, her or its Representatives that receives Discovery Material from the Designating Party. E. 12 Confidential Information 5. “Confidential Information” means information that the Designating 13 Party reasonably believes in good faith would, but for the terms of this Protective Order, 14 be entitled to protection from disclosure due to its confidential, sensitive, or proprietary 15 commercial content under applicable law. “Confidential Information” does not include 16 information that is publicly available at the time of its production, regardless of whether 17 it was once confidential. The Designating Party must take reasonable care to designate 18 for protection only those parts of the Discovery Materials that the party reasonably 19 believes to qualify for protection so that other portions of the Discovery Materials for 20 which protection is not warranted are not unjustifiably designated. 21 22 F. Highly Confidential—Attorneys’ Eyes Only Information 6. “Highly Confidential—Attorneys’ Eyes Only Information” means 23 Confidential Information as that term is defined herein that ATTM reasonably believes 24 would, if disclosed to Apple’s in-house counsel, officers, directors, or employees or to 25 another competitor of ATTM, cause ATTM to suffer serious economic harm or 26 competitive disadvantage vis-a-vis Apple or another competitor of ATTM, or would 27 otherwise jeopardize its business interests in connection with its relationship with Apple 28 3 Stipulated Protective Order Governing Production by Non-Party AT&T Mobility LLC Case Nos. 3:10-cv-01610-RS, 3:10-cv-03316-RS, 3:10-cv-05895-RS 1 or another competitor of ATTM. “Highly Confidential—Attorneys’ Eyes Only 2 Information” does not include information that is publicly available at the time of its 3 production, regardless of whether it was once confidential. The Designating Party must 4 take reasonable care to designate for protection only those parts of the Discovery 5 Materials that it reasonably believes to qualify for protection so that other portions of the 6 Discovery Materials for which protection is not warranted are not unjustifiably 7 designated. 8 G. 9 Protected Material 7. “Protected Material” means any Document(s) or portion(s) thereof 10 that is designated as “Confidential Information” or “Highly Confidential—Attorneys’ 11 Eyes Only Information” in accordance with Section II, below, to which an objection (a) 12 has not been made, (b) has been withdrawn, or (с) has been overruled by the Court. 13 H. 14 Outside Counsel 8. “Outside Counsel” means the counsel of record for the parties to 15 this action who are not employees of a Party, their respective regularly-employed 16 personnel, and those outside vendors (e.g., persons who provide copy or electronic-data 17 imaging services, trial-preparation or trial-presentation services, jury consultant services) 18 whose services are employed for the purpose of this litigation. 19 I. 20 21 22 23 24 25 26 In-House Counsel 9. “In-House Counsel” means attorneys who are employees of a Party and their support staff. J. Independent Expert 10. “Independent Expert” means an expert and/or independent consultant retained or employed to advise or assist counsel in prosecuting or defending claims between the Parties, and who (a) is not a past or a current employee of a Party or of a competitor of a Party and who, at the time of retention, is not anticipated to become 27 28 4 Stipulated Protective Order Governing Production by Non-Party AT&T Mobility LLC Case Nos. 3:10-cv-01610-RS, 3:10-cv-03316-RS, 3:10-cv-05895-RS 1 an employee of a Party or a competitor of a Designating Party; (b) is not a past or current 2 employee of a Designating Party or a competitor of a Designating Party. Independent 3 Expert includes a professional jury or trial consultant retained in connection with this 4 litigation. Independent Expert, however, is not intended to and does not include any 5 attorneys who are not employed by counsel. A list of ATTM’s restricted competitors is 6 contained in Appendix В, an exhibit to be provided to Plaintiffs by ATTM. Rules 7 concerning Independent Experts are further stated below. K. 8 9 Related Case 11. “Related Case” means any action, whether filed in state or federal 10 court, that is based on the same operative facts and similar legal theories as those that 11 appear in the complaints that are now on file in (a) Gallion v. Apple, Inc., N.D. Cal. case 12 no. CV 10-01610; (b) Pennington v. Apple, Inc., Santa Clara County Superior Court case 13 no. 1-10-CV-162659; (с) Corsi v. Apple, Inc., U.S. Dist. Ct., N.D. Cal. case no. CV10- 14 03316; and/or (d) Calix v. Apple, Inc., U.S. Dist. Ct., N.D. Cal. case no. CV10-05895. 15 “Related Case” also includes the Gallion, Pennington, Corsi and Calix actions 16 themselves. 17 II. 18 19 20 21 22 23 24 25 26 27 28 DESIGNATION OF PROTECTED MATERIAL A. Designation of Confidential Information and Highly Confidential—Attorneys’ Eyes Only Information 12. Discovery Materials that the Designating Party deems to be Confidential Information or Highly Confidential—Attorneys’ Eyes Only Information must be designated on such by stamping the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES ONLY” in a conspicuous location on each page of each Document that contains Confidential Information or Highly Confidential— Attorneys’ Eyes Only Information. 13. In the case of multi-page Documents, only those pages containing Confidential Information or Highly Confidential—Attorneys’ Eyes Only Information 5 Stipulated Protective Order Governing Production by Non-Party AT&T Mobility LLC Case Nos. 3:10-cv-01610-RS, 3:10-cv-03316-RS, 3:10-cv-05895-RS 1 shall be marked CONFIDENTIAL or HIGHLY CONFIDENTIAL—ATTORNEYS’ 2 EYES ONLY. Any page not so marked or identified shall not be subject to the terms of 3 this Protective Order that apply to such material. 4 14. The Designating Party may, on the record of a deposition, or by 5 written notice to counsel for the Parties not later than thirty (30) days after receipt of a 6 deposition transcript, designate portions of deposition testimony or Documents marked as 7 exhibits to that deposition as Confidential Information or Highly Confidential— 8 Attorneys’ Eyes Only Information, based on a good-faith determination that the portions 9 of testimony or Documents so designated contain Confidential Information or Highly 10 Confidential—Attorneys’ Eyes Only Information. To the extent reasonably possible, any 11 portions so designated shall be transcribed separately and marked by the court reporter as 12 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES ONLY.” 13 15. If a Receiving Party wishes to show non-designated portions of a 14 Document or a transcript containing Confidential Information or Highly Confidential— 15 Attorneys’ Eyes Only Information to a third party who is not otherwise entitled to see 16 such information under the terms of this Protective Order, the Receiving Party shall first 17 redact all pages marked as containing Confidential Information or Highly Confidential— 18 Attorneys’ Eyes Only Information before disclosing the Document(s) in question to the 19 third party. 20 16. The Designating Party must take care to limit any such designation 21 to specific material that qualifies under the appropriate standards. The Designating Party 22 must take reasonable care to designate for protection only those parts of material, 23 documents, items, or oral or written communications that the party reasonably believes to 24 qualify for protection — so that other portions of the material, documents, items, or 25 communications for which protection is not warranted are not swept unjustifiably within 26 the ambit of this Order. Mass, indiscriminate, or routinized designations are prohibited. 27 Designations that are shown to be clearly unjustified, or that have been made for an 28 6 Stipulated Protective Order Governing Production by Non-Party AT&T Mobility LLC Case Nos. 3:10-cv-01610-RS, 3:10-cv-03316-RS, 3:10-cv-05895-RS 1 improper purpose (e.g., to unnecessarily encumber or retard the case development 2 process, or to impose unnecessary expenses and burdens on other parties), expose the 3 designating party to sanctions. If it comes to the Designating Party’s attention that 4 information or items that it designated for protection do not qualify for protection at all, 5 or do not qualify for the level of protection initially asserted, the Designating Party must 6 promptly notify the Parties that it is withdrawing the mistaken designation. 7 B. Challenges to Designations of Confidential Information or Highly Confidential—Attorneys’ Eyes Only Information 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17. If a Receiving Party disagrees with the designation of any Document or any portion of a Document as Confidential Information or Highly Confidential—Attorneys’ Eyes Only Information, the Receiving Party shall provide counsel for the Designating Party with written notice of that objection. If the designation of Confidential Information or Highly Confidential—Attorneys’ Eyes Only Information is made during a deposition, the Receiving Party shall provide counsel for the Designating Party with notice of the objection orally on the record or within thirty (30) days after receipt of the deposition transcript. 18. The objection to the designation need not be any more specific than the designation itself; that is, if the Designating Party designates a Document or other material as Confidential Information or Highly Confidential—Attorneys’ Eyes Only Information without explaining the factual or legal basis for that designation, the Receiving Party’s objection need not provide the factual or legal basis for the objection. Conversely, if the Designating Party provides a specific legal and/or factual basis for the designation of a particular Document or set of Documents as Confidential Information or Highly Confidential—Attorneys’ Eyes Only Information, the Receiving Party shall provide a specific legal and/or factual basis for the objection(s) as well. 19. The burden of establishing that a Document or other material is entitled to protection as Confidential Information or Highly Confidential—Attorneys’ 7 Stipulated Protective Order Governing Production by Non-Party AT&T Mobility LLC Case Nos. 3:10-cv-01610-RS, 3:10-cv-03316-RS, 3:10-cv-05895-RS 1 Eyes Only Information under applicable law shall remain with the Designating Party, 2 and, until the Designating Party carries that burden, it shall not be incumbent upon the 3 Receiving Party to establish the validity of its objection(s) to the designation as 4 Confidential Information or Highly Confidential—Attorneys’ Eyes Only Information. 5 20. In the event the Receiving Party objects to the designation of a 6 Document(s) or any portion(s) thereof as Confidential Information or Highly 7 Confidential—Attorneys’ Eyes Only Information, the parties shall attempt to resolve the 8 dispute in good faith on an expedited and informal basis. If those efforts do not result in 9 the resolution of the dispute within ten (10) days of the objection, the Designating Party 10 may move the Court for an order upholding its designations of Confidential Information 11 or Highly Confidential—Attorneys’ Eyes Only Information. If the Designating Party 12 does not file such a motion within ten (10) business days after the 10-day informal 13 resolution period has expired, the Document(s) or portions of a Document(s) that are the 14 subject of the dispute will not be entitled to treatment as Confidential Information or 15 Highly Confidential—Attorneys’ Eyes Only Information. If the Designating Party files 16 the motion within ten (10) business days after the 10-day informal resolution period has 17 expired, the parties will continue to treat the challenged Document(s) as Confidential 18 Information or Highly Confidential—Attorneys’ Eyes Only Information until the matter 19 is resolved by the Court. 20 21. To maintain a designation of Confidential Information or Highly 21 Confidential—Attorneys’ Eyes Only Information, the Designating Party bears the burden 22 of proving that the designated information satisfies the definitions of Confidential 23 Information or Highly Confidential—Attorneys’ Eyes Only Information set forth above. 24 Nothing in this Protective Order, or the fact that the parties have entered into this 25 Protective Order, is intended to diminish the Designating Party’s burden of proving that a 26 Document contains Confidential Information or Highly Confidential—Attorneys’ Eyes 27 Only Information. Similarly, nothing in this Protective Order, nor the fact that the parties 28 8 Stipulated Protective Order Governing Production by Non-Party AT&T Mobility LLC Case Nos. 3:10-cv-01610-RS, 3:10-cv-03316-RS, 3:10-cv-05895-RS 1 have entered into it, is intended to diminish or in any way alter the showing that must be 2 made under applicable law to establish that a Document(s) or any portion thereof that is 3 designated as Confidential Information or Highly Confidential—Attorneys’ Eyes Only 4 Information is actually entitled to the protection such materials are provided under the 5 terms of this Protective Order and under applicable law. 6 22. A Receiving Party shall not be obligated to object to or otherwise 7 challenge the propriety of the designation of a Document(s) or any portion thereof as 8 Confidential Information or Highly Confidential—Attorneys’ Eyes Only Information at 9 the time of production, and in no event shall not doing so preclude or in any way inhibit a 10 subsequent objection or other challenge to the designation(s). Similarly, the absence of 11 an objection or other challenge to the designation of a Document or any portion thereof 12 as Confidential Information or Highly Confidential—Attorneys’ Eyes Only Information 13 shall not be deemed or construed as a concession by the Receiving Party that the material 14 is entitled to protection from public distribution or disclosure under the terms of this 15 Protective Order and/or applicable law. 16 III. 17 ACCESS TO AND USE OF PROTECTED MATERIAL A. 18 Access to Confidential Information 23. In the absence of written permission from the Designating Party, or 19 an order of the Court, Confidential Information shall not be disclosed to or discussed with 20 any person other than: 21 a. Outside or In-House Counsel; 22 b. The parties to this litigation; 23 c. Current officers, directors, and employees of the d. The Court, court personnel, court reporters, 24 25 26 Defendant; deposition officers, and videographers; 27 28 9 Stipulated Protective Order Governing Production by Non-Party AT&T Mobility LLC Case Nos. 3:10-cv-01610-RS, 3:10-cv-03316-RS, 3:10-cv-05895-RS 1 2 e. Any non-party who authored the Confidential Information or is shown to have previously received the Confidential Information; 3 f. Counsel for the plaintiffs in Gallion v. Apple, Inc., 4 N.D. Cal. case no. CVl0-01610, Corsi v. Apple, Inc., U.S. Dist. Ct., N.D. Cal. 5 case no. CV10-03316 and Calix v. Apple, Inc., U.S. Dist. Ct., N.D. Cal. case no. 6 CV10-05895. To the extent a Receiving Party wishes to share Confidential 7 Information with counsel for the plaintiffs in Pennington v. Apple, Inс., Santa 8 Clara County Superior Court case no. 1-l0-CV-162659 or any other Related Case 9 other than Gallion, Corsi or Calix, such Receiving Party must seek and obtain 10 ATTM’s written consent in advance, which written consent shall not be 11 unreasonably withheld; 12 g. The following additional persons, if they have read 13 this Protective Order and agree in writing to be bound by its terms by executing 14 an acknowledgment substantially in the form attached hereto as Appendix A: 15 (i) 16 Persons retained to assist Outside or In-House Counsel (e.g., contract attorneys); and 17 (ii) During their depositions, witnesses in the action to 18 whom it is reasonably necessary to disclose 19 Confidential Information for purposes of this 20 litigation. 21 24. The parties have agreed to table, for future negotiation and 22 agreement, the question of whether Confidential Information may be disclosed to former 23 officers, directors, and employees of the Defendant. 24 25. Counsel disclosing Confidential Information to persons pursuant to 25 paragraph 23(g), above, must maintain the executed original of all such 26 acknowledgements in their files until the conclusion of this action by final order, 27 settlement, or appeal. 28 10 Stipulated Protective Order Governing Production by Non-Party AT&T Mobility LLC Case Nos. 3:10-cv-01610-RS, 3:10-cv-03316-RS, 3:10-cv-05895-RS 1 26. In no event shall this Protective Order be read or construed to 2 require that the Parties reveal the identities of their Independent Experts before such 3 Independent Experts are required to be disclosed (if at all) under Federal Rule of Civil 4 Procedure 26(a)(2). 5 B. Access to Highly Confidential—Attorneys’ Eyes Only Information 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27. In the absence of written permission from the Designating Party, or an order of the Court, Highly Confidential—Attorneys’ Eyes Only Information shall not be disclosed to or discussed with any person other than: a. The Receiving Party’s Outside Counsel; b. In-House Counsel of the Receiving Party (1) who has no involvement in competitive decision-making, and (2) to whom disclosure is reasonably necessary for this litigation; c. The Court, court personnel, court reporters, deposition officers, and videographers; d. Any person who authored the Highly Confidential— Attorneys’ Eyes Only Information or is shown to have previously received the Highly Confidential—Attorneys’ Eyes Only Information; e. Counsel for the plaintiffs in Gallion v. Apple, Inc., N.D. Cal. case no. CVl0-01610, Corsi v. Apple, Inc., U.S. Dist. Ct., N.D. Cal. case no. CV1003316, and Calix v. Apple, Inc., U.S. Dist. Ct., N.D. Cal. case no. CV10-05895. To the extent a Receiving Party wishes to share Highly Confidential—Attorneys’ Eyes Only Information with counsel for the plaintiffs in Pennington v. Apple, Inс., Santa Clara County Superior Court case no. 1-l0-CV-162659 or any other Related Case other than Gallion, Corsi or Calix, such Receiving Party must seek and obtain ATTM’s written consent in advance, which written consent shall not be unreasonably withheld; 27 28 11 Stipulated Protective Order Governing Production by Non-Party AT&T Mobility LLC Case Nos. 3:10-cv-01610-RS, 3:10-cv-03316-RS, 3:10-cv-05895-RS 1 f. The following additional persons, if they have read this 2 Protective Order and agree in writing to be bound by its terms by executing an 3 acknowledgment substantially in the form attached hereto as Appendix A: 4 5 6 (i) Persons retained to assist Outside Counsel (e.g., (ii) During their depositions, witnesses in the action to contract attorneys); and 7 whom it is reasonably necessary to disclose Highly Confidential—Attorneys’ Eyes Only 8 Information for purposes of this litigation, if the following requirements are satisfied: 9 (a) At least ten (10) days prior to the deposition, 10 the Party intending to use Highly Confidential—Attorneys’ Eyes Only Information 11 notifies the Designating Party of that desire, with a specific identification of the Protected 12 Information to be disclosed, and the Designating Party fails to object in writing to such 13 desire within seven (7) days after notice. If, however, an objection is made in writing, the 14 Protected Information may not be disclosed to the witness until and unless the Receiving 15 Party desiring to make such disclosure moves for, and obtains, appropriate relief from the 16 Court. Such a motion may be heard on shortened notice. 17 (b) Nothing in this subparagraph shall be 18 construed to alter the Designating Party’s burden to establish that a Document or other 19 material is entitled to protection as Highly Confidential—Attorneys’ Eyes Only 20 Information under applicable law, as set forth in Paragraphs 19 and 21, above. 21 (c) Witnesses receiving Highly Confidential— 22 Attorneys’ Eyes Only Information under this subparagraph shall not be allowed to retain 23 copies of any such material received unless otherwise provided for under this Protective 24 Order. A witness who received Protected Information during a deposition, however, may 25 review that material while reviewing the transcript of the deposition for accuracy, 26 provided that the Highly Confidential—Attorneys’ Eyes Only Information is not retained 27 by the witness after the review of the transcript for accuracy is complete. 28 12 Stipulated Protective Order Governing Production by Non-Party AT&T Mobility LLC Case Nos. 3:10-cv-01610-RS, 3:10-cv-03316-RS, 3:10-cv-05895-RS 1 (d) 2 not apply to the depositions of witnesses who are current ATTM employees. 3 (iii) The requirements of this subparagraph do Pages of transcribed deposition testimony or 4 exhibits to depositions that reveal Highly Confidential—Attorneys’ Eyes Only 5 Information must be marked Highly Confidential—Attorneys’ Eyes Only by the court 6 reporter and may not be disclosed to anyone except as permitted under this Stipulated 7 Protective Order, and Highly Confidential—Attorneys’ Eyes Only shall also be marked 8 on the cover of the deposition transcript. Only persons entitled to receive “Highly 9 Confidential—Attorneys’ Eyes Only Information shall be present when such information 10 is disclosed at a deposition. 11 28. Counsel disclosing Highly Confidential—Attorneys’ Eyes Only 12 Information to persons pursuant to paragraph 27(f), above, must maintain the executed 13 original of all such acknowledgements in their files until the conclusion of this action by 14 final order, settlement, or appeal. 15 29. In no event shall this Protective Order be read or construed to 16 require that the Parties reveal the identities of their Independent Experts to anyone, 17 including any Party or any Designating Party, before such Independent Experts are 18 required to be disclosed (if at all) under Federal Rule of Civil Procedure 26(a)(2). 19 C. Use of “Confidential Information” and “Highly Confidential— Attorneys’ Eyes Only Information” 20 21 22 23 24 30. All “Confidential Information” or “Highly Confidential— Attorneys’ Eyes Only Information” produced or exchanged pursuant to this Protective Order shall be used by the Receiving Party or Parties solely for the purpose of the Gallion, Corsi or Calix cases. 25 26 27 28 13 Stipulated Protective Order Governing Production by Non-Party AT&T Mobility LLC Case Nos. 3:10-cv-01610-RS, 3:10-cv-03316-RS, 3:10-cv-05895-RS 2 Procedure for Disclosure of “Confidential Information” and “Highly Confidential—Attorneys’ Eyes Only Information” to Independent Experts 3 31. 1 D. The parties have agreed to table, for future negotiation and 4 agreement or resolution by the Court, the procedure for disclosure of “Confidential 5 Information” and “Highly Confidential—Attorneys’ Eyes Only Information” to 6 Independent Experts. Until such time as the parties reach an agreement or the Court 7 issues an order specifying the procedure for disclosure of “Confidential Information” and 8 “Highly Confidential—Attorneys’ Eyes Only Information” to Independent Experts, 9 plaintiffs agree they will not disclose any “Confidential Information” or “Highly 10 Confidential—Attorneys’ Eyes Only Information” to any Independent Expert. 32. 11 Nothing in this Stipulated Protective Order shall be construed to 12 require the disclosure of the identity of an Independent Eхреrt to any Party before such 13 disclosure is required by Federal Rule of Civil Procedure 26(a)(2). 14 E. 15 Use By Producing Party оf its Own Protected Material 33. Nothing contained in this Protective Order shall affect the 16 Designating Party’s right to disclose to anyone its own Protected Material. However, in 17 the event the Designating Party treats its own Protected Material in a manner that is 18 inconsistent with its status as such (e.g., disclosing Protected Material to the public), the 19 content of the Document(s) in question shall lose its status as Protected Material. 20 21 F. Filing Protected Material with the Court 34. Without written permission from the Designating Party or a court 22 order secured after appropriate notice to all interested persons, a Party may not file in the 23 public record in this action any Protected Material. A Party that seeks to file under seal 24 any Protected Material must comply with Civil Local Rule 79-5. Protected Material may 25 only be filed under seal pursuant to a court order authorizing the sealing of the specific 26 Protected Material at issue. Pursuant to Civil Local Rule 79-5, a sealing order will issue 27 only upon a request establishing that the Protected Material at issue is privileged, 28 14 Stipulated Protective Order Governing Production by Non-Party AT&T Mobility LLC Case Nos. 3:10-cv-01610-RS, 3:10-cv-03316-RS, 3:10-cv-05895-RS 1 protectable as a trade secret, or otherwise entitled to protection under the law. If a 2 Receiving Party’s request to file Protected Material under seal pursuant to Civil Local 3 Rule 79-5(d) is denied by the court, then the Receiving Party may file the information in 4 the public record pursuant to Civil Local Rule 79-5(e) unless otherwise instructed by the 5 court. 6 G. 7 Inadvertent Disclosure of Protected Material 35. If the Designating Party, through inadvertence, fails to designate 8 any Document as Confidential Information or Highly Confidential—Attorneys’ Eyes 9 Only Information in accordance with the provisions of this Protective Order 10 (“Incorrectly-Labeled Document”), the Designating Party may give written notice to the 11 other parties that the Incorrectly-Labeled Document(s) should have been designated as 12 Confidential Information or Highly Confidential—Attorneys’ Eyes Only Information and 13 should be treated as such in accordance with the provisions of this Protective Order. 14 Parties must treat Incorrectly-Labeled Document(s) as Confidential Information or 15 Highly Confidential—Attorneys’ Eyes Only Information from the date such notice is 16 received. 17 36. Within a reasonable time after receipt of written notice from the 18 Designating Party as described in paragraph 35, above, the Receiving Party shall make a 19 good-faith effort to provide any third parties to whom the Incorrectly-Labeled 20 Document(s) were disclosed with written notice that identifies the Incorrectly-Labeled 21 Document(s); states that the Designating Party has asserted that they contain Confidential 22 Information or Highly Confidential—Attorneys’ Eyes Only Information; and requests 23 that the Incorrectly-Labeled Document(s) be returned and that they not be further 24 distributed or disclosed to the public. This requirement shall not apply to third parties 25 identified in paragraphs 23(a)-23(e) and/or 27(a)-27(d), above. 26 27 28 37. In no event shall the Receiving Party be under any obligation to ensure that third parties comply with the Designating Party’s request. 15 Stipulated Protective Order Governing Production by Non-Party AT&T Mobility LLC Case Nos. 3:10-cv-01610-RS, 3:10-cv-03316-RS, 3:10-cv-05895-RS H. 1 Evidentiary Нearings and Trial 38. 2 This Protective Order is not intended to govern the use of 3 Protected Material at evidentiary hearings or at the trial of this action. Procedures 4 governing the use of Protected Material at evidentiary hearings and at trial, if necessary, 5 will be established by separate order. I. 6 Right to Further Relief 39. 7 Nothing in this Protective Order shall abridge the right of any 8 person to seek judicial review or to pursue other appropriate judicial action to seek a 9 modification or amendment of this Protective Order. All motions seeking interpretation, 10 modification or amendment of any of the provisions of this Protective Order and/or to 11 enforce, modify or quash the underlying subpoena shall be brought in the United States 12 District Court for the Northern District of California. All references in this Protective 13 Order to “the Court” are to the United States District Court for the Northern District of 14 California. 15 IV. AMENDMENT 40. 16 This Protective Order may not be amended without agreement of 17 counsel for all parties and any non-party signatories to this Protective Order in the form 18 of a written stipulation filed with the Court or by an order of the Court after a duly 19 noticed motion. 20 V. RIGHT TO ASSERT OTHER OBJEСTIONS 41. 21 This Protective Order shall not be construed as waiving any right 22 to assert a claim of privilege, relevance, over breadth, burdensomeness or other grounds 23 for not producing requested Discovery Material. 24 VI. 25 26 TERMINATION AND SURVIVAL OF OBLIGATIONS 42. No restriction imposed by this Protective Order may be terminated, except by a written stipulation executed by counsel of record for all parties, or by an 27 28 16 Stipulated Protective Order Governing Production by Non-Party AT&T Mobility LLC Case Nos. 3:10-cv-01610-RS, 3:10-cv-03316-RS, 3:10-cv-05895-RS 1 order of this Court for good cause shown. The termination of this action shall not 2 terminate the obligations specified in this Protective Order. 3 Dated: August 18, 2011 FAZIO | MICHELETTI LLP 4 5 By 6 7 /s/ Jeffrey L. Fazio Jeffrey L. Fazio Interim Co-Lead Class Counsel 8 9 Dated: August 18, 2011 CHIMICLES & TIKELLIS LLP 10 By 11 12 /s/ Steven A. Schwartz Steven A. Schwartz Interim Co-Lead Class Counsel 13 14 Dated: August 18, 2011 MORRISON FОЕRSТER LLP 15 16 By 17 Attorneys for Defendant Apple, Inc. 18 19 /s/ Andrew D. Muhlbach Andrew D. Muhlbach Dated: August 18, 2011 CROWELL & MORING LLP 20 21 By 22 /s/ Kathleen Taylor Sooy Kathleen Taylor Sooy Attorneys for Non-Party AT&T Mobility LLC 23 24 25 26 27 28 17 Stipulated Protective Order Governing Production by Non-Party AT&T Mobility LLC Case Nos. 3:10-cv-01610-RS, 3:10-cv-03316-RS, 3:10-cv-05895-RS 1 ATTESTATION OF FILER 2 I, Kimberly A. Kralowec, hereby attest that concurrence in the filing of this 3 document has been obtained from each of the other signatories. See N.D. Cal. Gen. 4 Order No. 45, para. Х(В). 5 Dated: August 18, 2011 /s/ Kimberly A. Kralowec Kimberly A. Kralowec THE KRALOWEC LAW GROUP 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18 Stipulated Protective Order Governing Production by Non-Party AT&T Mobility LLC Case Nos. 3:10-cv-01610-RS, 3:10-cv-03316-RS, 3:10-cv-05895-RS 1 2 3 ORDER IT IS SO ORDERED. Dated: August ___, 2011 Hon. Richard Seeborg Judge of the District Court 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19 Stipulated Protective Order Governing Production by Non-Party AT&T Mobility LLC Case Nos. 3:10-cv-01610-RS, 3:10-cv-03316-RS, 3:10-cv-05895-RS 1 Appendix A 2 DECLARATION REGARDING COMPLIANCE WITH PROTECTIVE ORDER 3 4 5 6 7 I, _______________________________________________, declare as follows: 1. I have read the Stipulated Protective Order (“Protective Order”) filed in this litigation. 2. ____________________, an attorney with the firm of 8 ____________________, explained to me the meaning and effect of this undertaking and 9 of the Protective Order, and I agree to abide by and be bound by both. 10 3. I agree to treat all materials designated as “CONFIDENTIAL” or 11 “HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES ONLY” and all copies, notes or 12 other records containing or referring to such materials, and the substance or contents of 13 such materials in accordance with the terms of the Protective Order. 14 4. I agree to be subject to the jurisdiction of the United States District 15 Court for the Northern District of California, for purposes of enforcing the terms of this 16 Protective Order. 17 5. I shall not at any time, either during the pendency of these 18 proceedings or after conclusion of these proceedings, use or divulge any of the 19 Confidential Information or Highly Confidential—Attorneys’ Eyes Only Information 20 made available to me pursuant to the Order. 21 22 6. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. 23 Dated: 24 Place Signed: 25 Signed: 26 Printed Name: 27 28 20 Stipulated Protective Order Governing Production by Non-Party AT&T Mobility LLC Case Nos. 3:10-cv-01610-RS, 3:10-cv-03316-RS, 3:10-cv-05895-RS