Gallion v. Apple, Inc

Filing 59

STIPULATED PROTECTIVE ORDER. Signed by Judge Richard Seeborg on 8/19/11. (cl, COURT STAFF) (Filed on 8/19/2011)

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