The Authors Guild v. Google, Inc.

Filing 36

MOTION, to seal document, on behalf of Appellant Jim Bouton, Joseph Goulden, Betty Miles and The Authors Guild, FILED. Service date 03/18/2014 by CM/ECF. [1181027] [13-4829]

EXHIBIT A

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
x

THE MCGRAW-HILL COMPANIES. INC.,
PEARSON EDUCATION, INC., PENGUIN
GROUP (USA) INC.. SIMON & SCHUSTER,
INC., and JOHN WILEY & SONS, INC.,

:

05 Civ. 8881 (JES)
ECF Case

Plaintiffs,
Protective Order
v.
GOOGLE INC.,
Defendant.
x

THE AUTHORS GUILD. Associational Plaintiff, :
and HERBERT M1TGANG, BETTY MILES AND :
DANIEL HOFFMAN, Individually and on Behalf :
of All Others Similarly Situated,

OS Civ. 8136 (JES)
ECF Case

Plaintiffs,
:

Protective Order

V.

GOOGLE INC.,
Defendant.
x

PROTECTIVE ORDER
The Court, having considered the parties' request for a Protective Order, pursuant to
Rule 26(c) of the Federal Rules of Civil Procedure, hereby ORDERS AS FOLLOWS:

The terms defined in this Section 1 and parenthetically elsewhere shall,
throughout this Protective Order, have the meanings provided. Defined terms may be used in
the singular or plural.

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1.1

The "Publishers' Action" means the litigation captioned The McGraw-Hill

Companies, Inc. v. Google Inc., 05 Civ. 8881 (JES) (S.D.N.Y. Complaint filed Oct. 19,
2005).
1.2

"Publishers" means the plaintiffs in the Publishers' Actions.

1.3

The "Authors Guild Action" means the litigation captioned The Authors

Guild v. Google Inc., 05 Civ 8136 (S.D.N.Y. Complaint filed September 20, 2005).
1.4

The "Actions" means the Authors Guild Action and the Publishers'

1.5

"Authors" means the plaintiffs in the Authors Guild Action.

1.6

"Producing Party" means a party to the Actions, or persons other than a

Action.

party, including non-party witnesses, that produce Confidential Information or Highly
Confidential Information to the Receiving Party.
1.7

"Receiving Party" means the party receiving or requesting production of

Confidential Information or Highly Confidential InjOrmation from the Producing Party.
1.8

"Confidential Information" means information (1) which the Producing

Party believes in good faith to constitute confidential information of the Producing Party,
or confidential information of some third party which the Producing Party has in its
possession, whether or not such information is recorded or embodied in any physical
medium (i.e., a document, information contained in a document, equipment, information
stored or displayed in electronic, magnetic or other mediums, information revealed
during testimony. information revealed in interrogatory answers, or information revealed
in any other way); and (2) which is designated as Confidential Information by the
Producing Party in accordance with Sections six through eight of this Protective Order.

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1.9

"Highly Confidential Information'' means information (1) which the

Producing Party believes in good faith to constitute confidential information of the
Producing Party or confidential information of some third party which the Producing
Party has in its possession; (2) that is so competitively sensitive that producing the
information justifies imposing the requirement on the opposite party that only its counsel
may review such information and that its testifying and consulting experts are subject to
objection as specified herein, whether or not any such information is recorded or
embodied in any physical medium (i.e., whether it is a document, information contained
in a document, equipment, information stored or displayed in electronic, magnetic or
other medium, information revealed during the taking of testimony, information revealed
in interrogatory answers, or information revealed in any other way); and (3) which is
designated as Highly Confidential Information by the Producing Party in accordance with
Sections six through eight of this Protective Order.
1.10 "Litigation Documents" means all pleadings, motions, discovery
responses, affidavits and related papers produced or exchanged in the course of the
Actions, or any settlement negotiations related to the Actions, and all transcripts of
testimony given in depositions, in hearings, or at trial.
1.11

"Termination" means the dismissal of both the Publishers' Action and the

Author's Guild's Action (whether through settlement or otherwise), or the entry of final
judgment and expiration of all periods to appeal or seek judicial review of such judgment
or dismissal.
All Confidential Information produced in the Actions shall be used by the
Receiving Party solely in connection with the prosecution and defense of the Actions. The

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Receiving Party shall copy Confidential Information only to the extent reasonably necessary to
prosecute or defend Actions. The Receiving party shall not, directly or indirectly, in whole or in
part, reveal, disclose, or make available for inspection or copying any Confidential Information
to any individual or entity. except:
2.1

the Court and its personnel and any Jury impaneled in the Actions;

2.2

court reporters, videographcrs, and outside translators while present at a

deposition, hearing, or trial in the Actions;
2.3

the Parties' outside attorneys retained in connection with the Actions, and

the support staffs of those attorneys (including law clerks, legal assistants, secretaries,
clerks, and copying service personnel who provide copying and related litigation services
at the request of the outside attorneys) who have a need to know the Confidential
Information in connection with maintaining or defending the Actions;
2.4

the Parties' in-house attorneys (if any) or the support staffs of those

attorneys (including legal assistants, secretaries and clerks, and copying service personnel
who provide copying and related litigation services at the request of the attorneys) who
have a need to know the Confidential Information in connection with maintaining or
defending the Actions;
2.5

employees of the Parties or other individuals representing the Parties who

have a need to know the Confidential Information in connection with maintaining or
defending the Actions and who have executed this Agreement or an agreement in the
form of that attached hereto as Exhibit A before receiving Confidential Information;
2.6

subject to Section 11 of this Protective Order, any testifying or consulting

expert who (a) has executed an agreement in the form of that attached hereto as Exhibit A

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before receiving Confidential Information, and (b) is not employed or retained by a
competitor of the Producing Party on a book scanning project during the pendency of the
Actions and has no present intention to be employed or retained by a competitor of the
Producing Party on a book scanning project for a period of one year following
termination of the Actions. Provided, however, that any testifying or consulting expert
may use Confidential Information solely for purposes of the Actions and for no other
purposes;
2.7

deposition witnesses and other testifying witnesses who either (a) were the

author or a recipient of a document containing Confidential Information or (b) have
executed an agreement in the form of that attached hereto as Exhibit A before receiving
Confidential Information; and
2.8

any other person authorized by written agreement of the Producing Party

and the Receiving Party or by order of the Court to receive Confidential Information.
3.

All Highly Confidential Information produced in the Actions shall be used by the

Receiving Party solely in connection with the prosecution and defense of the Actions. The
Receiving Party shall copy Highly Confidential Information only to the extent reasonably
necessary to prosecute or defend Actions. The Receiving Party shall not, directly or indirectly,
in whole or in part, reveal, disclose, or make available for inspection or copying any Highly
Confidential Information to any individual or entity, except:
3.1

the Court and its personnel and any Jury impaneled in the Actions;

3.2

court reporters, videographers, and outside translators while present at a

deposition, hearing, or trial in the Actions;

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3.3

the Parties' outside attorneys retained in connection with the Actions, and

the support staffs of those attorneys (including law clerks, legal assistants, secretaries,
and clerks, as well as copying service personnel who provide copying and related
litigation services at the request of the outside attorneys and who have executed an
agreement in the form of that attached hereto as Exhibit A) who have a need to know the
Highly Confidential Information as a result of assisting in the litigation of the Actions;
3.4

the Parties' in-house attorneys (if any) or the support staffs of those

attorneys (including legal assistants, secretaries and clerks, and copying service personnel
who provide copying and related litigation services at the request of the attorneys and
who have executed an agreement in the form of that attached hereto as Exhibit A) who
have a need to know the Highly Confidential Information in connection with maintaining
or defending the Actions. Provided, however, that no Author Plaintiffs' in-house
attorney or support staff member of such attorney may receive Highly Confidential
Information produced by the Publisher Plaintiffs without the Author Plaintiffs first
obtaining prior approval either from the Publisher Plaintiffs or the Court, pursuant to the
procedures set forth in paragraph 22 below;
3.5

subject to Section 11 of this Protective Order, any testifying or consulting

expert who (a) has executed an agreement in the form of that attached hereto as Exhibit A
before receiving Highly Confidential Information, and (b) is not employed or retained by
a competitor of the Producing Party on a book scanning project during the pendency of
the Actions and has no present intention to be employed or retained by a competitor of
the Producing Party on a book scanning project for a period of one year following
termination of the Actions. Provided, however, that any testifying or consulting expert

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may use Highly Confidential Information solely for purposes of the Actions and for no
other purposes;
3.6

deposition witnesses and other testifying witnesses (a) who were the

author or a recipient of a document containing Highly Confidential Information; or (b)
who have executed an agreement in the form of that attached hereto as Exhibit A before
receiving Highly Confidential Information, if the Receiving Party first obtains prior
approval either from the Producing Party or the Court pursuant to the procedures set forth
in Paragraph 22 below;
3.7

any other person authorized by written agreement of the parties or by

order of the Court to receive Highly Confidential Information.
4.

No person, other than the individuals described in Sections 2 or 3, shall be

permitted to attend any deposition during disclosure of Confidential Information, unless the
parties agree or the Court orders otherwise.
5.

No person, other than the individuals described in Section 3, shall be permitted to

attend any deposition, hearing or trial during disclosure of Highly Confidential Information,
unless the parties agree or the Court orders otherwise.
6.

A Producing Party shall designate Confidential Information or

Highly

Confidential Information contained in a document by conspicuously marking the document as
"Confidential Information" or "Highly Confidential Information," as the case may be, on the first
page of the document and thereafter on each interior page containing or disclosing Confidential
Information or Highly Confidential InjOrmation.
7.

A Producing Party shall designate Confidential Information or Highly

Confidential Information contained or embodied in a thing by conspicuously marking, when

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practicable, the thing as --Confidential Information" or "Highly Confidential Information," as the
case may be, or otherwise by identifying the Confidential Information or Highly Confidential
Information in a separate writing such as a memo or letter.

8.

A Producing Party may designate Confidential Information or Highly

Confidential Information disclosed during a deposition or hearing by:

8.1

indicating on the record at the deposition or hearing the specific part of the

testimony (including the entire testimony given or to be given by a witness) and all or any
part of any document or thing marked for identification that is Confidential Information
or Highly Confidential Infirmation and subject to the provisions of this Protective Order;
or
8.2

notifying all Receiving Parties within the earlier of (a) twenty-one (21)

days from the time the Producing Party receives a deposition or hearing transcript, or (b)
thirty (30) days prior to the trial date, that the transcript contains Confidential Information
or Highly Confidential Information and specifically identifying those portions (including
a witness's entire testimony) that contain Confidential Information or Highly Confidential
Information.
8.3

In the event of a dcsignation pursuant to Section 8.2, nothing shall prevent

a Receiving Party from using the testimony of an expert or consultant who relied in his or
her analysis on Confidential Information or Highly Confidential Information provided
that the expert viewed the Confidential Information or Highly Confidential Information
prior to the Producing Party's designation pursuant to 8.2.
9.

A Receiving Party is not obligated to challenge the Producing Party's designation

of Confidential Information or Highly Confidential Information at the time such a designation is

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made, and any failure to do so will not waive that party's right to request. at any time, that the
Court determine whether the information satisfies the definitions of Confidential Information or
Highly Confidential Information set forth at Sections 1.8 and 1.9, respectively, or whether the

information satisfies the applicable rules with respect to protected confidential information.
Should a Receiving Party challenge a Producing Party's designation, the parties agree to attempt
to resolve the dispute in good faith. If the dispute cannot be resolved and the Receiving Party
seeks relief from the Court, the Producing Party will bear the burden of proving that the
designation satisfies both the substantive and procedural requirements set forth in this Protective
Order as well as the applicable rules with respect to protected confidential information.
10.

In the event a Producing Party inadvertently fails to designate Confidential

Information or Highly Confidential Information when it is first produced or disclosed. that party

may, at any time thereafter, designate the Confidential Information or Highly Confidential
Information by producing the information with the new designation, stamped with the same

Bates number as the information it is intended to replace. Upon receipt of the newly designated
information, the Receiving Party will destroy all copies of the original. The Receiving Party
shall not be in breach of this Protective Order for any disclosure made prior to receipt of such
notice which would otherwise have been authorized by this Order but for the subsequent
designation.
11.

Prior to providing Confidential Information or Highly Confidential Information of

any Producing Party to a testifying expert, the Receiving Party shall notify the Producing Party
as to the identity of that testifying expert and shall provide the Producing Party a copy of the
testifying expert's curriculum vitae, unless the expert has been previously disclosed by the
Receiving Party under this Section 11. The Producing Party shall serve the Receiving Party with

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written objections to the testifying expert within ten (10) business days after receiving the notice.
If no written objection is timely served, the Receiving Party may provide Confidential
Information or Highly Confidential Information to the testifying expert according to the terms of
this Protective Order. If the Producing Party timely serves its objections, the Receiving Party
shall not provide Confidential Information or Highly Confidential Information to the testifying
expert until all objections are resolved. The Producing Party and the Receiving Party shall work
together in good faith to resolve any timely served objections concerning the testifying expert. If
any such dispute cannot be resolved within ten (10) business days after the Producing Party
serves its objections, the Producing Party shall file a motion for a protective order to prohibit the
Receiving Party from providing Confidential Information or Highly Confidential Infiu•mation to
the testifying expert. If no motion for a protective order is timely served, the Receiving Party
may provide Confidential Information or Highly Confidential Information to the testifying expert
according to the terms of this Protective Order.
12.

Any party may move the Court to amend this Protective Order on five (5)

business days' notice to all parties to the Action and the Producing Party that produced the
information in question (or such shorter notice as the Court may require). In any proceedings on
such a motion, the prior existence of this Protective Order shall not affect the burden of
persuasion that would rest upon any proponent of a protective provision. The Court, on its own
motion, may amend this Protective Order.
13.

Nothing in this Protective Order shall bar or otherwise restrict any attorney from

rendering legal advice to his or her client with respect to the Actions and referring generally to
Confidential Information or Highly Confidential Information or relying upon the attorney's own
examination of Confidential Information or Highly Confidential Information.

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14.

If any Receiving Party is required by law to disclose some portion of the

Confidential Information or Highly Confidential Information other than as permitted by this
Protective Order:
14.1 the Receiving Party will inform the Producing Party who originally
disclosed such Confidential Information or Highly Confidential Information of the
requirement as soon as practicable after receiving notice of the requirement. The
Receiving Party will further inform the Producing Party which Confidential Information
or Highly Confidential Information it is required to disclose.
14.2 The Receiving Party shall inform the requiring entity of the Receiving
Party's obligations set forth in this Protective Order.
14.3 The Producing Party may seek a Protective Order with confidentiality
provisions identical to this Protective Order. The Receiving Party shall not oppose the
Producing Party's attempts to obtain the Protective Order in any fashion. including
assisting any third party in opposing the entry of such Protective Order.
14.3.1

If the Producing Party elects to seek a Protective Order under

the above section 14.3, it shall notify the Receiving Party within the earlier of (a)
twenty (20) days after the Receiving Party sends its notice or (b) two (2) business
days before the deadline for complying with the requirement but after the
Receiving Party sends its notice.
14.3.2

If the Producing Party elects not to seek a Protective Order, or

if the Receiving Party receives no notice under the above section 14.3.1 within the
time established in Section 14.3.1 of this Protective Order, the Receiving Party

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shall have the right to disclose the required Confidential Information or Highly
Confidential Information.
14.3.3

If the Producing Party is unable to obtain a Protective Order

satisfactory to the Producing Party after exhausting all applications for writs of
mandamus and all interlocutory appeals from the denial of such a Protective
Order, the Receiving Party shall have the right to disclose the required
Confidential It
15.

or Highly Confidential Information.

The restrictions of the Protective Order shall not apply to, and this Order shall not

be construed to prevent, any Receiving Party from making use of or disclosing information that:
15.1

was lawfully in its possession prior to receipt of such information from a

Producing Party, as shown by its written records dated prior to the Producing Party's
disclosure;
15.2 appears in any published material available to the Producing Party's trade
or business, available to the public, or otherwise becomes available within the public
domain, other than as a consequence of the Receiving Party's breach of any obligation
not to disclose the information; or
15.3

it lawfully obtains subsequent to the Producing Party's disclosure, without

obligation of confidence, from a source or sources other than the Producing Party;
regardless of whether the same has been designated as Confidential Information or Highly
Confidential Information.

16.

This Protective Order shall not be construed as a waiver by the parties of any

objection which might be raised as to the admissibility of any evidence. This Protective Order

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shall be without prejudice to the rights of any person to oppose production of any information on
any proper ground.
17.

All Litigation Documents filed with the Court and designated by either party as

containing Confidential Information or Highly Confidential Information or referring to any
previously designated Confidential Information or Highly Confidential Information shall be
marked as containing "Confidential Information" or "Highly Confidential Information." The
party filing any such Litigation Document shall move the Court to file the document under seal.
18.

Except as filed with the Court in accordance with this Order, all documents and

things designated as Confidential Information or Highly Confidential Information shall be
maintained at all times in the custody of individuals described in Sections 2 or 3, respectively.
Within 60 days after Termination of the Actions, the original and all copies of each document
and thing produced to a Receiving Party, or given to any other person pursuant to this Protective
Order, which contains Confidential Information or Highly Confidential Information shall be
destroyed. Notwithstanding the foregoing: (1) nothing in this Section shall require the
destruction of information that resides on server backup tapes and other similar archival records
that are generally inaccessible without engaging in affirmative steps to restore such documents as
long as such computer archives were made during the ordinary course of business; (2) attorney
work product, attorney client communications, and information derived from documents
designated by another party or nonparty as Confidential Information or Highly Confidential
Information may be retained by the Receiving Party (if authorized to view them) and counsel for
the Receiving Party (if authorized to view them); and (3) counsel for the Receiving Party may
retain one copy of any notes, memoranda, or other documents that contain excerpts of
Confidential Infiffmation or Highly Confidential Information. Testifying and consulting experts

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may not retain (a) documents designated by another party or nonparty as Confidential
Information or Highly Confidential Information, (b) attorney work product, attorney client
communications, and information derived from documents designated by another party or
nonparty as Confidential Information or Highly Confidential Information, or (c) notes,
memoranda, or other documents that contain excerpts of Confidential Information or Highly
Confidential Information designated by another party or nonparty, including without limitation
copies of their expert reports, if any. Upon completion of destruction, counsel for the Receiving
Party shall promptly certify the destruction in writing to the Producing Party.
19.

If a Producing Party through inadvertence produces or provides documents or

information that it believes is subject to a claim of attorney-client privilege or the work product
doctrine. the Producing Party shall give written notice to the Receiving Party that the documents
or information is subject to such a claim and request that the Documents or information be
returned. The Receiving Party immediately shall return the documents or information to the
Producing Party. Immediate return of the documents or information by the Receiving Party shall
not constitute an admission, waiver, or concession, or otherwise permit any inference, that the
returned documents or information are, in fact, properly subject to a claim of attorney-client
privilege or the work product doctrine. The Receiving Party may move the Court for an order
that such returned documents or information have been improperly designated as subject to the
attorney-client privilege or work product doctrine and should be produced for reasons other than
a waiver caused by the inadvertent production. With respect to any document, the procedures set
forth in this paragraph shall apply only to the first instance in which that document is
inadvertently produced.

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20.

Insofar as its provisions restrict the use or disclosure of any Confidential

10)1-motion or Highly Confidential Information, this Protective Order shall remain binding after
Termination of the Actions, and the Court shall retain jurisdiction of all persons and parties
bound by this Protective Order.
21.

Nothing in this Order shall affect the admissibility into evidence of Confidential

Information or Highly Confidential Information.
22.

Before a Receiving Party uses Highly Confidential Information in a manner not

authorized by Paragraph 3 above, the Receiving Party shall provide written notice to the
Producing Party, specifically identifying the Highly Confidential Information the Receiving
Party intends to use. The Producing Party will have five (5) business days from the day it
receives such notice to object in writing to the Receiving Party's intended use and to include in
such written objection the basis for such objection. If no objection is raised, the Receiving Party
may use the documents identified in its written notice. Five (5) business days after receiving
written objections to the Receiving Party's intended use of Highly Confidential Information, the
Receiving Party may move this Court for permission to use the Highly Confidential Information
in the Publishers' Action or the Author's Guild's Action, as the case may be. The Court will
permit a telephonic hearing at its earliest convenience in order to resolve such a dispute as
quickly and efficiently as possible. Such a telephonic hearing may be requested without any
briefing, however letter briefing is permitted if one, both or all parties to the dispute wish to file a
letter brief. If so, all briefs must be submitted within five (5) business days of written notice by
the initiating party of its request for a telephonic hearing.

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SO ORDERED this -day of

, 2006.

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