Chao Tai Electron Co Ltd v. Ledup Enterprises Inc et al

Filing 56

STIPULATION AND ORDER REGARDING THE EXCHANGE OF CONFIDENTIAL MATERIALS by Judge Manuel L. Real re Stipulation for Protective Order 54 (pj)

1 Sean A. O’Brien, Bar No. 133154
[e-mail]
2 PAYNE & FEARS LLP
4 Park Plaza, Suite 1100
3 Irvine, California 92614
Telephone: [phone]
4 Facsimile: [phone]

ATTORNEYS AT LAW
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PAYNE & FEARS LLP

5 J. Mark Smith (Admitted Pro Hac Vice)
[e-mail]
6 PENDLETON WILSON HENNESSEY & CROW P.C.
1875 Lawrence St., Tenth Fl.
7 Denver, Colorado 80202
Telephone: [phone]
8 Facsimile: [phone]
9 Attorneys for DEFENDANT
LEDUP ENTERPRISE, INC.
10
UNITED STATES DISTRICT COURT
11
CENTRAL DISTRICT OF CALIFORNIA
12
13

CHAO TAI ELECTRONICS CO.,
14 LTD, a Taiwanese corporation,
Plaintiff,

15
16

v.

17 LEDUP ENTERPRISE, INC., a
California corporation; LOWE’S HIW,
18 INC., a Washington Corporation; THE
HOME DEPOT U.S.A., INC., a
19 Delaware corporation; MARTHA
STEWART LIVING OMNIMEDIA,
20 INC., a Delaware corporation; and
DOES 1 through 10, inclusive,
21
Defendant.
22
LEDUP ENTERPRISE, INC., a
23 California corporation,

STIPULATION AND ORDER
REGARDING THE EXCHANGE OF
CONFIDENTIAL MATERIALS

JURY TRIAL DEMANDED

Counterclaimant,

24
25

Case No. CV-12-10137-R-MRW

v.

26 CHAO TAI ELECTRONICS CO.,
LTD, a Taiwanese corporation,
27
Counterdefendant
28
STIPULATION AND [PROPOSED] ORDER
REGARDING THE EXCHANGE OF CONFIDENTIAL MATERIAL

1

WHEREAS, the Parties to the above-captioned action (“this Action”) or third

2 parties may, in the course of the litigation of this Action be asked or required to
3 have possession of each other’s trade secrets and other confidential or sensitive
4 commercial, research, technical, manufacturing, marketing, or business information
5 or other confidential information within the meaning of Rule 26(c) of the Federal
6 Rules of Civil Procedure; and
7

WHEREAS, good cause exists for the issuance of this Order Regarding the

8 Exchange of Confidential Material (“Protective Order”) and such issuance would be
9 in the furtherance of justice because, among other things: (i) the issuance of this

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10 Protective Order will allow for efficiency in the discovery process; (ii) discovery
11 obtained in the Action may involve disclosure of nonpublic, confidential,
12 proprietary, commercially sensitive and/or trade secret or otherwise privileged
13 information, including but not limited to the structure, design and operation of
14 Parties’ products, Parties’ relations with their authorized dealers, Parties’ business
15 plans, models, marketing analyses, sales and financial statements; (iii) disclosure of
16 this information to persons who are not entitled to such information carries the
17 danger of compromising the competitive business interests of the Parties, who in
18 turn, compete directly with one another in the same line(s) of business; and (iv)
19 discovery obtained in the Action also may involve disclosure of documents
20 containing private information, including financial information and social security
21 numbers, of individual persons, including both parties and non-parties, the
22 disclosure of which may invade their legitimate personal privacy interests; and
23

WHEREAS, the parties have, through counsel, stipulated to entry of this

24 Protective Order pursuant to Federal Rule of Civil Procedure 26(c) to prevent
25 unnecessary disclosure or dissemination of such confidential information; and
26

WHEREAS, the Court having considered this matter upon a noticed Motion

27 for Protective Order pursuant Rule 26(c) of the Federal Rules of Civil Procedure,
28

-2STIPULATION AND [PROPOSED] ORDER
REGARDING THE EXCHANGE OF CONFIDENTIAL MATERIAL

1 and having considered the papers submitted by the parties in support thereof and
2 having given interested parties a reasonable opportunity to object;
3

NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED by

4 and among the parties, by and through their respective attorneys of record in this
5 Action, that the terms and conditions of this Protective Order shall govern (a) initial
6 and supplemental disclosures, (b) the production, inspection, and handling of
7 documents, materials, and things, (c) answers to interrogatories, (d) responses to
8 requests for admission, (e) depositions, (f) pleadings, declarations or affidavits, and
9 exhibits, and (g) other information exchanged by the parties, or received from third

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10 parties in this Action.
11

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED as follows:

12

1.

PURPOSES AND LIMITATIONS

13

(a)

This Order shall govern the production, use, and disclosure of

14 confidential documents and information produced, used, or disclosed in connection
15 with this Action, and designated in accordance with this Protective Order.
16

(b)

Disclosure of Protected Material (as defined below) is prohibited,

17 except as expressly provided in this Protective Order.
18

(c)

The Parties (as defined below) acknowledge that designations under

19 this Protective Order shall be made with care and with the good faith belief that the
20 designated material satisfies the criteria set forth below.

If a Producing Party

21 discovers that designated material does not qualify for the level of protection
22 initially asserted, it must promptly notify any Receiving Party (defined below) that it
23 is withdrawing or changing the designation.
24

(d)

A Party may designate information or documents produced, used or

25 disclosed as “CONFIDENTIAL” and subject to the protections and requirements of
26 this Protective Order, if so designated in writing to the other Parties, or orally, if
27 recorded as part of a deposition or court proceeding, pursuant to the terms of this
28

-3STIPULATION AND [PROPOSED] ORDER
REGARDING THE EXCHANGE OF CONFIDENTIAL MATERIAL

1 Protective Order.
2

(e)

The Parties acknowledge that this Protective Order does not confer

3 blanket protection on all disclosures or responses to discovery and that the
4 protection it affords from public disclosure and use extends only to the limited
5 information or items that are entitled to confidential treatment under the applicable
6 legal principals.
7

(f)

The Parties further acknowledge, as set forth in Section 11 below, that

8 this Protective Order does not entitle them to file confidential information under
9 seal, and the standards set forth in the Local Rules will be applied when a party

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10 seeks permission from the court to file material under seal.
11

2.

DEFINITIONS

12

(a)

Challenging Party means a Party that challenges the designation of

13 information or items under this Order.
14

(b)

Designating Party means a Party, Non-Party, or Third Party that

15 designates information or items that it produces in disclosures or in responses to
16 discovery as “CONFIDENTIAL.”
17

(c)

Discovery Material means all items or information, including from a

18 third party, regardless of the medium or manner in which it is generated, stored, or
19 maintained (including, among other things, testimony, transcripts, or tangible
20 things) that are produced or generated in connection with discovery or Federal Rule
21 of Civil Procedure 26(a) in this Action.
22

(d)

In-House Counsel means an attorney who is licensed in any state of

23 the United States and who is an employee of a Party.
24

(e)

Non-Party or Third Party means any natural person, partnership,

25 corporation, association, or other legal entity not named as a Party to this Action. A
26 third party producing information or material voluntarily or pursuant to a subpoena
27 or a court order may designate such material or information in the same manner and
28

-4STIPULATION AND [PROPOSED] ORDER
REGARDING THE EXCHANGE OF CONFIDENTIAL MATERIAL

1 shall receive the same level or protection under this Protective Order as any Party to
2 this Action. A third party’s use of this Protective Order to protect its Protected
3 Material does not entitle that third party to gain access to Protected Material
4 produced by any Party or other third party in this Action.
5

(f)

Outside Counsel means attorneys licensed in any state of the United

6 States who are not employees of a Party to this action but are retained to represent or
7 advise a party to this action and have appeared in this action on behalf of that party
8 or are affiliated, as an attorney licensed in any state of the United States, with a law
9 firm which has appeared on behalf of that party.

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10

(g)

Party means any party to this Action, including its officers, directors,

11 employees, consultants, retained experts, and Outside Counsel and their support
12 staff.
13

(h)

“Patent-in-Suit” means any patent asserted in this Action, including

14 U.S. Patent No. 7,301,287, and any U.S. patents, reissues, reexaminations, post15 grant reviews, or patent applications (including provisionals, continuations,
16 continuations-in-part, divisionals, or international counterparts) providing priority
17 for or claiming priority (in whole or in part) to or through U.S. Patent No. 7,301,287
18 or any other patent asserted in this Action.
19

(i)

Producing Party means any Party that discloses or produces

20 Discovery Material in this Action.
21

(j)

Protected Material means any Discovery Material that is designated

22 as “CONFIDENTIAL” as provided in this Protective Order. Protected Material
23 shall not include: (1) materials that have been published to the general public or are
24 otherwise in the public domain; (2) information that after disclosure to a Receiving
25 Party becomes part of the public domain as a result of publication not involving a
26 violation of this Protective Order or any violation of law; (3) information that a
27 Receiving Party can show was received by it, whether before or after the disclosure,
28

-5STIPULATION AND [PROPOSED] ORDER
REGARDING THE EXCHANGE OF CONFIDENTIAL MATERIAL

1 from a source that obtained the information lawfully and under no obligation of
2 confidentiality; (4) information that a Receiving Party can show was independently
3 developed by it after the time of disclosure by personnel who have not had access to
4 the information designated by a Producing Party under this Protective Order; or (5)
5 documents or testimony for which confidentiality was waived by the Producing
6 Party’s purposeful use in open court or any non-confidential filing in connection
7 with the appeal of the judgment rendered in this Action.
8

(k)

Receiving Party means any Party that receives Discovery Material

9 from a Producing Party.

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10

3.

SCOPE

11

(a)

The protection conferred by this Protective Order covers not only

12 Protected Material (as defined above), but also (1) any information copied or
13 extracted from Protected Material; (2) all copies, excerpts, summaries, notes, or
14 compilations of Protected Material; and (3) any testimony, conversations, or
15 presentations by Parties or their Counsel in court or other settings that might reveal
16 Protected Material. However, the scope of this Protective Order is specifically
17 limited to any of the above-described information that is produced or adduced (e.g.,
18 deposition testimony) during discovery in this litigation.
19

(b)

Nothing in this Protective Order restricts a Producing Party’s disclosure

20 or use of its own Protected Material for any purpose, and nothing in this Protective
21 Order precludes any Party from disclosing Protected Material to the individual who
22 prepared or previously received the Protected Material. Nothing in this Protective
23 Order shall be construed to prejudice any Party’s right to use any Protected Material
24 in court and in any court filing with the consent of the Producing Party or by order
25 of the Court, and in accordance with the terms herein.
26

(c)

This Protective Order is without prejudice to the right of any Party to

27 seek additional protection for any Discovery Material or to modify this Protective
28

-6STIPULATION AND [PROPOSED] ORDER
REGARDING THE EXCHANGE OF CONFIDENTIAL MATERIAL

1 Order in any way, including, without limitation, seeking an order that certain matter
2 need not be produced at all.
3

(d)

Any use of Protected Material at trial shall be governed by a separate

4 agreement or order.
5

4.

6

Even after final disposition of this litigation, the confidentiality obligations

DURATION

7 imposed by this Order shall remain in effect until a Designating Party agrees
8 otherwise in writing or a court order otherwise directs. Final disposition shall be
9 deemed to be the later of (1) dismissal of all claims and defenses in this action, with

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10 or without prejudice, and (2) final judgment herein after the completion and
11 exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,
12 including the time limits for filing any motions or applications for extension of time
13 pursuant to applicable law.
14

5.

ACCESS TO AND USE OF PROTECTED MATERIAL

15

(a)

Basic Principles. All Protected Material may be used solely for this

16 litigation and the preparation for and trial in this Action and any related appellate
17 proceeding, and not for any other purpose whatsoever, including without limitation
18 any other litigation, patent prosecution or acquisition, or any business or competitive
19 purpose or function. Protected Material may not be distributed, disclosed. or made
20 available to anyone except as expressly provided in this Protective Order.
21

(i)

Protected Material, including any notes or other documents

22

discussing, describing or otherwise containing or concerning Protected

23

Material, will only be reviewed in the United States;

24

(ii)

Protected Material, including any notes or other documents

25

discussing, describing or otherwise containing or concerning Protected

26

Material, will not be shipped or transported outside of the United States; and

27
28

(iii)

No remote access to any Protected Material, including any notes
-7-

STIPULATION AND [PROPOSED] ORDER
REGARDING THE EXCHANGE OF CONFIDENTIAL MATERIAL

1

or other documents discussing, describing or otherwise containing or

2

concerning Protected Material, will be provided or permitted to a person at

3

the time while physically located outside of the United States.

4

(b)

Limitations. Nothing in this Protective Order restricts in any way a

5 Producing Party’s use or disclosure of its own Protected Material. Nothing in this
6 Protective Order restricts in any way a Receiving Party’s use or disclosure of
7 Discovery Material: (1) that is or has become publicly known through no fault of the
8 Receiving Party; (2) that is lawfully acquired by or known to the Receiving Party
9 independent of the Producing Party; (3) that the Producing Party previously

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10 produced, disclosed, or provided to the Receiving Party or a non-Party without any
11 obligation of confidentiality and not inadvertently or by mistake; (4) with the
12 consent of the Producing Party; or (5) pursuant to order or the Court.
13

6.

DESIGNATING PROTECTED MATERIAL

14

(a)

Exercise of Restraint in Designating Material for Protection. Each

15 Party or Non-Party that designates information or items for protection under this
16 Protective Order must take care to limit any such designation to specific material
17 that qualifies under the appropriate standards. To the extent it is practical to do so,
18 the Designating Party must designate for protection only those parts of material,
19 documents, items, or oral or written communications that qualify so that other
20 portions of the material, documents, items, or communications for which protection
21 is not warranted are not swept unjustifiably within the ambit of this Protective
22 Order.

Mass, indiscriminate, or routinized designations are prohibited.

23 Designations that are shown to be clearly unjustified or that have been made for an
24 improper purpose (e.g., to unnecessarily encumber or retard the case development
25 process or to impose unnecessary expenses and burdens on other parties) expose the
26 Designating Party to sanctions. If it comes to a Designating Party’s attention that
27 information or items that it designated for protection do not qualify for protection at
28

-8STIPULATION AND [PROPOSED] ORDER
REGARDING THE EXCHANGE OF CONFIDENTIAL MATERIAL

1 all or do not qualify for the level of protection initially asserted, that Designating
2 Party must promptly notify all other parties that it is withdrawing the mistaken
3 designation.
4

(b)

Available Designations.

Any Producing Party may designate

5 Discovery Material with the designation as “CONFIDENTIAL,” provided that it
6 meets the requirements for such designation as provided for herein.
7

(c)

Written Discovery and Documents and Tangible Things. Written

8 discovery, documents, and tangible things that meet the requirements for the
9 confidentiality designations listed in Paragraphs 7 and 8 below may be so designated

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10 by placing the appropriate designation on the written material prior to production or
11 disclosure. Information or material produced digitally, e.g., on a magnetic or optical
12 medium or by network communication, is to be designated as Protected Material by
13 marking the medium, container, or communication through a naming convention for
14 the electronically stored information (“ESI”), or by other means that indicate the
15 confidential nature of the material. In addition, with respect to digital image files,
16 such as TIFF files, the Producing Party shall use its best efforts to mark each
17 viewable page or image with the appropriate designation. Native documents and
18 databases will be marked by the Producing Party using a naming convention that
19 conveys its confidentiality status, or some other appropriate means to communicate
20 the confidential nature of the ESI that is agreed upon by the parties.

If any

21 Receiving Party prints or otherwise copies digitally produced Protected Material that
22 the Producing Party did not mark pursuant to the preceding sentence, the Receiving
23 Party shall mark such copies with the designation corresponding to the medium,
24 container, or communication. If original documents are provided for inspection, the
25 original documents shall be presumed to be “CONFIDENTIAL” during the
26 inspection and re-designated, as appropriate, during the copying process.
27
28

(d)

Depositions and Testimony. Parties or testifying persons or entities
-9-

STIPULATION AND [PROPOSED] ORDER
REGARDING THE EXCHANGE OF CONFIDENTIAL MATERIAL

1 may designate depositions and other testimony with the appropriate designation
2 under this Protective Order by indicating on the record at the time the testimony is
3 given or by sending written notice to the court reporter, counsel for the parties, and
4 any other person known to be in possession of the transcript that the testimony is so
5 designated within fifteen (15) calendar days of receipt of the official transcript of the
6 testimony. Transcripts (including exhibits) containing Protected Material shall have
7 an obvious legend on the title page that the transcript contains Protected Material,
8 and the title page shall be followed by a list of all pages (including lines numbers
9 and exhibit numbers as appropriate) that have been designated as Protected Material

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10 and the level of protection being asserted by the Designating Party. All information
11 disclosed during a deposition shall be deemed “CONFIDENTIAL” until those
12 fifteen (15) calendar days have passed. Any designated Discovery Material used in
13 the taking of a deposition shall remain subject to the provisions of this Order, along
14 with the transcript pages of the deposition testimony dealing with such Discovery
15 Material. In such cases, the court reporter shall be informed of this Protective Order
16 and be required to act consistently with this Protective Order. If the deposition is
17 videotaped, the video technician shall mark the original and all copies of the
18 videotape to indicate that the contents of the videotape are subject to this Protective
19 Order, substantially along the lines of “This videotape contains confidential
20 testimony used in this case. Its contents may not be viewed, displayed, or revealed
21 except by order of the Court or pursuant to written stipulation of the
22 Parties.”··Counsel for any Producing Party shall have the right to exclude from oral
23 depositions, other than the deponent, deponent’s counsel, the reporter, and
24 videographer (if any), any person who is not authorized by this Order to receive
25 Protected Material based on the designation of such Protected Material. Such right
26 of exclusion shall be applicable only during periods of examination or testimony
27 regarding such Protected Material. Parties shall give the other parties notice if they
28

-10STIPULATION AND [PROPOSED] ORDER
REGARDING THE EXCHANGE OF CONFIDENTIAL MATERIAL

1 reasonably expect a deposition to include Protected Material so that the other parties
2 can ensure that only authorized individuals who have signed the “Acknowledgment
3 and Agreement to Be Bound” (Exhibit A) are present at those depositions. The use
4 of a document as an exhibit at a deposition shall not in any way affect its
5 designation as “CONFIDENTIAL.”
6

(e)

Inadvertent Failures to Designate. If timely corrected, an inadvertent

7 failure to designate qualified information or items does not, standing alone, waive
8 the Designating Party’s right to secure protection under this Order for such material.
9 Upon timely correction of a designation, the Receiving Party must make reasonable

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10 efforts to assure that the material is treated in accordance with the provisions of this
11 Protective Order.
12

7.

DISCOVERY MATERIAL DESIGNATED AS
“CONFIDENTIAL”

(a)

A

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Producing

Party

may

designate

Discovery

Material

as

“CONFIDENTIAL” if it contains or reflects confidential, proprietary, or
commercially sensitive information that is not generally available to or accessible by
the general public.
(b)

Discovery Material designated as “CONFIDENTIAL” may be

disclosed only to the following persons:
(i)

The Receiving Party’s outside counsel and litigation counsel of

record in this Action, and the supporting personnel employed in or by such
counsel, including staff, paralegals, advisors, commercial copying vendors,
data processing vendors, e-discovery vendors, and/or database services
providers;
(ii)

Unless otherwise agreed by the Producing Party and the

Receiving Party, in addition to the persons granted access under section
7(b)(i) above, one (1) designated In-House Counsel for each Receiving Party
-11STIPULATION AND [PROPOSED] ORDER
REGARDING THE EXCHANGE OF CONFIDENTIAL MATERIAL

access to information marked “CONFIDENTIAL,” provided that: (a) such

3

person is not engaged in competitive decision-making for the Receiving

4

Party, including pricing, negotiation, and contracting, (b) such person has

5

signed the acknowledgement form annexed hereto as Exhibit A agreeing to be

6

bound by the terms of this Protective Order, (c) the Receiving Party has

7

provided a copy of the signed Exhibit A acknowledgement form to the

8

Producing Party at least two (2) business days prior to disclosing any

9

“CONFIDENTIAL” information to such identified In-House Counsel, and (d)

10
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to whom it is necessary to disclose the information to this litigation may have

2

PAYNE & FEARS LLP

1

no unresolved objections to such disclosure exist after the notice above has

11

been provided to the Producing Party;

12

(iii)

Any testifying expert or non-testifying consultant who is retained

13

by the Receiving Party to assist in this Action, provided that disclosure is only

14

to the extent necessary to perform such work, and provided that: (a) such

15

person has signed the acknowledgement form annexed hereto as Exhibit A

16

agreeing to be bound by the terms of this Protective Order, and (b) no

17

unresolved objections to such disclosure exist after proper notice has been

18

given to all parties as set forth in Paragraph 8(b) below;

19
20

(iv)

Court reporters, stenographers, and videographers retained to

record testimony taken in this Action;

21

(v)

The Court, jury, and court personnel;

22

(vi)

Graphics, translation, design, or trial consulting services

23
24
25
26
27
28

(including mock jurors) retained by a Party;
(vii) Any other person with the prior written consent of the Producing
Party; and
(viii) Any mediator or settlement officer who is assigned to hear this
matter, and his or her staff.
-12STIPULATION AND [PROPOSED] ORDER
REGARDING THE EXCHANGE OF CONFIDENTIAL MATERIAL

1

(c)

Any “CONFIDENTIAL” materials obtained by any Party from any

2 Producing Party pursuant to discovery in this Action may only be used for purposes
3 of preparation and litigation of this case, and for no other purpose.
4

8.

INDEPENDENT EXPERTS AND CONSULTANTS

5

(a)

Experts or consultants receiving Protected Material may not be a

6 current officer, director, or employee of a Party or of a competitor of the Producing
7 Party, and may not anticipate at the time of retention or during engagement for this
8 litigation becoming an officer, director, or employee of a Party or of a competitor of
9 the Producing Party.

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10

(b)

Before disclosing any Protected Material to a testifying expert or non-

11 testifying consultant, the Party seeking to disclose such information shall provide
12 the Producing Party or Parties with written notice that includes: (i) the person’s
13 name; (ii) the person’s present employer and title; (iii) the person’s up-to-date
14 curriculum vitae; (iv) a list of the cases in which the person has testified at
15 deposition or trial and all companies with which the individual has consulted or by
16 which the individual has been employed for the past five (5) years; and (v) any
17 previous or current relationship (personal or professional) with any of the Parties.
18

(c)

After the Party seeking to disclose such information to the proposed

19 testifying expert or non-testifying consultant has provided written notice to the
20 Producing Party or Parties, the Party seeking to disclose such information to the
21 proposed testifying expert or non-testifying consultant shall wait to disclose the
22 Protected Material until five (5) calendar days after the written notice has been
23 provided.
24

(d)

Before receiving Protected Material under this Order, the proposed

25 testifying expert or non-testifying consultant shall execute a copy of the
26 acknowledgement form annexed hereto as Exhibit A.
27
28

-13STIPULATION AND [PROPOSED] ORDER
REGARDING THE EXCHANGE OF CONFIDENTIAL MATERIAL

1

9.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

2

(a)

Timing of Challenges. Any Party may challenge a designation of

3 confidentiality at any time. Unless a prompt challenge to a Designating Party’s
4 confidentiality designation is necessary to avoid foreseeable, substantial unfairness,
5 unnecessary economic burdens, or a significant disruption or delay of the litigation,
6 a Party does not waive its right to challenge a confidentiality designation by electing
7 not to mount a challenge promptly after the original designation is disclosed.
8

(b)

Meet and Confer.

Any challenge to a designation of Discovery

9 Material under this Protective Order must be in writing, served on outside counsel

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10 for the Producing Party, and specifically identify the documents or information that
11 the Receiving Party contends should be differently designated and the grounds for
12 the objection. Thereafter, further protection or such material shall be resolved in
13 accordance with the following procedures:
14

(i)

The objecting Party shall bear the burden of conferring in person,

15

in writing, or by telephone with the Producing Party claiming protection (as

16

well as any other interested Party) in a good faith effort to resolve the dispute.

17

The Designating Party shall provide its rationale for maintaining the disputed

18

designation;

19

(ii)

Failing agreement, the objecting Party may move the Court for a

20

ruling that the Discovery Material in question is improperly designated. The

21

Parties’ agreement to this Order shall not preclude or prejudice any Party

22

from arguing for or against any designation, establish any presumption that a

23

particular designation is valid. or alter the burden of proof that would

24

otherwise apply in a dispute over discovery or disclosure of information; and

25

(iii)

Notwithstanding any challenge to a designation, the Discovery

26

Material in question shall continue to be treated as designated under this

27

Order until one of the following occurs: (a) the Party who designated the

28

-14STIPULATION AND [PROPOSED] ORDER
REGARDING THE EXCHANGE OF CONFIDENTIAL MATERIAL

1

Discovery Material in question withdraws the contested designation in

2

writing; or (b) the Court rules that the Discovery Material in question is not

3

entitled to the designation.

4

10.

5

If at any time Protected Material is subpoenaed by any court, arbitral,

SUBPOENAS OR COURT ORDERS

6 administrative, or legislative body, the person to whom the subpoena or other
7 request is directed shall immediately give written notice thereof to the Producing
8 Party and its counsel and shall provide each such Party with an opportunity to move
9 for a protective order regarding the production of confidential materials before any

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10 disclosure thereof by the recipient of the subpoena or court order.
11

11.

INADVERTENT DISCLOSURE OF PRIVILEGED MATERIAL

12

(a)

Nothing in this Protective Order shall require production of information

13 that a party contends is protected from disclosure by the attorney-client privilege,
14 the work product immunity or other lawful privilege, doctrine, right, or immunity.
15 If information subject to a claim of attorney-client privilege, work-product
16 immunity, or other privilege, doctrine, right, or immunity is nevertheless
17 inadvertently or unintentionally produced, such production shall in no way prejudice
18 or otherwise constitute a waiver or estoppel as to any such privilege, doctrine, right,
19 or immunity.
20

(b)

Pursuant to Rule 502 of the Federal Rules of Evidence and Rule

21 26(b)(5)(B) of the Federal Rules of Civil Procedure, the inadvertent disclosure of
22 protected communications or information (“Privileged Material”) shall not
23 constitute a waiver of any privilege or other protection (including work product) for
24 the Privileged Material or the subject matter of the Privileged Material if the
25 Producing Party took reasonable steps to prevent disclosure and also took
26 reasonable steps to rectify the error in the event of an inadvertent disclosure. The
27 Producing Party will be deemed to have taken reasonable steps to prevent Privileged
28

-15STIPULATION AND [PROPOSED] ORDER
REGARDING THE EXCHANGE OF CONFIDENTIAL MATERIAL

1 Material from inadvertent disclosure if the Producing Party utilized attorney review,
2 keyword search term screening, and/or linguistic tools in screening for privilege,
3 work product or other protection.
4

(c)

In the event of the inadvertent disclosure of Privileged Material, the

5 Producing Party shall be deemed to have taken reasonable steps to rectify the error
6 of the disclosure if, within ten (10) calendar days from the date that the inadvertent
7 disclosure has been realized, the Producing Party notifies the Receiving Party of the
8 inadvertent disclosure and instructs the Receiving Patty to destroy or return
9 promptly all copies of the inadvertently produced Privileged Material (including any

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10 and all work product containing such communications or information).
11

(d)

Upon receiving such a request from the Producing Party, the Receiving

12 Party shall promptly return or confirm destruction of all copies of such inadvertently
13 produced Privileged Material (including any and all work product containing such
14 communications or information), and shall make no further use of such Privileged
15 Material (or work product containing such Privileged Material). Nothing herein
16 shall prevent the Receiving Party from challenging the propriety of the attorney17 client, work product, or other designation of protection. The protections against
18 waiver afforded by this Protective Order shall be applicable to the fullest extent
19 allowed by Rule 502 of the Federal Rules of Evidence against both Parties and non20 parties to this action and in other proceedings in Federal and State courts.
21

(e)

Notwithstanding this provision, litigation counsel of record are not

22 required to delete information that may reside on their respective firm’s electronic
23 back-up systems or a vendor(s)’ systems that are over-written in the normal course
24 of business.
25

12.

INADVERTENT FAILURE TO DESIGNATE

26

(a)

A Producing Party’s inadvertent failure to designate Discovery

27 Material as Protected Material under this Protective Order shall not waive its rights
28

-16STIPULATION AND [PROPOSED] ORDER
REGARDING THE EXCHANGE OF CONFIDENTIAL MATERIAL

1 to subsequently make an appropriate designation, provided that the Producing Party
2 notifies the Receiving Party of the correct designation within ten (10) days of
3 learning of its inadvertent failure to so designate.
4

(b)

A Receiving Party’s use of such Discovery Material before receiving

5 notice of the inadvertent failure to designate shall not constitute a violation of this
6 Order. Upon receiving such notice, the Receiving Party shall treat such Discovery
7 Material according to its designation under this Order. In the event the document
8 has been distributed in a manner inconsistent with this designation, a Receiving
9 Party will take the steps necessary to conform distribution to the designation, i.e.,

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10 returning all copies in its possession of the “CONFIDENTIAL” or notes or extracts
11 thereof, to the persons authorized to possess such documents.

In the event

12 distribution has occurred to a person not under the control of a Receiving Party, a
13 request for return of the document, and for an undertaking of confidentiality, shall
14 be made in writing. In the event the request is not promptly agreed to in writing, or
15 in the event there is no response, or in the event that the Party deems the making of
16 the request to be a futile act, the Party shall promptly notify the Producing Party of
17 the distribution and all pertinent facts concerning it, including the identity of the
18 person or entity not under the control of the Receiving Party.
19

13.

INADVERTENT DISCLOSURE NOT AUTHORIZED BY
ORDER

(a)

If Discovery Material protected by this Protective Order is disclosed to

20
21

22 any person not authorized to receive such disclosure under this Protective Order, the
23 Party responsible for such disclosure shall immediately notify counsel for the
24 Producing Party of all known relevant information concerning the nature and
25 circumstances of the unauthorized disclosure. The responsible disclosing Party shall
26 promptly take all reasonable measures to retrieve the improperly disclosed
27
28

-17STIPULATION AND [PROPOSED] ORDER
REGARDING THE EXCHANGE OF CONFIDENTIAL MATERIAL

1 Discovery Material and to ensure that no further unauthorized disclosure or use is
2 made or the material.
3

(b)

Unauthorized or inadvertent disclosure does not change the status of

4 Discovery Material or waive the Producing Party’s right to claim that the disclosed
5 document or information still constitutes Protected Material.
6

14.

FINAL DISPOSITION

7

(a)

Within sixty (60) days after the final disposition of this Action,

8 including all appeals therefrom, each Party and all third parties who obtained access
9 to confidential information under this Protective Order shall either return all

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10 Discovery Material of a Producing Party to the respective outside counsel of the
11 Producing Party or destroy it at the option of the Producing Party.
12

(b)

Within sixty (60) days after the final disposition of this litigation

13 (including after any appeals), all Parties and third parties that have received any
14 such Discovery Material shall certify in writing that all such materials have been
15 returned to the respective outside counsel of the Producing Party or destroyed.
16

(c)

Notwithstanding the provisions for the return and destruction of

17 Discovery Material, litigation counsel of record in this Action may retain pleadings,
18 correspondence, and attorney and consultant work product (but not production)
19 subject to the “CONFIDENTIAL” designation for archival purposes. Litigation
20 counsel of record are not required to delete information that may reside on their
21 respective firms electronic back-up systems or vendor systems that are over-written
22 in the normal course of business.
23

15.

24

In the event that counsel for any party desires to file with the Court any

FILING PROTECTED MATERIAL

25 document which includes any Protected Material, the such document shall be filed
26 separately in a sealed envelope and include a written application and proposed order
27 in conformity with Central District of California Local Rule 79-5.1. If the Party
28

-18STIPULATION AND [PROPOSED] ORDER
REGARDING THE EXCHANGE OF CONFIDENTIAL MATERIAL

1 making the filing is a Receiving Party, then the written application shall state that
2 the documents sought to be sealed are subject to the Court’s Protective Order and
3 that pursuant to that Order, the Designating Party shall have seven days to file with
4 the Court supporting documents necessary to make a factual showing establishing
5 that the Protected Material is sealable, and that the Court should therefore abstain
6 from making a ruling on the Written Application to provide the Designating Party
7 with sufficient opportunity to make this showing. The Receiving Party should then
8 provide written email notification to the Designating Party on the date of filing of
9 the bates-ranges and title of the Protected Material to be filed under seal so as to

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10 give the Designating Party sufficient opportunity to make its factual showing.
11

16.

MISCELLANEOUS

12

(a)

Retention of Declarations. The attorneys or record for the Receiving

13 Party shall retain the original, executed Declarations (in the form or Exhibit A) that
14 have been executed by the Receiving Party’s employees, consultants, and testifying
15 experts.
16

(b)

Right to Further Relief. Nothing in this Order abridges any person’s

17 right to seek its modification by the Court in the future. By stipulating to this
18 Protective Order, the Parties do not waive their right to argue that certain material
19 may require additional or different confidentiality protections than those set forth
20 herein.
21

(c)

Documents in Prior Possession of Receiving Party.

The

22 confidentiality obligations of this Order shall not prohibit any use whatsoever by
23 any Receiving Party of any information or documents that were, at the time of
24 production to the Receiving Party, currently in the Receiving Party’s lawful
25 possession, custody, or control without any obligations of confidentiality to the
26 Producing Party under this Order or otherwise, or that later come into the possession
27 of the party from others lawfully in possession of such information or documents
28

-19STIPULATION AND [PROPOSED] ORDER
REGARDING THE EXCHANGE OF CONFIDENTIAL MATERIAL

1 who are not parties to the lawsuit or bound by this Order or any other confidentiality
2 obligation to the Producing Party.
3

(d)

Termination of Litigation and Retention of Jurisdiction.

The

4 Parties agree that the terms of this Protective Order shall survive and remain in
5 effect after the termination of the above-captioned matter. The Court shall retain
6 jurisdiction after termination of this matter to hear and resolve any disputes arising
7 out of this Protective Order.
8

(e)

9 Regulation.

Obligation to Produce Protected Materials Subject to Law, Rule or
The confidentiality obligations of this Protective Order shall not

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10 prohibit the disclosure by a Receiving Party of any information or documents that
11 are required to be disclosed by any law, regulation, order or rule of any
12 governmental authority; provided, however, that if a Receiving Party is required to
13 disclose a document or information designated by a producing party as
14 “CONFIDENTIAL” pursuant to any law, regulation, order or rule or any
15 governmental authority, the Receiving Party shall give immediate advance notice, to
16 the extent possible, of any such required disclosure in writing to counsel for the
17 Producing Party to afford the Producing Party the opportunity to seek legal
18 protection from the disclosure of such information or documents.
19

(f)

Legal Advice Based on Protected Materials.

Nothing in this

20 Protective Order shall bar or otherwise restrict legal counsel from rendering advice
21 to his or her client with respect to this case and, in the course thereof, relying in a
22 general way upon his/her examination of Protected Material produced or exchanged
23 in this case, provided, however, that in rendering such advice and in otherwise
24 communicating with his or her client, legal counsel shall not disclose the specific
25 contents or substance or the specific source of any Protected Material produced by
26 the other Party, except as permitted under this Protective Order.
27
28

-20STIPULATION AND [PROPOSED] ORDER
REGARDING THE EXCHANGE OF CONFIDENTIAL MATERIAL

1

(g)

Violation of Protective Order. In the event that anyone violates or

2 threatens to violate the terms of this Protective Order, the parties agree that the
3 aggrieved Party may apply immediately to obtain injunctive relief against any such
4 violation or threatened violation and, in the event the aggrieved Party shall do so,
5 the respondent, subject to the provisions of this Protective Order, shall not employ
6 as a defense thereto any claim that the aggrieved Party possesses an adequate
7 remedy at law.
8

(h)

Successors. This Protective Order shall be binding upon the Parties

9 hereto, their attorneys, and their successors, executors, personal representatives,

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10 administrators, heirs, legal representatives, assigns, subsidiaries, divisions,
11 employees, agents, and consultants and experts retained in this case.
12

(i)

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

13 Protective Order, no Party waives any right it otherwise would have to object to
14 disclosing or producing any information or item. Similarly, no Party waives any
15 objection to the use in evidence of any of the material covered by this Protective
16 Order. This Protective Order shall not constitute a waiver of any Party’s right to
17 claim that any Discovery Material, or any portion thereof, is privileged or otherwise
18 not discoverable or is not admissible in evidence in this Action or any other
19 proceeding.
20

(j)

Burdens of Proof. Notwithstanding anything to the contrary above,

21 nothing in this Protective Order shall be construed to change the burdens of proof or
22 legal standards applicable in disputes regarding whether particular Discovery
23 Material is confidential, which level of confidentiality is appropriate, whether
24 disclosure should be restricted, and if so, what restrictions should apply.
25

(k)

Copies of Protected Material.

Except where otherwise specified,

26 nothing in this Protective Order shall restrict a qualified recipient from making
27 working copies, abstracts, digests, and analyses of Protected Material for use in
28

-21STIPULATION AND [PROPOSED] ORDER
REGARDING THE EXCHANGE OF CONFIDENTIAL MATERIAL

1 connection with this Action, and such working copies, abstracts, digests, and
2 analyses shall have the same protection as the original material under the terms of
3 this Protective Order. Further, except where otherwise specified, nothing in this
4 Protective Order shall restrict a qualified recipient from converting or translating
5 Protected Material into machine readable form for incorporation into a data retrieval
6 system used in connection with this Action, provided that access to such
7 information, in whatever form stored or reproduced, shall be limited to qualified
8 recipients under the terms of this Protective Order.
9

(l)

Modification by Court. This Protective Order is subject to further

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10 court order based upon public policy or other considerations, and the Court may
11 modify this Order sua sponte in the interests of justice.
12

(m)

Jurisdiction.

Each person receiving Protective Material under the

13 terms of this Protective Order hereby agrees to subject himself or herself to the
14 jurisdiction of this Court for purposes of any proceedings relating to the
15 performance under, compliance with, or violation of this Protective Order.
16

(n)

No Admissions. Compliance with this Protective Order in no way

17 constitutes an admission by any Party that any information designated pursuant to
18 this Protective Order is or is not proprietary, confidential, or a trade secret.
19

(o)

Waiver of Notice. Any of the notice requirements herein may be

20 waived, in whole or in part, but only by a writing signed by the attorney of record
21 for the Party against whom such waiver will be effective.
22
23
24

17.

TREATMENT OF PARTY OF THIRD-PARTY’S OWN
INFORMATION OR ANALYSIS OF OWN INFORMATION

Nothing herein shall restrict a Party with respect to the treatment and handling

25 of its own information or of any derivatives, abstracts, briefs, memoranda, reports,
26 analyses, summaries, characterizations or testimony that refer to a Party’s own
27 information. For example, nothing herein shall restrict a Party from having access
28

-22STIPULATION AND [PROPOSED] ORDER
REGARDING THE EXCHANGE OF CONFIDENTIAL MATERIAL

1 to designated materials that it produced in discovery or from having access to
2 portions of any derivatives, abstracts, briefs, memoranda, reports, analyses,
3 summaries, characterizations or testimony that refer to the designated materials that
4 the Party has produced in discovery. A Party shall be permitted to have access to
5 portions of any expert reports, testimony or court filings that address the Party’s
6 own designated materials. Similarly, nothing herein shall restrict a Party from
7 sharing with a third-party information that is from or belongs to that third-party. For
8 example, a Party may share designated materials with a third-party that belongs to
9 that third-party. The Parties agree to abide by and be bound by the terms or this

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10 Protective Order upon signature hereof as if the Protective Order had been entered
11 on that date.
12

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

13
14
15
16
17
18

DATED: December 2, 2013 By ________________________________
J. Mark Smith (Pro Hac Vice)
Pendleton, Wilson, Hennessey & Crow, PC
1875 Lawrence Street, 10th Fl.
Denver, Colorado 80202-1898
Telephone: [phone]
Facsimile: [phone]

19
20
21
22
23
24
25
26

Sean A. O’Brien
[e-mail]
PAYNE & FEARS LLP
4 Park Plaza, Suite 1100
Irvine, California 92614
Telephone: ((49) 851-1100
Facsimile: [phone]
Attorneys for Defendant
LedUp Enterprise, Inc.

27
28

-23STIPULATION AND [PROPOSED] ORDER
REGARDING THE EXCHANGE OF CONFIDENTIAL MATERIAL

1
2
3
4

DATED: December 2, 2013 By ________________________________
Gary F. Wang, Esq.

5
6
7

Franklin Eugene Gibbs, Esq.
Law Offices of Gary F. Wang
Attorneys for Plaintiff Chao Tai Electronics Co., LTD.

8
9

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10
11
12
13
DATED: December 2, 2013 By: ________________________________
Phillip J. Eskenazi, Esq.
15
Jason Kim, Esq.
14

16
17

Hunton & Williams, LLP
Attorneys for Defendant Lowe’s HIW, Inc.

18
19
20
21
22
23
24
25
26
27
28

-24STIPULATION AND [PROPOSED] ORDER
REGARDING THE EXCHANGE OF CONFIDENTIAL MATERIAL

1

ORDER

2

Based on the foregoing stipulation of the Parties, and Good Cause having

3 been shown,
4

IT IS SO ORDERED.

5
6 Dated: Dec. 10, 2013
7
8

___________________________________
Manuel L, Real
United States District Judge

9

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10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
STIPULATION AND [PROPOSED] ORDER
REGARDING THE EXCHANGE OF CONFIDENTIAL MATERIAL