Peter H. Wolf v. Capstone Photography, Inc. et al

Filing 27

PROTECTIVE ORDER by Magistrate Judge Patrick J. Walsh re Stipulation for Protective Order 26 ; See order for details. (jy)

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1 2 3 4 5 6 Daniel M. Cislo, Esq., No. 125,378 dan@cislo.com Peter S. Veregge, Esq., No. 155,769 pveregge@cislo.com CISLOnd THOMAS LLP & 1333 2 Street Suite 500 Santa Monica, California 90401-4110 Telephone: (310) 451-0647 Telefax: (310) 394-4477 Attorneys for Plaintiff, PETER WOLF 7 8 9 10 11 12 John E. Lord (Bar No. 216111) jlord@onellp.com ONE LLP 9301 Wilshire Blvd., Penthouse Suite Beverly Hills, CA 90210 Phone: (310) 866-5157 Attorneys for Defendant, CAPSTONE PHOTOGRAPHY, INC. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ) ) ) Plaintiff, ) ) ) vs. ) ) CAPSTONE PHOTOGRAPHY, INC., a ) ) Connecticut corporation, and DOES 1- ) ) 10, inclusive, ) ) Defendants. ) ) ) ) ) PETER WOLF, an individual, CASE NO. CV 13-9573 CAS (PJWx) [PROPOSED] ORDER ENTERING STIPULATED PROTECTIVE ORDER 1 [PROPOSED] ORDER ENTERING STIPULATED PROTECTIVE ORDER 2 WHEREAS, it may be necessary or desirable to take discovery of 3 information which is believed to be confidential and proprietary by the holder 4 thereof; and 5 6 WHEREAS, the parties hereto desire to obtain a protective order to prevent dissemination and unnecessary disclosure of such information on the public record; 7 IT IS HEREBY STIPULATED, and subject to the Court’s approval, 8 ORDERED, pursuant to Federal Rules of Civil Procedure, Rule 26(c), that the 9 following provisions shall govern the handling of such confidential information and 10 documents in these proceedings: 11 1. GOOD CAUSE STATEMENT 12 The threshold issues in the pleadings center around whether plaintiff Peter H. 13 Wolf has valid patent rights in providing event photographs for inspection, 14 selection and distribution via a computer network, and whether defendant Capstone 15 Photography, Inc. has infringed those rights. Resolution of liability issues and the 16 associated damages analysis necessarily requires evidence of technical computer 17 information, flow charts, source code, marketing information, sales information, 18 cost information, vendor information, license agreements, and customer lists, at a 19 minimum, to be disclosed, at minimum, to opposing counsel. This Protective Order 20 is geared towards allowing resolution of the factual and legal issues without 21 imposing undue competitive harm on the parties. 22 Federal Rule of Civil Procedure Rule 26(c)(1)(G) permits the grant of a 23 protective order upon a showing of good cause, and provides that the protection of a 24 trade secret or other confidential commercial information is a proper basis for the 25 issuance of a protective order. The party seeking such an order must demonstrate a 26 particular and specific need for the protective order. Gray v. Rodewald, 133 F.R.D. 27 39, 40 (N.D. Cal. 1990). 28 1 A protective order that focuses on preventing disclosure of particular 2 information, e.g., confidential business information, where disclosure would “likely 3 cause serious harm,” is supported by good cause. Hayden v. Siemens Medical 4 Systems, Inc., 106 F.R.D. 551, 556, (S.D.N.Y. 1985). To support a showing of 5 good cause, however, a protective order must be sufficiently tailored in the 6 information it seeks to protect, e.g., by designating certain classes or types of 7 information. Id. SUITE 500 1333 2nd Street SANTA MONICA, CALIFORNIA 90401-4110 Telephone: (310) 451-0647 Facsimile: (310) 394-4477 Attorneys at Law CISLO & THOMAS LLP 8 A “blanket” protective order, as opposed to a broader “umbrella” protective 9 order, “permits the parties to protect documents that they in good faith believe 10 contain trade secrets or other confidential commercial information. Such protective 11 orders are routinely agreed to by the parties and approved by the courts in 12 commercial litigation, especially in cases between direct competitors.” Bayer AG 13 and Miles Inc. v. Barr Laboratories, Inc., 162 F.R.D. 456, 465, (S.D.N.Y. 1995). 14 As direct competitors, the parties’ Protective Order was drafted specifically 15 to protect the disclosure of each party’s commercially sensitive sales information 16 and other confidential business information, as set forth above and below. 17 Confidential information under this agreement is specifically defined below. Such 18 information, under the Protective Order, may be designated CONFIDENTIAL or 19 CONFIDENTIAL ATTORNEY EYES ONLY, and is open to challenge by either 20 party, any third party, or the public. 21 The parties acknowledge that this Order does not confer blanket protections 22 on all disclosures or responses to discovery and that the protection it affords 23 extends only to the limited information or items that are entitled under the 24 applicable legal principles to treatment as confidential. The parties further 25 acknowledge, as set forth in Section 14.4, below, that this Order creates no 26 entitlement to file confidential information under seal; Civil Local Rule 79-5 sets 27 forth the procedures that must be followed when a party seeks permission from the 28 court to file material under seal. 2 1 Based on the foregoing demonstration of good cause in support of this 2 [Proposed] Protective Order, this [Proposed] Order should be granted by the Court 3 to protect the parties’ confidential business information. 4 2. 5 6 7 DEFINITIONS 2.1 Challenging Party: a Party or Non-Party that challenges the designation of information or items under this Order. 2.2 “CONFIDENTIAL” Information or Items: information (regardless of SUITE 500 1333 2nd Street SANTA MONICA, CALIFORNIA 90401-4110 Telephone: (310) 451-0647 Facsimile: (310) 394-4477 Attorneys at Law CISLO & THOMAS LLP 8 how it is generated, stored or maintained) or tangible things that qualify for 9 protection under Federal Rule of Civil Procedure 26(c). 10 11 12 2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well as their support staff). 2.5 Designating Party: a Party or Non-Party that designates information or 13 items that it produces in disclosures or in responses to discovery as 14 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 15 ONLY”. 16 2.6 Disclosure or Discovery Material: all items or information, regardless 17 of the medium or manner in which it is generated, stored, or maintained (including, 18 among other things, testimony, transcripts, and tangible things), that are produced 19 or generated in disclosures or responses to discovery in this matter. 20 2.7 Expert: a person with specialized knowledge or experience in a matter 21 pertinent to the litigation who (1) has been retained by a Party or its counsel to 22 serve as an expert witness or as a consultant in this action, (2) is not a past or 23 current employee of a Party or of a Party’s competitor, and (3) at the time of 24 retention, is not anticipated to become an employee of a Party or of a Party’s 25 competitor. 26 27 2.8 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items: extremely sensitive “Confidential Information or Items,” 28 3 1 disclosure of which to another Party or Non-Party would create a substantial risk of 2 serious harm that could not be avoided by less restrictive means. 3 2.9 House Counsel: attorneys who are employees of a party to this action. 4 House Counsel does not include Outside Counsel of Record or any other outside 5 counsel. 6 7 2.10 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. SUITE 500 1333 2nd Street SANTA MONICA, CALIFORNIA 90401-4110 Telephone: (310) 451-0647 Facsimile: (310) 394-4477 Attorneys at Law CISLO & THOMAS LLP 8 2.11 Outside Counsel of Record: attorneys who are not employees of a 9 party to this action but are retained to represent or advise a party to this action and 10 have appeared in this action on behalf of that party or are affiliated with a law firm 11 which has appeared on behalf of that party. 12 2.12 Party: any party to this action, including all of its officers, directors, 13 employees, consultants, retained experts, and Outside Counsel of Record (and their 14 support staffs). 15 16 2.13 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this action. 17 2.14 Professional Vendors: persons or entities that provide litigation 18 support services (e.g., photocopying, videotaping, translating, preparing exhibits or 19 demonstrations, and organizing, storing, or retrieving data in any form or medium) 20 and their employees and subcontractors. 21 2.15 Protected Material: any Disclosure or Discovery Material that is 22 designated as “CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL – 23 ATTORNEYS’ EYES ONLY.” 24 2.16 Receiving Party: a Party that receives Disclosure or Discovery 25 Material from a Producing Party. 26 3. SCOPE 27 The protections conferred by this Stipulation and Order cover not only 28 Protected Material (as defined above), but also (1) any information copied or 4 presentations by Parties or their Counsel that might reveal Protected Material. 4 However, the protections conferred by this Stipulation and Order do not cover the 5 following information: (a) any information that is in the public domain at the time 6 of disclosure to a Receiving Party or becomes part of the public domain after its 7 disclosure to a Receiving Party as a result of publication not involving a violation 8 SUITE 500 1333 2nd Street SANTA MONICA, CALIFORNIA 90401-4110 Telephone: (310) 451-0647 Facsimile: (310) 394-4477 compilations of Protected Material; and (3) any testimony, conversations, or 3 Attorneys at Law extracted from Protected Material; (2) all copies, excerpts, summaries, or 2 CISLO & THOMAS LLP 1 of this Order, including becoming part of the public record through trial or 9 otherwise; and (b) any information known to the Receiving Party prior to the 10 disclosure or obtained by the Receiving Party after the disclosure from a source 11 who obtained the information lawfully and under no obligation of confidentiality to 12 the Designating Party. Any use of Protected Material at trial shall be governed by a 13 separate agreement or order. 14 4. DURATION 15 Even after final disposition of this litigation, the confidentiality obligations 16 imposed by this Order shall remain in effect until a Designating Party agrees 17 otherwise in writing or a court order otherwise directs. Final disposition shall be 18 deemed to be the later of (1) dismissal of all claims and defenses in this action, with 19 or without prejudice; and (2) final judgment herein after the completion and 20 exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, 21 including the time limits for filing any motions or applications for extension of time 22 pursuant to applicable law. 23 5. 24 DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. 25 Each Party or Non-Party that designates information or items for protection under 26 this Order must take care to limit any such designation to specific material that 27 qualifies under the appropriate standards. To the extent it is practical to do so, the 28 Designating Party must designate for protection only those parts of material, 5 1 documents, items, or oral or written communications that qualify – so that other 2 portions of the material, documents, items, or communications for which protection 3 is not warranted are not swept unjustifiably within the ambit of this Order. purpose (e.g., to unnecessarily encumber or retard the case development process or 7 to impose unnecessary expenses and burdens on other parties) expose the 8 SUITE 500 1333 2nd Street SANTA MONICA, CALIFORNIA 90401-4110 Telephone: (310) 451-0647 Facsimile: (310) 394-4477 that are shown to be clearly unjustified or that have been made for an improper 6 Attorneys at Law Mass, indiscriminate, or routinized designations are prohibited. Designations 5 CISLO & THOMAS LLP 4 Designating Party to sanctions. 9 If it comes to a Designating Party’s attention that information or items that it 10 designated for protection do not qualify for protection at all or do not qualify for the 11 level of protection initially asserted, that Designating Party must promptly notify all 12 other parties that it is withdrawing the mistaken designation. 13 5.2 Manner and Timing of Designations. Except as otherwise provided in 14 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 15 stipulated or ordered, Disclosure or Discovery 16 17 18 Material that qualifies for protection under this Order must be clearly so designated before the material is disclosed or produced. Designation in conformity with this Order requires: 19 (a) for information in documentary form (e.g., paper or electronic 20 documents, but excluding transcripts of depositions or other pretrial or trial 21 proceedings), that the Producing Party affix the legend “CONFIDENTIAL” or 22 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” to each page that 23 contains protected material. If only a portion or portions of the material on a page 24 qualifies for protection, the Producing Party also must clearly identify the protected 25 portion(s) (e.g., by making appropriate markings in the margins) and must specify, 26 for each portion, the level of protection being asserted. 27 A Party or Non-Party that makes original documents or materials available 28 for inspection need not designate them for protection until after the inspecting Party 6 inspection shall be deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 4 ONLY.” After the inspecting Party has identified the documents it wants copied 5 and produced, the Producing Party must determine which documents, or portions 6 thereof, qualify for protection under this Order. 7 specified documents, the Producing Party must affix the appropriate legend 8 SUITE 500 1333 2nd Street SANTA MONICA, CALIFORNIA 90401-4110 Telephone: (310) 451-0647 Facsimile: (310) 394-4477 inspection and before the designation, all of the material made available for 3 Attorneys at Law has indicated which material it would like copied and produced. 2 CISLO & THOMAS LLP 1 (“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 9 ONLY”) to each page that contains Protected Material. If only a portion or portions 10 of the material on a page qualifies for protection, the Producing Party also must 11 clearly identify the protected portion(s) (e.g., by making appropriate markings in 12 the margins) and must specify, for each portion, the level of protection being 13 asserted. During the Then, before producing the 14 (b) for testimony given in deposition or in other pretrial or trial 15 proceedings, that the Designating Party identify on the record, before the close of 16 the deposition, hearing, or other proceeding, all protected testimony and specify the 17 level of protection being asserted. When it is impractical to identify separately each 18 portion of testimony that is entitled to protection and it appears that substantial 19 portions of the testimony may qualify for protection, the Designating Party may 20 invoke on the record (before the deposition, hearing, or other proceeding is 21 concluded) a right to have up to 21 days to identify the specific portions of the 22 testimony as to which protection is sought and to specify the level of protection 23 being asserted. 24 designated for protection within the 21 days shall be covered by the provisions of 25 this Stipulated Protective Order. Alternatively, a Designating Party may specify, at 26 the deposition or up to 21 days afterwards if that period is properly invoked, that 27 the entire transcript shall be treated as “CONFIDENTIAL” or “HIGHLY 28 CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Only those portions of the testimony that are appropriately 7 1 Parties shall give the other parties notice if they reasonably expect a 2 deposition, hearing or other proceeding to include Protected Material so that the 3 other parties can ensure that only authorized individuals who have signed the 4 “Acknowledgment and Agreement to Be Bound” (Exhibit A) are present at those 5 proceedings. The use of a document as an exhibit at a deposition shall not in any 6 way affect its designation as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL 7 – ATTORNEYS’ EYES ONLY.” SUITE 500 1333 2nd Street SANTA MONICA, CALIFORNIA 90401-4110 Telephone: (310) 451-0647 Facsimile: (310) 394-4477 Attorneys at Law CISLO & THOMAS LLP 8 Transcripts containing Protected Material shall have an obvious legend on 9 the title page that the transcript contains Protected Material, and the title page shall 10 be followed by a list of all pages (including line numbers as appropriate) that have 11 been designated as Protected Material and the level of protection being asserted by 12 the Designating Party. The Designating Party shall inform the court reporter of 13 these requirements. Any transcript that is prepared before the expiration of a 21- 14 day period for designation shall be treated during that period as if it had been 15 designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its 16 entirety unless otherwise agreed. After the expiration of that period, the transcript 17 shall be treated only as actually designated. 18 (c) for information produced in some form other than documentary and 19 for any other tangible items, that the Producing Party affix in a prominent place on 20 the exterior of the container or containers in which the information or item is stored 21 the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ 22 EYES ONLY”. If only a portion or portions of the information or item warrant 23 protection, the Producing Party, to the extent practicable, shall identify the 24 protected portion(s) and specify the level of protection being asserted. 25 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 26 failure to designate qualified information or items does not, standing alone, waive 27 the Designating Party’s right to secure protection under this Order for such 28 material. Upon timely correction of a designation, the Receiving Party must make 8 1 reasonable efforts to assure that the material is treated in accordance with the 2 provisions of this Order. 3 6. 4 CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any Party or Non-Party may challenge a substantial unfairness, unnecessary economic burdens, or a significant disruption or 8 SUITE 500 1333 2nd Street SANTA MONICA, CALIFORNIA 90401-4110 Telephone: (310) 451-0647 Facsimile: (310) 394-4477 Designating Party’s confidentiality designation is necessary to avoid foreseeable, 7 Attorneys at Law designation of confidentiality at any time. 6 CISLO & THOMAS LLP 5 delay of the litigation, a Party does not waive its right to challenge a confidentiality 9 designation by electing not to mount a challenge promptly after the original 10 11 Unless a prompt challenge to a designation is disclosed. 6.2 Meet and Confer. The Challenging Party shall initiate the dispute 12 resolution process by providing written notice of each designation it is challenging 13 and describing the basis for each challenge. To avoid ambiguity as to whether a 14 challenge has been made, the written notice must recite that the challenge to 15 confidentiality is being made in accordance with this specific paragraph of the 16 Protective Order. The parties shall attempt to resolve each challenge in good faith 17 and must begin the process by conferring directly (in voice to voice dialogue; other 18 forms of communication are not sufficient) within 14 days of the date of service of 19 notice. In conferring, the Challenging Party must explain the basis for its belief that 20 the confidentiality designation was not proper and must give the Designating Party 21 an opportunity to review the designated material, to reconsider the circumstances, 22 and, if no change in designation is offered, to explain the basis for the chosen 23 designation. A Challenging Party may proceed to the next stage of the challenge 24 process only if it has engaged in this meet and confer process first or establishes 25 that the Designating Party is unwilling to participate in the meet and confer process 26 in a timely manner. 27 28 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court intervention, the Designating Party shall file and serve a motion to retain 9 days of the parties agreeing that the meet and confer process will not resolve their 4 dispute, whichever is earlier. 5 competent declaration affirming that the movant has complied with the meet and 6 confer requirements imposed in the preceding paragraph. 7 Designating Party to make such a motion including the required declaration within 8 SUITE 500 1333 2nd Street SANTA MONICA, CALIFORNIA 90401-4110 Telephone: (310) 451-0647 Facsimile: (310) 394-4477 79-5, if applicable) within 21 days of the initial notice of challenge or within 14 3 Attorneys at Law confidentiality under Civil Local Rule 7 (and in compliance with Civil Local Rule 2 CISLO & THOMAS LLP 1 21 days (or 14 days, if applicable) shall automatically waive the confidentiality 9 designation for each challenged designation. In addition, the Challenging Party 10 may file a motion challenging a confidentiality designation at any time if there is 11 good cause for doing so, including a challenge to the designation of a deposition 12 transcript or any portions thereof. Any motion brought pursuant to this provision 13 must be accompanied by a competent declaration affirming that the movant has 14 complied with the meet and confer requirements imposed by the preceding 15 paragraph. Each such motion must be accompanied by a Failure by the 16 The burden of persuasion in any such challenge proceeding shall be on the 17 Designating Party. Frivolous challenges and those made for an improper purpose 18 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may 19 expose the Challenging Party to sanctions. 20 waived the confidentiality designation by failing to file a motion to retain 21 confidentiality as described above, all parties shall continue to afford the material in 22 question the level of protection to which it is entitled under the Producing Party’s 23 designation until the court rules on the challenge. 24 7. 25 Unless the Designating Party has ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that is 26 disclosed or produced by another Party or by a Non-Party in connection with this 27 case only for prosecuting, defending, or attempting to settle this litigation. Such 28 Protected Material may be disclosed only to the categories of persons and under the 10 1 conditions described in this Order. When the litigation has been terminated, a 2 Receiving Party must comply with the provisions of section 15 below (FINAL 3 DISPOSITION). 4 Protected Material must be stored and maintained by a Receiving Party at a 5 location and in a secure manner1 that ensures that access is limited to the persons 6 authorized under this Order. 7 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless SUITE 500 1333 2nd Street SANTA MONICA, CALIFORNIA 90401-4110 Telephone: (310) 451-0647 Facsimile: (310) 394-4477 Attorneys at Law CISLO & THOMAS LLP 8 otherwise ordered by the court or permitted in writing by the Designating Party, a 9 Receiving 10 Party may disclose any information or item designated “CONFIDENTIAL” only to: 11 (a) the Receiving Party’s Outside Counsel of Record in this action, as 12 well as employees of said Outside Counsel of Record to whom it is reasonably 13 necessary to disclose the information for this litigation and who have signed the 14 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit 15 A; 16 (b) the officers, directors, and employees (including House Counsel) of 17 the Receiving Party to whom disclosure is reasonably necessary for this litigation 18 and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit 19 A); 20 (c) Experts (as defined in this Order) of the Receiving Party to whom 21 disclosure is reasonably necessary for this litigation and who have signed the 22 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 23 (d) the court and its personnel; 24 (e) court reporters and their staff, professional jury or trial consultants, 25 and Professional Vendors to whom disclosure is reasonably necessary for this 26 27 28 1 It may be appropriate under certain circumstances to require the Receiving Party to store any electronic Protected Material in password-protected form. 11 1 litigation and who have signed the “Acknowledgment and Agreement to Be 2 Bound” (Exhibit A); Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the Designating 6 Party or ordered by the court. Pages of transcribed deposition testimony or exhibits 7 to depositions that reveal Protected Material must be separately bound by the court 8 SUITE 500 1333 2nd Street SANTA MONICA, CALIFORNIA 90401-4110 Telephone: (310) 451-0647 Facsimile: (310) 394-4477 is reasonably necessary and who have signed the “Acknowledgment and 5 Attorneys at Law (f) during their depositions, witnesses in the action to whom disclosure 4 CISLO & THOMAS LLP 3 reporter and may not be disclosed to anyone except as permitted under this 9 Stipulated Protective Order. 10 11 (g) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information. 12 7.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 13 ONLY” Information or Items. Unless otherwise ordered by the court or permitted 14 in writing by the Designating Party, a Receiving Party may disclose any 15 information or item designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ 16 EYES ONLY” only to: 17 (a) the Receiving Party’s Outside Counsel of Record in this action, as 18 well as employees of said Outside Counsel of Record to whom it is reasonably 19 necessary to disclose the information for this litigation and who have signed the 20 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit 21 A; 22 (b) Experts of the Receiving Party (1) to whom disclosure is 23 reasonably necessary for this litigation, (2) who have signed the “Acknowledgment 24 and Agreement to Be Bound” (Exhibit A), and (3) as to whom the procedures set 25 forth in paragraph 7.4(a)(2), below, have been followed]; 26 (c) the court and its personnel; 27 (d) court reporters and their staff, professional jury or trial consultants, 28 and Professional Vendors to whom disclosure is reasonably necessary for this 12 1 litigation and who have signed the “Acknowledgment and Agreement to Be 2 Bound” (Exhibit A); and 3 4 (e) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information. 5 7.4 Procedures for Approving or Objecting to Disclosure of “HIGHLY 6 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items to 7 Experts. SUITE 500 1333 2nd Street SANTA MONICA, CALIFORNIA 90401-4110 Telephone: (310) 451-0647 Facsimile: (310) 394-4477 Attorneys at Law CISLO & THOMAS LLP 8 (a) Unless otherwise ordered by the court or agreed to in writing by the 9 Designating Party, a Party that seeks to disclose to an Expert (as defined in this 10 Order) 11 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” pursuant to paragraph 7.3(c) 12 first must make a written request to the Designating Party that (1) identifies the 13 general categories of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 14 ONLY” information that the Receiving Party seeks permission to disclose to the 15 Expert, (2) sets forth the full name of the Expert and the city and state of his or her 16 primary residence, (3) attaches a copy of the Expert’s current resume, (4) identifies 17 the Expert’s current employer(s), (5) identifies each person or entity from whom the 18 Expert has received compensation or funding for work in his or her areas of 19 expertise or to whom the expert has provided professional services, including in 20 connection with a litigation, at any time during the preceding five years,2 and (6) 21 identifies (by name and number of the case, filing date, and location of court) any 22 litigation in connection with which the Expert has offered expert testimony, any information or item that has been designated “HIGHLY 23 24 25 26 27 28 2 If the Expert believes any of this information is subject to a confidentiality obligation to a thirdparty, then the Expert should provide whatever information the Expert believes can be disclosed without violating any confidentiality agreements, and the Party seeking to disclose to the Expert shall be available to meet and confer with the Designating Party regarding any such engagement. 13 1 including through a declaration, report, or testimony at a deposition or trial, during 2 the preceding five years.3 Material to the identified Designated House Counsel or Expert unless, within 14 6 days of delivering the request, the Party receives a written objection from the 7 Designating Party. Any such objection must set forth in detail the grounds on 8 SUITE 500 1333 2nd Street SANTA MONICA, CALIFORNIA 90401-4110 Telephone: (310) 451-0647 Facsimile: (310) 394-4477 specified in the preceding respective paragraphs may disclose the subject Protected 5 Attorneys at Law (b) A Party that makes a request and provides the information 4 CISLO & THOMAS LLP 3 which it is based. 9 (c) A Party that receives a timely written objection must meet and 10 confer with the Designating Party (through direct voice to voice dialogue) to try to 11 resolve the matter by agreement within seven days of the written objection. If no 12 agreement is reached, the Party seeking to make the disclosure to Designated House 13 Counsel or the Expert may file a motion as provided in Civil Local Rule 7 (and in 14 compliance with Civil Local Rule 79-5, if applicable) seeking permission from the 15 court to do so. Any such motion must describe the circumstances with specificity, 16 set forth in detail the reasons why the disclosure to Designated House Counsel or 17 the Expert is reasonably necessary, assess the risk of harm that the disclosure would 18 entail, and suggest any additional means that could be used to reduce that risk. In 19 addition, any such motion must be accompanied by a competent declaration 20 describing the parties’ efforts to resolve the matter by agreement (i.e., the extent 21 and the content of the meet and confer discussions) and setting forth the reasons 22 advanced by the Designating Party for its refusal to approve the disclosure. 23 In any such proceeding, the Party opposing disclosure to Designated House 24 Counsel or the Expert shall bear the burden of proving that the risk of harm that the 25 26 27 28 3 It may be appropriate in certain circumstances to restrict the Expert from undertaking certain limited work prior to the termination of the litigation that could foreseeably result in an improper use of the Designating Party’s “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information. 14 1 disclosure would entail (under the safeguards proposed) outweighs the Receiving 2 Party’s need to disclose the Protected Material to its Designated House Counsel or 3 Expert. 4 8. PROSECUTION BAR information shall not be involved in the prosecution of patents or patent 8 SUITE 500 1333 2nd Street SANTA MONICA, CALIFORNIA 90401-4110 Telephone: (310) 451-0647 Facsimile: (310) 394-4477 receives access to “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” 7 Attorneys at Law Absent written consent from the Producing Party, any individual who 6 CISLO & THOMAS LLP 5 applications relating to a process for providing event photographs for inspection, 9 selection and distribution via a website on the internet, including without limitation 10 the patents asserted in this action and any patent or application claiming priority to 11 or otherwise related to the patents asserted in this action, before any foreign or 12 domestic agency, including the United States Patent and Trademark Office (“the 13 Patent Office”). For purposes of this paragraph, “prosecution” includes directly or 14 indirectly drafting, amending, advising, or otherwise affecting the scope or 15 maintenance of patent claims.4 To avoid any doubt, “prosecution” as used in this 16 paragraph does not include representing a party challenging a patent before a 17 domestic or foreign agency (including, but not limited to, a reissue protest, ex parte 18 reexamination or inter partes reexamination). This Prosecution Bar shall begin 19 when access to “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” 20 information is first received by the affected individual and shall end two (2) years 21 after final termination of this action. 22 23 9. [THIS SECTION INTENTIONALLY OMITTED] 24 25 26 27 28 4 Prosecution includes, for example, original prosecution, reissue and reexamination proceedings. 15 1 10. PROTECTED MATERIAL SUBPOENAED OR ORDERED 2 PRODUCED IN OTHER LITIGATION 3 If a Party is served with a subpoena, valid discovery request, or a court order 4 issued in other litigation that compels disclosure of any information or items 5 designated in this action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – 6 ATTORNEYS’ EYES ONLY” that Party must: 7 SUITE 500 1333 2nd Street SANTA MONICA, CALIFORNIA 90401-4110 Telephone: (310) 451-0647 Facsimile: (310) 394-4477 Attorneys at Law CISLO & THOMAS LLP 8 (a) promptly notify in writing the Designating Party. Such notification shall include a copy of the subpoena or court order; 9 (b) promptly notify in writing the party who caused the subpoena or 10 order to issue in the other litigation that some or all of the material covered by the 11 subpoena or order is subject to this Protective Order. 12 include a copy of this Stipulated Protective Order; and 13 14 Such notification shall (c) cooperate with respect to all reasonable procedures sought to be pursued by the Designating Party whose Protected Material may be affected.5 15 If the Designating Party timely seeks a protective order, the Party served with 16 the subpoena or court order shall not produce any information designated in this 17 action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ 18 EYES ONLY” before a determination by the court from which the subpoena or 19 order issued, unless the Party has obtained the Designating Party’s permission. The 20 Designating Party shall bear the burden and expense of seeking protection in that 21 court of its confidential material – and nothing in these provisions should be 22 construed as authorizing or encouraging a Receiving Party in this action to disobey 23 a lawful directive from another court. 24 25 26 27 28 5 The purpose of imposing these duties is to alert the interested parties to the existence of this Protective Order and to afford the Designating Party in this case an opportunity to try to protect its confidentiality interests in the court from which the subpoena or order issued. 16 1 2 11. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION 3 (a) The terms of this Order are applicable to information produced by Non-Parties in connection with this litigation is protected by the remedies and 7 relief provided by this Order. Nothing in these provisions should be construed as 8 SUITE 500 1333 2nd Street SANTA MONICA, CALIFORNIA 90401-4110 Telephone: (310) 451-0647 Facsimile: (310) 394-4477 CONFIDENTIAL – ATTORNEYS’ EYES ONLY”. Such information produced 6 Attorneys at Law by a Non-Party in this action and designated as “CONFIDENTIAL” or “HIGHLY 5 CISLO & THOMAS LLP 4 prohibiting a Non-Party from seeking additional protections. 9 (b) In the event that a Party is required, by a valid discovery 10 request, to produce a Non-Party’s confidential information in its possession, and the 11 Party is subject to an agreement with the Non-Party not to produce the Non-Party’s 12 confidential information, then the Party shall: 13 1. promptly notify in writing the Requesting Party and the Non- 14 Party that some or all of the information requested is subject to a confidentiality 15 agreement with a Non-Party; 16 2. promptly provide the Non-Party with a copy of the Stipulated 17 Protective Order in this litigation, the relevant discovery request(s), and a 18 reasonably specific description of the information requested; and 19 20 21 3. make the information requested available for inspection by the Non-Party. (c) If the Non-Party fails to object or seek a protective order from 22 this court within 14 days of receiving the notice and accompanying information, the 23 Receiving Party may produce the Non-Party’s confidential information responsive 24 to the discovery request. If the Non-Party timely seeks a protective order, the 25 Receiving Party shall not produce any information in its possession or control that 26 is subject to the confidentiality agreement with the Non-Party before a 27 28 17 1 determination by the court.6 Absent a court order to the contrary, the Non-Party 2 shall bear the burden and expense of seeking protection in this court of its Protected 3 Material. 4 12. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL Stipulated Protective Order, the Receiving Party must immediately (a) notify in 8 SUITE 500 1333 2nd Street SANTA MONICA, CALIFORNIA 90401-4110 Telephone: (310) 451-0647 Facsimile: (310) 394-4477 Protected Material to any person or in any circumstance not authorized under this 7 Attorneys at Law If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 6 CISLO & THOMAS LLP 5 writing the Designating Party of the unauthorized disclosures, (b) use its best 9 efforts to retrieve all unauthorized copies of the Protected Material, (c) inform the 10 person or persons to whom unauthorized disclosures were made of all the terms of 11 this Order, and (d) request such person or persons to execute the “Acknowledgment 12 and Agreement to Be Bound” that is attached hereto as Exhibit A. 13 13. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 14 PROTECTED MATERIAL 15 When a Producing Party gives notice to Receiving Parties that certain 16 inadvertently produced material is subject to a claim of privilege or other 17 protection, the obligations of the Receiving Parties are those set forth in Federal 18 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify 19 whatever procedure may be established in an e-discovery order that provides for 20 production without prior privilege review. Pursuant to Federal Rule of Evidence 21 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure 22 of a communication or information covered by the attorney-client privilege or work 23 product protection, the parties may incorporate their agreement in the stipulated 24 protective order submitted to the court. 25 26 27 28 6 The purpose of this provision is to alert the interested parties to the existence of confidentiality rights of a Non-Party and to afford the Non-Party an opportunity to protect its confidentiality interests in this court. 18 1 14. 2 3 MISCELLANEOUS 14.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek its modification by the court in the future. disclosing or producing any information or item on any ground not addressed in 7 this Stipulated Protective Order. Similarly, no Party waives any right to object on 8 SUITE 500 1333 2nd Street SANTA MONICA, CALIFORNIA 90401-4110 Telephone: (310) 451-0647 Facsimile: (310) 394-4477 Protective Order no Party waives any right it otherwise would have to object to 6 Attorneys at Law 14.2 Right to Assert Other Objections. By stipulating to the entry of this 5 CISLO & THOMAS LLP 4 any ground to use in evidence of any of the material covered by this Protective 9 Order. 10 14.3 Export Control. Disclosure of Protected Material shall be subject to all 11 applicable laws and regulations relating to the export of technical data contained in 12 such Protected Material, including the release of such technical data to foreign 13 persons or nationals in the United States or elsewhere. The Producing Party shall 14 be responsible for identifying any such controlled technical data, and the Receiving 15 Party shall take measures necessary to ensure compliance. 16 14.4 Filing Protected Material. Without written permission from the 17 Designating Party or a court order secured after appropriate notice to all interested 18 persons, a Party may not file in the public record in this action any Protected 19 Material. A Party that seeks to file under seal any Protected Material must comply 20 with Civil Local Rule 79-5. Protected Material may only be filed under seal 21 pursuant to a court order authorizing the sealing of the specific Protected Material 22 at issue. Pursuant to Civil Local Rule 79-5, a sealing order will issue only upon a 23 request establishing that the Protected Material at issue is privileged, protectable as 24 a trade secret, or otherwise entitled to protection under the law. 25 15. FINAL DISPOSITION 26 Within 60 days after the final disposition of this action, as defined in 27 paragraph 4, each Receiving Party must return all Protected Material to the 28 Producing Party or destroy such material. 19 As used in this subdivision, “all Protected Material is returned or destroyed, the Receiving Party must submit a 4 written certification to the Producing Party (and, if not the same person or entity, to 5 the Designating Party) by the 60-day deadline that (1) identifies (by category, 6 where appropriate) all the Protected Material that was returned or destroyed and (2) 7 affirms that the Receiving Party has not retained any copies, abstracts, 8 SUITE 500 1333 2nd Street SANTA MONICA, CALIFORNIA 90401-4110 Telephone: (310) 451-0647 Facsimile: (310) 394-4477 other format reproducing or capturing any of the Protected Material. Whether the 3 Attorneys at Law Protected Material” includes all copies, abstracts, compilations, summaries, and any 2 CISLO & THOMAS LLP 1 compilations, summaries or any other format reproducing or capturing any of the 9 Protected Material. Notwithstanding this provision, Counsel are entitled to retain 10 an archival copy of all pleadings, motion papers, trial, deposition, and hearing 11 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert 12 reports, attorney work product, and consultant and expert work product, even if 13 such materials contain Protected Material. Any such archival copies that contain or 14 constitute Protected Material remain subject to this Protective Order as set forth in 15 Section 4 (DURATION). 16 17 18 PURSUANT TO THE STIPULATION OF THE PARTIES THROUGH 19 THEIR COUNSEL OF RECORD, IT IS SO ORDERED. 20 21 22 23 24 DATED: _July 8, 2014__ _____________________________________ Hon. Patrick J. Walsh United States Magistrate Judge 25 26 27 28 20 1 EXHIBIT A 2 3 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 4 5 6 I, _____________________________ [print or type full name], of SUITE 500 1333 2nd Street SANTA MONICA, CALIFORNIA 90401-4110 Telephone: (310) 451-0647 Facsimile: (310) 394-4477 Attorneys at Law ___________________________________________ [print or type full address], declare under 8 CISLO & THOMAS LLP 7 penalty of perjury that I have read in its entirety and understand the Stipulated Protective Order 9 that was issued by the United States District Court for the Central District of California in the 10 case of Peter H. Wolf v. Capstone Photography, Inc. et al., Case No. CV 13-9573 CAS (PJWx). 11 I agree to comply with and to be bound by all the terms of this Stipulated Protective Order 12 and I understand and acknowledge that failure to so comply could expose me to sanctions and 13 punishment in the nature of contempt. I solemnly promise that I will not disclose in any manner 14 any information or item that is subject to this Stipulated Protective Order to any person or entity 15 except in strict compliance with the provisions of this Order. 16 I further agree to submit to the jurisdiction of the United States District Court for the 17 Central District of California for the purpose of enforcing the terms of this Stipulated Protective 18 Order, even if such enforcement proceedings occur after termination of this action. 19 I hereby appoint __________________________ [print or type full name] of 20 ________________________________________________ [print or type full address and 21 telephone number] as my California agent for service of process in connection with this action 22 or any proceedings related to enforcement of this Stipulated Protective Order. 23 Date: _________________________________ 24 City and State where sworn and signed: _________________________________ 25 Printed name: ______________________________ 26 27 Signature: __________________________________ 28 21

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