Adobe Systems Incorporated v. David Far et al

Filing 42

PROTECTIVE ORDER by Magistrate Judge Andrew J. Wistrich, re: Stipulation for Protective Order, 37 . (mz)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ADOBE SYSTEMS
INCORPORATED, a Delaware
corporation,

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CASE NO. 2:15-CV-06192-AB (AJWx)
[DISCOVERY MATTER]

Plaintiff,
[PROPOSED] PROTECTIVE ORDER

v.
DAVID FAR, et al.,

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Defendants.

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Upon joint stipulation of Plaintiff Adobe Systems Incorporated (“Plaintiff”)

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and Defendants David Far and Nazanin Aran (“Defendants”), by and through their

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respective counsel of record, and FOR GOOD CAUSE SHOWN, THE COURT

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HEREBY FINDS AND ORDERS AS FOLLOWS:

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1.

PURPOSES AND LIMITATIONS
Discovery in this Action is likely to involve production of

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public disclosure; in the case of information that is extremely confidential and/or

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sensitive in nature, from disclosure to any other Party or Non-Party other than

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confidential, proprietary, or private information for which special protection from

Counsel; and from use for any purpose other than prosecuting this Action may be
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warranted. This Protective Order Regarding the Disclosure and Use of Discovery

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Material (“Order” or “Protective Order”) does not confer blanket protections on all

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disclosures or responses to discovery and the protection it affords from public or

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other disclosure and use extends only to the limited information or items that are

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entitled to confidential treatment under the applicable legal principles. As set forth

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in Section 13.3, below, this Protective Order does not entitle the Parties to file

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confidential information under seal; Civil Local Rule 79-5 sets forth the procedures

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that must be followed and the standards that will be applied when a Party seeks

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permission from the court to file material under seal.

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2.

GOOD CAUSE STATEMENT
This Action is likely to involve trade secrets, customer and pricing

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protection from public disclosure; and for which prevention from use for any

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purpose other than prosecution of this Action is warranted. Such confidential and

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proprietary materials and information consist of, among other things, confidential

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business or financial information, information regarding confidential business

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practices, or other confidential research, development, or commercial information

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(including information implicating privacy rights of Non-Parties), information

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otherwise generally unavailable to the public or to any Party or Non-Party, or

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which may be privileged or otherwise protected from disclosure under state or

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federal statutes, court rules, case decisions, or common law. Accordingly, to

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expedite the flow of information, to facilitate the prompt resolution of disputes

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over confidentiality of discovery materials, to adequately protect information

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Parties and Non-Parties are entitled to keep confidential, to ensure that the Parties

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are permitted reasonable necessary uses of such material in preparation for and in

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the conduct of trial, to address their handling at the end of the Action, and serve the

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ends of justice, a protective order for such information is justified in this matter. It

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information, financial, technical and/or proprietary information for which special

is the intent of the Parties that information will not be designated as confidential
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for tactical reasons and that nothing be so designated without a good faith belief

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that it has been maintained in a confidential, non-public manner, and there is good

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cause why it should not be part of the public record in this case.

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3.

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3.1

Action: This pending federal law suit Adobe Systems Inc. v.

Far, Case No. 2:15-CV-06192-AB (AJWx).

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DEFINITIONS

3.2

Challenging Party: a Party or Non-Party that challenges the

designation of information or items under this Order.

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3.3

“CONFIDENTIAL” Information or Items: information

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(regardless of how it is generated, stored or maintained) or tangible things that

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qualify for protection under Federal Rule of Civil Procedure 26(c), and as specified

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above in the Good Cause Statement.

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3.4

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

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Information or Items: extremely sensitive “CONFIDENTIAL” Information or

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Items, the disclosure of which to another Party or Non-Party would create a

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substantial risk of serious harm that could not be avoided by less restrictive means.

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3.5

Counsel: Outside Counsel of Record and House Counsel (as

well as their support staff).

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3.6

Designating Party: a Party or Non-Party that designates

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information or items that it produces in disclosures or in responses to discovery as

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY.”

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3.7

Disclosure or Discovery Material: all items or information,

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regardless of the medium or manner in which it is generated, stored, or maintained

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(including, among other things, testimony, transcripts, and tangible things), that are

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produced or generated in disclosures or responses to discovery in this matter.

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3.8

Expert: a person with specialized knowledge or experience in a

matter pertinent to the litigation who has been retained by a Party or its counsel to
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serve as an expert witness or as a consultant in this Action.

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3.9

House Counsel: attorneys who are employees of a party to this

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Action. House Counsel does not include Outside Counsel of Record or any other

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outside counsel.

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3.10 Non-Party: any natural person, partnership, corporation,
association, or other legal entity not named as a Party to this action.

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3.11 Outside Counsel of Record: attorneys who are not employees of

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a party to this Action but are retained to represent or advise a party to this Action

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and have appeared in this Action on behalf of that party or are affiliated with a law

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firm which has appeared on behalf of that party, and includes support staff.

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3.12

Party: any party to this Action, including all of its officers,

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directors, employees, consultants, retained experts, and Outside Counsel of Record

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(and their support staffs).

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3.13 Producing Party: a Party or Non-Party that produces Disclosure
or Discovery Material in this Action.

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3.14 Professional Vendors: persons or entities that provide litigation

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support services (e.g., photocopying, videotaping, translating, preparing exhibits or

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demonstrations, and organizing, storing, or retrieving data in any form or medium)

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and their employees and subcontractors.

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3.15 Protected Material: any Disclosure or Discovery Material that is

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designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

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ATTORNEYS EYES ONLY.”

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3.16 Receiving Party: a Party that receives Disclosure or Discovery
Material from a Producing Party.
4.

SCOPE
The protections conferred by this Protective Order cover not only

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Protected Material (as defined above), but also (1) any information copied or
extracted from Protected Material; (2) all copies, excerpts, summaries, or
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compilations of Protected Material; and (3) any testimony, conversations, or

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presentations by Parties or their Counsel that might reveal Protected Material.

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Any use of Protected Material at trial shall be governed by the orders
of the trial judge. This Order does not govern the use of Protected Material at trial.
5.

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DURATION
Even after final disposition of this litigation, the confidentiality

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obligations imposed by this Order shall remain in effect until a Designating Party

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agrees otherwise in writing or a court order otherwise directs. Final disposition

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shall be deemed to be the later of (1) dismissal of all claims and defenses in this

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Action, with or without prejudice; and (2) final judgment herein after the

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completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of

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this Action, including the time limits for filing any motions or applications for

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extension of time pursuant to applicable law.

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6.

DESIGNATING PROTECTED MATERIAL
6.1

Exercise of Restraint and Care in Designating Material for

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Protection. Each Party or Non-Party that designates information or items for

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protection under this Order must take care to limit any such designation to specific

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material that qualifies under the appropriate standards. The Designating Party must

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designate for protection only those parts of material, documents, items, or oral or

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written communications that qualify so that other portions of the material,

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documents, items, or communications for which protection is not warranted are not

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swept unjustifiably within the ambit of this Order. Mass, indiscriminate, or

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routinized designations are prohibited. Designations that are shown to be clearly

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unjustified or that have been made for an improper purpose (e.g., to unnecessarily

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encumber the case development process or to impose unnecessary expenses and

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burdens on other parties) may expose the Designating Party to sanctions.

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If it comes to a Designating Party’s attention that information or items
that it designated for protection do not qualify for protection, that Designating
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Party must promptly notify all other Parties that it is withdrawing the inapplicable

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designation.

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6.2

Manner and Timing of Designations. Except as otherwise

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provided in this Order, or as otherwise stipulated or ordered, Disclosure or

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Discovery Material that qualifies for protection under this Order must be clearly so

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designated before the material is disclosed or produced after the date of entry of

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this Protective Order.

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Designation in conformity with this Protective

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Order requires:

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(a) for information in documentary form (e.g., paper or

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electronic documents, but excluding transcripts of depositions or other pretrial or

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trial proceedings), that the Producing Party affix, at a minimum, the legend

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“CONFIDENTIAL” to each page that contains Protected Material. If only a

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portion or portions of the material on a page qualifies for protection, the Producing

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Party also must clearly identify the protected portion(s) (e.g., by making

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appropriate markings in the margins).

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A Party or Non-Party that makes original documents available

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Party has indicated which documents it would like copied and produced. After the

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inspecting Party has identified the documents it wants copied and produced, the

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Producing Party must determine which documents, or portions thereof, qualify for

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protection under this Protective Order. Then, before producing the specified

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documents, the Producing Party must affix the “CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY” legend to each page that

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contains Protected Material. If only a portion or portions of the material on a page

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qualifies for protection, the Producing Party also must clearly identify the

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protected portion(s) (e.g., by making appropriate markings in the margins).

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for inspection need not designate them for protection until after the inspecting

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(b) Parties or testifying persons or entities may designate

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depositions and other testimony with the appropriate designation by indicating on

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the record at the time the testimony is given or by sending written notice of how

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portions of the transcript of the testimony is designated within thirty (30) days of

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receipt of the transcript of the testimony. If no indication on the record is made, all

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information disclosed during a deposition shall be deemed “CONFIDENTIAL”

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until the time within which it may be appropriately designated as provided for

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herein has passed. Any Party that wishes to disclose the transcript, or information

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contained therein, may provide written notice of its intent to treat the transcript as

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non-confidential, after which time, any Party that wants to maintain any portion of

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the transcript as confidential must designate the confidential portions within thirty

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(30) days, or else the transcript may be treated as non-confidential.

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(c) for information produced in some form other than

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documentary and for any other tangible items, that the Producing Party affix in a

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prominent place on the exterior of the container or containers in which the

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information is stored the “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY” legend. If only a portion or portions of the

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information warrants protection, the Producing Party, to the extent practicable,

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shall identify the protected portion(s).

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6.3 Inadvertent Failures to Designate. If timely corrected, an

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alone, waive the Designating Party’s right to secure protection under this

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Protective Order for such material. Upon timely correction of a designation, the

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Receiving Party must make reasonable efforts to assure that the material is treated

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in accordance with the provisions of this Protective Order.

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inadvertent failure to designate qualified information or items does not, standing

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7.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
7.1

Timing of Challenges. Any Party or Non-Party may challenge

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a designation of confidentiality at any time that is consistent with the Court’s

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Scheduling Order.

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7.2

Meet and Confer. The Challenging Party shall initiate the

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dispute resolution process under Local Rule 37.1, et seq. Any discovery motion

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must strictly comply with the procedures set forth in Local Rules 37-1, 37-2, and

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37-3.

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7.3

Burden. The burden of persuasion in any such challenge

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proceeding shall be on the Designating Party. Frivolous challenges, and those

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made for an improper purpose (e.g., to harass or impose unnecessary expenses and

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burdens on other Parties or Non-Parties) may expose the Challenging Party to

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sanctions. Unless the Designating Party has waived or withdrawn the

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confidentiality designation, all Parties and Non-Parties bound by this Protective

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Order shall continue to afford the Protected Material in question the level of

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protection to which it is entitled under the Producing Party’s designation until the

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Court rules on the challenge.

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8.

ACCESS TO AND USE OF PROTECTED MATERIAL
8.1

Basic Principles. A Receiving Party may use Protected

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Material that is disclosed or produced by another Party or by a Non-Party in

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connection with this Action only for prosecuting, defending, or attempting to settle

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this Action. Such Protected Material may be disclosed only to the categories of

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persons and under the conditions described in this Protective Order. When the

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Action has been terminated, a Receiving Party must comply with the provisions of

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Section 14 below (FINAL DISPOSITION).

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Protected Material must be stored and maintained by a Receiving

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Party at a location and in a secure manner that ensures that access is limited to the
persons authorized under this Protective Order.
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8.2

Disclosure of “CONFIDENTIAL” Information or Items.

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Unless otherwise ordered by the Court or permitted in writing by the Designating

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Party, a Receiving Party may disclose any information or item designated

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“CONFIDENTIAL” only to:

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(a) the Receiving Party’s Outside Counsel of Record, as well

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as employees of said Outside Counsel of Record to whom it is reasonably

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necessary to disclose the information for this Action;

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(b) the officers, directors, and employees (including House
Counsel) of the Receiving Party to whom disclosure is reasonably necessary for

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this Action, provided that each such person has agreed to be bound by the

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provisions of the Protective Order by signing a copy of the “Acknowledgment and

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Agreement to Be Bound” (Exhibit A);

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(c) Experts of the Receiving Party to whom disclosure is

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reasonably necessary for this Action, provided that each such person has agreed to

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be bound by the provisions of the Protective Order by signing a copy of the

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“Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(d) the Court, jury, and Court personnel;

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(e) Court reporters, stenographers and videographers retained to

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record testimony taken in this Action;
(f) professional jury or trial consultants, mock jurors, and

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Professional Vendors to whom disclosure is reasonably necessary for this Action,

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provided that each such person has agreed to be bound by the provisions of the

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Protective Order by signing a copy of the “Acknowledgment and Agreement to Be

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Bound” (Exhibit A);

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(g) Any persons who:

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(h) appear on the face of the designated Protected Material as

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an author, addressee or recipient thereof, or (ii) are witnesses during a deposition,
court hearing, or trial where specific documentary or testimonial evidence
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establishes that the designated Protected Material was authored or received by the

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witness;

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(i) during their depositions, witnesses, and attorneys for

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witnesses, in the Action to whom disclosure is reasonably necessary provided: (1)

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the deposing party requests that the witness agree to be bound by the provisions of

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the Protective Order by signing the “Acknowledgment and Agreement to Be

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Bound” (Exhibit A); and (2) they will not be permitted to keep any Protected

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Material unless otherwise agreed by the Designating Party or ordered by the Court.

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Pages of transcribed deposition testimony or exhibits to depositions that reveal

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Protected Material may be separately bound by the court reporter and may not be

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disclosed to anyone except as permitted under this Protective Order; and

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(j) any mediator or settlement officer, and their supporting

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personnel, mutually agreed upon by any of the Parties engaged in settlement

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discussions.

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8.3

Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’

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EYES ONLY” Information or Items. Unless otherwise ordered by the court or

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permitted in writing by the Designating Party, a Receiving Party may disclose any

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information or item designated “CONFIDENTIAL” only to:

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(a) the Receiving Party’s Outside Counsel of Record in this

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Action, as well as employees of said Outside Counsel of Record to whom it is

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reasonably necessary to disclose the information for this Action;

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(b) Experts (as defined in this Order) of the Receiving Party to

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whom disclosure is reasonably necessary for this Action and who have signed the

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“Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(c) the court and its personnel;

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(d) private court reporters and their staff to whom disclosure is

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reasonably necessary for this Action and who have signed the “Acknowledgment
and Agreement to Be Bound” (Exhibit A);
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(e) professional jury or trial consultants, mock jurors, and

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Professional Vendors to whom disclosure is reasonably necessary for this Action

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and who have signed the “Acknowledgment and Agreement to Be Bound”

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(Exhibit A);

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(f) the author or recipient of a document containing the

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information or a custodian or other person who otherwise possessed or knew the

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information; and

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(g) any mediator or settlement officer, and their supporting
personnel, mutually agreed upon by any of the parties engaged in settlement
discussions.
9.

PROTECTED MATERIAL SUBPOENAED OR ORDERED

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PRODUCED IN OTHER LITIGATION

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If a Party is served with a subpoena or a court order issued in other

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litigation that compels disclosure of any information or items designated in this

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Action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’

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EYES ONLY” that Party must:

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(a) promptly notify in writing the Designating Party. Such notification
shall include a copy of the subpoena or court order;
(b) promptly notify in writing the party who caused the subpoena or

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order to issue in the other litigation that some or all of the material covered by the

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subpoena or order is subject to this Protective Order. Such notification shall

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include a copy of this Protective Order; and

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(c) cooperate with respect to all reasonable procedures sought to be
pursued by the Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party

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designated in this Action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL

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served with the subpoena or court order shall not produce any information

– ATTORNEYS’ EYES ONLY” before a determination by the court from which
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the subpoena or order issued, unless the Party has obtained the Designating Party’s

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permission. The Designating Party shall bear the burden and expense of seeking

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protection in that court of its Protected Material and nothing in these provisions

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should be construed as authorizing or encouraging a Receiving Party in this Action

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to disobey a lawful directive from another court.

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10.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

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PRODUCED IN THIS ACTION

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(a)

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The terms of this Protective Order are applicable to information

produced by a Non-Party in this Action and designated as “CONFIDENTIAL” or

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”.” Such

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information produced by Non-Parties in connection with this Action is protected

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by the remedies and relief provided by this Protective Order. Nothing in these

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provisions should be construed as prohibiting a Non-Party from seeking additional

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protections.

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(b)

In the event that a Party is required, by a valid discovery

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request, to produce a Non-Party’s Protected Material in its possession, and the

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Party is subject to an agreement with the Non-Party not to produce the Non-Party’s

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Protected Material, then the Party shall:

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(1)

promptly notify in writing the requesting party and the

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Non-Party that some or all of the information requested is subject to a

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confidentiality agreement with a Non-Party;

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(2)

promptly provide the Non-Party with a copy of the

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Protective Order in this Action, the relevant discovery request(s), and a reasonably

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specific description of the information requested; and

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(3)

make the information requested available for inspection

by the Non-Party, if requested.
(c)

If a Non-Party represented by counsel fails to commence the

process called for by Local Rules 45-1 and 37-1, et seq. within 14 days of
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receiving the notice and accompanying information or fails contemporaneously to

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notify the Receiving Party that it has done so, the Receiving Party may produce the

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Non-Party’s confidential information responsive to the discovery request. If an

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unrepresented Non-Party fails to seek a protective order from this court within 14

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days of receiving the notice and accompanying information, the Receiving Party

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may produce the Non-Party’s confidential information responsive to the discovery

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request. If the Non-Party timely seeks a protective order, the Receiving Party shall

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not produce any information in its possession or control that is subject to the

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confidentiality agreement with the Non-Party before a determination by the court

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unless otherwise required by the law or court order. Absent a court order to the

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contrary, the Non-Party shall bear the burden and expense of seeking protection in

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this court of its Protected Material.

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11.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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If a Receiving Party learns that, by inadvertence or otherwise, it has

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disclosed Protected Material to any person or in any circumstance not authorized

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under this Protective Order, the Receiving Party must immediately (a) notify in

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writing the Designating Party of the unauthorized disclosures, (b) use its best

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efforts to retrieve all unauthorized copies of the Protected Material, (c) inform the

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person or persons to whom unauthorized disclosures were made of all the terms of

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this Protective Order, and (d) request such person or persons to execute the

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"Acknowledgment and Agreement to Be Bound" that is attached hereto as

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Exhibit A.

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12.

INADVERTENT PRODUCTION OF PRIVILEGED OR

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OTHERWISE PROTECTED MATERIAL

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When a Producing Party gives notice to a Receiving Party that certain

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protection, the obligations of the Receiving Party are those set forth in Federal

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inadvertently produced material is subject to a claim of privilege or other

Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify
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whatever procedure may be established in an e-discovery order that provides for

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production without prior privilege review. Pursuant to Federal Rule of Evidence

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502(d) and (e), insofar as the Parties reach an agreement on the effect of disclosure

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of a communication or information covered by the attorney-client privilege or

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work product protection, the Parties may incorporate their agreement in a

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stipulated protective order submitted to the Court.

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13.

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MISCELLANEOUS
13.1 Right to Further Relief. Nothing in this Protective Order

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abridges the right of any person to seek its modification by the Court in the future.

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

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this Protective Order, no Party waives any right it otherwise would have to object

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to disclosing or producing any information or item on any ground not addressed in

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this Protective Order. Similarly, no Party waives any right to object on any ground

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to use in evidence of any of the Protected Material covered by this Protective

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Order.

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13.3 Filing Protected Material. A Party that seeks to file under seal

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any Protected Material must comply with Civil Local Rule 79-5. Protected

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Material may only be filed under seal pursuant to a Court order authorizing the

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sealing of the specific Protected Material at issue; good cause must be shown in the

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request to file under seal. If a Party’s request to file Protected Material under seal

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is denied by the Court, then the Receiving Party may file the information in the

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public record unless otherwise instructed by the Court.

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14.

FINAL DISPOSITION
After the final disposition of this Action, within sixty (60) days of a

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Protected Material to the Producing Party or destroy such Protected Material. As

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used in this Section 14, “all Protected Material” includes all copies, abstracts,

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written request by the Designating Party, each Receiving Party must return all

compilations, summaries, and any other format reproducing or capturing any of the
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Protected Material. Whether the Protected Material is returned or destroyed, the

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Receiving Party must submit a written certification to the Producing Party (and, if

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not the same person or entity, to the Designating Party) by the sixty (60) day

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deadline that (1) identifies (by category, where appropriate) all the Protected

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Material that was returned or destroyed and (2) affirms that the Receiving Party

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has not retained any copies, abstracts, compilations, summaries or any other format

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reproducing or capturing any of the Protected Material. Notwithstanding this

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provision, Counsel are entitled to retain an archival copy of all pleadings, motion

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papers, trial, deposition, and hearing transcripts, legal memoranda,

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correspondence, deposition and trial exhibits, Expert reports, attorney work-

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product, and consultant and Expert work-product, even if such materials contain

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Protected Material. Any such archival copies that contain or constitute Protected

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Material remain subject to this Protective Order as set forth in Section 5

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(DURATION).

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Any violation of this Protective Order may be punished by any and all

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appropriate measures including, without limitation, contempt proceedings and/or

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monetary sanctions.

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

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DATED:

June 14, 2016

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Honorable Andrew J. Wistrich
United States Magistrate Judge

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I,

[print or type full name], of

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[print or type full address],

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declare under penalty of perjury that I have read in its entirety and understand the

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Protective Order that was issued by the United States District Court for the Central

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District of California on

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Incorporated. v. Far, Case No. 2:15-CV-06192-AB (AJWx).

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[date] in the case of Adobe Systems

I agree to comply with and to be bound by all the terms of this Protective

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Order and I understand and acknowledge that failure to so comply could expose me

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to sanctions and punishment in the nature of contempt. I solemnly promise that I will

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not disclose in any manner any information or item that is subject to this Protective

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Order to any person or entity except in strict compliance with the provisions of this

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Order.

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I further agree to submit to the jurisdiction of the United States District Court

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for the Central District of California for the purpose of enforcing the terms of this

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Protective Order, even if such enforcement proceedings occur after termination of

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this action. I hereby appoint

[print or type full name] of

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[print or type full address and

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telephone number] as my California agent for service of process in connection with

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this action or any proceedings related to enforcement of this Protective Order.

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Date:

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City and State where sworn and signed:

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Printed Name:

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Signature:

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83408942v1

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