Gard Van Antwerp v. Reis Robotics USA, Inc. et al

Filing 24

STIPULATED PROTECTIVE ORDER 23 by Magistrate Judge Steve Kim. (SEE ORDER FOR DETAILS). (clee)

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KAUFMAN McANDREW LLP
STEPHEN F. MCANDREW, State Bar No. 149063
MITCHELL F. KAUFMAN, State Bar No. 157504
16633 Ventura Boulevard, Suite 500
Encino, California 91436
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiff Gard Van Antwerp

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NATALIE A. PIERCE, Bar No. 191342
[e-mail]
MICHAEL J. HUI, Bar No. 273212
[e-mail]
WILLIAM A. COSMOPULOS, Bar No. 312908
[e-mail]
LITTLER MENDELSON, P.C.
333 Bush Street, 34th Floor
San Francisco, CA 94104
Telephone: [phone]
Fax No.:
415.399.8490
Attorneys for Defendant
REIS ROBOTICS USA, INC.

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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GARD VAN ANTWERP, an
individual,

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Case No. 2:18-cv-3018-JAK (SK)

Plaintiffs,

DISCOVERY DOCUMENT: REFERRED TO
MAGISTRATE JUDGE STEVE KIM

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v.

STIPULATED PROTECTIVE
ORDER AND FRE 502(D) AND (E)
CLAWBACK ORDER

REIS ROBOTICS USA, INC., an
Illinois corporation; and DOES 1 to
100, inclusive,
Defendants.

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LITTLE R MEND ELSO N, P .C .
D
333 BU SH STREET
34TH FLOOR
SAN FRANCISCO, CA 94104
415.433.1940

Case No. 2:18-cv-03018-JAK-SK

1.

STIPULATED PROTECTIVE ORDER

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1.

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Disclosure and discovery activity in this

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PURPOSES AND LIMITATIONS

production of confidential, proprietary,

or

action are
private

likely to

information

for

involve
which

special protection from public disclosure and from use for any purpose other than
prosecuting this litigation may be warranted.

Accordingly, the parties hereby

stipulate to and petition the court to enter the following Stipulated Protective Order.
The parties acknowledge that this Order does not confer blanket protections on
all disclosures or responses to discovery and that the protection it affords from
public disclosure and use extends only to the limited information or items that are
entitled to confidential treatment under the applicable legal principles. The parties
further acknowledge, as set forth in Section 14.3, below, that this Stipulated
Protective Order does not entitle them to file confidential information under seal;
Civil Local Rule 79-5 sets forth the procedures that must be followed and the
standards that will be applied when a party seeks permission from the court to file
material under seal.
2.

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

and other valuable research, development, commercial, financial, technical and/or
proprietary information for which special protection from public disclosure and
from use for any purpose other than prosecution of this action is warranted. Such
confidential and proprietary materials and information consist of, among other
things, confidential business

or

financial

information, regarding

confidential business practices, or other confidential research, development, or
commercial information (including information implicating privacy rights of third
parties), information otherwise generally unavailable to the public, or which may be
privileged or otherwise protected from disclosure under state or federal statutes,
court rules, case decisions, or common law. Accordingly, to expedite the flow of

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LITTLE R MEND ELSO N, P .C .
D
333 BU SH STREET
34TH FLOOR
SAN FRANCISCO, CA 94104
415.433.1940

Case No. 2:18-cv-03018-JAK-SK

2.

STIPULATED PROTECTIVE ORDER

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information, to facilitate the prompt resolution of disputes over confidentiality of

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discovery materials, to adequately protect information the parties are entitled to keep

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confidential, to ensure that the parties are permitted reasonable necessary uses of

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such material in preparation for and in the conduct of trial, to address their handling

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at the end of the litigation, and serve the ends of justice, a protective order for such

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information is justified in this matter. It is the intent of the parties that information

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will not be designated as confidential for tactical reasons and that nothing be so

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designated without a good faith belief that it has been maintained in a confidential,

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non-public manner, and there is good cause why it should not be part of the public

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record of this case.

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3. DEFINITIONS

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3.1

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

of information or items under this Order.
3.2 “CONFIDENTIAL” Information or Items:

information (regardless of

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how it is generated, stored

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protection under Federal Rule of Civil Procedure 26(c) .

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or

maintained) or tangible things that qualify

for

3.3 Counsel (without qualifier): Outside Counsel of Record and House
Counsel (as well as their support staff).
3.4

Designated House Counsel: House Counsel who seek access to

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information in this

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matter.

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3.5

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items that

it

produces

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discovery

as

“CONFIDENTIAL”

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ATTORNEYS’ EYES ONLY”.

Designating Party: a Party or Non-Party that designates information or
in

disclosures or
or

in

“HIGHLY

responses

to

CONFIDENTIAL

–

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3.6 Disclosure or Discovery Material: all items or information, regardless of

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the medium or manner in which it is generated, stored, or maintained (including,

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LITTLE R MEND ELSO N, P .C .
D
333 BU SH STREET
34TH FLOOR
SAN FRANCISCO, CA 94104
415.433.1940

Case No. 2:18-cv-03018-JAK-SK

3.

STIPULATED PROTECTIVE ORDER

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among other things, testimony, transcripts, and tangible things), that are produced or

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generated in disclosures or responses to discovery in this matter.

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3.7 Expert: a person with specialized knowledge or experience in a matter

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pertinent to the litigation who has been retained by a Party or its counsel to serve as

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an expert witness or as a consultant in this action.

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3.8 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information

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or Items: extremely sensitive “Confidential Information or Items,” disclosure of which

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to another Party or Non-Party would create a substantial risk of serious harm that

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could not be avoided by less restrictive means.

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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.
3.11 Outside Counsel of Record:

attorneys who are not employees

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of 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.

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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
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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LITTLE R MEND ELSO N, P .C .
D
333 BU SH STREET
34TH FLOOR
SAN FRANCISCO, CA 94104
415.433.1940

Case No. 2:18-cv-03018-JAK-SK

4.

STIPULATED PROTECTIVE ORDER

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3.15 Protected Material: any Disclosure or Discovery Material that is

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designated

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ATTORNEYS’ EYES ONLY.”

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as

“CONFIDENTIAL,”

3.16 Receiving Party:

or

as

“HIGHLY

CONFIDENTIAL

–

a Party that receives Disclosure or

Discovery Material from a Producing Party.
4. SCOPE

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The protections conferred by this Stipulation and Order cover not only

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Protected Material (as defined above), but also (1) any information copied or

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extracted from

Protected

Material;

(2)

all

copies,

excerpts,

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summaries, or compilations of Protected Material; and (3) any testimony,

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conversations,

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Protected Material. However, the protections conferred by this Stipulation and Order

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do not cover the following information: (a) any information that is in the public

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domain at the time of disclosure to a Receiving Party or becomes part of the public

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domain after its disclosure to a Receiving Party as a result of publication not

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involving a violation of this Order, including becoming part of the public record

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through trial or otherwise; and (b) any information known to the Receiving Party

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prior to the disclosure or obtained by the Receiving Party after the disclosure from a

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source who obtained the information lawfully and under no obligation of

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confidentiality to the Designating Party. Any use of Protected Material at trial shall

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be governed by a separate agreement or order.

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or presentations by Parties or their Counsel that might reveal

5. DURATION
Even after final disposition of this litigation, the confidentiality
obligations imposed by this Order shall remain in effect until a Designating
Party agrees otherwise in writing or a court order otherwise directs. Final
disposition shall be deemed to be the later of (1) dismissal of all claims and
defenses in this action, with or without prejudice; and (2) final judgment herein

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LITTLE R MEND ELSO N, P .C .
D
333 BU SH STREET
34TH FLOOR
SAN FRANCISCO, CA 94104
415.433.1940

Case No. 2:18-cv-03018-JAK-SK

5.

STIPULATED PROTECTIVE ORDER

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after the completion and exhaustion of all appeals, rehearings, remands, trials,

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or reviews of this action, including the time limits for filing any motions or

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applications for extension of time pursuant to applicable law.

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6. DESIGNATING PROTECTED MATERIAL

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6.1

Exercise of Restraint and Care in Designating Material for Protection.

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Each Party or Non-Party that designates information or items for protection under

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this Order must take care to limit any such designation to specific material that

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qualifies under the appropriate standards. To the extent it is practical to do so, the

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Designating Party must designate for protection only those parts of material,

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documents, items, or oral or written communications that qualify so that other

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portions of

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protection is not warranted are not swept unjustifiably within the ambit of this

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Order.

the material, documents, items, or communications for

which

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Mass, indiscriminate, or routinized designations are prohibited. Designations

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that are shown to be clearly unjustified or that have been made for an improper

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purpose (e.g., to unnecessarily encumber or retard the case development process or to

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impose unnecessary expenses and burdens on other parties)

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Designating Party to sanctions.

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expose the

If it comes to a Designating Party’s attention that information or items that it
designated for protection do not qualify for protection at all or do not qualify for the
level of protection initially asserted, that Designating Party must promptly notify all
other parties that it is withdrawing the mistaken designation.

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6.2

Manner and Timing of Designations. Except as otherwise provided in

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this Order (see, e.g., second paragraph of Section 6.2(a) below), or as otherwise

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stipulated or ordered, Disclosure or Discovery Material that qualifies for protection

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under this Order must be clearly so designated before the material is disclosed or

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produced.

LITTLE R MEND ELSO N, P .C .
D
333 BU SH STREET
34TH FLOOR
SAN FRANCISCO, CA 94104
415.433.1940

Case No. 2:18-cv-03018-JAK-SK

6.

STIPULATED PROTECTIVE ORDER

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Designation in conformity with this Order requires:
(a) for information in documentary form (e.g., paper or electronic
documents, but excluding transcripts of depositions or other pretrial or
trialproceedings),that

the

“CONFIDENTIAL”

Producing

(hereinafter

Party affix

the

“CONFIDENTIAL

legend
or

“HIGHLY

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” to each page that contains
protected material. If only a portion or portions of the material on a page qualifies
for protection, the Producing Party also must clearly identify the protected
portion(s) (e.g., by making appropriate markings in the margins) and must specify,
for each portion, the level of protection being asserted.

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A Party or Non-Party that makes original documents or materials
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available for inspection need not designate them for protection until after the
inspecting Party has indicated which material it would like copied and produced.
During the inspection and before the designation, all of the material made
available for inspection shall be deemed “HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY.” After

the

inspecting

Party has

identifie

the documents it wants copied and produced, the Producing Party must determine
which documents, or portions thereof, qualify for protection under this Order. Then,
before producing the specified documents, the

Producing

Part must

affix the

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” “HIGHLY
CONFIDENTIAL ATTORNEYS’ EYES ONLY.” contains Protected Material. If
only a portion or portions of the material on a page qualifies for protection, the
Producing Party also must clearly identify the protected portion(s) (e.g., by making
appropriate markings in the margins) and must specify, for each portion, the level of
protection being asserted.

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LITTLE R MEND ELSO N, P .C .
D
333 BU SH STREET
34TH FLOOR
SAN FRANCISCO, CA 94104
415.433.1940

Case No. 2:18-cv-03018-JAK-SK

7.

STIPULATED PROTECTIVE ORDER

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(b) for testimony given in deposition or in other pretrial or trial

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proceedings, that the Designating Party identify on the record, before the close of

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the deposition, hearing, or other proceeding, all protected testimony and specify the

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level of protection being asserted. When it is impractical to identify separately each

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portion of testimony that is entitled to protection and it appears that substantial

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portions of the testimony may qualify for protection, the Designating Party may

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invoke on the record (before the deposition, hearing, or other proceeding is

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concluded) a right to have up to 21 days to identify the specific portions of the

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testimony as to which protection is sought and to specify the level of protection

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being asserted. Only those portions of the testimony that are appropriately

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designated for protection within the 21 days shall be covered by the provisions of

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this Stipulated Protective Order. Alternatively, a Designating Party may specify, at

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the deposition or up to 21 days afterwards if that period is properly invoked, that the

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entire transcript

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”

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shall be

treated

as

“CONFIDENTIAL” or

“HIGHLY

Parties shall give the other parties notice if they reasonably expect a
deposition, hearing or other proceeding to include Protected Material so that the
other parties can ensure that only authorized individuals who have signed the
“Acknowledgment and Agreement to Be Bound” (Exhibit A) are present at those
proceedings. The use of a document as an exhibit at a deposition shall not in any
way affect its designation as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY.”

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Transcripts containing Protected Material shall have an obvious legend
on the title page that the transcript contains Protected Material, and the title page
shall be followed by a list of all pages (including line numbers as appropriate) that
have been designated as Protected Material and the level of protection being
asserted by the Designating Party. The Designating Party shall inform the court

LITTLE R MEND ELSO N, P .C .
D
333 BU SH STREET
34TH FLOOR
SAN FRANCISCO, CA 94104
415.433.1940

Case No. 2:18-cv-03018-JAK-SK

8.

STIPULATED PROTECTIVE ORDER

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reporter of these requirements. Any transcript that is prepared before the expiration

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of a 21-day period for designation shall be treated during that period as if it had

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been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in

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its entirety unless otherwise agreed. After the expiration of that period, the

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transcript shall be treated only as actually designated.

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(c) for information produced in some form other than documentary and
for any other tangible items, that the Producing Party affix in a prominent place on
for any other tangible items, that the Producing Party affix in a prominent place on the
exterior of the container or containers in which the information or item is stored the
legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
ONLY”. If only a portion or portions of the information or item warrant protection,
the Producing Party, to the extent practicable, shall identify the protected portion(s) )
and specify the level of protection being asserted.

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6.3 Inadvertent Failures to Designate.

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If timely corrected, an inadvertent

failure to designate qualified information or items does not, standing alone, waive
the Designating Party’s right to secure protection under this Order for such material.
Upon timely correction of a designation, the Receiving Party must make reasonable
efforts to assure that the material is treated in accordance with the provisions of this
Order.
7.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

7.1

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

confidentiality at any time. Unless a prompt challenge to a Designating Party’s
confidentiality designation is necessary to avoid foreseeable, substantial unfairness,
unnecessary economic burdens, or a significant disruption or delay of the litigation, a
Party does not waive its right to challenge a confidentiality designation by electing not
to mount a challenge promptly after the original designation is disclosed.
7.2

Meet and Confer. The Challenging Party shall initiate the dispute

LITTLE R MEND ELSO N, P .C .
D
333 BU SH STREET
34TH FLOOR
SAN FRANCISCO, CA 94104
415.433.1940

Case No. 2:18-cv-03018-JAK-SK

9.

STIPULATED PROTECTIVE ORDER

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resolution process by providing written notice of each designation it is challenging

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and describing the basis for each challenge. To avoid ambiguity as to whether a

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challenge has been made, the written notice must recite that the challenge to

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confidentiality is being made in accordance with this specific paragraph of the

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Protective Order. The parties shall attempt to resolve each challenge in good faith and

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must begin the process by conferring directly (in voice to voice dialogue; other forms

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of communication are not sufficient) within 14 days of the date of service of notice. In

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conferring, the Challenging Party must explain the basis for its belief that the

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confidentiality designation was not proper and must give the Designating Party an

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opportunity to review the designated material, to reconsider the circumstances, and, if

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no change in designation is offered, to explain the basis for the chosen designation. A

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Challenging Party may proceed to the next stage of the challenge process only if it has

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engaged in this meet and confer process first or establishes that the Designating Party

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is unwilling to participate in the meet and confer process in a timely manner.

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7.3

Judicial Intervention. If the Parties cannot resolve a challenge without

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court intervention, the Designating Party shall file and serve a motion to retain

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confidentiality under Civil Local Rule 7 (and in compliance with Civil Local Rule 79-

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5, if applicable) within 21 days of the initial notice of challenge or within 14 days of

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the parties agreeing that the meet and confer process will not resolve their dispute,

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whichever is earlier. Each such motion must be accompanied by a competent

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declaration affirming that the movant has complied with the meet and confer

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requirements imposed in the preceding paragraph. Failure by the Designating Party to

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make such a motion including the required declaration within 21 days (or 14 days, if

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applicable) shall automatically waive the confidentiality designation for each

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challenged designation. In addition, the Challenging Party may file a motion

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challenging a confidentiality designation at any time if there is good cause for doing

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so, including a challenge to the designation of a deposition transcript or any portions

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LITTLE R MEND ELSO N, P .C .
D
333 BU SH STREET
34TH FLOOR
SAN FRANCISCO, CA 94104
415.433.1940

Case No. 2:18-cv-03018-JAK-SK

10.

STIPULATED PROTECTIVE ORDER

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thereof. Any motion brought pursuant to this provision must be accompanied by a

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competent declaration affirming that the movant has complied with the meet and

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confer requirements imposed by the preceding paragraph.

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The burden of persuasion in any such challenge proceeding shall be on the

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Designating Party. Frivolous challenges, and those made for an improper

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purpose (e.g., to harass or impose unnecessary expenses and burdens on other

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parties) may expose the Challenging Party to sanctions. Unless the Designating

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Party has waived the confidentiality designation by failing to file a motion to retain

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confidentiality as described above, all parties shall continue to afford the material

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in question the level of protection to which it is entitled under the Producing

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Party’s designation until the court rules on the challenge.

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8.

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8.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed

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or produced by another Party or by a Non-Party in connection with this case only

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for prosecuting, defending, or attempting to settle this litigation. Such Protected

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Material may be disclosed only to the categories of persons and under the conditions

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described in this Order. When the litigation has been terminated, a Receiving Party

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must comply with the provisions of Section 15 below (FINAL DISPOSITION).

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Protected Material must be stored and maintained by a Receiving Party at a

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location and in a secure manner that ensures that access is limited to the persons

ACCESS TO AND USE OF PROTECTED MATERIAL

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in a secure manner that ensures that access is limited to the persons authorized

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under this Order.

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8.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

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ordered by the court or permitted in writing by the Designating Party, a Receiving

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Party may disclose any information or item designated “CONFIDENTIAL” only to:

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(a) the Receiving Party’s Outside Counsel of Record in this action, as
well as employees of said Outside Counsel of Record to whom it is reasonably

LITTLE R MEND ELSO N, P .C .
D
333 BU SH STREET
34TH FLOOR
SAN FRANCISCO, CA 94104
415.433.1940

Case No. 2:18-cv-03018-JAK-SK

11.

STIPULATED PROTECTIVE ORDER

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necessary to disclose the information for this litigation;
(b) the officers, directors, and employees (including House Counsel) of

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the Receiving Party to whom disclosure is reasonably necessary for this litigation;

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(c) Experts (as defined in this Order) of the Receiving Party to whom
disclosure is reasonably necessary for this litigation and who have signed the
“Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(d) the court and its personnel;

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(e) court reporters and their staff, professional jury or trial consultants,
and Professional Vendors to whom disclosure is reasonably necessary for this
litigation and who have signed the “Acknowledgment and Agreement to Be Bound”
(Exhibit A);

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(f) during their depositions, witnesses in the action to whom disclosure is
reasonably necessary and who have signed the “Acknowledgment and Agreement to
Be Bound” (Exhibit A), unless otherwise agreed by the Designating Party or ordered
by the court. Pages of transcribed deposition testimony or exhibits to depositions that
reveal Protected Material must be separately bound by the court reporter and may not
be disclosed to anyone except as permitted under this Stipulated Protective Order.

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(g) the author or recipient of a document containing the information or a

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custodian or other person who otherwise possessed or knew the information.
8.3

Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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

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writing by the Designating Party, a Receiving

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information or

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EYES ONLY” only to:

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(a)

Party may disclose

any

item designated “HIGHLY CONFIDENTIAL – ATTORNEYS’

the Receiving Party’s Outside Counsel of Record in this action, as

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

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necessary to disclose the information for this litigation;

LITTLE R MEND ELSO N, P .C .
D
333 BU SH STREET
34TH FLOOR
SAN FRANCISCO, CA 94104
415.433.1940

Case No. 2:18-cv-03018-JAK-SK

12.

STIPULATED PROTECTIVE ORDER

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(b) Designated House Counsel of the receiving Party (1) who has no involvement in

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competitive decision-making and (2) to whom disclosure is reasonably necessary for

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this litigation;

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(c)

Experts of the Receiving Party (1) to whom disclosure is reasonably

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necessary for this litigation, (2) who have signed the “Acknowledgment and

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Agreement to Be Bound” (Exhibit A), and (3) as to whom the procedures set forth in

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paragraph 8.4(a)(2), below, have been followed;

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(d)

the court and its personnel;

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(e)

court reporters and their staff, professional jury or trial consultants, and

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Professional Vendors to whom disclosure is reasonably necessary for this litigation

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

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A); and

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(f)

the author or recipient of a document containing the information or a

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

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8.4 Procedures for Approving or Objecting to Disclosure of “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items to

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Designated House Counsel or Experts.

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(a)(1) Unless otherwise ordered by the court or agreed to in writing by
the Designating Party, a Party that seeks to disclose to Designated House Counsel any
information or item that has been designated “HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY” pursuant to Section 8.3 first must make a written
request to the Designating Party that (1) sets forth the full name of the Designated
House Counsel and the city and state of his or her residence, and (2) describes the
Designated House Counsel’s current and reasonably foreseeable future primary job
duties and responsibilities in sufficient detail to determine if House Counsel is
involved, or may become involved, in any competitive decision-making.
(a)(2) Unless otherwise ordered by the court or agreed to in writing by

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LITTLE R MEND ELSO N, P .C .
D
333 BU SH STREET
34TH FLOOR
SAN FRANCISCO, CA 94104
415.433.1940

Case No. 2:18-cv-03018-JAK-SK

13.

STIPULATED PROTECTIVE ORDER

1

the Designating Party, a Party that seeks to disclose to an Expert (as defined in this

2

Order) any information or item that has been designated “HIGHLY CONFIDENTIAL

3

– ATTORNEYS’ EYES ONLY” pursuant to paragraph 8.3(b) first must make a

4

written request to the Designating Party that (1) identifies the general categories of

5

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information that the

6

Receiving Party seeks permission to disclose to the Expert, (2) sets forth the full name

7

of the Expert and the city and state of his or her primary residence, (3) attaches a copy

8

of the Expert’s current resume, (4) identifies the Expert’s current employer(s), (5)

9

identifies each person or entity from whom the Expert has received compensation or

10

funding for work in his or her areas of expertise or to whom the expert has provided

11

professional services, including in connection with a litigation, at any time during the

12

preceding five years, and (6) identifies (by name and number of the case, filing date,

13

and location of court) any litigation in connection with which the Expert has offered

14

expert testimony, including through a declaration, report, or testimony at a deposition

15

or trial, during the preceding five years.

16

(b) A Party that makes a request and provides the information specified

17

in the preceding respective paragraphs may disclose the subject Protected Material to

18

the identified Designated House Counsel or Expert unless, within 14 days of

19

delivering the request, the Party receives a written objection from the Designating

20

Party. Any such objection must set forth in detail the grounds on which it is based.

21

(c) A Party that receives a timely written objection must meet and confer

22

with the Designating Party (through direct voice to voice dialogue) to try to resolve

23

the matter by agreement within seven days of the written objection. If no agreement is

24

reached, the Party seeking to make the disclosure to Designated House Counsel or the

25

Expert may file a motion as provided in Civil Local Rule 7 (and in compliance with

26

Civil Local Rule 79-5, if applicable) seeking permission from the court to do so. Any

27

such motion must describe the circumstances with specificity, set forth in detail the

28

reasons why the disclosure to Designated House Counsel or the Expert is reasonably

LITTLE R MEND ELSO N, P .C .
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14.

STIPULATED PROTECTIVE ORDER

1

necessary, assess the risk of harm that the disclosure would entail, and suggest any

2

additional means that could be used to reduce that risk. In addition, any such motion

3

must be accompanied by a competent declaration describing the parties’ efforts to

4

resolve the matter by agreement (i.e., the extent and the content of the meet and confer

5

discussions) and setting forth the reasons advanced by the Designating Party for its

6

refusal to approve the disclosure.

7

In any such proceeding, the Party opposing disclosure to Designated House

8

Counsel or the Expert shall bear the burden of proving that the risk of harm that the

9

disclosure would entail (under the safeguards proposed) outweighs the Receiving

10

Party’s need to disclose the Protected Material to its Designated House Counsel or

11

Expert.

12

9. PROTECTED

MATERIAL

SUBPOENAED

OR

ORDERED

13

PRODUCED IN OTHER LITIGATION

14

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

15

that compels disclosure of any information or items designated in this action as

16

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

17

ONLY” that Party must:

18
19
20

(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 order to

21

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

22

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

23

copy of this Stipulated Protective Order; and

24
25
26
27

(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 served with
the subpoena or court order shall not produce any information designated in this

28
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333 BU SH STREET
34TH FLOOR
SAN FRANCISCO, CA 94104
415.433.1940

Case No. 2:18-cv-03018-JAK-SK

15.

STIPULATED PROTECTIVE ORDER

1

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

2

EYES ONLY” before a determination by the court from which the subpoena or

3

order issued, unless the Party has obtained the Designating Party’s permission.

4

The Designating Party shall bear the burden and expense of seeking protection in

5

that court of its confidential material and nothing in these provisions should be

6

construed as authorizing or encouraging a Receiving Party in this action to disobey a

7

lawful directive from another court.

8
9
10

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

10.

PRODUCED IN THIS LITIGATION
(a)

The terms of this Order are applicable to information produced by a

11

Non-Party in this action and designated as “CONFIDENTIAL” or “HIGHLY

12

CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Such information produced by

13

Non-Parties in connection with this litigation is protected by the remedies and

14

relief provided by this Order. Nothing in these provisions should be construed as

15

prohibiting a Non-Party from seeking additional protections.

16

(b) In the event that a Party is required, by a valid discovery request, to

17

produce a Non-Party’s confidential information in its possession, and the Party is

18

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

19

confidential information, then the Party shall:

20

1. promptly notify in writing the Requesting Party and the Non-Party

21

that some or all of the information requested is subject to a confidentiality

22

agreement with a Non-Party;

23

2. promptly provide the Non-Party with a copy of the Stipulated

24

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

25

reasonably specific description of the information requested; and

26
27

3. make the information requested available for inspection by the
Non-Party, if requested.

28
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333 BU SH STREET
34TH FLOOR
SAN FRANCISCO, CA 94104
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Case No. 2:18-cv-03018-JAK-SK

16.

STIPULATED PROTECTIVE ORDER

1

(c) If the Non-Party fails to object or seek a protective order from this court

2

within 14 days of receiving the notice and accompanying information, the Receiving

3

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

4

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

5

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

6

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

7

court. Absent a court order to the contrary, the Non-Party shall bear the

8

burden and expense of seeking protection in this court of its Protected Material.

9

11. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

10

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

11

Protected Material to any person or in any circumstance not authorized under this

12

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

13

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

14

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

15

persons to whom unauthorized disclosures were made of all the terms of this Order,

16

and (d) request such person or persons to execute the “Acknowledgment and

17

Agreement to Be Bound” that is attached hereto as Exhibit A.

18
19

12.

FILING PROTECTED MATERIAL

20

All documents containing “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL

21

– ATTORNEYS’ EYES ONLY” information that are filed with the Court in this

22

action shall, as permitted by the Court, be sealed and designated with the appropriate

23

Confidentiality Designation, along with a notation that the contents subject to a

24

Protective Order and are not to be revealed except by further Order of the Court. A

25

Party that seeks to file under seal any Protected Material must comply with Civil

26

Local Rule 79-5.

27
28
LITTLE R MEND ELSO N, P .C .
D
333 BU SH STREET
34TH FLOOR
SAN FRANCISCO, CA 94104
415.433.1940

Case No. 2:18-cv-03018-JAK-SK

17.

STIPULATED PROTECTIVE ORDER

1

13.

CLAWBACK AGREEMENT

2

Pursuant to FRE 502(d) and (e), the Parties agree to and the Court orders

3

protection of privileged and otherwise protected Documents against claims of waiver

4

(including as against third parties and in other federal and state proceedings) as

5

follows:
(a)

6

The disclosure or production of Documents by a Producing Party

7

subject to the attorney-client privilege and/or the work-product doctrine, to a

8

Receiving Party, shall in no way constitute the voluntary disclosure of such

9

Document.
(b)

10

The inadvertent disclosure or production of any Document in this

11

action shall not result in the waiver of the attorney-client privilege and/or work-

12

product doctrine associated with such Document as to the Receiving Party or any third

13

parties, and shall not result in any waiver, including subject matter waiver, of any

14

kind.

15

(c)

If, during the course of this litigation, a party determines that any

16

Document produced by another party is or may reasonably be subject to the attorney-

17

client privilege and/or work product doctrine (“Protected Document”):

18

i.

the Receiving Party shall: (A) refrain from reading the

19

Protected Document any more closely than is necessary to ascertain that it is

20

privileged or otherwise protected from disclosure;

21

Producing Party in writing that it has discovered Documents believed to be privileged

22

or protected; (C) specifically identify the Protected Documents by Bates number range

23

or hash value, and, (D) within ten (10) days of discovery by the Receiving Party,

24

return, sequester, or destroy all copies of such Protected Documents, along with any

25

notes, abstracts or compilations of the content thereof. To the extent that a Protected

26

Document has been loaded into a litigation review database under the control of the

27

Receiving Party, the Receiving Party shall have all electronic copies of the Protected

28

Document extracted from the database. Where such Protected Documents cannot be

(B) immediately notify the

LITTLE R MEND ELSO N, P .C .
D
333 BU SH STREET
34TH FLOOR
SAN FRANCISCO, CA 94104
415.433.1940

Case No. 2:18-cv-03018-JAK-SK

18.

STIPULATED PROTECTIVE ORDER

1

destroyed or separated, they shall not be reviewed, disclosed, or otherwise used by the

2

Receiving Party. Notwithstanding, the Receiving Party is under no obligation to

3

search or review the Producing Party’s Documents to identify potentially privileged or

4

work product Protected Documents.
ii.

5

If the Producing Party intends to assert a claim of attorney-

6

client privilege and/or work product over Documents identified by the Receiving

7

Party as Protected Documents, the Producing Party will, within ten (10) days of

8

receiving the Receiving Party’s written notification described above, inform the

9

Receiving Party of such
iii.

10

intention in writing and shall provide the Receiving Party

11

with a log for such Protected Documents that is consistent with the requirements of

12

the Federal Rules of Civil Procedure, setting forth the basis for the claim of privilege

13

or other protection. In the event that any portion of a Protected Document does not

14

contain privileged or protected information, the Producing Party shall also provide to

15

the Receiving Party a redacted copy of the document that omits the information that

16

the Producing Party believes is subject to a claim of privilege or other protection.

17
18
19

(d)

If, during the course of this litigation, a party determines it has

produced a Protected Document:
i.

the Producing Party may notify the Receiving Party of such

20

inadvertent production in writing, and demand the return of such documents. Such

21

notice shall be in writing, however, it may be delivered orally on the record at a

22

deposition, promptly followed up in writing. The Producing Party’s written notice

23

will identify the Protected Document inadvertently produced by bates number range

24

or hash value, the privilege or protection claimed, and the basis for the assertion of the

25

privilege and shall provide the Receiving Party with a log for such Protected

26

Documents that is consistent with the requirements of the Federal Rules of Civil

27

Procedure, setting forth the basis for the claim of privilege or other protection. In the

28

event that any portion of the Protected Document does not contain privileged or

LITTLE R MEND ELSO N, P .C .
D
333 BU SH STREET
34TH FLOOR
SAN FRANCISCO, CA 94104
415.433.1940

Case No. 2:18-cv-03018-JAK-SK

19.

STIPULATED PROTECTIVE ORDER

1

protected information, the Producing Party shall also provide to the Receiving Party a

2

redacted copy of the Document that omits the information that the Producing Party

3

believes is subject to a claim of privilege or other protection.
ii.

4

The Receiving Party must, within ten (10) days of receiving

5

the Producing Party’s written notification described above, return, sequester, or

6

destroy the Protected Document and any copies, along with any notes, abstracts or

7

compilations of the content thereof. To the extent that a Protected Document has been

8

loaded into a litigation review database under the control of the Receiving Party, the

9

Receiving Party shall have all electronic copies of the Protected Document extracted

10

from the database.
(e)

11

To the extent that the information contained in a Protected

12

Document has already been used in or described in other documents generated or

13

maintained by the Receiving Party prior to the date of receipt of written notice by the

14

Producing Party as set forth in paragraphs 11(c)(ii) and 11(d)(i), then the Receiving

15

Party shall sequester such documents until the claim has been resolved.

16

Receiving Party disclosed the Protected Document before being notified of its

17

inadvertent production, it must take reasonable steps to retrieve it.
(f)

18

If the

The Receiving Party’s return, sequestering or destruction of

19

Protected Documents as provided herein will not act as a waiver of the Requesting

20

Party’s right to move for the production of the returned, sequestered or destroyed

21

documents on the grounds that the documents are not, in fact, subject to a viable claim

22

of privilege or protection. However, the Receiving Party is prohibited and estopped

23

from arguing that:
i.

24
25

as a waiver of an applicable privilege or evidentiary protection;
ii.

26
27

the disclosure or production of the Protected Documents acts

the disclosure of the Protected Documents was not

inadvertent;

28
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333 BU SH STREET
34TH FLOOR
SAN FRANCISCO, CA 94104
415.433.1940

Case No. 2:18-cv-03018-JAK-SK

20.

STIPULATED PROTECTIVE ORDER

iii.

1
2

the Producing Party did not take reasonable steps to prevent

the disclosure of the Protected Documents; or
iv.

3

the Producing Party failed to take reasonable or timely steps

4

to rectify the error pursuant to Federal Rule of Civil Procedure 26(b)(5)(B), or

5

otherwise.
(g)

6

Either party may submit Protected Documents to the Court under

7

seal for a determination of the claim of privilege or other protection. The Producing

8

Party shall preserve the Protected Documents until such claim is resolved.

9

Receiving Party may not use the Protected Documents for any purpose absent this

10

The

Court’s order.
(h)

11

Upon a determination by the Court that the Protected Documents

12

are protected by the applicable privilege or evidentiary protection, and if the Protected

13

Documents have been sequestered rather than returned or destroyed by the Receiving

14

Party, the Protected Documents shall be returned or destroyed within 10 (ten) days of

15

the Court’s order. The Court may also order the identification by the Receiving Party

16

of

17

Documents by search terms or other means.

18

Protected

(i)

Nothing contained herein is intended to, or shall serve to limit a

19

party’s right to conduct a review of documents, data (including electronically stored

20

information) and other information, including without limitation, metadata, for

21

relevance, responsiveness and/or the segregation of privileged and/or protected

22

information before such information is produced to another party.

23
24
25
26
27

(j)

By operation of the Parties’ agreement and Court Order, the Parties

are specifically afforded the protections of FRE 502 (d) and (e).
14. 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.

28
LITTLE R MEND ELSO N, P .C .
D
333 BU SH STREET
34TH FLOOR
SAN FRANCISCO, CA 94104
415.433.1940

Case No. 2:18-cv-03018-JAK-SK

21.

STIPULATED PROTECTIVE ORDER

1

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

2

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

3

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

4

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

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

14.3 Filing Protected Material. Without written permission from the
Designating Party or a court order secured after appropriate notice to all interested
persons, a Party may not file in the public record in this action any Protected
Material. A Party that seeks to file under seal any Protected Material must comply
with Civil Local Rule 79-5. Protected Material mayonly be filed under seal pursuant
to a court order authorizing the sealing of the specific Protected Material at issue.
Pursuant to Civil Local Rule 79-5, a sealing order will issue only upon a request
establishing that the Protected Material at issue is privileged, protectable as a trade
secret, or otherwise entitled to protection under the law. If a Receiving Party's request
to file Protected Material under seal pursuant to Civil Local Rule 79-5 is denied by
the court, then the Receiving Party may file the Protected Material in the public
record pursuant to Civil Local Rule 79-5.2.2(b)(ii) unless otherwise instructed by the
court.
15.

FINAL DISPOSITION

Within 60 days after the final disposition of this action, as defined Section 4, , within
60 days of a written request by the Designating Party, each Receiving Party must
return all Protected Material to the Producing Party or destroy such material. As
used in this subdivision, “all Protected Material” includes all copies, abstracts,
compilations, summaries, and any other format reproducing or capturing any of
the Protected Material. Whether the Protected Material is returned or destroyed,
the Receiving Party must submit a written certification to the Producing Party (and, if
not the same person or entity, to the Designating Party) by the 60 day deadline that
(1) identifies (by category, where appropriate) all the Protected Material that was

28
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D
333 BU SH STREET
34TH FLOOR
SAN FRANCISCO, CA 94104
415.433.1940

Case No. 2:18-cv-03018-JAK-SK

22.

STIPULATED PROTECTIVE ORDER

June 28. 2018

/s/ Michael J. Hui

1

FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

2
3

June 29, 2018
Dated: ________________

HONORABLE STEVE KIM
UNITED STATES MAGISTRATE
JUDGE

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
LITTLE R MEND ELSO N, P .C .
D
333 BU SH STREET
34TH FLOOR
SAN FRANCISCO, CA 94104
415.433.1940

Case No. 2:18-cv-03018-JAK-SK

24.

STIPULATED PROTECTIVE ORDER

1
2

EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3

I, _____________________________ [print or type full name], of

4

_________________ [print or type full address], declare under penalty of perjury that

5

I have read in its entirety and understand the Stipulated Protective Order that was

6

issued by the United States District Court for the Central District of California on

7

[date] in the case of of Gard Van Antwerp v. Reis Robotics USA, Inc., Docket No.

8

Case No. 2:18-cv-03018-JAK-SK. I agree to comply with and to be bound by all the

9

terms of this Stipulated Protective Order and I understand and acknowledge that

10

failure to so comply could expose me to sanctions and punishment in the nature of

11

contempt. I solemnly promise that I will not disclose in any manner any information

12

or item that is subject to this Stipulated Protective Order to any person or entity

13

except in strict compliance with the provisions of this Order. I further agree to submit

14

to the jurisdiction of the United States District Court for the Central District of

15

California for the purpose of enforcing the terms of this Stipulated Protective Order,

16

even if such enforcement proceedings occur after termination of this action. I hereby

17

appoint __________________________ [print or type full name] of

18

________________________ [print or type full address and telephone number] as my

19

California agent for service of process in connection with this action or any

20

proceedings related to enforcement of this Stipulated Protective Order.

21

Date: ______________________________________

22

City and State where sworn and signed: _________________________________

23

Printed name: _______________________________

24

[printed name]

25
26

Signature: __________________________________
[signature]

27
Firmwide:155404114.3 080120.1004

28
LITTLE R MEND ELSO N, P .C .
D
333 BU SH STREET
34TH FLOOR
SAN FRANCISCO, CA 94104
415.433.1940

Case No. 2:18-cv-03018-JAK-SK

25.

STIPULATED PROTECTIVE ORDER