Atari Interactive, Inc. v. Hyperkin Inc.

Filing 31

STIPULATED PROTECTIVE ORDER by Magistrate Judge Alexander F. MacKinnon. 30 (ch)

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16

Lynda J. Zadra-Symes (SBN 156,511)
[e-mail]
Jason A. Champion (SBN 259,207)
[e-mail]
Jacob R. Rosenbaum (SBN 313,190
[e-mail]
KNOBBE, MARTENS, OLSON & BEAR, LLP
2040 Main Street
Fourteenth Floor
Irvine, CA 92614
Phone: [phone]
Facsimile: [phone]
Attorneys for Defendant
HYPERKIN INC.
Keith J. Wesley (SBN 229,276)
[e-mail]
David D. Kim (SBN 293,445)
[e-mail]
Eric C. Lauritsen (SBN 301,219)
[e-mail]
Milin Chun (SBN 262,674)
[e-mail]
BROWNE GEORGE ROSS LLP
2121 Avenue of the Stars, Suite 2800
Los Angeles, CA 90067
Phone: [phone]
Facsimile: [phone]
Attorneys for Plaintiff
ATARI INTERACTIVE, INC.

17
18

IN THE UNITED STATES DISTRICT COURT

19

CENTRAL DISTRICT OF CALIFORNIA

20

WESTERN DIVISION

21

ATARI INTERACTIVE, INC.,
Plaintiff,

22
v.

23
24

HYPERKIN INC.,
Defendant.

25

)
)
)
)
)
)
)
)

Case No. 2:19-CV-0608-CAS (AFMx)
Hon. Alexander F. MacKinnon
[PROPOSED] STIPULATED
PROTECTIVE ORDER1

26
27
28

1

This Stipulated Protective Order is based substantially on the model
protective order provided under Magistrate Judge MacKinnon’s Procedures.

1

1.

A.

PURPOSES AND LIMITATIONS

2

Discovery in this action is likely to involve production of confidential,

3

proprietary or private information for which special protection from public

4

disclosure and from use for any purpose other than prosecuting this litigation may

5

be warranted. Accordingly, the parties hereby stipulate to and petition the Court

6

to enter the following Stipulated Protective Order. The parties acknowledge that

7

this Order does not confer blanket protections on all disclosures or responses to

8

discovery and that the protection it affords from public disclosure and use extends

9

only to the limited information or items that are entitled to confidential treatment

10

under the applicable legal principles.

11

B.

GOOD CAUSE STATEMENT

12

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

13

other valuable research, development, commercial, financial, technical and/or

14

proprietary information for which special protection from public disclosure and

15

from use for any purpose other than prosecution of this action is warranted. Such

16

confidential and proprietary materials and information consist of, among other

17

things, confidential business or financial information, information regarding

18

confidential business practices, or other confidential research, development, or

19

commercial information (including information implicating privacy rights of

20

third parties), information otherwise generally unavailable to the public, or which

21

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

22

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

23

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

24

confidentiality of discovery materials, to adequately protect information the

25

parties are entitled to keep confidential, to ensure that the parties are permitted

26

reasonable necessary uses of such material in preparation for and in the conduct

27

of trial, to address their handling at the end of the litigation, and serve the ends of

28

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

1

intent of the parties that information will not be designated as confidential for

2

tactical reasons and that nothing be so designated without a good faith belief that

3

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

4

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

5

C.

ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER
SEAL

6
7

The parties further acknowledge, as set forth in Section 12.3, below, that

8

this Stipulated Protective Order does not entitle them to file confidential

9

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

10

be followed and the standards that will be applied when a party seeks permission

11

from the court to file material under seal.

12

There is a strong presumption that the public has a right of access to judicial

13

proceedings and records in civil cases. In connection with non-dispositive

14

motions, good cause must be shown to support a filing under seal. See Kamakana

15

v. City and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v.

16

Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v.

17

Sony Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated

18

protective orders require good cause showing), and a specific showing of good

19

cause or compelling reasons with proper evidentiary support and legal

20

justification, must be made with respect to Protected Material that a party seeks

21

to file under seal. The parties’ mere designation of Disclosure or Discovery

22

Material as CONFIDENTIAL does not— without the submission of competent

23

evidence by declaration, establishing that the material sought to be filed under

24

seal qualifies as confidential, privileged, or otherwise protectable—constitute

25

good cause.

26

Further, if a party requests sealing related to a dispositive motion or trial,

27

then compelling reasons, not only good cause, for the sealing must be shown, and

28

the relief sought shall be narrowly tailored to serve the specific interest to be
2

1

protected. See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir.

2

2010). For each item or type of information, document, or thing sought to be filed

3

or introduced under seal in connection with a dispositive motion or trial, the party

4

seeking protection must articulate compelling reasons, supported by specific facts

5

and legal justification, for the requested sealing order. Again, competent evidence

6

supporting the application to file documents under seal must be provided by

7

declaration.

8

Any document that is not confidential, privileged, or otherwise protectable

9

in its entirety will not be filed under seal if the confidential portions can be

10

redacted. If documents can be redacted, then a redacted version for public

11

viewing, omitting only the confidential, privileged, or otherwise protectable

12

portions of the document, shall be filed. Any application that seeks to file

13

documents under seal in their entirety should include an explanation of why

14

redaction is not feasible.

15

2.

16
17
18
19
20

DEFINITIONS
2.1

Action: Atari Interactive, Inc. v. Hyperkin Inc., Case No. 2:19-cv-

00608 CAS (AFMx).
2.2

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

designation of information or items under this Order.
2.3

“CONFIDENTIAL” Information or Items: information (regardless

21

of how it is generated, stored or maintained) or tangible things that qualify for

22

protection under Federal Rule of Civil Procedure 26(c), and as specified above in

23

the Good Cause Statement.

24
25
26
27

2.4

Counsel (without qualifier): Outside Counsel of Record and House

Counsel (as well as their support staff).
2.5

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

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

28
3

1

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

2

ONLY”.

3

2.6

Disclosure or Discovery Material: all items or information,

4

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

5

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

6

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

7

2.7

Expert: a person with specialized knowledge or experience in a

8

matter pertinent to the litigation who (1) has been retained by a Party or its counsel

9

to serve as an expert witness or as a consultant in this Action, (2) is not a past or

10

current employee of a Party or of a Party’s competitor, and (3) at the time of

11

retention, is not anticipated to become an employee of a Party or of a Party’s

12

competitor.

13

2.8

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

14

Information or Items: extremely sensitive “Confidential Information or Items,”

15

disclosure of which to another Party or Non-Party would create a substantial risk

16

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

17

2.9

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

18

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

19

outside counsel.

20
21

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

22

2.11 Outside Counsel of Record: attorneys who are not employees of a

23

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

24

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

25

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

26

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

27

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

28

their support staffs).
4

2.13 Producing Party: a Party or Non-Party that produces Disclosure or

1
2

Discovery Material in this Action.

3

2.14 Professional Vendors: persons or entities that provide litigation

4

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

5

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

6

medium) and their employees and subcontractors.

7

2.15 Protected Material: any Disclosure or Discovery Material that is

8

designated as “CONFIDENTIAL” or as “HIGHLY CONFIDENTIAL –

9

ATTORNEYS’ EYES ONLY.”
2.16 Receiving Party: a Party that receives Disclosure or Discovery

10
11

Material from a Producing Party.

12

3.

SCOPE

13

The protections conferred by this Stipulation and Order cover not only

14

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

15

extracted from Protected Material; (2) all copies, excerpts, summaries, or

16

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

17

presentations by Parties or their Counsel that might reveal Protected Material.
Any use of Protected Material at trial shall be governed by the orders of the

18
19

trial judge. This Order does not govern the use of Protected Material at trial.

20

4.

DURATION

21

Once a case proceeds to trial, information that was designated as

22

CONFIDENTIAL or maintained pursuant to this protective order used or

23

introduced as an exhibit at trial becomes public and will be presumptively

24

available to all members of the public, including the press, unless compelling

25

reasons supported by specific factual findings to proceed otherwise are made to

26

the trial judge in advance of the trial. See Kamakana, 447 F.3d at 1180-81

27

(distinguishing “good cause” showing for sealing documents produced in

28

discovery from “compelling reasons” standard when merits-related documents
5

1

are part of court record). Accordingly, the terms of this protective order do not

2

extend beyond the commencement of the trial.

3

5.

4

DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for

5

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

6

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

7

material that qualifies under the appropriate standards. The Designating Party

8

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

9

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

10

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

11

not swept unjustifiably within the ambit of this Order.

12

Mass,

indiscriminate

or

routinized

designations

are

prohibited.

13

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

14

an improper purpose (e.g., to unnecessarily encumber the case development

15

process or to impose unnecessary expenses and burdens on other parties) may

16

expose the Designating Party to sanctions.

17

If it comes to a Designating Party’s attention that information or items that

18

it designated for protection do not qualify for protection at all or do not qualify

19

for the level of protection initially asserted, that Designating Party must promptly

20

notify all other Parties that it is withdrawing the inapplicable designation.

21

5.2

Manner and Timing of Designations. Except as otherwise provided

22

in this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise

23

stipulated or ordered, Disclosure or Discovery Material that qualifies for

24

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

25

disclosed or produced.

26

Designation in conformity with this Order requires:

27

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

28

documents, but excluding transcripts of depositions or other pretrial or trial
6

1

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

2

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

3

ONLY” to each page that contains protected material. If only a portion of the

4

material on a page qualifies for protection, the Producing Party also must clearly

5

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

6

margins).

7

A Party or Non-Party that makes original documents available for

8

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

9

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

10

inspection and before the designation, all of the material made available for

11

inspection shall be deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’

12

EYES ONLY.” After the inspecting Party has identified the documents it wants

13

copied and produced, the Producing Party must determine which documents, or

14

portions thereof, qualify for protection under this Order. Then, before producing

15

the specified documents, the Producing Party must affix the appropriate

16

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

17

ONLY” legend to each page that contains Protected Material. If only a portion or

18

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

19

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

20

markings in the margins) and must specify, for each portion, the level of

21

protection being asserted.

22

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

23

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

24

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

25

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

26

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

27

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

28

Party may invoke on the record (before the deposition, hearing, or other
7

1

proceeding is concluded) a right to have up to 21 days to identify the specific

2

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

3

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

4

appropriately designated for protection within the 21 days shall be covered by the

5

provisions of this Stipulated Protective Order. Alternatively, a Designating Party

6

may specify, at the deposition or up to 21 days afterwards if that period is properly

7

invoked, that the entire transcript shall be treated as “CONFIDENTIAL” or

8

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”

9

Parties shall give the other parties notice if they reasonably expect a

10

deposition, hearing or other proceeding to include Protected Material so that the

11

other parties can ensure that only authorized individuals who have signed the

12

“Acknowledgment and Agreement to Be Bound” (Exhibit A) are present at those

13

proceedings. The use of a document as an exhibit at a deposition shall not in any

14

way

15

CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”

affect

its

designation

as

“CONFIDENTIAL”

or

“HIGHLY

16

Transcripts containing Protected Material shall have an obvious legend on

17

the title page that the transcript contains Protected Material, and the title page

18

shall be followed by a list of all pages (including line numbers as appropriate)

19

that have been designated as Protected Material and the level of protection being

20

asserted by the Designating Party. The Designating Party shall inform the court

21

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

22

expiration of a 21-day period for designation shall be treated during that period

23

as if it had been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’

24

EYES ONLY” in its entirety unless otherwise agreed. After the expiration of that

25

period, the transcript shall be treated only as actually designated.

26

(c) for information produced in some form other than documentary

27

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

28

place on the exterior of the container or containers in which the information or
8

1

item is stored the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

2

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

3

warrants protection, the Producing Party, to the extent practicable, shall identify

4

the protected portion(s) and specify the level of protection being asserted.
5.3

5

Inadvertent Failures to Designate. If timely corrected, an inadvertent

6

failure to designate qualified information or items does not, standing alone, waive

7

the Designating Party’s right to secure protection under this Order for such

8

material. Upon timely correction of a designation, the Receiving Party must make

9

reasonable efforts to assure that the material is treated in accordance with the

10

provisions of this Order.

11

6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

12

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

13

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

14

Scheduling Order.
6.2

15
16

resolution process under Local Rule 37-1 et seq.
6.3

17
18

Meet and Confer. The Challenging Party shall initiate the dispute
Joint Stipulation. Any challenge submitted to the Court shall be via

a joint stipulation pursuant to Local Rule 37-2.
6.4

19

The burden of persuasion in any such challenge proceeding shall be

20

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

21

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

22

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

23

Party has waived or withdrawn the confidentiality designation, all parties shall

24

continue to afford the material in question the level of protection to which it is

25

entitled under the Producing Party’s designation until the Court rules on the

26

challenge.

27

///

28

///
9

1
2

7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

Basic Principles. A Receiving Party may use Protected Material that

3

is disclosed or produced by another Party or by a Non-Party in connection with

4

this Action only for prosecuting, defending or attempting to settle this Action.

5

Such Protected Material may be disclosed only to the categories of persons and

6

under the conditions described in this Order. When the Action has been

7

terminated, a Receiving Party must comply with the provisions of section 13

8

below (FINAL DISPOSITION).

9

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

10

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

11

authorized under this Order.

12

7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless

13

otherwise ordered by the court or permitted in writing by the Designating Party,

14

a Receiving Party may disclose any information or item designated

15

“CONFIDENTIAL” only to:

16

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

17

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

18

necessary to disclose the information for this Action;

19

(b) the officers, directors, and employees (including House Counsel)

20

of the Receiving Party to whom disclosure is reasonably necessary for this Action

21

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

22

(Exhibit A);

23

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

24

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

25

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

26

(d) the court and its personnel;

27

(e) court reporters and their staff;

28
10

1

(f) professional jury or trial consultants and Professional Vendors to

2

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

3

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

4

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

5

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

6

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

7

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

8

deposing party requests that the witness sign the form attached as Exhibit 1

9

hereto; and (2) they will not be permitted to keep any confidential information

10

unless they sign the “Acknowledgment and Agreement to Be Bound” (Exhibit

11

A), unless otherwise agreed by the Designating Party or ordered by the court.

12

Pages of transcribed deposition testimony or exhibits to depositions that reveal

13

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

14

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

15

and

16

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

17

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

18

discussions.

19

7.3

Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

20

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

21

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

22

information or item designated “HIGHLY CONFIDENTIAL – ATTORNEYS’

23

EYES ONLY” only to:

24

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

25

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

26

necessary to disclose the information for this litigation;
(b) Experts of the Receiving Party (1) to whom disclosure is

27
28

reasonably

necessary

for

this

litigation,
11

(2)

who

have

signed

the

1

“Acknowledgment and Agreement to Be Bound” (Exhibit A), and (3) as long as

2

the Expert is not a current officer, director, employee, or ordinary-course-of-

3

business contractor of a Party or of a competitor of a Party or anticipated to

4

become one;

5

(c) the court and its personnel;

6

(d) court reporters and their staff, professional jury or trial

7

consultants, mock jurors, and Professional Vendors to whom disclosure is

8

reasonably necessary for this litigation and who have signed the

9

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

10

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

11

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

12

8.

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

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

20

(b) promptly notify in writing the party who caused the subpoena or

21

order to 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

23

include a copy of this Stipulated Protective Order; and

24
25

(c) cooperate with respect to all reasonable procedures sought to be
pursued by the Designating Party whose Protected Material may be affected.

26

If the Designating Party timely seeks a protective order, the Party served

27

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

28

this action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
12

1

ATTORNEYS’ EYES ONLY” before a determination by the court from which

2

the subpoena or order issued, unless the Party has obtained the Designating

3

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

4

seeking protection in that court of its confidential material and nothing in these

5

provisions should be construed as authorizing or encouraging a Receiving Party

6

in this Action to disobey a lawful directive from another court.

7

9.

8

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
PRODUCED IN THIS LITIGATION

9

(a) The terms of this Order are applicable to information produced

10

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

11

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Such

12

information produced by Non-Parties in connection with this litigation is

13

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

14

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

15

additional protections.

16

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

17

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

18

is 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

21

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

22

confidentiality agreement with a Non-Party;

23

(2) promptly provide the Non-Party with a copy of the

24

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

25

a 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
13

1

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

2

this court within 14 days of receiving the notice and accompanying information,

3

the Receiving Party may produce the Non-Party’s confidential information

4

responsive to the discovery request. If the Non-Party timely seeks a protective

5

order, the Receiving Party shall not produce any information in its possession or

6

control that is subject to the confidentiality agreement with the Non-Party before

7

a determination by the court. Absent a court order to the contrary, the Non-Party

8

shall bear the burden and expense of seeking protection in this court of its

9

Protected Material.

10

10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

11

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

12

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

13

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

14

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

15

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

16

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

17

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

18

“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit

19

A.

20

11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

21

PROTECTED MATERIAL

22

When a Producing Party gives notice to Receiving Parties that certain

23

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

24

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

25

Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify

26

whatever procedure may be established in an e-discovery order that provides for

27

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

28

502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure
14

1

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

2

work product protection, the parties may incorporate their agreement in the

3

stipulated protective order submitted to the court.

4

12.

12.1 Right to Further Relief. Nothing in this Order abridges the right of

5
6

MISCELLANEOUS

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

7

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

8

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

9

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

10

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

11

any ground to use in evidence of any of the material covered by this Protective

12

Order.

13

12.3 Filing Protected Material. Without written permission from the

14

Designating Party or a court order secured after appropriate notice to all interested

15

persons, a Party may not file in the public record in this action any Protected

16

Material. A Party that seeks to file under seal any Protected Material must comply

17

with Local Civil Rule 79-5. Protected Material may only be filed under seal

18

pursuant to a court order authorizing the sealing of the specific Protected Material

19

at issue. Pursuant to Civil Local Rule 79-5, a sealing order will issue only upon a

20

request establishing that the Protected Material at issue is privileged, protectable

21

as a trade secret, or otherwise entitled to protection under the law. If a Receiving

22

Party’s request to file Protected Material under seal pursuant to Civil Local Rule

23

79-5(e) is denied by the court, then the Receiving Party may file the information

24

in the public record unless otherwise instructed by the court.

25

13.

FINAL DISPOSITION

26

After the final disposition of this Action, as defined in Section 4, within 60

27

days of a written request by the Designating Party, each Receiving Party must

28

return all Protected Material to the Producing Party or destroy such material. As
15

1

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

2

compilations, summaries, and any other format reproducing or capturing any of

3

the Protected Material. Whether the Protected Material is returned or destroyed,

4

the Receiving Party must submit a written certification to the Producing Party

5

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

6

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

7

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

8

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

9

format reproducing or capturing any of the Protected Material. Notwithstanding

10

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

11

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

12

correspondence, deposition and trial exhibits, expert reports, attorney work

13

product, and consultant and expert work product, even if such materials contain

14

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

15

Material remain subject to this Protective Order as set forth in Section 4

16

(DURATION).

17

14.

18
19

VIOLATION
Any violation of this Order may be punished by appropriate measures

including, without limitation, contempt proceedings and/or monetary sanctions.

20
21
22
23

DATED: 10/9/2019

_____________________________________
Alexander F. MacKinnon
United States Magistrate Judge

24
25
26
27
28
16

1

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

2
3
KNOBBE, MARTENS, OLSON & BEAR, LLP

4
5

Dated: October 9, 2019

7

By: /s/ Jason A. Champion
Lynda J. Zadra-Symes
Jason A. Champion
Jacob R. Rosenbaum

8

Attorneys for Defendant, HYPERKIN INC.

6

9
BROWNE GEORGE ROSS LLP

10
11
12
13
14
15

Dated: October 9, 2019

By: /s/ Eric. C. Lauritsen (with permission)
Keith J. Wesley
David D. Kim
Eric C. Lauritsen
Milin Chun
Attorneys for Plaintiff, ATARI INTERACTIVE,
INC.

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

1

EXHIBIT A

2

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

5

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

6

was issued by the United States District Court for the Central District of

7

California on [date] in the case of ___________ [insert formal name of the case

8

and the number and initials assigned to it by the court]. I agree to comply with

9

and to be bound by all the terms of this Stipulated Protective Order and I

10

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

11

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

12

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

13

Stipulated Protective Order to any person or entity except in strict compliance

14

with the provisions of this Order.

15

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

16

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

17

Stipulated Protective Order, even if such enforcement proceedings occur after

18

termination of this action.

19

I hereby appoint __________________________ [print or type full name]

20

of _______________________________________ [print or type full address and

21

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

22

with this action or any proceedings related to enforcement of this Stipulated

23

Protective Order.

24

Date: ______________________________________

25

City and State where sworn and signed: _________________________________

26

Printed name: _______________________________

27
28

Signature: __________________________________
16