Atari Interactive, Inc. v. Hyperkin Inc.

Filing 31

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

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Lynda J. Zadra-Symes (SBN 156,511) Jason A. Champion (SBN 259,207) Jacob R. Rosenbaum (SBN 313,190 KNOBBE, MARTENS, OLSON & BEAR, LLP 2040 Main Street Fourteenth Floor Irvine, CA 92614 Phone: (949) 760-0404 Facsimile: (949) 760-9502 Attorneys for Defendant HYPERKIN INC. Keith J. Wesley (SBN 229,276) David D. Kim (SBN 293,445) Eric C. Lauritsen (SBN 301,219) Milin Chun (SBN 262,674) BROWNE GEORGE ROSS LLP 2121 Avenue of the Stars, Suite 2800 Los Angeles, CA 90067 Phone: (310) 274-7100 Facsimile: (310) 275-5697 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

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