Yellow Rose Productions, Inc. v. Pandora Media, LLC

Filing 80

JOINT STIPULATED PROTECTIVE ORDER by Magistrate Judge Margo A. Rocconi re Stipulation for Protective Order #77 . [See document for further details] (et)

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MAYER BROWN LLP
JOHN NADOLENCO (SBN 181128)
[e-mail]
350 S. Grand Avenue, 25th Floor
Los Angeles, California 90071-1503
Telephone: [phone]
Facsimile: [phone]
MAYER BROWN LLP
PAUL M. FAKLER (pro hac vice)
[e-mail]
1221 Avenue of the Americas
New York, New York 10020-1001
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant/CounterClaimant Pandora Media, LLC
KING & BALLOW
Richard Busch (SBN 319881)
[e-mail]
1999 Avenue of the Stars, Suite 1100
Los Angeles, CA 90067
Telephone: [phone]
Facsimile: [phone]
Attorney for Plaintiffs/CounterDefendants Yellow Rose Productions,
Inc.; Main Sequence Ltd.; Ron White,
Inc.; Robin Williams Trust; Brave Lion,
Inc.; Nick Di Paolo; Mary Reese Hicks;
and Plaintiff Lewis Black

BIRD, MARELLA, BOXER,
WOLPERT, NESSIM,
DROOKS, LINCENBERG &
RHOW, P.C.
Oliver Rocos (SBN 319059)
[e-mail]
1875 Century Park East, 23rd Floor
Los Angeles, California 90067-2561
Telephone: [phone]
Facsimile: [phone]
CRAVATH, SWAINE & MOORE LLP
Christine A. Varney (pro hac vice)
[e-mail]
Lauren A. Moskowitz (pro hac vice)
[e-mail]
825 Eighth Avenue
New York, NY 10019
Telephone: [phone]
Facsimile: [phone]
Attorneys for Counter-Defendant
Word Collections, Inc.

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
In re PANDORA MEDIA, LLC
COPYRIGHT LITIGATION
This Document Relates To:
ALL ACTIONS

Master File No. 2:22-cv-00809-MCS-MAR
CONSOLIDATED ACTION
JOINT STIPULATED PROTECTIVE
ORDER

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JOINT STIPULATED PROTECTIVE ORDER, CASE NO. 2:22-CV-00809-MCS-MAR

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1.

INTRODUCTION

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1.1

PURPOSES AND LIMITATIONS

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

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proprietary, and/or private information for which special protection from public

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

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warranted. Such discovery is also likely to involve production of competitively

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sensitive information which, if disclosed to the parties, could harm the commercial

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interests of the disclosing party and/or provide an unfair commercial benefit to the

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receiving party and therefore limiting access to such information may be warranted.

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Accordingly, the parties hereby stipulate to and petition the Court to enter the

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following Stipulated Protective Order. The parties acknowledge that this Stipulated

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Protective Order does not confer blanket protections on all disclosures or responses

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

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

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under the applicable legal principles. The parties further acknowledge, as set forth in

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Section 12.3, below, that this Stipulated Protective Order does not entitle them to file

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

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

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permission from the Court to file material under seal.

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1.2

GOOD CAUSE STATEMENT

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This action is likely to involve confidential, proprietary, or sensitive materials

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and valuable commercial, operational, technical, and financial information for which

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special protection from public disclosure and from use for any purpose other than

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prosecution of this action is warranted. Such confidential and proprietary materials

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and information consist of, among other things, confidential business or financial

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information, information regarding confidential business practices, or commercial

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information (including information implicating privacy rights of third parties),

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information otherwise generally unavailable to the public, or which may be
-2JOINT STIPULATED PROTECTIVE ORDER, CASE NO. 2:22-CV-00809-MCS-MAR

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privileged or otherwise protected from disclosure under state or federal statutes, court

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rules, case decisions, or common law. Accordingly, to expedite the flow of

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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 such

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

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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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2.

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DEFINITIONS
2.1

Action: the above captioned, consolidated action currently pending in

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the United States District Court for the Central District of California as well as each

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individual action underlying the consolidated action.

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2.2

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

of information or items under this Stipulated Protective Order.
2.3

Counsel: Outside Counsel of Record and House Counsel (as well as

their support staff).
2.4

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

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

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL’S

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EYES ONLY.”

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2.5

Disclosure or Discovery Material: all items or information, regardless

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

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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 Action.
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2.6

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

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

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as an expert witness or as a consultant in this Action; (2) is not a current employee

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or current business consultant of a Party or of a Party’s competitor, or otherwise

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currently involved in competitive decision-making for a Party or a Party’s competitor;

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(3) has not, within the 12 months preceding the entry of this Stipulated Protective

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Order, been an employee or business consultant of a Party or a Party’s competitor, or

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otherwise been involved in competitive decision-making for a Party or a Party’s

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competitor; and (4) at the time of retention, is not anticipated to become an employee

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or business consultant of a Party or a Party’s competitor, or to be otherwise involved

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in competitive decision-making for a Party or a Party’s competitor. If, while this

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action is pending, a Party learns that any of its retained experts or consultants as

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defined herein is anticipating to become, or has become, an employee or business

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consultant of a Party or a Party’s competitor, or otherwise involved in competitive

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decision-making for a Party or a Party’s competitor, the Party learning such

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information shall promptly disclose the information to the other Parties.

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2.7

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

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House Counsel does not include Outside Counsel of Record or any other outside

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counsel.

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2.8

Non-Party: any natural person, partnership, corporation, association, or

other legal entity not named as a Party to this action.
2.9

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

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

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appeared in this Action on behalf of that party or are affiliated with a law firm which

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

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

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

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support staffs).
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2.11 Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this Action.

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2.12 Professional Vendors: persons or entities that provide litigation support

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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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2.13 Protected Material: any Disclosure or Discovery Material that is

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designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – OUTSIDE

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COUNSEL’S EYES ONLY.” Protected Material is “CONFIDENTIAL” if it is

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information that is non-public, proprietary, commercially sensitive, and/or subject to

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third-party privacy or confidentiality restrictions and that qualifies for protection

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under Federal Rule of Civil Procedure 26(c). Protected Material is “HIGHLY

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CONFIDENTIAL – OUTSIDE COUNSEL’S EYES ONLY” if it is information that

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qualifies as “CONFIDENTIAL” and is extremely sensitive, the disclosure of which

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to other parties, including such parties’ House Counsel, or third parties would create

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substantial risk of injury to a Producing Party’s or non-party’s reputation, financial

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interests, and/or property or a substantial risk of serious injury that could not be

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avoided by less restrictive means. The “HIGHLY CONFIDENTIAL – OUTSIDE

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COUNSEL’S EYES ONLY” designation is intended to be used sparingly and shall

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constitute a representation that such Protected Material has been reviewed by an

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attorney representing the Designating Party and that there is a good faith basis for

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such designation.

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

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2.15 Source Code Material: extremely sensitive Protected Material

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consisting of non-publicly available computer code and associated comments and

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revision histories, formulas, engineering specifications, or schematics that define or

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otherwise describe in detail the algorithms or structure of software or hardware
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designs, disclosure of which other than pursuant to the terms of this Stipulated

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Protective Order would create a substantial risk of serious harm to the Producing

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Party that could not be avoided by less restrictive means.

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3.

SCOPE

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The protections conferred by this Stipulated Protective 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, summaries, or

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

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

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Any use of Protected Material at trial will be governed by the orders of the trial

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judge. This Stipulated Protective Order does not govern the use of Protected Material

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at trial.

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This Stipulated Protective Order does not contemplate the production of

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Source Code Material. The Parties do not contemplate the production of Source Code

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Material in this Action. In the event a Party requests that another Party make available

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Source Code Material, the Requesting Party shall notify all Parties before engaging

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the Producing Party in negotiations regarding a separate source code protective order

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and all Parties will collectively negotiate a protective order governing the production

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of Source Code Material. No Party is required to produce or make available for

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inspection any Source Code Material until the Court has entered a separate protective

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order governing the treatment of Source Code Material.

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4.

DURATION

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Even after final disposition of this Action, the confidentiality obligations

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imposed by this Stipulated Protective Order will remain in effect until a Designating

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

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

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

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exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,
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including the time limits for filing any motions or applications for extension of time

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pursuant to applicable law.

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5.

DESIGNATING PROTECTED MATERIAL

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5.1

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

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under this Stipulated Protective Order must take care to limit any such designation to

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specific material that qualifies under the appropriate standards. The Designating

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

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

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

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swept unjustifiably within the ambit of this Stipulated Protective Order.

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Indiscriminate or routinized designations are prohibited. Designations that are

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

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to unnecessarily encumber the case development process or to impose unnecessary

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expenses and burdens on other parties) may expose the Designating Party to

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sanctions.

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

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designated for protection do not qualify for protection, that Designating Party must

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

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5.2

Manner and Timing of Designations. Except as otherwise provided in

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this Stipulated Protective Order (e.g., second paragraph of section 5.2(a) below), or

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as otherwise stipulated or ordered, Disclosure or Discovery Material that qualifies

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for protection under this Stipulated Protective Order must be clearly so designated

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before the material is disclosed or produced.

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Designation in conformity with this Stipulated Protective Order requires:
(a)

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

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

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proceedings), that the Producing Party affix at a minimum, the legend
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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL’S

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EYES ONLY” (hereinafter the “CONFIDENTIALITY LEGEND”) to each page that

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contains protected material.

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

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

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

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

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deemed “CONFIDENTIAL.” After the inspecting Party has identified the documents

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it wants copied and produced, the Producing Party must determine which documents,

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or portions thereof, qualify for protection under this Stipulated Protective Order.

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Then, before producing the specified documents, the Producing Party must affix the

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appropriate CONFIDENTIALITY LEGEND to each page that contains Protected

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Material.

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(b)

for testimony given in depositions that the Designating Party

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identify the Disclosure or Discovery Material on the record, before the close of the

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deposition all protected testimony and specify the level of protection being asserted.

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When it is impractical to identify separately each portion of testimony that is entitled

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to protection and it appears that substantial portions of the testimony may qualify for

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protection, the Designating Party may invoke on the record (before the deposition,

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hearing, or other proceeding is concluded) a right to have up to 30 business days after

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receipt of the final certified transcript of the proceedings becomes available to

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identify the specific portions of the testimony as to which protection is sought and to

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specify the level of protection being asserted. Only those portions of the testimony

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that are appropriately designated for protection within the 30 business days shall be

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covered by the provisions of this Stipulated Protective Order. Alternatively, a

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Designating Party may specify, at the deposition or up to 30 business days afterwards

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if that period is properly invoked, that the entire transcript shall be treated as

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL’S

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EYES ONLY.”

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

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affect its designation as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

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OUTSIDE COUNSEL’S EYES ONLY.”

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Transcripts containing Protected Material shall have an obvious legend

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

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

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been designated as Protected Material and the level of protection being asserted by

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the Designating Party. The Designating Party shall inform the court reporter of these

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requirements. Any transcript that is prepared before the expiration of a 30-day period

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for designation shall be treated during that period as if it had been designated

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“CONFIDENTIAL” in its entirety unless otherwise agreed. After the expiration of

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

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In the event a deposition is videotaped, the original and all copies of the

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videotape shall be marked by the video technician to indicate that the contents of the

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videotape are subject to this Stipulated Protective Order, substantially along the lines

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of “This videotape contains confidential testimony used in this Action and is not to

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be viewed or the contents thereof to be displayed or revealed except pursuant to the

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terms of the operative Stipulated Protective Order in this Action or pursuant to

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written stipulation of the Parties.”
(c)

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for information produced in some form other than documentary

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

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on the exterior of the container or containers in which the information is stored the

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appropriate

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CONFIDENTIALITY LEGEND on a container is not feasible, the Designating Party

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shall find another means to identify the information, for example through a cover

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letter or other communication.

CONFIDENTIALITY

LEGEND.

If

affixing

the

appropriate

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(d)

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for electronic information produced in native format or another

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format that does not permit designation of pages, that the Producing Party include

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the appropriate CONFIDENTIALITY LEGEND in the associated metadata, if

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possible, and on the placeholder page.

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5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent

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failure to designate Protected Material or items does not, standing alone, waive the

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Designating Party’s right to secure protection under this Stipulated Protective Order

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for such material. Any party that inadvertently or unintentionally produces Protected

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Material without designating it as such may request destruction of that Protected

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Material by notifying the recipient(s), as soon as reasonably possible after the

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Producing Party becomes aware of the inadvertent or unintentional disclosure, and

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providing replacement Protected Material that is properly designated. The recipient(s)

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shall then destroy all copies of the inadvertently or unintentionally produced

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Protected Material and any documents, information, or material derived from or

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based thereon. Upon correction of a designation, the Receiving Party must make

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

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provisions of this Stipulated Protective Order.

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5.4

Changes to Designations. A party may upward designate (i.e., change

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any documents without a designation to a designation of “CONFIDENTIAL” or

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“HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL’S EYES ONLY”) any

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Disclosure or Discovery Material produced by any other Party or Non-Party,

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provided that said Disclosure or Discovery Material contains the upward Designating

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Party’s own Protected Material. Upward designation shall be accomplished by

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providing written notice to all parties identifying (by Bates number or other

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individually identifiable information) the Disclosure or Discovery Information to be

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re-designated. Any party may object to the upward designation of Disclosure or

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Discovery Material pursuant to the procedures set forth herein regarding challenging

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designations.
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6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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

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

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Scheduling Order.
6.2

5

Meet and Confer. The Challenging Party will initiate the dispute

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resolution process under Local Rule 37.1 et seq. To avoid ambiguity as to whether a

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challenge has been made, the written notice provided pursuant to Local Rule 37.1

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must recite that the challenge to confidentiality is being made in accordance with this

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specific paragraph of the Stipulated Protective Order.
6.3

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Judicial Intervention. If the Parties cannot resolve a challenge without

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Court intervention, the Parties shall follow Judge Rocconi’s procedures for

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Discovery Motions. The burden of persuasion in any such challenge proceeding will

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

14

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

15

may expose the Challenging Party to sanctions. Unless the Designating Party has

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waived or withdrawn the confidentiality designation, all parties will continue to

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

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Designating Party’s designation until the Court rules on the challenge.

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7.

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ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

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

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

22

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

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

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conditions described in this Stipulated Protective Order. When the Action has been

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

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(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

3

authorized under this Stipulated Protective Order.

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7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless

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otherwise ordered by the Court or permitted in writing by the Designating Party, a

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Receiving Party may disclose any information or item designated “CONFIDENTIAL”

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only to:

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(a)

the Parties to this Action;

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(b)

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

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

11

necessary to disclose the information for this Action;

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(c)

the officers, directors, and employees (including House Counsel

13

and in-house legal staff) of the Receiving Party to whom disclosure is reasonably

14

necessary for this Action;

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(d)

Experts (as defined in this Stipulated Protective Order) of the

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Receiving Party, as well as supporting personnel employed by such Experts and

17

assigned to assist the Experts’ work in this Action, to whom disclosure is reasonably

18

necessary for this Action and who have signed the “Acknowledgment and Agreement

19

to Be Bound” (Exhibit A);

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(e)

the Court and its personnel;

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(f)

stenographic reporters, videographers and their respective staff;

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professional jury or trial consultants, mock jurors, and Professional Vendors to whom

23

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

24

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

25

(g)

during their depositions, witnesses in the action that are not

26

otherwise authorized to receive Protected Material pursuant to Section 7.2(a)-(f) or

27

(h)-(k) to whom disclosure is reasonably necessary and who have signed the

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“Acknowledgment and Agreement to Be Bound” (Exhibit A), unless the Designating
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Party objects to such disclosure or except as otherwise ordered by the Court.

2

Receiving Parties shall give the Designating Party reasonable notice if they expect to

3

provide a witness, during a deposition, with Protected Material pursuant to this

4

Section 7.2(g). Pages of transcribed deposition testimony or exhibits to depositions

5

that reveal Protected Material must be separately bound by the court reporter and

6

may not be disclosed to anyone except as permitted under this Stipulated Protective

7

Order;
(h)

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the author, recipient, or custodian of a document containing the

information (for the avoidance of doubt, this provision is not meant to limit 7.2(c));

10

(i)

any current employee of the Designating Party;

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(j)

any mediator or settlement officer, and their supporting personnel,

12

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

13

provided that such persons have first been given a copy of this Stipulated Protective

14

Order and have executed the “Acknowledgment and Agreement to Be Bound”

15

(Exhibit A); and

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(k) any other persons as to whom all the Parties agree in writing,

17

provided that such persons have first been given a copy of this Stipulated Protective

18

Order and have executed the “Acknowledgment and Agreement to Be Bound”

19

(Exhibit A). The Parties agree to consider such requests in good faith. No disclosure

20

to such other persons shall take place until all the Parties agree in writing.

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7.3

Disclosure

of

Protected

Material

Designated

“HIGHLY

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CONFIDENTIAL – OUTSIDE COUNSEL’S EYES ONLY.” Unless ordered by the

23

Court or permitted in writing by the Designating Party, a Receiving Party may

24

disclose any information or item designated “HIGHLY CONFIDENTIAL –

25

OUTSIDE COUNSEL’S EYES ONLY,” only to:

26

(a)

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

27

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

28

necessary to disclose the information for this Action;
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(b)

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Experts (as defined in this Stipulated Protective Order) of the

2

Receiving Party, as well as supporting personnel employed by such Experts and

3

assigned to assist the Experts’ work in this Action, to whom disclosure is reasonably

4

necessary for this Action and who have signed the “Acknowledgment and Agreement

5

to Be Bound” (Exhibit A);

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(c)

the Court and its personnel;

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(d)

stenographic reporters, videographers and their respective staff,

8

professional jury or trial consultants, mock jurors, and Professional Vendors to whom

9

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

10

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

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12

the author, recipient, or custodian of a document containing the

information;

13

(f) any current employee of the Designating Party;

14

(g)

any mediator or settlement officer, and their supporting personnel,

15

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

16

provided that such persons have first been given a copy of this Stipulated Protective

17

Order and have executed the “Acknowledgment and Agreement to Be Bound”

18

(Exhibit A); and

19

(h) any other persons as to whom all the Parties agree in writing,

20

provided that such persons have first been given a copy of this Stipulated Protective

21

Order and have executed the “Acknowledgment and Agreement to Be Bound”

22

(Exhibit A). The Parties agree to consider such requests in good faith. No disclosure

23

to such other persons shall take place until all the Parties agree in writing.

24

8.

25

IN OTHER LITIGATION

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

26

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

27

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

28
- 14 JOINT STIPULATED PROTECTIVE ORDER, CASE NO. 2:22-CV-00809-MCS-MAR

1

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL’S

2

EYES ONLY,” that Party must:
(a)

3
4

promptly notify in writing the Designating Party. Such notification will

include a copy of the subpoena or court order;
(b)

5

promptly notify in writing the party who caused the subpoena or order

6

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

7

or order is subject to this Stipulated Protective Order. Such notification will include

8

a copy of this Stipulated Protective Order; and
(c)

9
10

cooperate with respect to all reasonable procedures sought to be pursued

by the Designating Party whose Protected Material may be affected.

11

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

12

the subpoena or court order will not produce any information designated in this action

13

as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL’S

14

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

15

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

16

Designating Party will bear the burden and expense of seeking protection in that court

17

of its confidential material and nothing in these provisions should be construed as

18

authorizing or encouraging a Receiving Party in this Action to disobey a lawful

19

directive from another court.

20

9.

21

PRODUCED IN THIS LITIGATION

22

A
(a)

NON-PARTY’S

PROTECTED

MATERIAL

SOUGHT

TO

BE

The terms of this Stipulated Protective Order are applicable to

23

information produced by a Non-Party in this Action and designated as

24

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL’S

25

EYES ONLY.” Such information produced by Non-Parties in connection with this

26

litigation is protected by the remedies and relief provided by this Stipulated

27

Protective Order. Nothing in these provisions should be construed as prohibiting a

28

Non-Party from seeking additional protections.
- 15 JOINT STIPULATED PROTECTIVE ORDER, CASE NO. 2:22-CV-00809-MCS-MAR

(b)

1

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

2

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

3

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

4

confidential information, then the Party will:
(1)

5

promptly notify in writing the Requesting Party and the Non-

6

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

7

agreement with a Non-Party;

8

(2)

9
10

Protective Order in this Action, the relevant discovery request(s), and a reasonably
specific description of the information requested; and
(3)

11
12

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

make the information requested available for inspection by the

Non-Party, if requested.
(c)

13

If the Non-Party fails to seek a protective order from this Court within

14

14 business days of receiving the notice and accompanying information, the

15

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

16

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

17

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

18

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

19

Absent a court order to the contrary, the Non-Party shall bear the burden and expense

20

of seeking protection in this Court of its Protected Material.

21

10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

22

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

23

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

24

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

25

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

26

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

27

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

28
- 16 JOINT STIPULATED PROTECTIVE ORDER, CASE NO. 2:22-CV-00809-MCS-MAR

1

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

2

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

3

11.

4

PROTECTED MATERIAL

5

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
(a)

When a Producing Party gives notice to Receiving Parties that certain

6

produced material is subject to a claim of privilege or other protection, the obligations

7

of the Receiving Parties are those set forth in Federal Rule of Civil Procedure

8

26(b)(5)(B). For the avoidance of doubt, that procedure is as follows: (i) If any

9

Producing Party learns that its privileged or Protected Material has been produced, it

10

must promptly notify the Receiving Party in writing; (ii) upon notification from any

11

Producing Party who has produced material that it believes is privileged and/or

12

protected (the “Clawed Back Material”), the Receiving Party shall promptly, within

13

three business days, return such Clawed Back Material and all copies to the

14

Producing Party, or destroy such Clawed Back Material and certify that destruction

15

to the Producing Party; (iii) the Producing Party must provide the Receiving Party

16

with a complete privilege log entry for each document comprising the Clawed Back

17

Material; (iv) with regard to any challenge to the Clawed Back Material, the

18

Receiving Party will initiate the dispute resolution process under Local Rule 37.1 et

19

seq. within 10 business days of receiving the privilege log entry and, in the event the

20

Parties cannot resolve the challenge, the Parties shall follow Judge Rocconi’s

21

procedures for Discovery Motions; (v) the Producing Party must preserve the Clawed

22

Back Material until the challenge is resolved; and (vi) any challenge to the Clawed

23

Back Material made by the Receiving Party shall not rely on any portion of the

24

Clawed Back Material other than the information disclosed in the Producing Party’s

25

privilege log.

26

(b)

Pursuant to Federal Rule of Evidence 502(d), the production of

27

privileged or work-product protected documents, electronically stored information or

28

other information, for any reason, is not a waiver of the privilege or protection from
- 17 JOINT STIPULATED PROTECTIVE ORDER, CASE NO. 2:22-CV-00809-MCS-MAR

1

discovery in this case or in any other federal or state proceeding, except where, and

2

only to the extent that, the producing party clearly and unambiguously expresses its

3

intention to waive that privilege or protection. This Stipulated Protective Order shall

4

be interpreted to provide the maximum protection allowed by Federal Rule of

5

Evidence 502(d). In light of this Stipulated Protective Order, the provisions of Rule

6

502(b) do not apply.

7

12.

12.1 Right to Further Relief. Nothing in this Stipulated Protective Order

8
9

MISCELLANEOUS

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

10

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

11

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

12

object to disclosing or producing any information or item on any ground not

13

addressed in this Stipulated Protective Order. Similarly, no Party waives any right to

14

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

15

Stipulated Protective Order.
12.3

16

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

17

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

18

only be filed under seal pursuant to a court order authorizing the sealing of the

19

specific Protected Material at issue. If a Party’s request to file Protected Material

20

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

21

in the public record unless otherwise instructed by the Court.

22

13.

FINAL DISPOSITION

23

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

24

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

25

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

26

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

27

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

28

Protected Material. Whether the Protected Material is returned or destroyed, the
- 18 JOINT STIPULATED PROTECTIVE ORDER, CASE NO. 2:22-CV-00809-MCS-MAR

1

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

2

not the same person or entity, to the Designating Party) by the 60-day deadline that

3

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

4

returned or destroyed and (2) affirms that the Receiving Party has not retained any

5

copies, abstracts, compilations, summaries or any other format reproducing or

6

capturing any of the Protected Material. Notwithstanding this provision, Counsel are

7

entitled to retain (1) an archival copy of all pleadings, motion papers, trial, deposition,

8

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

9

exhibits, expert reports, attorney work product, and consultant and expert work

10

product, even if such materials contain Protected Material; and (2) any copies of

11

Protected Material created by the routine operation of backup procedures for a Party’s

12

or a Party’s Counsel’s information storage systems. Any such archival copies that

13

contain or constitute Protected Material remain subject to this Stipulated Protective

14

Order.

15

14.

VIOLATION

16

Any willful violation of this Stipulated Protective Order may be punished by

17

civil or criminal contempt proceedings, financial or evidentiary sanctions, reference

18

to disciplinary authorities, or other appropriate action, all at the discretion of the

19

Court.

20
21

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

22
23

DATED: October 5, 2022

/s/ Richard S. Busch
Richard S. Busch
Attorney for Plaintiff/Counterclaim
Defendant Comedians

DATED: October 5, 2022

/s/ Paul M. Fakler
Paul M. Fakler
Attorney for Defendant/Counterclaimant
Pandora

24
25
26
27
28

- 19 JOINT STIPULATED PROTECTIVE ORDER, CASE NO. 2:22-CV-00809-MCS-MAR

1
2

DATED: October 5, 2022

3
4

/s/ Lauren A. Moskowitz
Lauren A. Moskowitz
Attorney for Defendant/Counterclaimant
Pandora

5
6

FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

7
8

October 13, 2022
DATED:_______________

__________________________________
_____
________________

9

HON. MARGO A. ROCCONI

10

United States Magistrate Judge

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 20 JOINT STIPULATED PROTECTIVE ORDER, CASE NO. 2:22-CV-00809-MCS-MAR

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 was

6

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

7

_________

8

COPYRIGHT LITIGATION, No. 2:22-cv-00809-MCS-MAR. I agree to comply with

9

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

10

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

11

punishment in the nature of contempt. I solemnly promise that I will not disclose in

12

any manner any information or item that is subject to this Stipulated Protective Order

13

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

14

Stipulated Protective Order.

[date]

in

the

case

of

In

re

PANDORA

MEDIA,

LLC

15

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

16

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

17

Stipulated Protective Order, even if such enforcement proceedings occur after

18

termination of this action. I hereby appoint __________________________ [print or

19

type full name] of _______________________________________ [print or type full

20

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

21

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

22

Stipulated Protective Order.

23

Date: ______________________________________

24

City and State where signed: _________________________________

25

Printed name: _______________________________

26

Signature: __________________________________

27
28
- 21 JOINT STIPULATED PROTECTIVE ORDER, CASE NO. 2:22-CV-00809-MCS-MAR