Roger Cleveland Golf Company Inc. et al v. Callaway Golf Company
Filing
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PROTECTIVE ORDER by Magistrate Judge Robert N. Block re Stipulation for Protective Order 42 (mt)
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ANTHONY L. CANNON (SBN.: 162986)
JULIA A. MOUSER (SBN.: 118059)
2 CANNON & NELMS, A PC
160 S. Old Spring Road, Suite 200
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Anaheim, CA 92808
4 Telephone: (714) 637-4400; Facsimile: (714) 637-4444
tcannon@cannonnehns.com
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jmouser@cannonnehns.com
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ROGER W. PARKHURST (Admitted Pro Hac Vice)
7 MICHAEL J. ALLAN (Admitted Pro Hac Vice)
8 STEPTOE & JOHNSON LLP
1330 Connecticut Ave. N.W.
9 Washington, D.C. 20036
10 Telephone: (202) 429-3000; Facsimile: (202) 429-3902
rparkhurst@steptoe.com
11 mallan@steptoe.com
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Attorneys fo.r Plaintiffs ROGER CLEVELAND GOLF COMPANY, INC.
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and DUNLOP SPORTS CO. LTD.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA- SOUTHERN DIVISION
Case No. 8:13-cv-01642 AG (RNBx)
16 ROGERCLEVELANDGOLF
COMPANY, INC., a California
17 corporation; and DUNLOP SPORTS CO. (Proposed)
PROTECTIVE ORDER
18 LTD., a Japanese corporation
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Plaintiffs,
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v.
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CALLAWAYGOLFCOMPANY,a
Delaware corporation,
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Defendant
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PROTECTIVE ORDER
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1. PURPOSE AND LIMITS OF THIS ORDER
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Discovery in this action is likdy to involve confidential, proprietary, or private
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information .requiring special protection from public disclosure and from use for any
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purpose other than this litigation. Thus, the Court enters this Protective Order. This
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Order does not confer blanket protections on all disclosures or responses to discovery,
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and the protection it gives from public disclosure and use extends only to the specific
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material entitled to confidential treatment under the applicable legal principles. This
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Order does not automatically authorize the filing under seal of material designated
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under this Order. Instead, the parties must comply with L.R 79-5.1 if they seek to file
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anything under seal. This Order does not govern the use at trial of material designated
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under this Order.
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2. DESIGNATING PROTECTED MATERIAL
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2.1 Over-Designation Prohibited. Any party or non-party who designates
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information or items for protection under this Order as "CONFIDENTIAL,"
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"HIGHLY CONFIDENTIAL- ATIORNEY EYES ONLY," or "HIGHLY
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CONFIDENTIAL - SOURCE CODE" (a "designator") must only designate specific
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material that qualifies under the appropriate standards. To the extent practicable, only
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those parts of documents, items, or oral or written communications that .require
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protection shall be designated. Designations with a higher confidentiality levd when a
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lower levd would suffice are prohibited. Mass, indiscriminate, o.r routinized
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designations are prohibited. Unjustified designations expose the designator to
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sanctions, including the Court's striking all confidentiality designations made by that
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designator. Designation under this Order is allowed only if the designation is necessary
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to protect material that, if disclosed to persons not authorized to view it, would cause
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competitive or other recognized harm. Material may not be designated if it has been
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made public, or if designation is otherwise unnecessary to protect a secrecy interest. If a
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designator learns that information or items that it designated for protection do not
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qualify for protection at all or do not qualify for the levd of protection initially asserted,
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that designator must prompdy notify all parties that it is withdrawing the mistaken
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designation.
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2.2 Manner and Timing of Designations. Designation under this Order
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requires the designator to affix the applicable legend ("CONFIDENTIAL,"
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"HIGHLY CONFIDENTIAL- ATIORNEY EYES ONLY," or "HIGHLY
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CONFIDENTIAL- SOURCE CODE'') to each page that contains protected
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material For testimony given in deposition or other proceeding, the designator shall
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specify all protected testimony and the levd of protection being asserted. It may make
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that designation during the deposition or proceeding, or may invoke, on the record or
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by written notice to all parties on or before the next business day, a right to have up to
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21 days from the deposition or proceeding to make its designation.
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2.2.1 A party or non-party that makes original documents or materials
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available for inspection need not designate them for protection until after the
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inspecting party has identified which material it would like copied and produced.
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During the inspection and before the designation, all material shall be treated as
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HIGHLY CONFIDENTIAL- ATTORNEY EYES ONLY. After the
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inspecting party has identified the documents it wants copied and produced, the
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producing party must designate the documents, or portions thereof, that qualify
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for protection under this Order.
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2.2.2 Parties shall give advance notice if they expect a deposition or other
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proceeding to include designated material so that the other parties can ensure
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that only authorized individuals are present at those proceedings when such
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material is disclosed or used. The use of a document as an exhibit at a deposition
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shall not in any way affect its designation. Transcripts containing designated
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material shall have a legend on the tide page noting the presence of designated
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material, and the tide page shall be followed by a list of all pages (including line
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numbers as appropriate) that have been designated, and the level of protection
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being asserted. The designator shall inform the court reporter of these
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requirements. Any transcript that is prepared before the expiration of the 21-day
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period for designation shall be treated during that period as if it had been
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designated HIGHLY CONFIDENTIAL- ATTORNEY EYES ONLY unless
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otherwise agreed. After the expiration of the 21-day period, the transcript shall
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be treated only as actually designated.
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2.3 Inadvertent Failures to Designate. An inadvertent failure to designate
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does not, standing alone, waive protection under this Order. Upon timely assertion or
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correction of a designation, all recipients must make reasonable efforts to ensure that
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the material is treated according to this Order.
12 3. CHAI.I.ENGING CONFIDENTIALITY DESIGNATIONS
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All challenges to confidentiality designations shall proceed under L.R 37-1
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through L.R 37-4.
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4. ACCESS TO DESIGNATED MATERIAL
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4.1 Basic Principles. A receiving party may use designated material only for this
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litigation. Designated material may be disclosed only to the categories of persons and
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under the conditions described in this Order.
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4.2 Disclosure of CONFIDENTIAL Material Without Further Approval
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Unless otherwise ordered by the Court or permitted in writing by the designator, a
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receiving party may disclose any material designated CONFIDENTIAL only to:
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4.2.1 The receiving party's outside counsel of record in this action and
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employees of outside counsel of record to whom disclosure is reasonably
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necessary;
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4.2.2 Only one in-house counsel, of the receiving party, which one inhouse counsel has complied with 4.4.1, and whose written request has been
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approved by designator, and who has signed the Agreement to Be Bound
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(Exhibit A);
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4.2.3 Experts retained by the receiving party's outside counsel of record
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to whom disclosure is reasonably necessary, and who have signed the Agreement
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to Be Bound (Exhibit A);
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4.2.4 The Court and its personnel;
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4.2.5 Outside court reporters and their staff, professional jury or trial
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consultants, and professional vendors to whom disclosure is reasonably
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necessary, and who have signed the Agreement to Be Bound (Exhibit A);
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4.2.6 During their depositions, witnesses in the action to whom disclosure
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is reasonably necessary and who have signed the Agreement to Be Bound
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(Exhibit A); and
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4.2. 7 The author or recipient of a document containing the material, or a
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custodian or other person who otherwise possessed or knew the information.
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4.3 Disclosure of HIGHLY CONFIDENTIAL-ATTORNEYEYES ONLY
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and HIGHLY CONFIDENTIAL- SOURCE CODE Material Without Further
17 Approval. Unless permitted in writing by the designator, a receiving party may disclose
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material designated IDGHLY CONFIDENTIAL- ATIORNEY EYES ONLY or
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HIGHLY CONF1DENTIAL- SOURCE CODE without further approval only to:
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4.3.1 The receiving party's outside counsel of record in this action and
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employees of outside counsel of record to whom it is reasonably necessary to
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disclose the information;
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4.3.1A Only one in-house counseL of the receiving party, which one in-
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house counsel has complied with 4.4.1, and whose written request has been
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approved by designator, and who has signed the Agreement to Be Bound
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(Exhibit A);
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4.3.2 The Court and its personnel;
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4.33 Outside court reporters and their staff, professional jury or trial
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consultants, and professional vendors to whom disclosure is reasonably
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necessary, and who have signed the Agreement to Be Bound (Exhibit A); and
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4.3.4 The author or recipient of a document containing the material, or a
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custodian or other person who otherwise possessed or knew the information.
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4.4 Procedures for Approving or Objecting to Disclosure of HIGHLY
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CONFIDENTIAL- ATTORNEY EYES ONLY or HIGHLY
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CONFIDENTIAL- SOURCE CODE Material to In-House Counsel or
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Experts. Unless agreed to in writing by the designator:
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4.4.1 A party seeking to disclose to in-house counsel any material
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designated HIGHLY CONFIDENTIAL- A'ITORNEY EYES ONLY must
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first make a written request to the designator providing the full name of the in-
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house counsel, the city and state of such counsel's residence, and such counsel's
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current and reasonably foreseeable future primary job duties and responsibilities
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in sufficient detail to determine present or potential involvement in any
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competitive decision-making. In-house counsel are not authorized to receive
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material designated HIGHLY CONFIDENTIAL- SOURCE CODE.
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4.4.2 A party seeking to disclose to an expert retained by outside counsel
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of record any information or item that has been designated HIGHLY
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CONFIDENTIAL- A TIORNEY EYES ONLY or HIGHLY
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CONFIDENTIAL- SOURCE CODE must first make a written request to the
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designator that (1) identifies the general categories of HIGHLY
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CONF1DENTIAL -ATTORNEY EYES ONLY or HIGHLY
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CONFIDENTIAL -SOURCE CODE information that the receiving party
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seeks permission to disclose to the expert, (2) sets forth the full name of the
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expert and the city and state of his or her primary residence, (3) attaches a copy
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of the expert's current reswne, (4) identifies the expert's current employer(s), (5)
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PROTECTIVE ORDER
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identifies each person or entity from whom the expert has .received
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compensation o.r funding fo.r work in his or her areas of expertise (including in
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connection with litigation) in the past five years, and (6) identifies (by name and
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number of the case, filing date, and location of court) any litigation where the
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expert has offered expert testimony, including by declaration, report, or
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testimony at deposition o.r trial, in the past five years. If the expert believes any
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of this information at (4)- (6) is subject to a confidentiality obligation to a third
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party, then the expert should provide whatever information the expert believes
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can be disclosed without violating any confidentiality agreements, and the party
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seeking to disclose the information to the expert shall be available to meet and
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confer with the designator .regarding any such confidentiality obligations.
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4.4.3 A party that makes a .request and provides the information specified
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in paragraphs 4.4.1 o.r 4.4.2 may disclose the designated material to the identified
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in-house counsel o.r expert unless, within seven days of delivering the .request,
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the party receives a written objection from the designator providing detailed
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grounds fo.r the objection.
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4.4.4 All challenges to objections from the designator shall proceed under
L.R. 37-1 through L.R 37-4.
5. SOURCE CODE
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5.1 Designation of Source Code. If production of source code is necessary, a
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party may designate it as HIGHLY CONFIDENTIAL- SOURCE CODE if it is, or
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includes, confidential, proprietary, o.r trade secret source code.
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5.2 Location and Supervision of Inspection. Any HIGHLY
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CONFIDENTIAL- SOURCE CODE produced in discovery shall be made available
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for inspection, in a format allowing it to be reasonably reviewed and searched, during
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no.rmal business hours or at other mutually agreeable times, at an office of the
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designating party's counsel or another mutually agreeable location. The source code
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PROTECTIVE ORDER
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shall be made available for inspection on a secured computer in a secured room, and
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the inspecting party shall not copy, remove, or otherwise transfer any portion of the
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source code onto any recordable media or recordable device. The designator may
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visually monitor the activities of the inspecting party's representatives during any
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source code review, but only to ensure that there is no unauthorized recording,
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copying, or transmission of the source code.
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5.3 Paper Copies of Source Code Excerpts. The inspecting party may request
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paper copies of limited portions of sotttce code that are reasonably necessary for the
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preparation of court filings, pleadings, expert reports, other papers, or for deposition or
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trial. The designator shall provide all such source code in paper form, including Bates
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numbers and the label "HIGHLY CONFIDENTIAL- SOURCE CODE.''
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5.4 Access Record. The inspecting party shall maintain a record of any
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individual who has inspected any portion of the source code in electronic or paper
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form, and shall maintain all paper copies of any printed portions of the source code in a
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secured, locked area. The inspecting party shall not convert any of the information
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contained in the paper copies into any electronic format other than for the preparation
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of a pleading, exhibit, expert report, discovery document, deposition transcript, or
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other Court document Any paper copies used during a deposition shall be retrieved at
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the end of each day and must not be left with a court reporter or any other
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unauthorized individual.
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6. PROSECUTION BAR
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Absent written consent from the designator, any individual who receives access
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to HIGHLY CONFIDENTIAL-ATIORNEYEYES ONLY or HIGHLY
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CONFIDENTIAL- SOURCE CODE information shall not be involved in the
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prosecution of patents or patent applications concerning the field of the invention of
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the patents-in-suit for the receiving party or its acquirer, successor, predecessor, or
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other affiliate during the pendency of this action and for one year after its conclusion,
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PROTECTIVE ORDER
1 including any appeals. ''Prosecution" means drafting, amending, advising on the
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content of, or otherwise affecting the scope or content of patent claims or
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specifications. These prohibitions shall not preclude counsel from participating in
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.reexamination or interpartes review proceedings to challenge or defend the validity of
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any patent, but counsel may not participate in the drafting of amended claims in any
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such proceedings.
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7. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
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7.1 Subpoenas and Court Orders. This Order in no way excuses non-
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compliance with a lawful subpoena or court order. The purpose of the duties described
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in this section is to alert the interested parties to the existence of this Order and to give
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the designator an opportunity to protect its confidentiality interests in the court where
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the subpoena or order issued.
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7.2 Notification Requirement. If a party is served with a subpoena or a court
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order issued in other litigation that compels disclosure of any information or items
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designated in this action as CONFIDENTIAL, HIGHLY CONFIDENTIAL -
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ATTORNEY EYES ONLY, or HIGHLY CONFIDENTIAL- SOURCE CODE,
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that party must:
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7.2.1 Promptly notify the designator in writing. Such notification shall
include a copy of the subpoena or court order;
7 .2.2 Promptly notify in writing the party who caused the subpoena or
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order to issue in the other litigation that some or all of the material covered by
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the subpoena or order is subject to this Order. Such notification shall include a
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copy of this Order; and
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7 .2.3 Cooperate with all reasonable procedures sought by the designator
whose material may be affected.
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7.3 Wait For Resolution of Protective Order. If the designator timely seeks a
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protective order, the party served with the subpoena or court order shall not produce
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any information designated in this action as CONFIDENTIAL, HIGHLY
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CONFIDENTIAL- ATIORNEY EYES ONLY or HIGHLY CONFIDENTIAL-
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SOURCE CODE before a determination by the court where the subpoena or order
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issued, unless the party has obtained the designator's permission. The designator shall
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bear the burden and expense of seeking protection of its confidential material in that
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court.
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8. UNAUTHORIZED DISCLOSURE OF DESIGNATED MATERIAL
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If a receiving party learns that, by inadvertence or otherwise, it has disclosed
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designated material to any person or in any circumstance not authorized under this
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Order, it must immediately (1) notify in writing the designator of the unauthorized
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disclosures, (2) use its best efforts to retrieve all unauthorized copies of the designated
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made of all the terms of this Order, and (4) use reasonable efforts to have such person
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or persons execute the Agreement to Be Bound (Exhibit A).
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9. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
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PROTECTED MATERIAL
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When a producing party gives notice that certain inadvertendy produced material
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is subject to a claim of privilege or other protection, the obligations of the receiving
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parties are those set forth in Federal Rule of Civil Procedure 26(b)(S)(B). This
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provision is not intended to modify whatever procedure may be established in an e-
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discovery order that provides for production without prior privilege review pursuant to
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Federal Rule of Evidence 502(d) and (e).
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10. FILING UNDER SEAL
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Without written permission from the designator or a Court order, a party may
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not file in the public record in this action any designated material. A party seeking to
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PROTECTIVE ORDER
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file under seal any designated material must comply with L.R. 79-5.1. Filings may be
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made under seal only pursuant to a court order authorizing the sealing of the specific
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material at issue. The fact that a document has been designated under this Order is
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insufficient to justify filing under seal. Instead, parties must explain the basis for
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confidentiality of each document sought to be filed under seal. Because a party other
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than the designator will often be seeking to file designated mate.tiaL cooperation
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between the parties in preparing, and in reducing the nwnber and extent of, requests
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for under seal filing is essential If a receiving partyrs request to file designated
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material under seal pursuant to L.R 79-5.1 is denied by the Court, then the receiving
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reconsideration within four days of the denial, or (2) as otherwise instructed by the
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Court.
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11. FINAL DISPOSITION
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Within 60 days after the final disposition of this action, each party shall return all
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designated material to the designator or destroy such material, including all copies,
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abstracts, compilations, summaries, and any other format reproducing or capturing any
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designated material. The receiving party must submit a written certification to the
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designator by the 60-day deadline that (1) identifies (by category, where appropriate) all
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the designated material that was returned or destroyed, and (2) affirms that the
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receiving party has not retained any copies, abstracts, compilations, summaries, or any
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other format reproducing or capturing any of the designated material. This provision
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shall not prevent counsel from retaining an archival copy of all pleadings, motion
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papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence,
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deposition and trial exhibits, expert reports, attorney work produc~ and consultant and
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expert work product, even if such materials contain designated material. Any such
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archival copies remain subject to this Order.
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IT IS SO ORDERED.
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DATED: _ __
4/15/2014
---------------United States District Judge/Magistrate Judge
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EXHIBIT A
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AGREEMENTTOBEBOUND
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I, - - - - - - - - - - - - - [print or type full name], of
4 - - - - -- - - - - - - - [print or type full address], decla.re under penalty
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of perjury that I have read in its entirety and understand the Protective Order that was
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issued by the United States District Court for the Central District of California on
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2014, in the case of Roger Cleveland Golf Company Inc.:
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Dunlop Sports Co. Ltd. Vs. Callaway Golf Company, Case No. 8:13-cv-1642 AG
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(RNBx), I agree to comply with and to be bound by all the terms of this Protective
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Order, and I understand and acknowledge that failure to so comply could expose me to
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sanctions and punishment for contempt. I solemnly promise that I will not disclose in
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any manner any information or item that is subject to this Protective Order to any
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person or entity except in strict compliance with this Order.
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I further agree to submit to the jurisdiction of the United States District Court
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for the Central District of California for the purpose of enforcing this Order, even if
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such enforcement proceedings occur after termination of this action.
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[print or type full name] of
I hereby appoint
18 - - - - -- - - - - - - - - - - --[print or type full address and
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telephone number] as my California agent for service of process in connection with this
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action or any proceedings related to enforcement of this Order.
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D a t e : - - - - -- - - - - - -
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City and State where swom and signed:---- - - - - - - - - - - -
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Printed name: - - - - - - - - -
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[printed name]
Signature: _ _ _ _ _ _ _ _ __
[signature]
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