Synoptek, LLC v. Synaptek Corporation

Filing 27

STIPULATED PROTECTIVE ORDER by Magistrate Judge Jay C. Gandhi re Stipulation for Protective Order 23 . (kh)

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b.

CONFIDENTIAL — ATTORNEYS' EYES ONLY designation. A

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party or non-party may only designate material CONFIDENTIAL — ATTORNEYS’

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EYES ONLY if it deems that disclosure of such material to another person or party

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would be injurious to the commercial interests of the designating entity under the

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standards of Rule 26 and that the material contains highly propriety technical or trade

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secret or business information so that the risk of improper use or disclosure to another

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party outweighs the right of that party to review such information.

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1.2

Produced Documents. A party producing documents that it believes

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constitute or contain CONFIDENTIAL INFORMATION shall produce copies bearing

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a label designating such material CONFIDENTIAL or CONFIDENTIAL —

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ATTORNEYS' EYES ONLY. As used herein, the term “documents” includes all

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writings or other media on which information is recorded and other electronic files

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and tangible things subject to production under the Federal Rules of Civil Procedure.

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1.3

Interrogatory Answers. If a party answering an interrogatory believes in

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good faith under the criteria set forth in Section 1.1 that its answer contains

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CONFIDENTIAL INFORMATION, such interrogatory response shall be served

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bearing a label designating such interrogatory response CONFIDENTIAL or

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CONFIDENTIAL—ATTORNEYS' EYES ONLY in the same manner as a produced

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document under Section 1.2.

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1.4

Inspections of Documents. In the event a party elects to produce files

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and records for inspection and the requesting party elects to inspect them, no

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designation of CONFIDENTIAL INFORMATION need be made in advance of the

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inspection. For purposes of such inspection, all materials produced shall be considered

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as CONFIDENTIAL INFORMATION unless the Parties agree otherwise. If the

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inspecting party selects specified documents to be copied, such documents shall be

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treated as CONFIDENTIAL INFORMATION until 10 days have elapsed from the

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time the producing party is provided copies of the selected documents, during which

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time the producing party may designate such documents as CONFIDENTIAL
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[PROPOSED] STIPULATED PROTECTIVE ORDER
Case No. 8:16-cv-1838 CJC (JCGx)

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INFORMATION in accordance with Section 1.1.
1.5

Deposition Transcripts. Portions of testimony taken at a deposition or

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conference and any corresponding exhibits may be designated as CONFIDENTIAL or

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CONFIDENTIAL -ATTORNEYS' EYES ONLY by making a statement to that effect

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on the record at the deposition or other proceeding. Arrangements shall be made with

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the court reporter transcribing such proceeding to separately bind such portions of the

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transcript

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CONFIDENTIAL — ATTORNEYS' EYES ONLY and label such portions

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appropriately. For convenience, if a deposition transcript contains repeated references

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to CONFIDENTIAL INFORMATION which cannot conveniently be segregated from

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non-CONFIDENTIAL INFORMATION, the entire transcript be marked by the

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reporter as CONFIDENTIAL or CONFIDENTIAL — ATTORNEYS' EYES ONLY.

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A party may also designate information disclosed at a deposition as CONFIDENTIAL

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and/or CONFIDENTIAL — ATTORNEYS' EYES ONLY by notifying all parties in

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writing, within thirty (30) days of receipt of the transcript, of the specific pages and

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lines designated as such. Each party shall attach a copy of such written statement to

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the face of each transcript in its possession, custody or control.

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1.6

containing

information

designated

as

CONFIDENTIAL

or

Multi-page Documents. A party may designate all pages of an

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integrated, multi-page document, including a deposition transcript, interrogatory

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answers and responses to document requests, as CONFIDENTIAL INFORMATION

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by placing the label specified in Section 1.1 on the first page of the document. If a

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party wishes to designate only certain portions of an integrated, multi-page document

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as CONFIDENTIAL INFORMATION, it should designate such portions immediately

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below the label on the first page of the document and place the label specified in

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Section 1.1 on each page of the document containing CONFIDENTIAL

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INFORMATION.

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1.7

Inadvertent Failures to Designate. Inadvertent failure to designate

qualified information or items does not, standing alone, waive the right to secure
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[PROPOSED] STIPULATED PROTECTIVE ORDER
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protection under this Protective Order for such material, provided that the designating

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party promptly corrects the designation after discovery of such inadvertent failure.

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Upon timely correction of a designation, the receiving party must make reasonable

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efforts to assure that the material is treated in accordance with the provisions of this

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Protective Order.

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2.

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HANDLING PRIOR TO TRIAL
2.1

Disclosure of CONFIDENTIAL Material. Materials designated

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CONFIDENTIAL or information derived therefrom may be disclosed, shown, or

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made available, or communicated in any way only to the following persons:

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a.

The parties and employees of the parties, but only to the extent necessary

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to participate in, assist in and monitor the progress of this Action and for no other

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purpose;

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b.

Court reporters taking testimony involving CONFIDENTIAL

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INFORMATION, and necessary stenographic, videographic, and clerical personnel

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thereof;

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c.

Consultants or experts and their staff who are employed for the purposes

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of this litigation who have signed the “Acknowledgment and Agreement to Be

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Bound” (Exhibit A);

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d.

The court and the court's staff;

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e.

The author, addressees and recipients of the documents or any person

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who would have had access to such information by virtue of his/her employment;
f.

Witnesses

testifying

in

this

litigation

who

have

signed

the

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“Acknowledgment and Agreement to Be Bound” (Exhibit A), including preparation

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for such testimony;

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g.

Any mediator or settlement officer, and their supporting personnel,

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

Attorneys for the parties to this litigation, including persons working

solely in secretarial, clerical, and paralegal capacities, and who are providing
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[PROPOSED] STIPULATED PROTECTIVE ORDER
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assistance to counsel in this Action.

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i.

Third-parties specifically retained to assist outside counsel in copying,

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imaging, and/or coding of documents but for that purpose only, provided that all such

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confidential documents are kept and maintained in a secure place.

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j.

Any other person as to whom the parties previously agree in writing.

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2.2

Disclosure of CONFIDENTIAL — ATTORNEYS' EYES ONLY

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Material. Material or documents designated as CONFIDENTIAL — ATTORNEYS’

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EYES ONLY may be shown to the persons listed in Sections 2.1 (b) through (j).

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2.3

Use of CONFIDENTIAL INFORMATION. Individuals who are

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authorized to review CONFIDENTIAL INFORMATION pursuant to this Protective

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Order shall hold the CONFIDENTIAL INFORMATION and its contents in

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confidence and shall not divulge it, either verbally or in writing, except as expressly

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permitted by this Protective Order, unless authorized to do so by a further order of this

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Court or as specifically required by law.

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2.4

Unauthorized

Disclosures.

In

the

event

of

disclosure

of

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CONFIDENTIAL INFORMATION other than as authorized in this Protective Order,

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counsel for the party responsible for the disclosure shall (1) notify all parties of the

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unauthorized disclosures, (2) make every effort to prevent further disclosure,

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including retrieving disclosed materials and copies of such materials, and (3) request

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that the persons to whom the unauthorized disclosure was made sign a

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“Acknowledgment and Agreement to Be Bound” (Exhibit “A”) if they have not

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already done so. Upon written stipulation or motion, in accordance with Local Rule

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37, the Court may order such further and additional relief as it deems necessary and

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just.

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2.5

Court Filings. Any CONFIDENTIAL INFORMATION (or documents

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containing CONFIDENTIAL INFORMATION) to be filed with the Court shall be

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filed under seal pursuant to the procedures set forth in Local Rule 79-5, or pursuant to

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such other procedures for filing under seal as the Court may order or allow. The
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[PROPOSED] STIPULATED PROTECTIVE ORDER
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parties agree that exhibits provided to any jury empanelled in this proceeding shall be

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provided without the CONFIDENTIAL or CONFIDENTIAL — ATTORNEYS’

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EYES ONLY stamp.

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2.6

Inadvertent Disclosure

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a.

The inadvertent or unintentional disclosure of “Confidential” or

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“Confidential-Attorneys’ Eyes Only” or any other privileged or protected item,

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regardless of whether the item was so designated at the time of disclosure, shall not be

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deemed a waiver in whole or in part of a Party’s claim of protection or privilege either

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as to the specific information disclosed therein or on the same or related subject

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matter.
b.

This Protective Order is without prejudice to any Party’s right to assert

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the attorney-client, work product, or other privileges or doctrines, or to any other

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Party’s right to contest such claims.

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“CONFIDENTIAL” or “CONFIDENTIAL — ATTORNEYS’ EYES ONLY”

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available to the other Party, the producing Party does not waive any confidentiality

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privilege, doctrine or treatment, and the receiving Party acknowledges and agrees that,

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by making such materials available, the producing Party has not waived any such

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confidentiality privilege, doctrine or treatment or disclosed any proprietary or

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confidential information, trade secret, or any other business or confidentiality

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privilege, doctrine or treatment.

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“CONFIDENTIAL” or “CONFIDENTIAL — ATTORNEYS’ EYES ONLY” the

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receiving Party does not acknowledge or agree that such materials are entitled to such

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designation, and does not waive the right to contest such designation by way of

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application to the Court.

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c.

By making information designated as

By receiving information designated as

Pursuant to Fed. R. Evid. 502(b), the production by any Party during

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discovery of documents containing information protected by the attorney-client

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privilege or the attorney work-product doctrine shall be deemed inadvertent and shall

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not operate to waive the protections of the privilege or the doctrine by or as to the
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[PROPOSED] STIPULATED PROTECTIVE ORDER
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producing Party, provided that as soon as reasonably practicable after the producing

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Party’s learning of the production or the receiving Party’s notification to the

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producing Party of its receipt of the documents that may be subject to the attorney-

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client privilege or the work product doctrine, the producing Party has requested the

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return of the documents.

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immediately return such documents to the producing Party, shall not retain any copies,

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and shall not use the information or the fact of inadvertent disclosure in any manner in

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this Litigation.

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d.

Upon receipt of a request, the receiving Party shall

The Receiving Party shall promptly destroy, sequester, or return to the

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Disclosing Party any protected or privileged item discovered by the Disclosing Party

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or the Receiving Party to have been disclosed inadvertently. If the Receiving Party

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disclosed the protected or privileged item before being notified of the Disclosing

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Party’s claim of protection or privilege, it must take reasonable steps to retrieve the

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item for destruction, sequestering, or return to the Disclosing Party.

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No Party will be responsible to another Party for disclosure of CONFIDENTIAL

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INFORMATION under this Protective Order if the information in question is not

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labeled or otherwise identified as such in accordance with this Protective Order.

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3.

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subject to this Protective Order may be marked and used as trial exhibits by either

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party, subject to terms and conditions as imposed by the trial court upon application

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by

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CONFIDENTIAL INFORMATION is contemplated to be used at trial, the Receiving

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Party seeking to use such information shall give notice to the Court and the Disclosing

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Party of its intention to use the CONFIDENTIAL INFORMATION at trial

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sufficiently in advance of its contemplated use so that the Court can have the matter

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heard.

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4.

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HANDLING DURING TRIAL. CONFIDENTIAL INFORMATION which is

the

designating

party. In

the event

that

information

designated

as

HANDLING AFTER FINAL DISPOSITION.
a.

This Protective Order shall survive the final termination of this Action
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[PROPOSED] STIPULATED PROTECTIVE ORDER
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and shall protect all retained materials that have remained confidential through final

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termination of the case. Upon final termination of this case, all CONFIDENTIAL

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INFORMATION produced in this litigation, including all copies made of such

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material shall, upon demand by the Party that produced it, be returned to counsel for

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that Party that produced it. If no request for return is received within 30 days of final

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disposition, the Party in possession shall destroy such CONFIDENTIAL

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INFORMATION. The Court and Court personnel are exempt from the provisions of

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this Section.

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b.

Notwithstanding the foregoing, counsel for each Party may retain all

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pleadings, briefs, memoranda, motions, and other documents filed with the Court that

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refer to or incorporate CONFIDENTIAL INFORMATION, and will continue to be

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bound by this Protective Order with respect to all such retained information. Further,

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attorney work product materials that contain CONFIDENTIAL INFORMATION

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need not be destroyed, but, if they are not destroyed, the person in possession of the

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attorney work product will continue to be bound by this Protective Order with respect

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to all such retained information.

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5.

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disclosure by a party of material: (1) obtained lawfully by a party hereto other than

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through discovery in this Action, from a person who, to the best of such party's

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knowledge, was not at the time such materials were obtained by such party under a

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duty (contractual or otherwise) to maintain such materials in confidence; (2) that is

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public knowledge or became public knowledge after disclosure under this Protective

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Order (other than through an act or omission of a person receiving material under this

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Protective Order).

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6.

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right of any party: (i) to request re-designation of material as CONFIDENTIAL,

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CONFIDENTIAL — ATTORNEYS EYES ONLY, or neither; (ii) upon written,

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stipulation, in accordance with Local Rule 37, to request the Court's ruling on whether

RESTRICTIONS. Nothing herein shall impose any restriction on the use or

OTHER REQUESTS. This Protective Order shall be without prejudice to the

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[PROPOSED] STIPULATED PROTECTIVE ORDER
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a document or information is CONFIDENTIAL, CONFIDENTIAL — ATTORNEYS'

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EYES ONLY Material, or whether its use should be restricted; (iii) to present a

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motion to the Court under F.R.Civ.P. 26 (c) for a separate protective order as to any

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document or information, including restrictions differing from those specified herein.

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Any challenge to a confidentiality designation shall be initiated pursuant to Local Rule

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37 and the burden of persuasion in any such challenge shall be on the party who

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designated the material as CONFIDENTIAL or CONFIDENTIAL — ATTORNEYS’

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EYES ONLY. The Protective Order shall not be deemed to prejudice the parties in

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any way in any future application for modification of this Protective Order.

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

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non-party in this Action and designated as CONFIDENTIAL or CONFIDENTIAL —

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ATTORNEYS’ EYES ONLY.

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connection with this Action is protected by the remedies and relief proved by this

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

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non-party from seeking additional protections.

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7.

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PRODUCED IN OTHER LITIGATION. If a party is served with a subpoena or a

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court order issued in other litigation that compels disclosure of any information or

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items designated in this Action as CONFIDENTIAL or CONFIDENTIAL —

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ATTORNEYS' EYES ONLY that party must:

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Such information produced by non-parties in

CONFIDENTIAL INFORMATION SUBPOENAED OR ORDERED

a.

promptly notify in writing the designating party. Such notification shall

include a copy of the subpoena or court order;
b.

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

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

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order is subject to this Protective Order. Such notification shall include a copy of this

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Protective Order; and

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c.

cooperate with respect to all reasonable procedures sought to be pursued

by the designating party whose CONFIDENTIAL INFORMATION may be affected.
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[PROPOSED] STIPULATED PROTECTIVE ORDER
Case No. 8:16-cv-1838 CJC (JCGx)

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If the designating party timely seeks a protective order, the party served with

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

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action as CONFIDENTIAL or CONFIDENTIAL -ATTORNEYS' EYES ONLY

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before a determination by the court from which the subpoena or order issued, unless

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the party has obtained the designating party's permission. The designating party shall

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bear the burden and expense of seeking protection in that court of its

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CONFIDENTIAL INFORMATION and nothing in these provisions should be

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construed as authorizing or encouraging any party in this Action to disobey a lawful

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directive from another court.

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8.

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such material secured and shall exercise the same standard of care with respect to

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storage, custody, use and dissemination of the material as they exercise for their own

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proprietary information, but in no event shall the standard be less than that of a

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reasonable person.

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9.

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Protective Order to sign a statement agreeing to be bound by this Protective Order

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must sign a statement to be delivered to and maintained by the Disclosing Party in the

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form attached hereto as EXHIBIT A.

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10.

CUSTODY. Recipients of material under this Protective Order shall maintain

ACKNOWLEDGMENT OF ORDER. Each person required by this

AGREEMENT OF PARTIES TO ORDER.

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All Parties to this action, their counsel, and all other persons subject to this

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Protective Order shall be bound by this Protective Order and shall abide by all of the

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terms of this Protective Order until otherwise ordered by the court or by written notice

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releasing them from the respective obligations received from the pertinent Disclosing

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Party.

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11.

CONTINUING EFFECT OF ORDER.

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This Protective Order shall continue to be binding after the conclusion of this

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litigation except that a Party may seek the written permission of the Disclosing Party
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[PROPOSED] STIPULATED PROTECTIVE ORDER
Case No. 8:16-cv-1838 CJC (JCGx)