Microsoft Corporation v. My Choice Software, LLC et al

Filing 59

STIPULATED PROTECTIVE ORDER by Magistrate Judge Karen E. Scott re Stipulation for Protective Order 57 . (see document for details). (dro)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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MICROSOFT CORPORATION, a
Washington company,
Plaintiff and
Counter-Defendant,

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Case No. 8:16-cv-2187-DOC-KES
STIPULATED PROTECTIVE
ORDER

v.
MY CHOICE SOFTWARE, LLC, a
California limited liability company,
and NATHAN MUMME, an Individual,

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Defendants and
Counterclaimants.

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I.

INTRODUCTION

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A.

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

Purposes and Limitations

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proprietary, 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

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

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

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

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

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extends only to the limited information or items that are entitled to Confidential or

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Attorney’s Eyes Only treatment under the applicable legal principles. The parties

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further acknowledge, as set forth in Section 12.3, below, that this Stipulated

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Protective Order does not entitle them to file confidential information under seal;

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Civil Local Rule 79-5 sets forth the procedures that must be followed and the

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standards that will be applied when a party seeks permission from the Court to file

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material under seal.

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B.

Good Cause Statement

This action is likely to involve trade secrets, customer and pricing lists and
other valuable research, investigatory, development, commercial, financial,

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technical and/or proprietary information for which special protection from public

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disclosure and from use for any purpose other than prosecution of this action is

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warranted. Such confidential and proprietary materials and information consist of,

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among other things, confidential business or financial information, information

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regarding confidential business practices, or other confidential research,

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development, or commercial information (including information implicating

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privacy rights of third parties), information otherwise generally unavailable to the

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public, or which may be privileged or otherwise protected from disclosure under

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state or federal statutes, court rules, case decisions, or common law. Accordingly,

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

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over confidentiality of discovery materials, to adequately protect information the

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

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

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

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

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

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Attorney’s Eyes Only for tactical reasons and that nothing be so designated

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without a good faith belief that it has been maintained in a confidential, non-public

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manner, and there is good cause why it should not be part of the public record of
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this case.
II.

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DEFINITIONS

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2.1

Action: this pending federal law suit.

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2.2

“ATTORNEY’S EYES ONLY” Information or Items: information

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(regardless of how it is generated stored or maintained) for which the disclosure to

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another Party or non-party would create a substantial risk of serious injury that

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could not be avoided by less restrictive means. “Attorney’s Eyes Only” materials

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shall be considered “Confidential.”

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2.3

Challenging Party: a Party or Non-Party that challenges

the designation of information or items under this Order.
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“CONFIDENTIAL” Information or Items: information (regardless of

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

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

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the Good Cause Statement.

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2.5

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

their support staff).
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Designating Party: a Party or Non-Party that designates information

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

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“CONFIDENTIAL” or “ATTORNEY’S EYES ONLY.”

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2.7

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

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

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

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2.8

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

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pertinent to the litigation who 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.

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2.9

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

and fellow employees of such House Counsel. House Counsel does not include
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Outside Counsel of Record or any other outside counsel.
2.10 Non-Party: any natural person, partnership, corporation, association,
or other legal entity not named as a Party to this action.
2.11 Outside Counsel of Record: attorneys who are not employees of a

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

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

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

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2.12 Party: any party to this Action, including all of its officers, directors,
employees, consultants, retained experts, and Outside Counsel of Record (and
their support staffs).
2.13 Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this Action.
2.14 Professional Vendors: persons or entities that provide litigation

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

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

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medium) and their employees and subcontractors.

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2.15 Protected Material: any Disclosure or Discovery Material that is
designated as “CONFIDENTIAL” or “ATTORNEY’S EYES ONLY.”
2.16 Receiving Party: a Party that receives Disclosure or Discovery
Material from a Producing Party.
III.

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SCOPE

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The protections conferred by this Stipulation and 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 shall be governed by the orders of the
trial judge. This Order does not govern the use of Protected Material at trial.
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IV.

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DURATION

Even after final disposition of this litigation, the confidentiality obligations

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imposed by this Order shall remain in effect until a Designating Party agrees

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otherwise in writing or a court order otherwise directs. Final disposition shall be

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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.
V.

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5.1

DESIGNATING PROTECTED MATERIAL

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 under

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this Order must take care to limit any such designation to specific material that

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qualifies under the appropriate standards. The Designating Party must designate for

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protection only those parts of material, documents, items, or oral or written

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communications that qualify so that other portions of the material, documents,

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

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unjustifiably within the ambit of this Order.

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Mass, indiscriminate, or routinized designations are prohibited.

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

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

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

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Designating Party to 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

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designation.

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5.2

Manner and Timing of Designations. Except as otherwise provided in
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this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise

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stipulated or ordered, Disclosure or Discovery Material that qualifies for

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

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disclosed or produced.

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Designation in conformity with this Order requires:
(a)

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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” (hereinafter “CONFIDENTIAL legend”) or “ATTORNEY’S

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EYES ONLY” (hereinafter “ATTORNEY’S EYES ONLY legend”), to each page

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that contains protected material. If only a portion or portions of the material on a

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page qualifies for protection, the Producing Party also must clearly identify the

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

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for testimony given in deposition or in other pretrial

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

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

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level of protection being asserted, or within 30 days of receipt of the deposition

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transcript, or transcript from the hearing or other proceeding.

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

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

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other parties can ensure that only authorized individuals who have signed

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

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

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way affect its designation as “CONFIDENTIAL” or “ATTORNEY’S EYES

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ONLY.”
(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

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place on the exterior of the container or containers in which the information is
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stored the legend “CONFIDENTIAL” or “ATTORNEY’S EYES ONLY.” If only

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a portion or portions of the information warrants protection, the Producing Party,

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to the extent practicable, shall identify the protected portion(s).

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5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent

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

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

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material. Upon timely 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 Order.

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VI.
6.1

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

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designation of confidentiality at any time unless otherwise stated in the Court’s

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Scheduling Order.

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6.2

Meet and Confer. The Challenging Party shall initiate the dispute

resolution process under Local Rule 37.1 et seq.
6.3

Judicial Intervention. If the parties cannot resolve a challenge

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without court intervention, the parties shall follow Court’s standing procedure in

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civil cases regarding Discovery and Discovery Motions. Prior to filing any motion

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pursuant to Local Rule 37-1, the parties must engage in the pre-filing conference

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of counsel required by Local Rule 37-1, during which they must discuss and

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consider whether the issues can be presented through an informal telephone

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conference, rather than through the filing of a formal motion. Should the parties

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agree to an informal telephonic conference, the prospective moving party should

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contact the Court’s Courtroom Deputy to schedule a conference. The parties shall

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also at least 24 hours before the telephonic conference, submit letters of no more

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than 2 pages in length providing a synopsis of the discovery disputes and all meet

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and confer efforts that were undertaken. After the conference, the Court, in its

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discretion, may order further briefing, and may or may not order the parties to
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follow the provisions of Local Rule 37-2 et seq.
6.4

The burden of persuasion in any such challenge proceeding shall be

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

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

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

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

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

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

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challenge.
VII. ACCESS TO AND USE OF PROTECTED MATERIAL

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7.1

Basic Principles. A Receiving Party may use Protected Material that

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

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

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

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

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

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below (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

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authorized under this 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

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“CONFIDENTIAL” only to:

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(a)

the Receiving Party’s Outside Counsel of Record in this

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Action, as well as employees of said Outside Counsel of Record, and House

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Counsel, and fellow employees of such House Counsel, to whom it is reasonably

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

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the officers, directors, and employees (including House

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Counsel) of the Receiving Party to whom disclosure is reasonably necessary for

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this Action.
(c)

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

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

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

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(d)

the court and its personnel;

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(e)

court reporters and their staff;

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(f)

professional jury or trial consultants, mock jurors, and

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Professional Vendors to whom disclosure is reasonably necessary for this Action

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

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(Exhibit A);
(g)

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copy, document management, or electronic discovery or

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imaging services retained by counsel to assist in the management and duplication

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of confidential material, provided that counsel for the party retaining the copy or

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imaging service instructs the service not to disclose any confidential material to

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third parties and to immediately return all originals and copies of any confidential

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material; upon completion of the service;
(h)

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the author or recipient of a document containing the

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

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information;
(i)

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during their depositions, witnesses, and attorneys for witnesses,

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in the Action to whom disclosure is reasonably necessary and who have signed

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the “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise

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agreed by the Designating Party or ordered by the court. Pages of transcribed

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deposition testimony or exhibits to depositions that reveal Protected Material may

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be separately bound by the court reporter and may not be disclosed to anyone

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except as permitted under this Stipulated Protective Order; and
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(j)

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any mediator or settlement officer, and their supporting

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

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discussions.

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7.3

Disclosure of “ATTORNEY’S EYES ONLY” Information or Items.

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Unless otherwise ordered by the Court or permitted in writing by the

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Designating Party, a Receiving Party may disclose “ATTORNEY’S EYES ONLY”

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material only to those persons identified in Section 7.2 (a, c-h, and j).

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VIII. PROTECTED MATERIAL SUBPOENAED OR ORDERED

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PRODUCED IN OTHER LITIGATION

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

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

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“CONFIDENTIAL” or “ATTORNEY’S EYES ONLY,” that Party must:
(a)

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promptly notify in writing the Designating Party. Such

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

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promptly notify in writing the party who caused the subpoena

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or 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 Protective Order. Such notification shall

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

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cooperate with respect to all reasonable procedures sought to

be pursued by the Designating Party whose Protected Material may be affected.
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 “ATTORNEY’S EYES ONLY” before a

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

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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 confidential

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material and nothing in these provisions should be construed as authorizing or

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encouraging a Receiving Party in this Action to disobey a lawful directive from
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another court.
IX.

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

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(a)

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The terms of this Order are applicable to information produced

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

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“ATTORNEY’S EYES ONLY.” Such information produced by Non-Parties in

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connection with this litigation is protected by the remedies and relief provided by

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this Order. Nothing in these provisions should be construed as prohibiting a Non-

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Party from seeking additional protections.
(b)

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

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

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Party is subject to an agreement with the Non-Party not to produce the Non-

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Party’s confidential information, then the Party shall:
(1)

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promptly notify in writing the Requesting Party and the

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

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confidentiality agreement with a Non-Party;
(2)

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promptly provide the Non-Party with a copy of the

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

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reasonably specific description of the information requested; and
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make the information requested available for inspection

by the Non-Party, if requested.
(c)

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

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14 days of receiving the notice and accompanying information, the Receiving Party

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

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

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

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

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Absent a court order to the contrary, the Non-Party shall bear the burden and
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expense of seeking protection in this court of its Protected Material.
X.

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UNAUTHORIZED DISCLOSURE OF PROTECTED

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MATERIAL

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

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

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

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

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

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

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this Order, and (d) request such person or persons to execute the “Acknowledgment

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

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OTHERWISE PROTECTED MATERIAL

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INADVERTENT PRODUCTION OF PRIVILEGED OR

When a Producing Party gives notice to Receiving Parties that certain

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

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

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

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

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

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

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

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

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protective order submitted to the court.
XII. MISCELLANEOUS

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12.1 Right to Further Relief. Nothing in this Order abridges the right of
any person to seek its modification by the Court in the future.
12.2 Right to Assert Other Objections. By stipulating to the entry of this
Protective Order no Party waives any right it otherwise would have to object to
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disclosing or producing any information or item on any ground not addressed in

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

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

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Order.

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

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

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

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

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Material under seal is denied by the court, then the Receiving Party may file the

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information in the public record unless otherwise instructed by the court.
XIII. FINAL DISPOSITION

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

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

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

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

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

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

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Receiving Party must, upon request by another party, submit a written certification

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to the Producing Party (and, if not the same person or entity, to the Designating

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Party) by the 60 day deadline that (1) identifies (by category, where appropriate) all

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the Protected 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

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any other format reproducing or capturing any of the Protected Material.

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

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

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

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

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contain Protected Material. Any such archival copies that contain or constitute
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Protected Material remain subject to this Protective Order as set forth in Section 4

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(DURATION).

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XIV. VIOLATIONS

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Any violation of this Order may be punished by any and all appropriate

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measures including, without limitation, contempt proceedings and/or monetary

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sanctions.

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IT IS SO STIPULATED THROUGH COUNSEL OF RECORD.
DATED: March 9, 2018

PERKINS COIE LLP

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By: /s/ Katherine M. Dugdale
Katherine M. Dugdale

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Attorneys for Plaintiff and CounterDefendant MICROSOFT
CORPORATION

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DATED: March 9, 2018

HANSEN LAW FIRM, P.C.

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By: /s/ Joan E. Marquardt
Craig Alan Hansen
Sarah Wager
Joan E. Marquardt

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Attorneys for Defendants and
Counterclaimants MY CHOICE
SOFTWARE, LLC and NATHAN
MUMME

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

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DATED: March 13, 2018

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Hon. Karen E. Scott
United States Magistrate Judge

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, ________________________________________ [print or type a full name], of

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_______________________ [print or type full address]k declare under penalty of

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

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

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California on _________ [date] in the case of Microsoft Corporation v. My Choice

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Software, LLC, et al., Case No. 8:16-cv-2187-DOC-KES. I agree to comply with

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

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

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

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disclosure in any manner any information or item that is subject to this Stipulated

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Protective Order to any person or entity except in strict compliance with the

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provisions of 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 the terms of this

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Stipulated Protective Order, even if such enforcement proceedings occur after

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termination of this action. I hereby appoint ______________________ [print of

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type full name] of _____________________________ [print or type full address

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and phone number] as my California agent for service of process in connection with

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

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Order.

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Date:_______________

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City and State where sworn and signed:_____________________________

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Printed Name:______________________________________

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Signature__________________________________________

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