Philips North America LLC et al v. KPI Healthcare, Inc. et al
Filing
134
AMENDED PROTECTIVE ORDER by Magistrate Judge John D. Early (hr)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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SOUTHERN DIVISION
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PHILIPS NORTH AMERICA LLC, a
Delaware Company, KONINKLIJKE
PHILIPS N.V., a Company of the
Netherlands, and PHILIPS INDIA,
LTD., an Indian Company,
vs.
Plaintiffs,
KPI HEALTHCARE INC., a California
Corporation; KPI HEALTHCARE
ECOMMERCE, INC., a California
Corporation; and DOES 1-10,
inclusive,
Defendants.
KPI HEALTHCARE INC., a California
Corporation; KPI HEALTHCARE
ECOMMERCE, INC., a California
Corporation,
Counterclaimants,
vs.
Case No.: 8:19-cv-01765-JVS-JDEx
[DISCOVERY MATTER]
Magistrate Judge John D. Early
AMENDED PROTECTIVE ORDER
REGARDING CONFIDENTIAL
INFORMATION
First Amended Filed: December 3, 2019
Second Amended Answer and
Counterclaims Filed: May 15, 2020
PHILIPS NORTH AMERICA LLC, a
Delaware Company, and
KONINKLIJKE PHILIPS N.V., a
Company of the Netherlands, and
DOES 1-9, inclusive,
Counter-Defendants.
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Case No.: 8:19-cv-01765-JVS-JDE
AMENDED PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION
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1.
INTRODUCTION
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1.1
PURPOSE AND LIMITS OF THIS ORDER
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Discovery in this action is likely 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 Amended Protective
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Order. This Order does not confer blanket protections on all disclosures or responses
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to discovery, and the protection it gives from public disclosure and use extends only to
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the specific material entitled to confidential treatment under the applicable legal
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principles. This Order does not automatically authorize the filing under seal of
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material designated under this Order. Instead, the parties must comply with L.R. 79-
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5.1 if they seek to file anything under seal. This Order does not govern the use at trial
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of material designated under this Order.
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1.2
GOOD CAUSE STATEMENT
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The parties in this case are direct competitors in the ultrasound systems sales
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business. The complaint alleges that the defendants are liable for trademark
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infringement, trade secret misappropriation, and unfair competition, among other
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things. This action will necessarily involve the exchange of confidential commercially
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sensitive information. Accordingly, the special protection of this confidential
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commercial and financial information from public disclosure and from use for any
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purpose other than prosecution of this action is warranted. See Fed. R. Civ. P.
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26(c)(1)(G) (“The court may, for good cause, issue an order to protect a party or
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person…[,] requiring that a trade secret or other confidential research, development,
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or commercial information not be revealed or be revealed only in a specified way.”).
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Such alleged confidential information includes, among other things, source code,
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proprietary or confidential business or financial information, information regarding
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confidential business practices, customer and potential customer lists, or other
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confidential commercial and/or trade secret information otherwise generally
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unavailable to the public, or which may be privileged or otherwise protected from
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AMENDED PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION
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disclosure under state or federal statutes, court rules, case decisions, or common law
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and disclosure of which to another Party or Non-Party would create a substantial risk
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of serious harm.
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Additionally, there is a need for a three-tiered protective order that allows
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designation of certain material as “HIGHLY CONFIDENTIAL - ATTORNEYS’
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EYES ONLY” or “HIGHLY CONFIDENTIAL - SOURCE CODE” as this action
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involves allegations that Defendants misappropriated certain trade secrets and/or other
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confidential or proprietary information and because discovery in this matter may seek
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highly confidential trade secrets, including source code, of the Parties. See Elements
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Spirits, Inc. v. Iconic Brands, Inc., Civ. No. CV 15-02692 DDP(AGRx), 2016 WL
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2642206, at *1–*2, 2016 U.S. Dist. LEXIS 61222, at *4 (C.D. Cal. May 9, 2016)
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(holding that protective order with attorneys’ eyes only designation was warranted to
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protect party’s confidential information) (citing Nutratech, Inc. v. Syntech Int’l, Inc.,
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242 F.R.D. 552, 555 (C.D. Cal. 2008); Brown Bag Software v. Symantec Corp., 960
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F.2d 1465, 1470 (9th Cir. 1992)). The unauthorized or otherwise improper use of a
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Party’s confidential, proprietary, or trade secret information gained through discovery
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in this action is likely to cause grave and irreparable harm to the other Party. Thus, a
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three-tiered designation system is warranted to protect the parties’ confidential,
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proprietary, and trade secret information, including, without limitation, any
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proprietary technology, from improper disclosure and the attendant risk of grave
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competitive harm.
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2.
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DESIGNATING PROTECTED MATERIAL
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 – ATTORNEY 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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AMENDED PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION
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protection shall be designated. Designations with a higher confidentiality level when a
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lower level would suffice are prohibited. Mass, Indiscriminate, or 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
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necessary to protect material that, if disclosed to persons not authorized to view it,
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would cause competitive or other recognized harm. Material may not be designated if
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it has been made public, or if designation is otherwise unnecessary to protect a secrecy
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interest. If a designator learns that information or items that it designated for
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protection do not qualify for protection at all or do not qualify for the level of
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protection initially asserted, that designator must promptly notify all parties that it is
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withdrawing the mistaken 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,” “HIGHLY
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CONFIDENTIAL – ATTORNEY EYES ONLY,” or “HIGHLY CONFIDENTIAL –
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SOURCE CODE”) to each page that contains protected material. For testimony given
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in deposition or other proceeding, the designator shall specify all protected testimony
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and the level of protection being asserted. It may make that designation during the
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deposition or proceeding, or may invoke, on the record or by written notice to all
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parties on or before the next business day, a right to have up to 21 days from receipt of
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the transcript of 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 inspecting party
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has identified the documents it wants copied and produced, the producing party must
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designate the documents, or portions thereof, that qualify for protection under this
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AMENDED PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION
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Order.
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2.2.2 2.2.2 Parties shall give advance notice if they expect a deposition or
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other 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 material is
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disclosed or used. The use of a document as an exhibit at a deposition shall not in any
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way affect its designation. Any transcript that is prepared before the expiration of the
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21-day 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 be
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treated only as actually designated. Notwithstanding the foregoing, the parties should
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strive to appropriately designate testimony during the deposition. If the Designating
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Party determines that any portion of a transcript designated during the deposition as
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CONFIDENTIAL or HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY need
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not be treated as CONFIDENTIAL or HIGHLY CONFIDENTIAL – ATTORNEY
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EYES ONLY, the Designating Party shall notify all other parties that the designation
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is withdrawn, and specify the portions of the deposition transcript about which a
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designation is being withdrawn.
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If a Party challenges a designation in accordance with Section 3 of this Order,
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all Parties agree to treat the deposition transcript and testimony as so designated until
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an appropriate Court Order is entered or the Parties otherwise both agree to the
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removal of a designation.
2.3
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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.
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3.
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CHALLENGING CONFIDENTIALITY DESIGNATIONS
All challenges to confidentiality designations shall proceed under L.R. 37-1
through L.R. 37-4.
-5Case No.: 8:19-cv-01765-JVS-JDE
AMENDED PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION
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4.
ACCESS TO DESIGNATED MATERIAL
4.1
Basic Principles. A receiving party may use designated material only for
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this litigation. Designated material may be disclosed only to the categories of persons
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and under the conditions described in this Order.
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4.2
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Unless otherwise ordered by the Court or permitted in writing by the designator,
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Disclosure of CONFIDENTIAL Material Without Further Approval.
a 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 The officers, directors, and employees of the receiving party to
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whom disclosure is reasonably necessary, and who have signed the Agreement
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to Be Bound (Exhibit A);
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4.2.3 Experts retained by the receiving party’s outside counsel of record
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and their employees to whom disclosure is reasonably necessary, and who have
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signed the Agreement 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
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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
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disclosure is reasonably necessary and who have signed the Agreement to Be
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Bound (Exhibit A);
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
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Disclosure of HIGHLY CONFIDENTIAL – ATTORNEY EYES
ONLY and HIGHLY CONFIDENTIAL – SOURCE CODE Material Without
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AMENDED PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION
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Further Approval.
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Unless permitted in writing by the designator, a receiving party may disclose
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material designated HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY or
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HIGHLY CONFIDENTIAL – 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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4.3.2 The Court and its personnel;
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4.3.3 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
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 CONFIDENTIAL
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–SOURCE CODE Material to In-House Counsel or Experts.
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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 designated
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HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY must first make a written
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request to the designator providing the full name of the in-house counsel, the city and
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state of such counsel’s residence, and such counsel’s current and reasonably
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foreseeable future primary job duties and responsibilities in sufficient detail to
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determine present or potential involvement in any competitive decision-making. In-
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house counsel are not authorized to receive material designated HIGHLY
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CONFIDENTIAL – SOURCE CODE.
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4.4.2 A party seeking to disclose to an expert retained by outside counsel of
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record any information or item that has been designated HIGHLY CONFIDENTIAL
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– ATTORNEY EYES ONLY or HIGHLY CONFIDENTIAL – SOURCE CODE
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AMENDED PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION
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must first make a written request to the designator that (1) identifies the general
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categories of HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY or HIGHLY
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CONFIDENTIAL – SOURCE CODE information that the receiving party seeks
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permission to disclose to the expert, (2) sets forth the full name of the expert and the
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city and state of his or her primary residence, (3) attaches a copy of the expert’s
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current resume, (4) identifies the expert’s current employer(s), (5) identifies each
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person or entity from whom the expert has received compensation or funding for work
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in his or her areas of expertise (including in connection with litigation) in the past five
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years, and (6) identifies (by name and number of the case, filing date, and location of
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court) any litigation where the expert has offered expert testimony, including by
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declaration, report, or testimony at deposition or trial, in the past five years. If the
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expert believes any of this information at (4) - (6) is subject to a confidentiality
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obligation to a third party, then the expert should provide whatever information the
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expert believes can be disclosed without violating any confidentiality agreements, and
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the party seeking to disclose the information to the expert shall be available to meet
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and 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 in
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paragraph 4.4.1 or 4.4.2 may disclose the designated material to the identified in-
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house counsel or expert unless, within seven days of delivering the request, the party
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receives a written objection from the designator providing detailed grounds for the
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objection.
4.4.4 All challenges to objections from the designator shall proceed under L.R.
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37-1 through L.R. 37-4.
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5.
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SOURCE CODE
5.1
Designation of Source Code. If production of source code is necessary,
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a party may designate it as HIGHLY CONFIDENTIAL – SOURCE CODE if it is, or
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includes, confidential, proprietary, or trade secret source code.
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5.2
Location
and
Supervision
of
Inspection.
Any
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AMENDED PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION
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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normal 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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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.
5.3
Paper Copies of Source Code Excerpts. The inspecting party may
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request paper copies of limited portions of source code that are reasonably necessary
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for the preparation of court filings, pleadings, expert reports, other papers, or for
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deposition or trial. The designator shall provide all such source code in paper form,
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including Bates numbers and the label “HIGHLY CONFIDENTIAL – SOURCE
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CODE.” Within five business days of receiving a request for paper copies, the
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designator may challenge the amount of source code requested in hard copy form
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under L.R. 37-1 through L.R. 37-4. Requests for continuous blocks of source code
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totaling up to 50 pages and requests totaling up to 500 pages of source code are
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presumed reasonable. Requests for continuous blocks of source code exceeding 50
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pages and requests exceeding 500 total pages of source code are presumed
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unreasonable, but the requesting party may overcome the presumption by presenting
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good cause.
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restrictions and presumptions shall not apply to the limited portions of redacted source
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code provided to the Copyright Office pursuant to its deposit requirements for
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copyrights at issue in this action.
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5.4
It is the requesting party’s burden to obtain such relief.
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Access Record. The inspecting party shall maintain a record of any
individual who has inspected any portion of the source code in electronic or paper
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AMENDED PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION
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form, and shall maintain all paper copies of any printed portions of the source code in
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a secured, locked area.
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The inspecting party shall not convert any of the information contained in the
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paper copies into any electronic format other than for the preparation of a pleading,
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exhibit, expert report, discovery document, deposition transcript, or other Court
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document. Any paper copies used during a deposition shall be retrieved at the end of
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each day and must not be left with a court reporter or any other unauthorized
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individual.
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7.
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PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
IN OTHER LITIGATION
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
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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, HIGHLY CONFIDENTIAL –
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ATTORNEY EYES ONLY, or HIGHLY CONFIDENTIAL – SOURCE CODE, that
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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;
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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.
- 10 Case No.: 8:19-cv-01765-JVS-JDE
AMENDED PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION
7.3
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Wait For Resolution of Protective Order. If the designator timely
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seeks a protective order, the party served with the subpoena or court order shall not
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produce any information designated in this action as CONFIDENTIAL, HIGHLY
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CONFIDENTIAL – ATTORNEY 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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material, (3) inform the person or persons to whom unauthorized disclosures were
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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.
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PROTECTED MATERIAL
INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
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When a producing party gives notice that certain inadvertently produced
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material is subject to a claim of privilege or other protection, the obligations of the
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receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B).
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This provision is not intended to modify whatever procedure may be established in an
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e-discovery order that provides for production without prior privilege review pursuant
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to 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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file under seal any designated material must comply with L.R. 79-5.1. Filings may be
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AMENDED PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION
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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
3
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 material, cooperation
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between the parties in preparing, and in reducing the number and extent of, requests
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for under seal filing is essential. If a receiving party’s 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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party may file the material in the public record unless (1) the designator seeks
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reconsideration within four business days of the denial, or (2) as otherwise instructed
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by the Court.
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11.
MISCELLANEOUS
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11.1 Right to Further Relief
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11.1.1.
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modification by the Court in the future.
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11.1.2 Right to Assert Other Objections. By entry of this Protective Order, no
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Party waives any right it otherwise would have to object to disclosing or producing
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any information or item on any ground not addressed in this Amended Protective
19
Order.
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evidence of any of the material covered by this Protective Order.
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12.
Nothing in this Order abridges the right of any person to seek its
Similarly, no Party waives any right to object on any ground to use in
FINAL DISPOSITION
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Within 60 days after the final disposition of this action, each party shall return
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all 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
25
any designated material. The receiving party must submit a written certification to the
26
designator by the 60-day deadline that (1) identifies (by category, where appropriate)
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all 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
- 12 Case No.: 8:19-cv-01765-JVS-JDE
AMENDED PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION
1
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
3
papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence,
4
deposition and trial exhibits, expert reports, attorney work product, and consultant and
5
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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13.
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9
NON-PARTY DESIGNATIONS
Any Information that may be produced by a non-Party or non-Party witness in
discovery in the Proceeding
pursuant
to
subpoena
or
otherwise
may
be
10
designated by such non-Party or non-Party witness as “CONFIDENTIAL” or
11
“HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY” under the terms of this
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Amended Protective Order, and any such designation by a non-Party or non-Party
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witness shall have the same force and effect, and create the same duties and
14
obligations on the Parties, as if made by one of the undersigned Parties hereto.
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FOR GOOD CAUSE SHOWN (see Dkt. 46-1 to 46-7, 49, 50, 132-1 to 132-6),
IT IS SO ORDERED.
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Dated: January 08, 2021
JOHN D. EARLY
United States Magistrate Judge
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AMENDED PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION
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EXHIBIT A
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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
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4
I,
[print or type full name], of
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[print or type full address], declare under penalty of perjury that I have
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read in its entirety and understand the Amended Protective Order that was issue by the
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United States District Court for the Central District of California on January 8, 2021
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in the case of Philips North America, LLC, et al. v. KPI Healthcare Inc., et. al., 8:19-
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cv-01765-JVS-JDE. I agree to comply with and to be bound by all the terms of this
10
Amended Protective Order and I understand and acknowledge that failure to so
11
comply could expose me to sanctions and punishment in the nature of contempt. I
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solemnly promise that I will not disclose in any manner any information or item that is
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subject to this Amended Protective Order to any person or entity except in strict
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compliance with the 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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Amended Protective Order, even if such enforcement proceedings occur after
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termination of this action. I hereby appoint
19
full name] of
20
number] as my California agent for service of process in connection with this action or
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any proceedings related to enforcement of this Amended Protective Order.
[print or type
[print or type full address and telephone
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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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AMENDED PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION
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