Sofpool, LLC v. KMart Corporation et al

Filing 37

PROTECTIVE ORDER signed by Magistrate Judge John F. Moulds on 8/8/11. (Matson, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SACRAMENTO DIVISION

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SOFPOOL LLC, a limited liability
company,

Case No. CV 10-03333 LKK JFM
PROTECTIVE ORDER

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Plaintiff,
v.
KMART CORPORATION, a Michigan
Corporation, BIG LOTS, INC., an Ohio
Corporation, and BIG LOTS STORES,
INC., an Ohio Corporation,

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Defendants.
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AND RELATED COUNTERCLAIMS.

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1.

PURPOSES AND LIMITATIONS

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Disclosure and discovery activity in this action are likely to involve production of

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confidential, 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 be warranted.

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Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulated

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Protective Order. The parties acknowledge that this Order does not confer blanket protections on

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all disclosures or responses to discovery and that the protection it affords from public disclosure

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

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13.3, below, that this Stipulated Protective Order does not entitle them to file confidential

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

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information under seal; Civil Local Rule 141 sets forth the procedures that must be followed and

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

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under seal.

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2.

DEFINITIONS

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2.1

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

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information or items under this Order.
2.2

“CONFIDENTIAL” Information or Items: information (regardless of how it is

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generated, stored or maintained) or tangible things that qualify for protection under Federal Rule

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of Civil Procedure 26(c).

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2.3

Counsel (without qualifier): Outside Counsel of Record and House Counsel (as

well as their support staff).
2.4

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

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it produces in disclosures or in responses to discovery as “CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY”.

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2.5

Disclosure or Discovery Material: all items or information, regardless of the

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medium or manner in which it is generated, stored, or maintained (including, among other things,

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testimony, transcripts, and tangible things), that are produced or generated in disclosures or
responses to discovery in this matter.
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2.6

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

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the litigation who (1) has been retained by a Party or its counsel to serve as an expert witness or

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as a consultant in this action, (2) is not a past or current employee of a Party or of a Party’s

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competitor, and (3) at the time of retention, is not anticipated to become an employee of a Party

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or of a Party’s competitor.

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2.7

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or

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Items: extremely sensitive “Confidential Information or Items,” disclosure of which to another

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Party or Non-Party would create a substantial risk of serious harm that could not be avoided by

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less restrictive means.
2.8

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

Counsel does not include Outside Counsel of Record or any other outside counsel.
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Non-Party: any natural person, partnership, corporation, association, or other legal

entity not named as a Party to this action.
2.10

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

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action but are retained to represent or advise a party to this action and have appeared in this action

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on behalf of that party or are affiliated with a law firm which has appeared on behalf of that party.

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2.11

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).
2.12

Producing Party: a Party or Non-Party that produces Disclosure or Discovery

Material in this action.
2.13

Professional Vendors: persons or entities that provide litigation support services

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(e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and

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organizing, storing, or retrieving data in any form or medium) and their employees and

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subcontractors.

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2.14

Protected Material: any Disclosure or Discovery Material that is designated as

“CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”
2.15

Receiving Party: a Party that receives Disclosure or Discovery Material from a

Producing Party.
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3.

SCOPE

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The protections conferred by this Stipulation and Order cover not only Protected Material

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(as defined above), but also (1) any information copied or extracted from Protected Material; (2)

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all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony,

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

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However, the protections conferred by this Stipulation and Order do not cover the following

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information: (a) any information that is in the public domain at the time of disclosure to a

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Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as

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public record through trial or otherwise; and (b) any information known to the Receiving Party

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a result of publication not involving a violation of this Order, including becoming part of the

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prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who

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obtained the information lawfully and under no obligation of confidentiality to the Designating

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Party. Any use of Protected Material at trial shall be governed by a separate agreement or order.

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4.

DURATION

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Even after final disposition of this litigation, the confidentiality obligations imposed by

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this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court

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order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all

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claims and defenses in this action, with or without prejudice; and (2) final judgment herein after

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the completion and 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 pursuant to

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applicable law.

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5.

DESIGNATING PROTECTED MATERIAL

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5.1

Exercise of Restraint and Care in Designating Material for Protection. Each Party

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or Non-Party that designates information or items for protection under this Order must take care

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to limit any such designation to specific material that qualifies under the appropriate standards.

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To the extent it is practical to do so, the Designating Party must designate for protection only

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those parts of material, documents, items, or oral or written communications that qualify – so that
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other portions of the material, documents, items, or communications for which protection is not

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warranted are not swept unjustifiably within the ambit of this Order.

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Mass, indiscriminate, or routinized designations are prohibited. Designations that are

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

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unnecessarily encumber or retard the case development process or to impose unnecessary

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

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If it comes to a Designating Party’s attention that information or items that it designated
for protection do not qualify for protection at all or do not qualify for the level of protection

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initially asserted, that Designating Party must promptly notify all other parties that it is

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withdrawing the mistaken designation.

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5.2

Manner and Timing of Designations. Except as otherwise provided in this Order

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(see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered,

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Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so

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designated before the material is disclosed or produced.

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Designation in conformity with this Order requires:

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(a) for information in documentary form (e.g., paper or electronic documents, but

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excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing

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Party affix the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’

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EYES ONLY” to each page that contains protected material. If only a portion or portions of the

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material on a 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) and must specify, for

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each portion, the level of protection being asserted.

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

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

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material it would like copied and produced. During the inspection and before the designation, all

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of the material made available for inspection shall be deemed “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY.” After the inspecting Party has identified the documents it wants
copied and produced, the Producing Party must determine which documents, or portions thereof,
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qualify for protection under this Order. Then, before producing the specified documents, the

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Producing Party must affix the appropriate legend (“CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY”) to each page that contains Protected

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Material. If only a portion or portions of the material on a page qualifies for protection, the

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Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate

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markings in the margins) and must specify, for each portion, the level of protection being

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asserted.

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proceeding, all protected testimony and specify the level of protection being asserted. When it is

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Designating Party identify on the record, before the close of the deposition, hearing, or other

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(b) for testimony given in deposition or in other pretrial or trial proceedings, that the

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

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appears that substantial portions of the testimony may qualify for protection, the Designating

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Party may invoke on the record (before the deposition, hearing, or other proceeding is concluded)

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a right to have up to 21 days to identify the specific portions of the testimony as to which

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protection is sought and to specify the level of protection being asserted. Only those portions of

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the testimony that are appropriately designated for protection within the 21 days shall be covered

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by the provisions of this Stipulated Protective Order. Alternatively, a Designating Party may

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specify, at the deposition or up to 21 days afterwards if that period is properly invoked, that the

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entire transcript shall be treated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY.”

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Parties shall give the other parties notice if they reasonably expect a deposition, hearing or

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other proceeding to include Protected Material so that the other parties can ensure that only

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authorized individuals, including individuals who have signed the “Acknowledgment and

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Agreement to Be Bound” (Exhibit A), are present at those proceedings. The use of a document as

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an exhibit at a deposition shall not in any way affect its designation as “CONFIDENTIAL” or

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”

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Transcripts containing Protected Material shall have an obvious legend on the title page
that the transcript contains Protected Material, and the title page shall be followed by a list of all
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pages (including line numbers as appropriate) that have been designated as Protected Material and

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the level of protection being asserted by the Designating Party. The Designating Party shall

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inform the court reporter of these requirements. Any transcript that is prepared before the

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expiration of a 21-day period for designation shall be treated during that period as if it had been

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designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its entirety unless

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otherwise agreed. After the expiration of that period, the transcript shall be treated only as

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actually designated.

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(c) for information produced in some form other than documentary and for any other

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or containers in which the information or item is stored the legend “CONFIDENTIAL” or

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tangible items, that the Producing Party affix in a prominent place on the exterior of the container

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”. If only a portion or portions of

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the information or item warrant protection, the Producing Party, to the extent practicable, shall

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identify the protected portion(s) and specify the level of protection being asserted.

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5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to

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designate qualified information or items does not, standing alone, waive the Designating Party’s

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right to secure protection under this Order for such material. Upon timely correction of a

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designation, the Receiving Party must make reasonable efforts to assure that the material is

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treated in accordance with the provisions of this Order.

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6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

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6.1

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

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confidentiality at any time. A Party does not waive its right to challenge a confidentiality

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designation by electing not to mount a challenge promptly after the original designation is

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disclosed.

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6.2

Meet and Confer. The Challenging Party shall initiate the dispute resolution

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process by providing written notice of each designation it is challenging and describing the basis

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for each challenge. To avoid ambiguity as to whether a challenge has been made, the written

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notice must recite that the challenge to confidentiality is being made in accordance with this
specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge in
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good faith and must begin the process by conferring directly (in voice to voice dialogue; other

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forms of communication are not sufficient) within 14 days of the date of service of notice. In

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conferring, the Challenging Party must explain the basis for its belief that the confidentiality

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designation was not proper and must give the Designating Party an opportunity to review the

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designated material, to reconsider the circumstances, and, if no change in designation is offered,

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to explain the basis for the chosen designation. A Challenging Party may proceed to the next

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stage of the challenge process only if it has engaged in this meet and confer process first or

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establishes that the Designating Party is unwilling to participate in the meet and confer process in

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a timely manner.

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6.3

Judicial Intervention. If the Parties cannot resolve a challenge without court

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intervention, the Challenging Party may file and serve a motion to challenge confidentiality (in

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compliance with Civil Local Rule 141, if applicable). Each such motion must be accompanied by

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a competent declaration affirming that the movant has complied with the meet and confer

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requirements imposed in the preceding paragraph.

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The burden of persuasion in any such challenge proceeding shall be on the Designating

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Party. Frivolous challenges and those made for an improper purpose (e.g., to harass or impose

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

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sanctions. All parties shall continue to afford the material in question the level of protection to

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which it is entitled under the Producing Party’s designation until the court rules on the challenge.

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7.

ACCESS TO AND USE OF PROTECTED MATERIAL

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7.1

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

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produced by another Party or by a Non-Party in connection with this case only for prosecuting,

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defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to

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the categories of persons and under the conditions described in this Order. When the litigation has

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been terminated, a Receiving Party must comply with the provisions of section 15 below (FINAL

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DISPOSITION).

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Protected Material must be stored and maintained by a Receiving Party at a location and
in a secure manner that ensures that access is limited to the persons authorized under this Order.
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7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

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

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disclose any information or item designated “CONFIDENTIAL” only to:

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(a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees

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of said Outside Counsel of Record to whom it is reasonably necessary to disclose the information

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for this litigation;

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(b) the officers, directors, and employees (including House Counsel) of the Receiving
Party to whom disclosure is reasonably necessary for this litigation; except that defendants’

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officers, directors, and employees (including House Counsel) shall not have access to co-

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defendants’ CONFIDENTIAL information or items;

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(c) Experts (as defined in this Order) of the Receiving Party (1) to whom disclosure is

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reasonably necessary for this litigation, (2) who have signed the “Acknowledgment and

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Agreement to Be Bound” (Exhibit A), and (3) as to whom the procedures set forth in paragraph

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7.4(a), below, have been followed;

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(d) the court and its personnel;

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(e) court reporters and their staff, professional jury or trial consultants, mock jurors, and

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Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have

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

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(f) the author or recipient of a document containing the information or a custodian or

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other person who otherwise possessed or knew the information. Without in any way limiting the

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generality of the foregoing:

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(i).

A present director, officer, and/or employee of a Designating Party may be

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examined and may testify concerning all Protected Material which has been produced by that

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party and/or which the witness has personal knowledge;
(ii). A former director, officer, agent and/or employee of a Designating Party may

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be interviewed, examined and may testify concerning all Protected Material of which he or she

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has personal knowledge, including any Protected Material that refers to matters of which the
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witness has personal knowledge, which has been produced by that party and which pertains to the

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period or periods of his or her employment; and
(iii). Non-parties may be examined or testify concerning any document containing

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Protected Material of a Designating Party which appears on its face or from other documents or

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testimony to have been received from or communicated to the Non-party as a result of any

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contact or relationship with the Designating Party or a representative of the Designating Party.

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(g)

employees of any Non-Party indemnifying a Party with respect to any claim or

defense in this litigation: (1) to whom disclosure is reasonably necessary for this litigation, and
(2) who has signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A).
7.3

Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

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Information or Items. Unless otherwise ordered by the court or permitted in writing by the

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Designating Party, a Receiving Party may disclose any information or item designated “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to:

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(a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees

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of said Outside Counsel of Record to whom it is reasonably necessary to disclose the information

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for this litigation;

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

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this litigation; except that defendants’ House Counsel shall not have access to co-defendants’

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HIGHLY CONFIDENTIAL information or items;

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(c) Experts of the Receiving Party (1) to whom disclosure is reasonably necessary for this

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litigation, (2) who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A),

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and (3) as to whom the procedures set forth in paragraph 7.4(a), below, have been followed;

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(d) the court and its personnel;

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(e) court reporters and their staff, professional jury or trial consultants, mock jurors, and

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Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have

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

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(f)

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

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other person who otherwise possessed or knew the information. Without in any way limiting the

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generality of the foregoing:

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(i).

A present director, officer, and/or employee of a Designating Party may be

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examined and may testify concerning all Protected Material which has been produced by that

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party and/or which the witness has personal knowledge;
(ii). A former director, officer, agent and/or employee of a Designating Party may

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be interviewed, examined and may testify concerning all Protected Material of which he or she

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witness has personal knowledge, which has been produced by that party and which pertains to the

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has personal knowledge, including any Protected Material that refers to matters of which the

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period or periods of his or her employment; and
(iii). Non-parties may be examined or testify concerning any document containing

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Protected Material of a Designating Party which appears on its face or from other documents or

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testimony to have been received from or communicated to the Non-party as a result of any

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contact or relationship with the Designating Party or a representative of the Designating Party.
(g)

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One designated employee of any Non-Party indemnifying a Party with respect to any

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claim or defense in this litigation: (1) to whom disclosure is reasonably necessary for this

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litigation, and (2) who has signed the “Acknowledgment and Agreement to Be Bound” (Exhibit

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A).

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7.4

Procedures for Approving or Objecting to Disclosure of ‘CONFIDENTIAL” or

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items to Experts.
(a)

Unless otherwise ordered by the court or agreed to in writing by the Designating

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Party, a Party that seeks to disclose to an Expert (as defined in this Order) any information or item

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that has been designated “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’

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EYES ONLY” pursuant to paragraph 7.2(c) or 7.3(c) must first make a written request to the

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Designating Party that (1) sets forth the full name of the Expert and the city and state of his or her

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primary residence, (2) attaches a copy of the Expert’s current resume, (3) identifies the Expert’s
current employer(s), (4) identifies each person or entity to whom the expert has provided
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professional services, including in connection with a litigation, at any time during the preceding

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five years, and (5) identifies (by name and number of the case, filing date, and location of court)

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any litigation in connection with which the Expert has offered expert testimony, including

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through a declaration, report, or testimony at a deposition or trial, during the preceding five years.

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(b) A Party that makes a request and provides the information specified in the preceding

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respective paragraphs may disclose Protected Material to the identified Designated House

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Counsel or Expert unless, within 14 days of delivering the request, the Party receives a written

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objection from the Designating Party. Any such objection must set forth in detail the grounds on

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which it is based.

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(c) A Party that receives a timely written objection must meet and confer with the

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Designating Party (through direct voice to voice dialogue) to try to resolve the matter by

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agreement within seven days of the written objection. If no agreement is reached, the Party

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seeking to make the disclosure to the Expert may file a motion (in compliance with Civil Local

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Rule 141, if applicable) seeking permission from the court to do so. Any such motion must be

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accompanied by a competent declaration describing the parties’ efforts to resolve the matter by

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agreement (i.e., the extent and the content of the meet and confer discussions) and setting forth

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the reasons advanced by the Designating Party for its refusal to approve the disclosure.

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In any such proceeding, the Party opposing disclosure to the Expert shall bear the burden

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of proving that the risk of harm that the disclosure would entail outweighs the Receiving Party’s

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need to disclose the Protected Material to its Expert.

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8.

PROSECUTION BAR

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Absent written consent from the Producing Party, any individual who receives access to

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information (excepting

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documents and information related only to damages or reasonable royalty rates) shall not be

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involved in the prosecution of patents or patent applications relating to pools, including without

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limitation the patents asserted in this action and any patent or application claiming priority to or

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otherwise related to the patents asserted in this action, before any foreign or domestic agency,
including the United States Patent and Trademark Office (“the Patent Office”). For purposes of
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before a domestic or foreign agency (including, but not limited to, a reissue protest, ex parte

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reexamination or inter partes reexamination). This Prosecution Bar shall begin when access to

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information is first received by

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the affected individual and shall end two (2) years after final termination of this action. Nothing

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in this paragraph shall prevent: (1) a Party, House Counsel, or Outside Counsel from erecting an

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Ethical Wall to permit an individual employed by that Party, House Counsel, or Outside Counsel

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who did not receive access to “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

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“prosecution” as used in this paragraph does not include representing a party challenging a patent

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otherwise affecting the scope or maintenance of patent claims. To avoid any doubt,

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this paragraph, “prosecution” includes directly or indirectly drafting, amending, advising, or

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information from engaging in prosecution activities; or (2) any attorney from sending Prior Art to

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an attorney involved in prosecution for purposes of ensuring that such Prior Art is submitted to

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the Patent Office (or any similar agency of a foreign government) to assist a patent applicant in

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complying with its duty of candor, provided that such “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY” information is submitted in such a way as to ensure that it will not

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be made part of the public record.
9.

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PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

OTHER LITIGATION
If a Party is served with a subpoena or a court order issued in other litigation that compels

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disclosure of any information or items designated in this action as “CONFIDENTIAL” or

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ 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 or order to issue in

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the other litigation that some or all of the material covered by the subpoena or order is subject to

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this Protective Order. Such notification shall include a copy of this Stipulated Protective Order;

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and
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(c) cooperate with respect to all reasonable procedures sought to be pursued by the

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Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served with the

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

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

7

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

8

obtained the Designating Party’s permission. The Designating Party shall bear the burden and

9

expense of seeking protection in that court of its confidential material – and nothing in these

ONLY” before

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provisions should be construed as authorizing or encouraging a Receiving Party in this action to

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disobey a lawful directive from another court.
10.

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

IN THIS LITIGATION
(a)

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The terms of this Order are applicable to information produced by a Non- Party in

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this action and designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

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

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this litigation is protected by the remedies and relief provided by this Order. Nothing in these

18

provisions should be construed as prohibiting a Non-Party from seeking additional protections.
(b)

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

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Non-Party’s confidential information in its possession, and the Party is subject to an agreement

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with the Non-Party not to produce the Non-Party’s confidential information, then the Party shall:
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promptly notify in writing the Requesting Party and the Non-Party

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that some or all of the information requested is subject to a confidentiality agreement with a Non-

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Party;
2.

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

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Protective Order in this litigation, the relevant discovery request(s), and a reasonably specific

27

description of the information requested; and
3.

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make the information requested available for inspection by the

Non-Party.
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(c)

If the Non-Party fails to object or seek a protective order from this court within 14

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days of receiving the notice and accompanying information, the Receiving Party may produce the

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Non-Party’s confidential information responsive to the discovery request. If the Non-Party timely

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seeks a protective order, the Receiving Party shall not produce any information in its possession

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or control that is subject to the confidentiality agreement with the Non-Party before a

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determination by the court. Absent a court order to the contrary, the Non-Party shall bear the

8

burden and expense of seeking protection in this court of its Protected Material.

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11.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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

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Material to any person or in any circumstance not authorized under this Stipulated Protective

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Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the

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unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the

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Protected Material, (c) inform the person or persons to whom unauthorized disclosures were

15

made of all the terms of this Order, and (d) request such person or persons to execute the

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

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18

12.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

PROTECTED MATERIAL

19

Nothing in this Protective Order shall require production of information that a party

20

contends is protected from disclosure by the attorney-client privilege, the work product immunity

21

or other privilege, doctrine, right, or immunity. If information subject to a claim of attorney-

22

client privilege, work product immunity, or other privilege, doctrine, right, or immunity is

23

nevertheless inadvertently or unintentionally produced, such production shall in no way prejudice

24

or otherwise constitute a waiver or estoppel as to any such privilege, doctrine, right or immunity.

25

If material is produced in discovery that is subject to a claim of privilege or of protection, the

26

party making the claim may notify any party that received the material of the claim and the basis

27

for it. After being notified, a party must promptly return or destroy the specified material and any

28

copies it has and may not sequester, use or disclose the material until the claim is resolved. This
includes a restriction against presenting the material itself to the court for a determination of the
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claim. Notwithstanding the foregoing, this paragraph does not restrict a Receiving Party from

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challenging the privileged nature (or alleged non-waiver of privilege) of the material by seeking

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relief from the Court.

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13.

MISCELLANEOUS

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13.1

Right to Further Relief. Nothing in this Order abridges the right of any person to

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8

seek its modification by the court in the future.
13.2

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

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Party waives any right to object on any ground to use in evidence of any of the material covered

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information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no

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Order no Party waives any right it otherwise would have to object to disclosing or producing any

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by this Protective Order.

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13.3

Filing Protected Material. Without written permission from the Designating

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Party or a court order secured after appropriate notice to all interested persons, a Party may not

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file in the public record in this action any Protected Material. A Party that seeks to file under seal

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any Protected Material must comply with Civil Local Rule 141. Protected Material may only be

17

filed under seal pursuant to a court order authorizing the sealing of the specific Protected Material

18

at issue. Pursuant to Civil Local Rule 141, a sealing order will issue only upon a request

19

establishing that the Protected Material at issue is privileged, protectable as a trade secret, or

20

otherwise entitled to protection under the law. If a Receiving Party's request to file Protected

21

Material under seal pursuant to Civil Local Rule 141 is denied by the court, then the Receiving

22

Party may file the Protected Material in the public record pursuant to Civil Local Rule 141 unless

23

otherwise instructed by the court.

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13.4

Draft Expert Reports. Testifying Experts shall not be subject to discovery on any

25

draft of their reports in this case and such draft reports, notes, outlines, or any other writings

26

leading up to an issued report(s) in this litigation are exempt from discovery. In addition, all

27

communications to and from a testifying Expert in this case, and all materials generated by a

28

testifying Expert in this case with respect to that person’s work, are exempt from discovery unless
relied upon by the Expert in forming any opinions in this litigation.
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13.5

Post-Lawsuit Privileged Communications. No Party or Non-Party shall be

3

required to identify on their respective privilege log any document or communication dated on or

4

after the filing of the lawsuit, which absent this provision, the party would have been obligated to

5

so identify on said privilege log.

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14.

FINAL DISPOSITION

7

Within 60 days after the final disposition of this action, as defined in paragraph 4, each

Material. Whether the Protected Material is returned or destroyed, the Receiving Party must

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

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

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

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submit a written certification to the Producing Party (and, if not the same person or entity, to the

13

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

14

the Protected Material that was returned or destroyed and (2) affirms that the Receiving Party has

15

not retained any copies, abstracts, compilations, summaries or any other format reproducing or

16

capturing any of the Protected Material. Notwithstanding this provision, Counsel is not required

17

to delete information that may reside on its electronic mail or electronic back-up systems that are

18

over-written in the normal course of business. Notwithstanding this provision, Counsel are

19

entitled to retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing

20

transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert reports,

21

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

22

Protected Material. Any such archival copies that contain or constitute Protected Material remain

23

subject to this Protective Order as set forth in Section 4 (DURATION).

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26
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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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4

DATED: July __, 2011
Jack Slobodin
Attorneys for Plaintiff

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DATED: July __, 2011
Paul Gale
Attorneys for Defendant

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PURSUANT TO STIPULATION, IT IS SO ORDERED.

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10

DATED: August 8, 2011.

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Counsel submitted a signed .pdf of this order.

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/014;sofp3333.po

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EXHIBIT A

4

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

District of California on in the above captioned action. I agree to comply with and to be bound

9

by all the terms of this Stipulated Protective Order and I understand and acknowledge that failure

10

to so comply could expose me to sanctions and punishment in the nature of contempt. I solemnly

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promise that I will not disclose in any manner any information or item that is subject to this

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Stipulated Protective Order that was issued by the United States District Court for the Eastern

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full address], declare under penalty of perjury that I have read in its entirety and understand the

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I,__________________ [print or type full name], of __________________[print or type

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

13

of this Order.
I further agree to submit to the jurisdiction of the United States District Court for the

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15

Eastern District of California for the purpose of enforcing the terms of this Stipulated Protective

16

Order, even if such enforcement proceedings occur after termination of this action.
I hereby appoint ____________________________ [print or type full name] of

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18

_______________________________________ [print or type full address and telephone

19

number] as my California agent for service of process in connection with this action or any

20

proceedings related to enforcement of this Stipulated Protective Order.

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22

Date:

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City and State where sworn and signed:

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Printed name:
[printed name]

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26

Signature:
[signature]

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