CytoSport, Inc. v. Select Milk Producers, Inc. et al
Filing
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STIPULATED PROTECTIVE ORDER signed by Magistrate Judge John F. Moulds on 12/19/12. (Kastilahn, A)
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GLENN W. PETERSON, ESQ. (SBN 126173)
MILLSTONE, PETERSON & WATTS, LLP
2267 Lava Ridge Court, Suite 210
Roseville, CA 95661
Telephone: (916) 780-8222
Fax No: (916) 780-8775
PETER M. DE JONGE, ESQ. (ADMITTED PRO HAC VICE)
JED H. HANSEN, ESQ. (ADMITTED PRO HAC VICE)
THORPE NORTH & WESTERN, LLP
8180 South 700 East, Suite 350
Sandy, UT 84070
Telephone: (801) 566-6633
Fax No: (801) 566-0750
Attorneys for Plaintiff/Counterclaim Defendant CytoSport, Inc.
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UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF CALIFORNIA
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CYTOSPORT, INC., a California
corporation,
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Plaintiff,
Case No. 2:11-cv-01705-MCE-JFM
STIPULATED PROTECTIVE ORDER
______________________________________
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Complaint Filed: November 11, 2011
Trial Date: Not Set
vs.
SELECT MILK PRODUCERS, INC., a New
Mexico corporation; and ATHLETE’S
HONEY MILK, LLC, a Delaware limited
liability company,
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Defendants.
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SELECT MILK PRODUCERS, INC., a New
Mexico corporation; and FAIR OAK FARMS
BRANDS, INC., a Delaware corporation,
Counterclaimant
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vs.
CYTOSPORT, INC., a California
corporation,
Counterclaim
Defendant.
STIPULATED PROTECTIVE ORDER
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Plaintiff/Counterclaim Defendant CytoSport, Inc. (“CytoSport”) and
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Defendants/Counterclaimants Select Milk Producers, Inc., Athlete’s Honey Milk, LLC, and Fair Oak
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Farms Brands, Inc. (collectively “Select Milk”) jointly stipulate to entry by the Court of a Protective
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Order as set forth below pursuant to Rule 26(c) of the Federal Rules of Civil Procedure.
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Based on the stipulation of the Plaintiff and Defendants (individually a “party” and
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collectively the “parties”) to entry of the following Protective Order pursuant to Rule 26(c), Federal
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Rule of Civil Procedure, and for good cause shown,
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IT IS HEREBY ORDERED THAT:
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1.
Any document, or portion thereof, and any other form of evidence or discovery
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contemplated under Rules 26 through 36 of the Federal Rules of Civil Procedure which, in the good
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faith opinion of a party contains any trade secret or other confidential development or commercial
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information (“Confidential Information”), may be designated by the parties as “CONFIDENTIAL”
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or “ATTORNEYS’ EYES ONLY” in accordance with the provisions of this Protective Order.
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2.
As
a
general
guideline,
Confidential
Information
should
be
designated
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CONFIDENTIAL when it contains confidential business, technical or other information that may be
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reviewed by the other party, the parties’ experts, and other representatives, but must be protected
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against disclosure to third parties. Confidential Information may be designated ATTORNEYS
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EYES ONLY when it contains highly sensitive information such as financial information, cost
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information, pricing information, sales information, customer license, supplier, and vendor
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information, software and firmware for a party’s products, technical and development information
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about a party’s products, comparative product test results, business plans, marketing strategies, new
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product plans and competitive strategies, or any other information that would put the producing
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party at a competitive disadvantage if the information became known to employees of the other party
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or third parties.
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“CONFIDENTIAL.” ATTORNEYS’ EYES ONLY information shall be clearly marked, noticed or
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designated as “ATTORNEYS’ EYES ONLY.”
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Confidential Information shall be clearly marked, noticed or designated
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STIPULATED PROTECTIVE ORDER
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3.
Confidential Information must be designated as follows:
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(a)
Documents or copies provided to another party in response to discovery requests
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containing Confidential Information may be designated by any party as either CONFIDENTIAL or
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ATTORNEYS’ EYES ONLY by marking the page or the pages on which the Confidential
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Information appears with the legend “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY.”
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(b)
In lieu of marking the original of a document which contains Confidential
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Information prior to inspection, a party may orally designate documents being produced for
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inspection as CONFIDENTIAL or ATTORNEYS’ EYES ONLY thereby making them subject to
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this Protective Order. However, copies of such documents ultimately produced must be marked
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CONFIDENTIAL or ATTORNEYS’ EYES ONLY at the time any such documents are supplied to
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inspecting counsel in order to make such copies subject to this Protective Order.
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(c)
Confidential Information disclosed at a deposition, whether by testimony or use of a
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document or thing, may be designated as CONFIDENTIAL or ATTORNEYS’ EYES ONLY by
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clearly indicating on the record at the deposition the specific testimony containing Confidential
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Information that is to be made subject to the provisions of this Protective Order. Documents, things,
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or information not designated on the record of the deposition as CONFIDENTIAL or
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ATTORNEYS’ EYES ONLY may thereafter be designated as such by notifying the other party in
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writing within fourteen (14) days of the receipt of the transcript of such deposition. During that
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fourteen (14) day period, the deposition transcript, and any documents, things, and information shall
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be treated as ATTORNEYS’ EYES ONLY. If a designation is made, each party shall attach a copy
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of any such written notification to the face of the deposition transcript and each copy thereof in its
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possession, custody or control.
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(d)
Confidential Information contained in responses to interrogatories, other discovery
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requests or responses, affidavits, briefs, memoranda or other papers filed with the Court, may be
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designated by prominently marking every page of such documents containing Confidential
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Information with the legend CONFIDENTIAL or ATTORNEYS’ EYES ONLY. Copies of such
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items filed with the Court shall be maintained under seal pursuant to the provisions of Section 11
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hereof.
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STIPULATED PROTECTIVE ORDER
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(e)
Tangible objects constituting or containing Confidential Information may be
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designated by affixing to the object or its container a label or tag marked CONFIDENTIAL or
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ATTORNEYS’ EYES ONLY.
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(f)
Notwithstanding any other provisions of the Protective Order, any party may
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designate as CONFIDENTIAL or ATTORNEYS’ EYES ONLY any testimony of and/or documents
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produced by that party's agent, sales representative, or technical or business consultant.
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(g)
Should any person or entity with access to documents, things or information
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designated as CONFIDENTIAL or ATTORNEYS’ EYES ONLY make copies, extracts, summaries,
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descriptions, projections and/or extrapolations of or from the documents, things or information
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designated as CONFIDENTIAL or ATTORNEYS’ EYES ONLY or any portions thereof, such
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copies, extracts, summaries, descriptions, projections and/or extrapolations shall be stamped
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CONFIDENTIAL or ATTORNEYS’ EYES ONLY consistent with the original information and
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treated as Confidential Information pursuant to the provisions of this Protective Order.
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4.
Confidential Information designated ATTORNEYS’ EYES ONLY shall only be
disclosed to and made available to the following:
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(a)
“Outside Trial Counsel” of record and employees of such attorneys to whom it is
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necessary that the material be shown for purposes of this litigation; court reporters and
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videographers receiving or transcribing the documents, things or information in connection with
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official reporting (for example, at a deposition or a hearing); the Court; outside photocopy, imaging,
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database, graphics, design, computer simulation modeling, or exhibit production services, to the
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extent necessary to assist such Outside Trial Counsel for purposes of this litigation.
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(b)
Outside consultants, or expert witnesses who are not employees, directors, or officers
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of any party, performing services solely in connection with the prosecution or defense of this
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litigation together with their clerical or support personnel, provided that each consultant or expert
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executes an acknowledgement pursuant to Section 6 herein.
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(c)
Witnesses who are expected to testify in Court or in a deposition only if such persons
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have prior knowledge of the ATTORNEYS’ EYES ONLY information.
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STIPULATED PROTECTIVE ORDER
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5.
Confidential Information designated CONFIDENTIAL shall only be disclosed to and
made available to the following:
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(a)
The persons identified in Subsections 4(a), 4(b), and 4(c);
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(b)
The parties (i.e. employees of the corporate parties); and
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(c)
Witnesses who are expected to testify in court or in a deposition only if such persons
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have prior knowledge of the CONFIDENTIAL information.
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6.
Prior to receiving Confidential Information, any person in subsections 4(b), 4(c), 5(b)
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and 5(c) shall sign an acknowledgement in the form of Exhibit A attached hereto. Any individual
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identified pursuant to this subsection who has executed Exhibit A shall be treated as subject to this
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Protective Order. A willful violation of any material term of this Protective Order by any such
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individual may be punishable as contempt of court.
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7.
If the party to whom CONFIDENTIAL or ATTORNEYS’ EYES ONLY documents,
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things or information has been produced believes that any of the documents, things or information
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has been improperly designated, the receiving party may at any time request the party which made
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the designation to cancel the designation with respect to any documents, things or information and to
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agree that thereafter such document, thing or information will no longer be subject to certain or all of
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the provisions of this Protective Order. Such request shall be in writing and shall particularly
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identify the information that is contested, including the reasons supporting the contentions. If the
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party which produced the documents, things, or information objects to the requested declassification,
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it must, within two weeks of its receipt of the request to declassify or such other time as the parties
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may mutually agree, file and serve a motion for a protective order supporting its classification. The
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party claiming the higher designation of protection shall have the burden of establishing the status of
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the particular document, thing, or information. If no such motion is timely filed, the party objecting
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to the designation shall be entitled to treat the documents and/or information in accordance with the
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written request of such party.
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information at issue will continue to be entitled to the protections accorded by this Stipulated
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Protective Order until and unless the Court rules otherwise.
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If the producing party files such a motion, the document or
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STIPULATED PROTECTIVE ORDER
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8.
No copies of documents, things or information designated as CONFIDENTIAL or
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ATTORNEYS’ EYES ONLY shall be received, kept, or maintained by persons other than those
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authorized to do so under this Protective Order.
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9.
When a party gives notice to another party that, during an oral deposition,
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CONFIDENTIAL or ATTORNEYS’ EYES ONLY documents, things or information are expected
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to be produced, used or discussed during the deposition, then only persons authorized to receive such
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information pursuant to this Protective Order will be allowed to attend that portion of the deposition
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on behalf of the receiving party.
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10.
To the extent it is necessary to file with the Court any material containing or
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materially referring to any CONFIDENTIAL or ATTORNEYS’ EYES ONLY document(s),
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thing(s), or information, the parties shall file such documents under seal.
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11.
Each party’s production of any document(s), thing(s), or information designated as
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CONFIDENTIAL or ATTORNEYS’ EYES ONLY shall be solely for purposes of and use in this
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action, and those documents, things and information shall not be used for any other purpose. If any
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such document(s), thing(s), or information properly becomes a matter of public record without an
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order of Court causing the same to be retained under seal or retained in an otherwise confidential
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manner, then the parties will have the same rights to utilize the document, things, or information as
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the public at large under the First Amendment.
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12.
Within one hundred twenty (120) days after the conclusion of this action and any
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appeal taken here from, all documents, things, and other materials produced or designated as
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containing Confidential Information, and all reproductions thereof, shall be returned to the party who
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produced them except that counsel for each party may retain one entire set of pleadings and
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depositions (including exhibits) in this case. Any party may, at their option, destroy annotated
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copies or summaries of Confidential Information in lieu of returning those copies and summaries to
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the producing party.
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13.
If another court or an administrative agency subpoenas or orders production of
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stamped confidential documents that a party has obtained under the terms of this Protective Order,
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such party shall promptly notify the party or other person who designated the document as
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STIPULATED PROTECTIVE ORDER
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confidential of the pendency of such subpoena or order in sufficient time to allow for the designating
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party to seek a protective order.
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14.
Nothing in this Protective Order shall prevent or otherwise restrict counsel from
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rendering advice to their clients and, in the course thereof, relying generally on examination of
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stamped confidential documents; provided, however, that in rendering such advice and otherwise
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communicating with such clients, counsel shall not make specific disclosure of any item so
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designated except pursuant to the provisions of this Protective Order.
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15.
Persons obtaining access to stamped confidential documents under this Protective
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Order shall use the information only for preparation and trial of this litigation (including appeals and
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retrials), and shall not use such information for any other purpose, including business, governmental,
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commercial, administrative, or other judicial proceedings.
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16.
The attorneys of record are responsible for employing reasonable measures,
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consistent with this Protective Order, to control duplication of, access to, and distribution of copies
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of stamped confidential documents.
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The disclosure of Confidential Information under the terms of the Protective Order
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shall not constitute a waiver of confidentiality for the documents and things so designated.
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Specifically:
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(a)
Review of the confidential documents and information by counsel, experts, or
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consultants for the litigants in the litigation shall not waive the confidentiality of the documents or
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objections to production.
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(b)
The inadvertent, unintentional, or in camera disclosure of confidential
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documents and information shall not, under any circumstances, be deemed a waiver, in whole or in
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part, of any party’s claims of confidentiality. If a party through inadvertence or mistake produces
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discovery of any Confidential Information without marking it with the legend CONFIDENTIAL or
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ATTORNEYS EYES ONLY, or by designating it with the incorrect level of confidentiality, the
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producing party may give written notice to the receiving party that the document or information
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contains Confidential Information and should be treated as such. Upon receipt of such notice, and
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STIPULATED PROTECTIVE ORDER
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upon receipt of properly marked materials, the receiving party shall return or destroy said unmarked
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or improperly marked materials and not retain copies thereof.
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18.
Notwithstanding the termination of this action, persons who have had access to
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CONFIDENTIAL or ATTORNEYS’ EYES ONLY documents, things or information shall remain
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subject to the terms of this Protective Order.
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19.
This Protective Order may be modified by written agreement of the parties or by
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further order of the Court. Each party shall also have the right to petition the Court to modify this
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Protective Order or for additional protection under Fed.R.Civ.P. 26(c).
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20.
The terms of the this Protective Order are applicable to Confidential Information
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produced by a non-party, such non-party may designate Confidential Information produced by it in
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connection with this litigation, and the Confidential Information is protected by the remedies and
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relief provided by the Protective Order.
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Date: 12/19/2012
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____________________________________
UNITED STATES MAGISTRATE JUDGE
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DEAC_Signature-END:
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Agreed to and Accepted by:
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MILLSTONE PETERSON & WATTS, LLP
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Date: December 12, 2012
/s/ Glenn W. Peterson
Glenn W. Peterson
Attorneys for Plaintiff
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BEST BEST & KRIEGER LLP
Date: December 12, 2012
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/s/ Susan L. Schoenig________
Susan L. Schoenig
Attorneys for Defendants
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(Signed by Filing Attorney with Permission of Defendant’s Attorney)
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STIPULATED PROTECTIVE ORDER
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EXHIBIT A
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UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF CALIFORNIA
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CYTOSPORT, INC., a California
corporation,
Plaintiff,
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STIPULATED PROTECTIVE ORDER
______________________________________
Complaint Filed: November 11, 2011
Trial Date: Not Set
vs.
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Case No. 2:11-cv-01705-MCE-JFM
SELECT MILK PRODUCERS, INC., a New
Mexico corporation; and ATHLETE’S
HONEY MILK, LLC, a Delaware limited
liability company,
Defendants.
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SELECT MILK PRODUCERS, INC., a New
Mexico corporation; and FAIR OAK FARMS
BRANDS, INC., a Delaware corporation,
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Counterclaimant
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vs.
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CYTOSPORT, INC., a California
corporation,
Counterclaim
Defendant.
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This is to certify that I have read and understand the Stipulated Protective Order (the
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“Order”) entered in the above-captioned action and agree: (a) to be bound by the terms and
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conditions set forth in the Order; (b) not to reveal to anyone, other than another persons listed in
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Section 6 of the Order, any documents, things or information designated under the Order as
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“Confidential”; (c) not to reveal to anyone, other than another persons identified in Section 5 of the
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Order, any documents, things or information designated under the Order as “ATTORNEYS’ EYES
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ONLY” and (d) to utilize such documents, things and information solely for purposes of and in
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connection with the above-captioned action. In addition, I hereby consent to the jurisdiction of the
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STIPULATED PROTECTIVE ORDER
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above-identified Court for purposes of enforcing the Order. I agree that a willful violation of any
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material term of the Order may be punishable as contempt of court.
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Dated: ______________
________________________
Signature
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________________________
Printed Name
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9CEKB3I
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STIPULATED PROTECTIVE ORDER
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