Hale Bros. Investment Company, LLC v. StudentsFirst Institute et al

Filing 27

STIPULATED PROTECTIVE ORDER and Order Regarding Litigation Involving Confidential Information and/or Trade Secrets, signed by Magistrate Judge Edmund F. Brennan on 4/10/17. (Kastilahn, A)

1
2
3
4
5
6
7
8
9
10
11

SMITH, MCDOWELL & POWELL,
A LAW CORPORATION
C. Jason Smith, SBN 237966
Brandon T. Wright, SBN 294305
100 Howe Avenue, Suite 208 South
Sacramento, CA 95825
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiff,
Hale Bros. Investment Company, LLC
Patrick S. Thompson, Bar No. 160804
Jacqueline E. Young, Bar No. 280374
Donna M. Strain, Bar No. 305599
PERKINS COIE, LLC
505 Howard Street, Suite 1000
San Francisco, CA 94105-3204
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendants,
Students First Institute, StudentsFirst and 50CAN, Inc.

12
UNITED STATES DISTRICT COURT

13

EASTERN DISTRICT OF CALIFORNIA

14

SACRAMENTO DIVISION

15
16
17

HALE BROS. INVESTMENT COMPANY,
LLC, a California limited liability company,

STIPULATED PROTECTIVE ORDER
[AND PROPOSED ORDER]
REGARDING LITIGATION
INVOLVING CONFIDENTIAL
INFORMATION AND/OR TRADE
SECRETS

Plaintiff,

18
19

Case No. 2:16-cv-02284-JAM-EFB

vs.

20
21
22
23
24
25
26

STUDENTSFIRST INSTITUTE, a District of
Columbia
non-profit
corporation; Amended Complaint Filed: October 13, 2016
STUDENTSFIRST, a District of Columbia non- Counterclaim filed: February 24, 2017
profit corporation; 50CAN, INC., a Connecticut
Trial Date: April 30, 2018
corporation; and DOES 1 through 50 inclusive.
Defendants.
______________________________________

Hon. John A. Mendez

AND RELATED COUNTERCLAIMS

27
28
0
STIPULATED PROTECTIVE ORDER

1

1.

PURPOSES AND LIMITATIONS

2

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

3

confidential, proprietary, or private information for which special protection from public

4

disclosure and from use for any purpose other than prosecuting this litigation may be

5

warranted. Accordingly, the parties hereby stipulate to and petition the court to enter the

6

following Stipulated Protective Order. The parties acknowledge that this Order does not confer

7

blanket protections on all disclosures or responses to discovery and that the protection it affords

8

from public disclosure and use extends only to the limited information or items that are entitled

9

to confidential treatment under the applicable legal principles. The parties further acknowledge,

10

as set forth in Section 14.4, below, that this Stipulated Protective Order does not entitle them to

11

file confidential information under seal; Local Rule 141 sets forth the procedures that must be

12

followed and the standards that will be applied when a party seeks permission from the court to

13

file material under seal.

14

2.

15
16
17

DEFINITIONS
2.1

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

information or items under this Order.
2.2

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

18

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

19

Rule of Civil Procedure 26(c).

20
21
22

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

23

that it produces in disclosures or in responses to discovery, or information that is uncovered as

24

a result of data mirroring process, as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

25

ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE.”

26

2.5

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

27

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

28

things, testimony, transcripts, and tangible things), that are produced or generated in data
1
STIPULATED PROTECTIVE ORDER

1
2

mirroring, disclosures or responses to discovery in this matter.
2.6

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

3

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

4

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

5

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

6

or of a Party’s competitor.

7

2.7

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or

8

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

9

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

10
11

less restrictive means.
2.8

“HIGHLY CONFIDENTIAL – SOURCE CODE” Information or Items:

12

extremely sensitive “Confidential Information or Items” representing computer code and

13

associated comments and revision histories, formulas, engineering specifications, or schematics

14

that define or otherwise describe in detail the algorithms or structure of software or hardware

15

designs, disclosure of which to another Party or Non-Party would create a substantial risk of

16

serious harm that could not be avoided by less restrictive means.

17
18
19
20
21

2.9

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.
2.10

Non-Party: any natural person, partnership, corporation, association, or other

legal entity not named as a Party to this action.
2.11

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

22

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

23

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

24

that party.

25
26
27
28

2.12

Party: any party to this action, including all of its officers, directors, employees,

consultants, retained experts, and Outside Counsel of Record (and their support staffs).
2.13

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

Material in this action.
2
STIPULATED PROTECTIVE ORDER

1

2.14

Professional Vendors: persons or entities that provide litigation support services

2

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

3

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

4

subcontractors.

5

2.15

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

6

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

7

as “HIGHLY CONFIDENTIAL – SOURCE CODE.”
2.16

8
9
10

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

Producing Party.
3.

SCOPE

11

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

12

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

13

Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any

14

testimony, conversations, or presentations by Parties or their Counsel that might reveal

15

Protected Material. However, the protections conferred by this Stipulation and Order do not

16

cover the following information: (a) any information that is in the public domain at the time of

17

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

18

Receiving Party as a result of publication not involving a violation of this Order, including

19

becoming part of the public record through trial or otherwise; and (b) any information known to

20

the Receiving Party prior to the disclosure or obtained by the Receiving Party after the

21

disclosure from a source who obtained the information lawfully and under no obligation of

22

confidentiality to the Designating Party. Any use of Protected Material at trial shall be

23

governed by a separate agreement or order.

24

4.

DURATION

25

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

26

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

27

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

28

claims and defenses in this action, with or without prejudice; and (2) final judgment herein after
3
STIPULATED PROTECTIVE ORDER

1

the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this

2

action, including the time limits for filing any motions or applications for extension of time

3

pursuant to applicable law.

4

5.

5

DESIGNATING PROTECTED MATERIAL
5.1

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

6

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

7

take care to limit any such designation to specific material that qualifies under the appropriate

8

standards. To the extent it is practical to do so, the Designating Party must designate for

9

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

10

that qualify – so that other portions of the material, documents, items, or communications for

11

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

12

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

13

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

14

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

15

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

16

If it comes to a Designating Party’s attention that information or items that it designated

17

for protection do not qualify for protection at all or do not qualify for the level of protection

18

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

19

withdrawing the mistaken designation.

20

5.2

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

21

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

22

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

23

so designated before the material is disclosed or produced.

24

Designation in conformity with this Order requires:

25

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

26

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

27

Producing Party affix the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

28

ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” to each
4
STIPULATED PROTECTIVE ORDER

1

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

2

qualifies for protection, the Producing Party also must clearly identify the protected portion(s)

3

(e.g., by making appropriate markings in the margins) and must specify, for each portion, the

4

level of protection being asserted.

5

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

6

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

7

which material it would like copied and produced. During the inspection and before the

8

designation, all of the material made available for inspection shall be deemed “HIGHLY

9

CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” After the inspecting Party has identified

10

the documents it wants copied and produced, the Producing Party must determine which

11

documents, or portions thereof, qualify for protection under this Order. Then, before producing

12

the specified documents, the Producing Party must affix the appropriate legend

13

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or

14

“HIGHLY CONFIDENTIAL – SOURCE CODE) to each page that contains Protected

15

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

16

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

17

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

18

asserted.

19

(b) For testimony given in deposition or in other pretrial or trial proceedings,

20

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

21

other proceeding, all protected testimony and specify the level of protection being asserted.

22

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

23

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

24

the Designating Party may invoke on the record (before the deposition, hearing, or other

25

proceeding is concluded) a right to have up to 21 days to identify the specific portions of the

26

testimony as to which protection is sought and to specify the level of protection being asserted.

27

Only those portions of the testimony that are appropriately designated for protection within the

28

21 days shall be covered by the provisions of this Stipulated Protective Order. Alternatively, a
5
STIPULATED PROTECTIVE ORDER

1

Designating Party may specify, at the deposition or up to 21 days afterwards if that period is

2

properly invoked, that the entire transcript shall be treated as “CONFIDENTIAL” or “HIGHLY

3

CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”

4

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

5

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

6

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

7

(Exhibit A) are present at those proceedings. The use of a document as an exhibit at a

8

deposition shall not in any way affect its designation as “CONFIDENTIAL” or “HIGHLY

9

CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”

10

Transcripts containing Protected Material shall have an obvious legend on the title page

11

that the transcript contains Protected Material, and the title page shall be followed by a list of

12

all pages (including line numbers as appropriate) that have been designated as Protected

13

Material and the level of protection being asserted by the Designating Party. The Designating

14

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

15

before the expiration of a 21-day period for designation shall be treated during that period as if

16

it had been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its

17

entirety unless otherwise agreed. After the expiration of that period, the transcript shall be

18

treated only as actually designated.

19

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

20

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

21

container or containers in which the information or item is stored the legend

22

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or

23

“HIGHLY CONFIDENTIAL – SOURCE CODE.” If only a portion or portions of the

24

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

25

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

26

5.3

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

27

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

28

Party’s right to secure protection under this Order for such material. Upon timely correction of
6
STIPULATED PROTECTIVE ORDER

1

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

2

treated in accordance with the provisions of this Order.

3

6.

4

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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

5

confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality

6

designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic

7

burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to

8

challenge a confidentiality designation by electing not to mount a challenge promptly after the

9

original designation is disclosed.

10

6.2

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

11

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

12

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

13

written notice must recite that the challenge to confidentiality is being made in accordance with

14

this specific paragraph of the Protective Order. The parties shall attempt to resolve each

15

challenge in good faith and must begin the process by conferring within 14 days of the date of

16

service of notice. In conferring, the Challenging Party must explain the basis for its belief that

17

the confidentiality designation was not proper and must give the Designating Party an

18

opportunity to review the designated material, to reconsider the circumstances, and, if no

19

change in designation is offered, to explain the basis for the chosen designation. A Challenging

20

Party may proceed to the next stage of the challenge process only if it has engaged in this meet

21

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

22

the meet and confer process in a timely manner.

23

6.3

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

24

intervention, the Designating Party shall file and serve a motion to retain confidentiality under

25

Local Rule 230 (and in compliance with Local Rule 141, if applicable) within 21 days of the

26

initial notice of challenge or within 14 days of the parties agreeing that the meet and confer

27
28
7
STIPULATED PROTECTIVE ORDER

1

process will not resolve their dispute, whichever is earlier.1 Each such motion must be

2

accompanied by a competent declaration affirming that the movant has complied with the meet

3

and confer requirements imposed in the preceding paragraph. Failure by the Designating Party

4

to make such a motion including the required declaration within 21 days (or 14 days, if

5

applicable) shall automatically waive the confidentiality designation for each challenged

6

designation. In addition, the Challenging Party may file a motion challenging a confidentiality

7

designation at any time if there is good cause for doing so, including a challenge to the

8

designation of a deposition transcript or any portions thereof. Any motion brought pursuant to

9

this provision must be accompanied by a competent declaration affirming that the movant has

10

complied with the meet and confer requirements imposed by the preceding paragraph.

11

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

12

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

13

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

14

sanctions. Unless the Designating Party has waived the confidentiality designation by failing to

15

file a motion to retain confidentiality as described above, all parties shall continue to afford the

16

material in question the level of protection to which it is entitled under the Producing Party’s

17

designation until the court rules on the challenge.

18

7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

19

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

20

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

21

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

22

disclosed only to the categories of persons and under the conditions described in this Order.

23

When the litigation has been terminated, a Receiving Party must comply with the provisions of

24

Section 14 below (FINAL DISPOSITION).

25
26
27
28

1

Alternative: It may be appropriate in certain circumstances for the parties to agree to shift the
burden to move on the Challenging Party after a certain number of challenges are made to
avoid an abuse of the process. The burden of persuasion would remain on the Designating
Party.
8
STIPULATED PROTECTIVE ORDER

1

Protected Material must be stored and maintained by a Receiving Party at a location and

2

in a secure manner2 that ensures that access is limited to the persons authorized under this

3

Order.

4

7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

5

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

6

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

7

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

8

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

9

the information for this litigation and who have signed the “Acknowledgment and Agreement

10

to Be Bound” that is attached hereto as Exhibit A;

11

(b) The officers, directors, and employees (including House Counsel) of the

12

Receiving Party to whom disclosure is reasonably necessary for this litigation and who have

13

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

14

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

15

is reasonably necessary for this litigation and who have signed the “Acknowledgment and

16

Agreement to Be Bound” (Exhibit A);

17

(d) The court and its personnel;

18

(e) Court reporters and their staff, professional jury or trial consultants, and

19

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

20

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

21

(f) During their depositions, witnesses in the action to whom disclosure is

22

reasonably necessary and who have signed the “Acknowledgment and Agreement to Be

23

Bound” (Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court.

24

Pages of transcribed deposition testimony or exhibits to depositions that reveal Protected

25

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

26
27
28

2

It may be appropriate under certain circumstances to require the Receiving Party to store any
electronic Protected Material in password-protected form.
9
STIPULATED PROTECTIVE ORDER

1

except as permitted under this Stipulated Protective Order.

2
3
4

(g) The author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information.
7.3

Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

5

and “HIGHLY CONFIDENTIAL – SOURCE CODE” Information or Items. Unless otherwise

6

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

7

disclose any information or item designated “HIGHLY CONFIDENTIAL – ATTORNEYS’

8

EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” only to:

9

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

10

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

11

the information for this litigation and who have signed the “Acknowledgment and Agreement

12

to Be Bound” that is attached hereto as Exhibit A;

13

(b) Experts of the Receiving Party (1) to whom disclosure is reasonably

14

necessary for this litigation, (2) who have signed the “Acknowledgment and Agreement to Be

15

Bound” (Exhibit A), and (3) as to whom the procedures set forth in paragraph 7.4(a)(2), below,

16

have been followed];

17

(c) The court and its personnel;

18

(d) Court reporters and their staff, professional jury or trial consultants, and

19

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

20

have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); and
(e) The author or recipient of a document containing the information or a

21
22
23

custodian or other person who otherwise possessed or knew the information.
7.4

Procedures for Approving or Objecting to Disclosure of “HIGHLY

24

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL –

25

SOURCE CODE” Information or Items to Designated House Counsel or Experts.

26

(a)(1) Unless otherwise ordered by the court or agreed to in writing by the

27

Designating Party, a Party that seeks to disclose to Designated House Counsel any information

28

or item that has been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
10
STIPULATED PROTECTIVE ORDER

1

ONLY” pursuant to paragraph 7.3(b) first must make a written request to the Designating Party

2

that (1) sets forth the full name of the Designated House Counsel and the city and state of his or

3

her residence, and (2) describes the Designated House Counsel’s current and reasonably

4

foreseeable future primary job duties and responsibilities in sufficient detail to determine if

5

House Counsel is involved, or may become involved, in any competitive decision-making.

6

(a)(2) Unless otherwise ordered by the court or agreed to in writing by the

7

Designating Party, CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’

8

EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” information or items may

9

be disclosed to an Expert without disclosure of the identity of the Expert as long as the Expert

10

is not a current officer, director, or employee of a competitor of a Party or anticipated to

11

become one.

12

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

13

preceding respective paragraphs may disclose the subject Protected Material to the identified

14

Designated House Counsel or Expert unless, within 14 days of delivering the request, the Party

15

receives a written objection from the Designating Party. Any such objection must set forth in

16

detail the grounds on which it is based.

17

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

18

the Designating Party to try to resolve the matter by agreement within seven days of the written

19

objection. If no agreement is reached, the Party seeking to make the disclosure to Designated

20

House Counsel or the Expert may file a motion as provided in Local Rule 230 (and in

21

compliance with Local Rule 141, if applicable) seeking permission from the court to do so.

22

Any such motion must describe the circumstances with specificity, set forth in detail the

23

reasons why the disclosure to Designated House Counsel or the Expert is reasonably necessary,

24

assess the risk of harm that the disclosure would entail, and suggest any additional means that

25

could be used to reduce that risk. In addition, any such motion must be accompanied by a

26

competent declaration describing the parties’ efforts to resolve the matter by agreement (i.e.,

27

the extent and the content of the meet and confer discussions) and setting forth the reasons

28

advanced by the Designating Party for its refusal to approve the disclosure.
11
STIPULATED PROTECTIVE ORDER

1

In any such proceeding, the Party opposing disclosure to Designated House Counsel or

2

the Expert shall bear the burden of proving that the risk of harm that the disclosure would entail

3

(under the safeguards proposed) outweighs the Receiving Party’s need to disclose the Protected

4

Material to its Designated House Counsel or Expert.

5

8.

6

SOURCE CODE
(a)

To the extent production of source code becomes necessary in this case,

7

a Producing Party may designate source code as “HIGHLY CONFIDENTIAL - SOURCE

8

CODE” if it comprises or includes confidential, proprietary or trade secret source code.

9

(b)

Protected Material designated as “HIGHLY CONFIDENTIAL –

10

SOURCE CODE” shall be subject to all of the protections afforded to “HIGHLY

11

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information, and may be disclosed only to

12

the individuals to whom “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

13

information may be disclosed, as set forth in Paragraphs 7.3 and 7.4, with the exception of

14

Designated House Counsel.

15

(c)

Any source code produced in discovery shall be made available for

16

inspection in a format through which it could be reasonably reviewed and searched during

17

normal business hours or other mutually agreeable times at a location that is reasonably

18

convenient for the Receiving Party and any experts to whom the source code may be disclosed.

19

The source code shall be made available for inspection on a secured computer in a secured

20

room without Internet access or network access to other computers, and the Receiving Party

21

shall not copy, remove, or otherwise transfer any portion of the source code onto any

22

recordable media or recordable device. The Producing Party may visually monitor the activities

23

of the Receiving Party’s representatives during any source code review, but only to ensure that

24

there is no unauthorized recording, copying, or transmission of the source code.

25

(d)

The Receiving Party may request paper copies of limited portions of

26

source code that are reasonably necessary for the preparation of court filings, pleadings, expert

27

reports, or other papers, or for deposition or trial, but shall not request paper copies for the

28

purposes of reviewing the source code other than electronically as set forth in paragraph (c) in
12
STIPULATED PROTECTIVE ORDER

1

the first instance. The Producing Party shall provide all such source code in paper form

2

including bates numbers and the label “HIGHLY CONFIDENTIAL - SOURCE CODE.” The

3

Producing Party may challenge the amount of source code requested in hard copy form

4

pursuant to the dispute resolution procedure and timeframes set forth in Paragraph 6 whereby

5

the Producing Party is the “Challenging Party” and the Receiving Party is the “Designating

6

Party” for purposes of dispute resolution.

7

(e)

The Receiving Party shall maintain a record of any individual who has

8

inspected any portion of the source code in electronic or paper form. The Receiving Party shall

9

maintain all paper copies of any printed portions of the source code in a secured, locked area.

10

The Receiving Party shall not create any electronic or other images of the paper copies and

11

shall not convert any of the information contained in the paper copies into any electronic

12

format. The Receiving Party shall only make additional paper copies if such additional copies

13

are (1) necessary to prepare court filings, pleadings, or other papers (including a testifying

14

expert’s expert report), (2) necessary for deposition, or (3) otherwise necessary for the

15

preparation of its case.

16

9.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
OTHER LITIGATION

17
18

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

19

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

20

or

21

CONFIDENTIAL – SOURCE CODE” that Party must:

22
23

“HIGHLY

CONFIDENTIAL

–

ATTORNEYS’

EYES

ONLY”

or

“HIGHLY

(a) Promptly notify in writing the Designating Party. Such notification shall
include a copy of the subpoena or court order;

24

(b) Promptly notify in writing the party who caused the subpoena or order to

25

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

26

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

27

Protective Order; and

28

(c) Cooperate with respect to all reasonable procedures sought to be pursued by
13
STIPULATED PROTECTIVE ORDER

1

the Designating Party whose Protected Material may be affected.

2

If the Designating Party timely seeks a protective order, the Party served with the subpoena or

3

court order shall not produce any information designated in this action as “CONFIDENTIAL”

4

or

5

CONFIDENTIAL – SOURCE CODE” before a determination by the court from which the

6

subpoena or order issued, unless the Party has obtained the Designating Party’s permission.

7

The Designating Party shall bear the burden and expense of seeking protection in that court of

8

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

9

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

10

10.

“HIGHLY

CONFIDENTIAL

–

ATTORNEYS’

EYES

ONLY”

or

“HIGHLY

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

11
(a)

12

in

this

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

13

Non-Party

14

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL –

15

SOURCE CODE.” Such information produced by Non-Parties in connection with this litigation

16

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

17

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

18

action

and

designated

as

“CONFIDENTIAL”

or

“HIGHLY

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

19

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

20

agreement with the Non-Party not to produce the Non-Party’s confidential information, then

21

the Party shall:
1.

22

Promptly notify in writing the Requesting Party and the Non-

23

Party that some or all of the information requested is subject to a confidentiality agreement

24

with a Non-Party;

25

2.

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

26

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

27

description of the information requested; and

28

3.

Make the information requested available for inspection by the
14
STIPULATED PROTECTIVE ORDER

1

Non-Party.

2

(c)

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

3

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

4

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

5

Non-Party timely seeks a protective order, the Receiving Party shall not produce any

6

information in its possession or control that is subject to the confidentiality agreement with the

7

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

8

Party shall bear the burden and expense of seeking protection in this court of its Protected

9

Material.

10

11.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

11

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

12

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

13

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

14

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

15

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

16

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

17

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

18

12.

INADVERTENT PRODUCTION
PROTECTED MATERIAL

OF

PRIVILEGED

OR

OTHERWISE

19
20

When a Producing Party gives notice to Receiving Parties that certain inadvertently

21

produced material is subject to a claim of privilege or other protection, the obligations of the

22

Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This

23

provision is not intended to modify whatever procedure may be established in an e-discovery

24

order that provides for production without prior privilege review. Pursuant to Federal Rule of

25

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

26

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

27

protection, the parties may incorporate their agreement in the stipulated protective order

28

submitted to the court.
15
STIPULATED PROTECTIVE ORDER

1

13.

2
3

MISCELLANEOUS
13.1

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

seek its modification by the court in the future.
13.2

4

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

5

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

6

any information or item on any ground not addressed in this Stipulated Protective Order.

7

Similarly, no Party waives any right to object on any ground to use in evidence of any of the

8

material covered by this Protective Order.
13.3

9

Filing Protected Material. Without written permission from the Designating

10

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

11

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

12

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

13

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

14

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

15

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

16

otherwise entitled to protection under the law.

17

14.

FINAL DISPOSITION

18

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

19

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

20

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

21

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

22

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

23

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

24

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

25

appropriate) all the Protected Material that was returned or destroyed and (2) affirms that the

26

Receiving Party has not retained any copies, abstracts, compilations, summaries or any other

27

format reproducing or capturing any of the Protected Material. Notwithstanding this provision,

28

Counsel are entitled to retain an archival copy of all pleadings, motion papers, trial, deposition,
16
STIPULATED PROTECTIVE ORDER

1

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

2

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

3

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

4

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

5
6
7
8

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
Dated: March 21, 2017

9

SMITH, McDOWELL & POWELL,
A LAW CORPORATION

10
/s/ C. Jason Smith________________
C. Jason Smith
Brandon T. Wright
Attorneys for Plaintiff,
Hale Bros. Investment Company, LLC

11
12
13
14

Dated: March 21, 2017

15

/s/ Patrick S. Thompson________
Patrick S. Thompson
Jacqueline E. Young
Attorneys for Defendants,
StudentsFirst Institute, StudentsFirst
and 50CAN, Inc.

16
17
18
19

PERKINS COIE LLP

PURSUANT TO STIPULATION, IT IS SO ORDERED.

20
21

DATED: April 10, 2017.

22
23
24
25
26
27
28
17
STIPULATED PROTECTIVE ORDER

1

EXHIBIT A

2

Acknowledgment and Agreement to Be Bound

3

I hereby certify that I have carefully read the Protective Order of the in the action

4

entitled: Hale Bros. Investment Company, LLC, v. StudentsFirst, et al., United States District

5

Court, Eastern District of California Case no. 2:16-cv-02284-JAM-EFB, and I fully understand

6

the terms of the Court’s Protective Order, a copy of which is attached. I recognize that I am

7

bound by the terms of that Protective Order, and I agree to comply with those terms. I agree

8

not to disclose “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

9

ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” information to anyone who has

10

not signed a copy of this Certificate.

11

connection with this litigation, and not for any purpose including, without limitation, business,

12

competitive or governmental purpose or function.

13

personal jurisdiction of the United States District Court, Eastern District of California with

14

respect to any proceedings relative to the enforcement of that Protective Order including,

15

without limitation any proceeding related to contempt of Court.

16
17

I agree to use the protected information only in

I hereby consent to be subject to the

Executed this _____ day of _________, 20__ at ________________, California.
Name:

18
19
20

Affiliation:
Business Address:
(Name of Company)

21
22

(Street)

(City)

(State)

(Zip)

23
24

Home Address:
(Street)

25
26
27
28
EXHIBIT A

(City)

(State) (Zip)