Salt Creek Media, Inc. et al v. Marksys, LLC et al

Filing 32

STIPULATED PROTECTIVE ORDER signed by Magistrate Judge Kendall J. Newman on 8/29/18. (Becknal, R)

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Law Office Of David S. Barrett
David S. Barrett (SB# 209986)
615 10th Street
Sacramento, CA 95811
Telephone: [phone]
Facsimile: [phone]
Attorney for Plaintiffs
UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SACRAMENTO DIVISION

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SALT CREEK MEDIA, INC, a
California corporation; REDSTONE
PRINT & MAIL, INC., a California
corporation;

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Plaintiffs,

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Case No. 2:17-cv-00714-KJN
Honorable Magistrate Judge Kendall J.
Newman
Courtroom No. 25
STIPULATED PROTECTIVE ORDER

v.
MARKSYS, LLC, a California limited
liability company; DMITRY
BUDORAGIN, an individual; JEROD
MEENTS, an individual; RYAN
GUTSHALL, an individual; and DOES
1-100, inclusive,

Complaint Filed:
Trial Date:

April 3, 2017
February 22, 2019

Defendants.

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STIPUALTED PROTECTIVE ORDER

Case No. 2:17-cv-00714-KJN

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1.

PURPOSES AND LIMITATIONS

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Disclosure and discovery activity in this action are likely to involve

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production of confidential, proprietary, or private information for which special

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protection from public disclosure and from use for any purpose other than

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prosecuting this litigation may be warranted. Accordingly, the parties hereby

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stipulate to and petition the court to enter the following Stipulated Protective Order.

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

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

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

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

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acknowledge, as set forth in Section 13.3, below, that this Stipulated Protective

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

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Rule 141 sets forth the procedures that must be followed and the standards that will

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be applied when a party seeks permission from the court to file material under seal.

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2.

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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

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

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protection under Federal Rule of Civil Procedure 26(c).

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2.3

Counsel: Outside Counsel of Record (as well as their support staff).

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2.4

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

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

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“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE.”

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2.5

Disclosure or Discovery Material: all items or information, regardless

of the medium or manner in which it is generated, stored, or maintained (including,

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STIPUALTED PROTECTIVE ORDER

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among other things, testimony, transcripts, and tangible things), that are produced or

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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

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pertinent to the litigation who (1) has been retained by a Party or its counsel to serve

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as an expert witness or as a consultant in this action, (2) is not a past or current

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employee of a Party or of a Party’s competitor, and (3) at the time of retention, is

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not anticipated to become an employee of a Party or of a Party’s competitor.

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2.7

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

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Information or Items: extremely sensitive “Confidential Information or Items,”

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

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

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2.8

“HIGHLY CONFIDENTIAL – SOURCE CODE” Information or

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Items: extremely sensitive “Confidential Information or Items” representing

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computer code and associated comments and revision histories, formulas,

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engineering specifications, or schematics that define or otherwise describe in detail

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the algorithms or structure of software or hardware designs, disclosure of which to

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another Party or Non-Party would create a substantial risk of serious harm that could

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not be avoided by less restrictive means.

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2.9

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

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House Counsel does not include Outside Counsel of Record or any other outside

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counsel.

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2.10 Non-Party: any natural person, partnership, corporation, association, or
other legal entity not named as a Party to this action.

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

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

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

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has appeared on behalf of that party.

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STIPUALTED PROTECTIVE ORDER

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

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employees, consultants, retained experts, and Outside Counsel of Record (and their

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support staffs).

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2.13 Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this action.

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2.14 Professional Vendors: persons or entities that provide litigation support

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

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

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and their employees and subcontractors.

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2.15 Protected Material: any Disclosure or Discovery Material that is

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designated as “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’

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EYES ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE.”

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

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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

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

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extracted from Protected Material; (2) all copies, excerpts, summaries, or

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compilations of Protected Material; and (3) any testimony, conversations, or

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

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

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

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

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disclosure to a Receiving Party as a result of publication not involving a violation of

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this Order, including becoming part of the public record through trial or otherwise;

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and (b) any information known to the Receiving Party prior to the disclosure or

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obtained by the Receiving Party after the disclosure from a source who obtained the

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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

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agreement or order.

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4.

DURATION

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Even after final disposition of this litigation, the confidentiality obligations

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

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

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deemed to be the later of (1) dismissal of all claims and defenses in this action, with

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or without prejudice; and (2) final judgment herein after the completion and

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exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,

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

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pursuant to applicable law.

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5.

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DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection.

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Each Party or Non-Party that designates information or items for protection under

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

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qualifies under the appropriate standards. To the extent it is practical to do so, the

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Designating Party must designate for protection only those parts of material,

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documents, items, or oral or written communications that qualify – so that other

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portions of the material, documents, items, or communications for which protection

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

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Mass, indiscriminate, or routinized designations are prohibited. Designations

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

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

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

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Designating Party to sanctions.

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STIPUALTED PROTECTIVE ORDER

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

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designated for protection do not qualify for protection at all or do not qualify for the

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level of protection initially asserted, that Designating Party must promptly notify all

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other parties that it is withdrawing the mistaken designation.

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5.2

Manner and Timing of Designations. Except as otherwise provided in

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

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stipulated or ordered, Disclosure or Discovery Material that qualifies for protection

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

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produced.

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Designation in conformity with this Order requires:
(a)

for information in documentary form (e.g., paper or electronic

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documents, but excluding transcripts of depositions or other pretrial or trial

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proceedings), that the Producing Party affix the legend “CONFIDENTIAL,”

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

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CONFIDENTIAL – SOURCE CODE” to each page that contains protected material.

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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

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

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protection being asserted.

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

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

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

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and before the designation, all of the material made available for inspection shall be

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deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” After the

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inspecting Party has identified the documents it wants copied and produced, the

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Producing Party must determine which documents, or portions thereof, qualify for

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protection under this Order. Then, before producing the specified documents, the

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

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

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CONFIDENTIAL – SOURCE CODE to each page that contains Protected Material.

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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

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

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protection being asserted.

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(b)

for testimony given in deposition or in other pretrial or trial

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

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

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level of protection being asserted. When it is impractical to identify separately each

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portion of testimony that is entitled to protection and it appears that substantial

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portions of the testimony may qualify for protection, the Designating Party may

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invoke on the record (before the deposition, hearing, or other proceeding is

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

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

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asserted. Only those portions of the testimony that are appropriately designated for

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protection within the 21 days shall be covered by the provisions of this Stipulated

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Protective Order. Alternatively, a Designating Party may specify, at the deposition

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or up to 21 days afterwards if that period is properly invoked, that the entire

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

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ATTORNEYS’ EYES ONLY,” and may de-designate portions of the transcript

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within 21 days after the certified transcript has been delivered.

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

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

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other parties can ensure that only authorized individuals who have signed the

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

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STIPUALTED PROTECTIVE ORDER

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

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way affect its designation as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL

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– ATTORNEYS’ EYES ONLY.”

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Transcripts containing Protected Material shall have an obvious legend on the

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title page that the transcript contains Protected Material, and the title page shall be

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followed by a list of all pages (including line numbers as appropriate) that have been

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designated as Protected Material and the level of protection being asserted by the

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Designating Party. The Designating Party shall inform the court reporter of these

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requirements. Any transcript that is prepared before the expiration of a 21-day period

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for designation shall be treated during that period as if it had been designated

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“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

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only as actually designated.

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(c)

for information produced in some form other than documentary

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and for any other tangible items, that the Producing Party affix in a prominent place

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on the exterior of the container or containers in which the information or item is

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stored

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

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CODE.” If only a portion or portions of the information or item warrant protection,

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

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and specify the level of protection being asserted.

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the

5.3

legend

“CONFIDENTIAL,”

“HIGHLY

CONFIDENTIAL

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Inadvertent Failures to Designate. If timely corrected, an inadvertent

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

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

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Upon timely correction of a designation, the Receiving Party must make reasonable

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efforts to assure that the material is treated in accordance with the provisions of this

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Order.

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STIPUALTED PROTECTIVE ORDER

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6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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

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designation of confidentiality at any time. Unless a prompt challenge to a

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Designating Party’s confidentiality designation is necessary to avoid foreseeable,

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substantial unfairness, unnecessary economic burdens, or a significant disruption or

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delay of the litigation, 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

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designation is disclosed.

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6.2

Meet and Confer. The Challenging Party shall initiate the dispute

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resolution process by providing written notice of each designation it is challenging

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and describing the basis for each challenge. To avoid ambiguity as to whether a

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challenge has been made, the written notice must recite that the challenge to

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confidentiality is being made in accordance with this specific paragraph of the

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Protective Order. The parties shall attempt to resolve each challenge in good faith

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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

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

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

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an opportunity to review the designated material, to reconsider the circumstances,

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and, if no change in designation is offered, to explain the basis for the chosen

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designation. A Challenging Party may proceed to the next stage of the challenge

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process only if it has engaged in this meet and confer process first or establishes that

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

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timely manner.

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6.3

Judicial Intervention. If the Parties cannot resolve a challenge without

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

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confidentiality under Civil Local Rule 230 within 21 days of the initial notice of

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STIPUALTED PROTECTIVE ORDER

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

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will not resolve their dispute, whichever is later. Each such motion must be

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accompanied by a competent declaration affirming that the movant has complied

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with the meet and confer requirements imposed in the preceding paragraph. Failure

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by the Designating Party to make such a motion including the required declaration

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within the required time shall automatically waive the confidentiality designation

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for each challenged designation. After three failed challenges, the burden shall shift

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to the Challenging Party to move to challenge the confidentiality designation for any

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further designation disputes. In addition, the Challenging Party may file a motion

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challenging a confidentiality designation at any time if there is good cause for doing

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so, including a challenge to the designation of a deposition transcript or any portions

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thereof. Any motion brought pursuant to this provision must be accompanied by a

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

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confer requirements imposed by the preceding paragraph.

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

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Designating Party, except that as stated above the burden shall shift to the

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Challenging Party after three failed challenges by that Challenging Party. Frivolous

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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

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Party to sanctions. Unless the Designating Party has waived the confidentiality

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designation by failing to file a motion to retain confidentiality as described above,

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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

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the challenge.

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7.

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ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

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

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

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case only for prosecuting, defending, or attempting to settle this litigation. Such

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

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conditions described in this Order. When the litigation has been terminated, a

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Receiving Party must comply with the provisions of section 14 below (FINAL

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DISPOSITION).

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

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location and in a secure manner that ensures that access is limited to the persons

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authorized under this Order.

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7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless

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

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Receiving

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“CONFIDENTIAL” only to:

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(a)

Party

may

disclose

any

information

or

item

designated

the Receiving Party’s Outside Counsel of Record in this action,

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as well as employees of said Outside Counsel of Record to whom it is reasonably

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necessary to disclose the information for this litigation and who have signed the

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

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A;

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(b)

the officers, directors, and employees (including House Counsel)

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of the Receiving Party to whom disclosure is reasonably necessary for this litigation

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

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A);

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(c)

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

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disclosure is reasonably necessary for this litigation and who have signed the

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

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(d)

the court and its personnel;

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(e)

court reporters and their staff, professional jury or trial

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consultants, and Professional Vendors to whom disclosure is reasonably necessary

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STIPUALTED PROTECTIVE ORDER

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for this litigation and who have signed the “Acknowledgment and Agreement to Be

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Bound” (Exhibit A);

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(f)

during their depositions, witnesses in the action to whom

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disclosure is reasonably necessary and who have signed the “Acknowledgment and

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Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the Designating

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Party or ordered by the court. Pages of transcribed deposition testimony or exhibits

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to depositions that reveal Protected Material must be separately bound by the court

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reporter and may not be disclosed to anyone except as permitted under this Stipulated

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Protective Order.

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(g)

the author or recipient of a document containing the information

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

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7.3

Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY” and “HIGHLY CONFIDENTIAL – SOURCE CODE” Information or

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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

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designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or

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“HIGHLY CONFIDENTIAL – SOURCE CODE” only to:

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(a)

the Receiving Party’s Outside Counsel of Record in this action,

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as well as employees of said Outside Counsel of Record to whom it is reasonably

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necessary to disclose the information for this litigation and who have signed the

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

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A;

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(b)

Experts (as defined in this Order) of the Receiving Party (1) to

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whom disclosure is reasonably necessary for this litigation, and (2) who have signed

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

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(c)

the court and its personnel;

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(d)

court reporters and their staff, professional jury or trial

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consultants, and Professional Vendors to whom disclosure is reasonably necessary

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for this litigation and who have signed the “Acknowledgment and Agreement to Be

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Bound” (Exhibit A); and

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(e)

the author or recipient of a document containing the information

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

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8.

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SOURCE CODE
(a)

To the extent production of source code becomes necessary in

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this case, a Producing Party may designate source code as “HIGHLY

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CONFIDENTIAL - SOURCE CODE” if it comprises or includes confidential,

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proprietary or trade secret source code.

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(b)

Protected Material designated as “HIGHLY CONFIDENTIAL –

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

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

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disclosed only to the individuals to whom “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY” information may be disclosed, as set forth in Section

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7.3.

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(c)

The Receiving Party shall maintain a record of any individual

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who has inspected any portion of the source code in electronic or paper form. The

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Receiving Party shall maintain all paper copies of any printed portions of the source

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code in a secured, locked area. The Receiving Party shall maintain all electronic

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copies of any source code on a secured computer in a secured room without Internet

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access or network access to other computers. Any paper copies of source code that

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are used in depositions or included within court filings, pleadings, or other papers

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(including a testifying expert’s report) shall be submitted to the court along with a

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request pursuant to General Local Rule 141 to file the documents under seal if that

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source code was designated “HIGHLY CONFIDENTIAL – SOURCE CODE” by

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STIPUALTED PROTECTIVE ORDER

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the Producing Party.

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9.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
IN OTHER LITIGATION

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

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

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“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE,” that Party must:

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(a)

promptly notify in writing the Designating Party. Such

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

promptly notify in writing the party who caused the subpoena or

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

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subpoena or order is subject to this Protective Order. Such notification shall include

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a copy of this Stipulated Protective Order; and

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(c)

cooperate with respect to all reasonable procedures sought to be

pursued by the Designating Party whose Protected Material may be affected.

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If the Designating Party timely seeks a protective order, the Party served with
the subpoena or court order shall not produce any information designated in this
action as “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’
EYES ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE” before a
determination by the court from which the subpoena or order issued, unless the Party
has obtained the Designating Party’s permission. The Designating Party shall bear
the burden and expense of seeking protection in that court of its confidential
material. Nothing in these provisions should be construed as authorizing or
encouraging a Receiving Party in this action to disobey a lawful directive from
another court.

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10.

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

by a Non-Party in this action and designated as “CONFIDENTIAL,” “HIGHLY

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EYES

ONLY,”

or

“HIGHLY

in connection with this litigation is protected by the remedies and relief provided by
this Order. Nothing in these provisions should be construed as prohibiting a NonParty from seeking additional protections.
(b)

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

to produce a Non-Party’s confidential information in its possession, and the Party is
subject to an agreement with the Non-Party not to produce the Non-Party’s
confidential information, then the Party shall:
1.

promptly notify in writing the Requesting Party and the

Non-Party that some or all of the information requested is subject to a confidentiality
agreement with a Non-Party;
2.

promptly provide the Non-Party with a copy of the

Stipulated Protective Order in this litigation, the relevant discovery request(s), and
a reasonably specific description of the information requested; and
3.

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ATTORNEYS’

CONFIDENTIAL – SOURCE CODE.” Such information produced by Non-Parties

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–

CONFIDENTIAL

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The terms of this Order are applicable to information produced

make the information requested available for inspection by

the Non-Party.
(c)

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

this court within 14 days of receiving the notice and accompanying information, the
Receiving Party may produce the Non-Party’s confidential information responsive
to the discovery request. If the Non-Party timely seeks a protective order, the
Receiving Party shall not produce any information in its possession or control that
is subject to the confidentiality agreement with the Non-Party before a determination

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STIPUALTED PROTECTIVE ORDER

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by the court.1 Absent a court order to the contrary, the Non-Party shall bear the

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

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11.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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

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

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

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

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

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

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

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

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12.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
PROTECTED MATERIAL

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When a Producing Party gives notice to Receiving Parties that certain

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

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the obligations of the Receiving Parties are those set forth in Federal Rule of Civil

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Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure

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may be established in an e-discovery order that provides for production without prior

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privilege review. Furthermore, if a receiving party discovers that it has come into

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possession of materials that it reasonably should understand would be subject to a

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claim of privilege or other protection by the producing party, and which reasonably

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appear under the circumstances to have been produced inadvertently, the receiving

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party will give immediate notice to the producing party. If the producing party then

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confirms that the materials are subject to a claim of privilege or other protection, and

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were inadvertently produced, the obligations of the Receiving Parties are those set

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The purpose of this provision is to alert the interested parties to the existence of confidentiality rights of a NonParty and to afford the Non-Party an opportunity to protect its confidentiality interests in this court.

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STIPUALTED PROTECTIVE ORDER

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forth in Federal Rule of Civil Procedure 26(b)(5)(B).

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13.

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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.

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

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Protective Order no Party waives any right it otherwise would have to object to

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disclosing or producing any information or item on any ground not addressed in this

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

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

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13.3 Filing Protected Material. Without written permission from the

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Designating Party or a court order secured after appropriate notice to all interested

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persons, a Party may not file in the public record in this action any Protected

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Material. A Party that seeks to file under seal any Protected Material must comply

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with General Local Rule 141. Protected Material may only be filed under seal

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pursuant to a court order authorizing the sealing of the specific Protected Material at

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issue. Pursuant to General Local Rule 141, a sealing order will issue only upon a

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request establishing that the Protected Material at issue is privileged, protectable as

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a trade secret, or otherwise entitled to protection under the law. If a Receiving Party’s

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request to file Protected Material under seal pursuant to General Local Rule 141 is

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denied by the court, then the Receiving Party may file the Protected Material in the

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public record unless otherwise instructed by the court.

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14.

FINAL DISPOSITION

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Within 60 days after the final disposition of this action, as defined in section

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4 (DURATION), each Receiving Party must return all Protected Material to the

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Producing Party or destroy such material. As used in this subdivision, “all Protected

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Material” includes all copies, abstracts, compilations, summaries, and any other

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

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STIPUALTED PROTECTIVE ORDER

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Protected Material is returned or destroyed, the Receiving Party must submit a

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

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

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

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that the Receiving Party has not retained any copies, abstracts, compilations,

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summaries or any other format reproducing or capturing any of the Protected

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Material. Notwithstanding this provision, Counsel are entitled to retain an archival

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copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal

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

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

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

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Material remain subject to this Protective Order as set forth in Section 4

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(DURATION).

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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DATED: August 24, 2018

LAW OFFICE OF DAVID S. BARRETT

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/David Barrett/

By:
DAVID S. BARRETT
Attorneys for Plaintiffs Creek Media, Inc.
and Redstone Print & Mail, Inc.

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STIPUALTED PROTECTIVE ORDER

Case No. 2:17-cv-00714-KJN

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DATED: August 24, 2018

MURCHISON & CUMMINGS, LLP

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/Jean M. Daly/

By:
JEAN M. DALY
Attorneys for Defendants Marksys, LLC,
Dmitry Budoragin, Jerod Meents, Ryan
Gutshall

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PURSUANT TO STIPULATION, IT IS SO ORDERED.

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Dated: August 29, 2018

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STIPUALTED PROTECTIVE ORDER

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EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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

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4

_____________________________________ [print or type full address], declare

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under penalty of perjury that I have read in its entirety and understand the

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

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the Eastern District of California on ____________ [date] in the case of Salt Creek

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Media, Inc., a California corporation; Redstone Print & Mail, Inc., a California

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corporation v. Marksys, LLC, a California limited liability company; Dmitry

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Budoragin, an individual; Ryan Gutshall, an individual; and DOES 1-100,

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inclusive, Eastern District of California Case No. 2:17-cv-00714-KJN. I agree to

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

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

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sanctions and punishment in the nature of contempt. I solemnly promise that I will

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not disclose in any manner any information or item that is subject to this Stipulated

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

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

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Court for the Eastern District of California for the purpose of enforcing the terms

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of this Stipulated Protective Order, even if such enforcement proceedings occur

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after termination of this action.
I hereby appoint _________________________________________ [print

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or type full name] of ____________________________________________ [print

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or type full address and telephone number] as my California agent for service of

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///

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///

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///

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///
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STIPUALTED PROTECTIVE ORDER

Case No. 2:17-cv-00714-KJN

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process in connection with this action or any proceedings related to enforcement of

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this Stipulated Protective Order.

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Date: _________________

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City and State where sworn and signed: ____________________________

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Printed name: _______________________

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Signature: __________________________

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STIPUALTED PROTECTIVE ORDER

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I, Jean M. Daly, am the ECF user whose identification and password are being

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used to file the instant document. Pursuant to L.R. 131(b)(c) and (e)(Fed. R. Civ. P.

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7 and 11), I certify that all other signatories listed on this document, and on whose

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behalf the filings are submitted, concur in the filings’ content and have authorized

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the filing.

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/s/ Jean M. Daly
Attorney for Defendants
Email: [e-mail]

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STIPUALTED PROTECTIVE ORDER

Case No. 2:17-cv-00714-KJN