Clamp-Swing Pricing Company v. Super Market Merchandising and Supply, Inc.

Filing 81

STIPULATED PROTECTIVE ORDER re 77 STIPULATION WITH PROPOSED ORDER. Signed by Judge William H. Orrick on 10/24/2013. (jmdS, COURT STAFF) (Filed on 10/23/2013)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 SHARTSIS FRIESE LLP JAMES P. MARTIN (Bar #170044) jmartin@sflaw.com JOSEPH V. MAUCH (Bar #253693) jmauch@sflaw.com One Maritime Plaza, Eighteenth Floor San Francisco, CA 94111 Telephone: (415) 421-6500 Facsimile: (415) 421-2922 Attorneys for Plaintiff CLAMP-SWING PRICING COMPANY SENNIGER POWERS LLP Robert M. Evans, Jr, pro hac vice revans@senniger.com Marc W. Vander Tuig, pro hac vice mvandertuig@senniger.com Benjamin J. Hodges, pro hac vice BHodges@Senniger.com 100 North Broadway, 17th Floor St. Louis, MO 63102 Telephone: (314) 345-7019 Facsimile: (314) 345-7600 SCHIFF HARDIN LLP Duane H. Mathiowetz CBN 111831 dmathiowetz@schiffhardin.com One Market, Spear Street Tower Thirty-Second Floor San Francisco, CA 94105 Telephone: (415) 901-8645 Facsimile: (415) 901-8701 Attorneys for Defendant SUPER MARKET MERCHANDISING AND SUPPLY, INC. 20 UNITED STATES DISTRICT COURT 21 NORTHERN DISTRICT OF CALIFORNIA 22 23 24 Clamp-Swing Pricing Company, Plaintiff, 25 26 27 28 v. Super Market Merchandising and Supply, Inc., Defendants. Case No. CV-12-02445-WHO STIPULATED PROTECTIVE ORDER Dept: Courtroom 8, 19th Floor Judge: Hon. William H. Orrick III 1 1. PURPOSES AND LIMITATIONS Disclosure and discovery activity in this action are likely to involve production of confidential, 2 3 proprietary, or private information for which special protection from public disclosure and from use for any 4 purpose other than prosecuting this litigation may be warranted. Accordingly, the parties hereby stipulate to 5 and petition the court to enter the following Stipulated Protective Order. The parties acknowledge that this 6 Order does not confer blanket protections on all disclosures or responses to discovery and that the protection 7 it affords from public disclosure and use extends only to the limited information or items that are entitled to 8 confidential treatment under the applicable legal principles. The parties further acknowledge, as set forth in 9 Section 12.4, below, that this Stipulated Protective Order does not entitle them to file confidential 10 information under seal; Civil Local Rule 79-5 and General Order 62 set forth the procedures that must be 11 followed and the standards that will be applied when a party seeks permission from the court to file material 12 under seal. 13 2. 14 15 DEFINITIONS 2.1 Challenging Party: a Party or Non-Party that challenges the designation of information or items under this Order. 16 2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is generated, 17 stored or maintained) or tangible things that qualify for protection under Federal Rule of Civil Procedure 18 26(c). 19 20 21 2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well as their support staff). 2.4 Designating Party: a Party or Non-Party that designates information or items that it 22 produces in disclosures or in responses to discovery as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL 23 – ATTORNEYS’ EYES ONLY.” 24 2.5 Disclosure or Discovery Material: all items or information, regardless of the medium or 25 manner in which it is generated, stored, or maintained (including, among other things, testimony, transcripts, 26 and tangible things), that are produced or generated in disclosures or responses to discovery in this matter. 27 2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to the 28 2 1 litigation who (1) has been retained by a Party or its counsel to serve as an expert witness or as a consultant 2 in this action, (2) is not a past or current employee of a Party or of a Party’s competitor, and (3) at the time 3 of retention, is not anticipated to become an employee of a Party or of a Party’s competitor. 2.7 4 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items: 5 extremely sensitive “Confidential Information or Items,” disclosure of which to another Party or Non-Party 6 would create a substantial risk of serious harm that could not be avoided by less restrictive means. 2.8 7 8 not include Outside Counsel of Record or any other outside counsel. 2.9 9 10 House Counsel: attorneys who are employees of a party to this action. House Counsel does Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 2.10 11 Outside Counsel of Record: attorneys who are not employees of a party to this action but 12 are retained to represent or advise a party to this action and have appeared in this action on behalf of that 13 party or are affiliated with a law firm which has appeared on behalf of that party. 2.11 14 15 retained experts, and Outside Counsel of Record (and their support staffs). 2.12 16 17 Party: any party to this action, including all of its officers, directors, employees, consultants, Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this action. 2.13 18 Professional Vendors: persons or entities that provide litigation support services (e.g., 19 photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, storing, or 20 retrieving data in any form or medium) and their employees and subcontractors. 2.14 21 22 Protected Material: any Disclosure or Discovery Material that is designated as “CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” 2.15 23 24 Party. 25 3. Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing 26 SCOPE The protections conferred by this Stipulation and Order cover not only Protected Material (as 27 defined above), but also (1) any information copied or extracted from Protected Material; (2) all copies, 28 excerpts, summaries, or compilations of Protected Material; and (3) any testimony, conversations, or 3 1 presentations by Parties or their Counsel that might reveal Protected Material. However, the protections 2 conferred by this Stipulation and Order do not cover the following information: (a) any information that is in 3 the public domain at the time of disclosure to a Receiving Party or becomes part of the public domain after 4 its disclosure to a Receiving Party as a result of publication not involving a violation of this Order, including 5 becoming part of the public record through trial or otherwise; and (b) any information known to the 6 Receiving Party prior to the disclosure or obtained by the Receiving Party after the disclosure from a source 7 who obtained the information lawfully and under no obligation of confidentiality to the Designating Party. 8 Any use of Protected Material at trial shall be governed by a separate agreement or order. 9 4. DURATION Even after final disposition of this litigation, the confidentiality obligations imposed by this Order 10 11 shall remain in effect until a Designating Party agrees otherwise in writing or a court order otherwise 12 directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and defenses in this 13 action, with or without prejudice; and (2) final judgment herein after the completion and exhaustion of all 14 appeals, rehearings, remands, trials, or reviews of this action, including the time limits for filing any motions 15 or applications for extension of time pursuant to applicable law. 16 5. 5.1 17 18 19 20 21 22 23 24 25 26 27 28 DESIGNATING PROTECTED MATERIAL Exercise of Restraint and Care in Designating Material for Protection. Each Party or Non- Party that designates information or items for protection under this Order must take care to limit any such designation to specific material that qualifies under the appropriate standards. To the extent it is practical to do so, the Designating Party must designate for protection only those parts of material, documents, items, or oral or written communications that qualify – so that other portions of the material, documents, items, or communications for which protection is not warranted are not swept unjustifiably within the ambit of this Order. Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown to be clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily encumber or retard the case development process or to impose unnecessary expenses and burdens on other parties) expose the Designating Party to sanctions. If it comes to a Designating Party’s attention that information or items that it designated for 4 1 protection do not qualify for protection at all or do not qualify for the level of protection initially asserted, 2 that Designating Party must promptly notify all other parties that it is withdrawing the mistaken designation. 3 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order (see, e.g., 4 second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, Disclosure or Discovery 5 Material that qualifies for protection under this Order must be clearly so designated before the material is 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 disclosed or produced. Designation in conformity with this Order requires: (a) for information in documentary form (e.g., paper or electronic documents, but excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party affix the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” to each page that contains protected material. If only a portion or portions of the material on a page qualifies for protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate markings in the margins) and must specify, for each portion, the level of protection being asserted. A Party or Non-Party that makes original documents or materials available for inspection need not designate them for protection until after the inspecting Party has indicated which material it would like copied and produced. During the inspection and before the designation, all of the material made available for inspection shall be deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” After the inspecting Party has identified the documents it wants copied and produced, the Producing Party must determine which documents, or portions thereof, qualify for protection under this Order. Then, before producing the specified documents, the Producing Party must affix the appropriate legend (“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”) to each page that contains Protected Material. If only a portion or portions of the material on a page qualifies for protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate markings in the margins) and must specify, for each portion, the level of protection being asserted. (b) for testimony given in deposition or in other pretrial or trial proceedings, that the Designating Party identifies on the record, before the close of the deposition, hearing, or other proceeding, all protected testimony and specify the level of protection being asserted. When it is impractical to identify separately each portion of testimony that is entitled to protection and it appears that substantial portions of 5 1 the testimony may qualify for protection, the Designating Party may invoke on the record (before the 2 deposition, hearing, or other proceeding is concluded) a right to have up to 21 days to identify the specific 3 portions of the testimony as to which protection is sought and to specify the level of protection being 4 asserted. Only those portions of the testimony that are appropriately designated for protection within the 21 5 days shall be covered by the provisions of this Stipulated Protective Order. Alternatively, a Designating 6 Party may specify, at the deposition or up to 21 days afterwards if that period is properly invoked, that the 7 entire transcript shall be treated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ 8 EYES ONLY.” 9 Parties shall give the other parties notice if they reasonably expect a deposition, hearing or other 10 proceeding to include Protected Material so that the other parties can ensure that only authorized individuals 11 who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A) are present at those 12 proceedings. The use of a document as an exhibit at a deposition shall not in any way affect its designation 13 as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” 14 Transcripts containing Protected Material shall have an obvious legend on the title page that the 15 transcript contains Protected Material, and the title page shall be followed by a list of all pages (including 16 line numbers as appropriate) that have been designated as Protected Material and the level of protection 17 being asserted by the Designating Party. The Designating Party shall inform the court reporter of these 18 requirements. Any transcript that is prepared before the expiration of a 21-day period for designation shall 19 be treated during that period as if it had been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ 20 EYES ONLY” in its entirety unless otherwise agreed. After the expiration of that period, the transcript shall 21 be treated only as actually designated. (c) for information produced in some form other than documentary and for any other 22 23 tangible items, that the Producing Party affix in a prominent place on the exterior of the container or 24 containers in which the information or item is stored the legend “CONFIDENTIAL” or “HIGHLY 25 CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” If only a portion or portions of the information or item 26 warrant protection, the Producing Party, to the extent practicable, shall identify the protected portion(s) and 27 specify the level of protection being asserted. 28 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to designate 6 1 qualified information or items does not, standing alone, waive the Designating Party’s right to secure 2 protection under this Order for such material. Upon timely correction of a designation, the Receiving Party 3 must make reasonable efforts to assure that the material is treated in accordance with the provisions of this 4 Order. 5 6. 6 CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 7 confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality designation is 8 necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens, or a significant 9 disruption or delay of the litigation, a Party does not waive its right to challenge a confidentiality 10 11 designation by electing not to mount a challenge promptly after the original designation is disclosed. 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process by 12 providing written notice of each designation it is challenging and describing the basis for each challenge. To 13 avoid ambiguity as to whether a challenge has been made, the written notice must recite that the challenge to 14 confidentiality is being made in accordance with this specific paragraph of the Protective Order. The parties 15 shall attempt to resolve each challenge in good faith and must begin the process by conferring directly (in 16 voice to voice dialogue; other forms of communication are not sufficient) within 14 days of the date of 17 service of notice. In conferring, the Challenging Party must explain the basis for its belief that the 18 confidentiality designation was not proper and must give the Designating Party an opportunity to review the 19 designated material, to reconsider the circumstances, and, if no change in designation is offered, to explain 20 the basis for the chosen designation. A Challenging Party may proceed to the next stage of the challenge 21 process only if it has engaged in this meet and confer process first or establishes that the Designating Party 22 is unwilling to participate in the meet and confer process in a timely manner. 23 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court intervention, 24 the Designating Party shall file and serve a motion to retain confidentiality under Civil Local Rule 7 (and in 25 compliance with Civil Local Rule 79-5 and General Order 62, if applicable) within 21 days of the initial 26 notice of challenge or within 14 days of the parties agreeing that the meet and confer process will not 27 resolve their dispute, whichever is earlier. Each such motion must be accompanied by a competent 28 declaration affirming that the movant has complied with the meet and confer requirements imposed in the 7 1 preceding paragraph. Failure by the Designating Party to make such a motion including the required 2 declaration within 21 days (or 14 days, if applicable) shall automatically waive the confidentiality 3 designation for each challenged designation. In addition, the Challenging Party may file a motion 4 challenging a confidentiality designation at any time if there is good cause for doing so, including a 5 challenge to the designation of a deposition transcript or any portions thereof. Any motion brought pursuant 6 to this provision must be accompanied by a competent declaration affirming that the movant has complied 7 with the meet and confer requirements imposed by the preceding paragraph. The burden of persuasion in any such challenge proceeding shall be on the Designating Party. 8 9 Frivolous challenges and those made for an improper purpose (e.g., to harass or impose unnecessary 10 expenses and burdens on other parties) may expose the Challenging Party to sanctions. Unless the 11 Designating Party has waived the confidentiality designation by failing to file a motion to retain 12 confidentiality as described above, all parties shall continue to afford the material in question the level of 13 protection to which it is entitled under the Producing Party’s designation until the court rules on the 14 challenge. 15 7. 16 ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or 17 produced by another Party or by a Non-Party in connection with this case only for prosecuting, defending, 18 or attempting to settle this litigation. Such Protected Material may be disclosed only to the categories of 19 persons and under the conditions described in this Order. When the litigation has been terminated, a 20 Receiving Party must comply with the provisions of section 13 below (FINAL DISPOSITION). 21 22 23 Protected Material must be stored and maintained by a Receiving Party at a location and in a secure manner that ensures that access is limited to the persons authorized under this Order. 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by the 24 court or permitted in writing by the Designating Party, a Receiving Party may disclose any information or 25 item designated “CONFIDENTIAL” only to: 26 (a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees of 27 said Outside Counsel of Record to whom it is reasonably necessary to disclose the information for this 28 litigation and who have signed the “Acknowledgment and Agreement to Be Bound” that is attached hereto 8 1 as Exhibit A; (b) the officers, directors, and employees (including House Counsel) of the Receiving Party 2 3 to whom disclosure is reasonably necessary for this litigation and who have signed the “Acknowledgment 4 and Agreement to Be Bound” (Exhibit A); (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is 5 6 reasonably necessary for this litigation and who have signed the “Acknowledgment and Agreement to Be 7 Bound” (Exhibit A); 8 (d) the court and its personnel; 9 (e) court reporters and their staff, professional jury or trial consultants, and Professional 10 Vendors to whom disclosure is reasonably necessary for this litigation and who have signed the 11 “Acknowledgment and Agreement to Be Bound” (Exhibit A); (f) during their depositions, witnesses in the action to whom disclosure is reasonably 12 13 necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless 14 otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed deposition 15 testimony or exhibits to depositions that reveal Protected Material must be separately bound by the court 16 reporter and may not be disclosed to anyone except as permitted under this Stipulated Protective Order. (g) the author or recipient of a document containing the information or a custodian or other 17 18 19 person who otherwise possessed or knew the information or an employee of the producing party. 7.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information 20 or Items. Unless otherwise ordered by the court or permitted in writing by the Designating Party, a 21 Receiving Party may disclose any information or item designated “HIGHLY CONFIDENTIAL – 22 ATTORNEYS’ EYES ONLY” only to: (a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees of 23 24 said Outside Counsel of Record to whom it is reasonably necessary to disclose the information for this 25 litigation and who have signed the “Acknowledgment and Agreement to Be Bound” that is attached hereto 26 as Exhibit A; 27 28 (b) Designated House Counsel of the Receiving Party (1) who has no involvement in competitive decision-making, (2) to whom disclosure is reasonably necessary for this litigation, (3) who has 9 1 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), and (4) as to whom the procedures 2 set forth in paragraph 7.4(a)(1), below, have been followed; (c) Experts of the Receiving Party (1) to whom disclosure is reasonably necessary for this 3 4 litigation, (2) who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), and (3) as 5 to whom the procedures set forth in paragraph 7.4(a)(2), below, have been followed]; 6 (d) the court and its personnel; 7 (e) court reporters and their staff, professional jury or trial consultants, and Professional 8 Vendors to whom disclosure is reasonably necessary for this litigation and who have signed the 9 “Acknowledgment and Agreement to Be Bound” (Exhibit A); and (f) the author or recipient of a document containing the information or a custodian or other 10 11 12 person who otherwise possessed or knew the information or an employee of the producing party. 7.4 Procedures for Approving or Objecting to Disclosure of “HIGHLY CONFIDENTIAL – 13 ATTORNEYS’ EYES ONLY” Information or Items to Designated House Counsel or 14 Experts. 15 (a)(1) Unless otherwise ordered by the court or agreed to in writing by the Designating 16 Party, a Party that seeks to disclose to Designated House Counsel any information or item that has been 17 designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” pursuant to paragraph 7.3(b) first 18 must make a written request to the Designating Party that (1) sets forth the full name of the Designated 19 House Counsel and the city and state of his or her residence, and (2) describes the Designated House 20 Counsel’s current and reasonably foreseeable future primary job duties and responsibilities in sufficient 21 detail to determine if House Counsel is involved, or may become involved, in any competitive decision- 22 making.(a)(2) Unless otherwise ordered by the court or agreed to in writing by the Designating Party, a 23 Party that seeks to disclose to an Expert (as defined in this Order) any information or item that has been 24 designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” pursuant to paragraph 7.3(c) first 25 must make a written request to the Designating Party that (1) identifies the general categories of “HIGHLY 26 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information that the Receiving Party seeks permission 27 to disclose to the Expert, (2) sets forth the full name of the Expert and the city and state of his or her primary 28 residence, (3) attaches a copy of the Expert’s current resume, (4) identifies the Expert’s current employer(s), 10 1 (5) identifies each person or entity from whom the Expert has received compensation or funding for work in 2 his or her areas of expertise or to whom the expert has provided professional services, including in 3 connection with a litigation, at any time during the preceding five years, and (6) identifies (by name and 4 number of the case, filing date, and location of court) any litigation in connection with which the Expert has 5 offered expert testimony, including through a declaration, report, or testimony at a deposition or trial, during 6 the preceding five years. (b) A Party that makes a request and provides the information specified in the preceding 7 8 respective paragraphs may disclose the subject Protected Material to the identified Designated House 9 Counsel or Expert unless, within 14 days of delivering the request, the Party receives a written objection 10 from the Designating Party. Any such objection must set forth in detail the grounds on which it is based. (c) A Party that receives a timely written objection must meet and confer with the 11 12 Designating Party (through direct voice to voice dialogue) to try to resolve the matter by agreement within 13 seven days of the written objection. If no agreement is reached, the Party seeking to make the disclosure to 14 Designated House Counsel or the Expert may file a motion as provided in Civil Local Rule 7 (and in 15 compliance with Civil Local Rule 79-5 and General Order 62, if applicable) seeking permission from the 16 court to do so. Any such motion must describe the circumstances with specificity, set forth in detail the 17 reasons why the disclosure to Designated House Counsel or the Expert is reasonably necessary, assess the 18 risk of harm that the disclosure would entail, and suggest any additional means that could be used to reduce 19 that risk. In addition, any such motion must be accompanied by a competent declaration describing the 20 parties’ efforts to resolve the matter by agreement (i.e., the extent and the content of the meet and confer 21 discussions) and setting forth the reasons advanced by the Designating Party for its refusal to approve the 22 disclosure. 23 In any such proceeding, the Party opposing disclosure to Designated House Counsel or the Expert 24 shall bear the burden of proving that the risk of harm that the disclosure would entail (under the safeguards 25 proposed) outweighs the Receiving Party’s need to disclose the Protected Material to its Designated House 26 Counsel or Expert. 27 28 11 1 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION If a Party is served with a subpoena or a court order issued in other litigation that compels 2 3 disclosure of any information or items designated in this action as “CONFIDENTIAL” or “HIGHLY 4 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” that Party must: (a) promptly notify in writing the Designating Party. Such notification shall include a copy 5 6 of the subpoena or court order; (b) promptly notify in writing the party who caused the subpoena or order to issue in the 7 8 other litigation that some or all of the material covered by the subpoena or order is subject to this Protective 9 Order. Such notification shall include a copy of this Stipulated Protective Order; and (c) cooperate with respect to all reasonable procedures sought to be pursued by the 10 11 Designating Party whose Protected Material may be affected. If the Designating Party timely seeks a protective order, the Party served with the subpoena 12 13 or court order shall not produce any information designated in this action as “CONFIDENTIAL” or 14 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” before a determination by the court from 15 which the subpoena or order issued, unless the Party has obtained the Designating Party’s permission. The 16 Designating Party shall bear the burden and expense of seeking protection in that court of its confidential 17 material – and nothing in these provisions should be construed as authorizing or encouraging a Receiving 18 Party in this action to disobey a lawful directive from another court. 19 9. 20 21 22 23 24 25 26 27 A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION (a) The terms of this Order are applicable to information produced by a Non-Party in this action and designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Such information produced by Non-Parties 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 Non-Party 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 NonParty not to produce the Non-Party’s confidential information, then the Party shall: 28 12 1. promptly notify in writing the Requesting Party and the Non-Party that some or all 1 2 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 3 4 this litigation, the relevant discovery request(s), and a reasonably specific description of the information 5 requested; and 3. make the information requested available for inspection by the Non-Party. 6 (c) 7 If the Non-Party fails to object or seek a protective order from this court within 14 8 days of receiving the notice and accompanying information, the Receiving Party may produce the Non- 9 Party’s confidential information responsive to the discovery request. If the Non-Party timely seeks a 10 protective order, the Receiving Party shall not produce any information in its possession or control that is 11 subject to the confidentiality agreement with the Non-Party before a determination by the court. Absent a 12 court order to the contrary, the Non-Party shall bear the burden and expense of seeking protection in this 13 court of its Protected Material. 14 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 15 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 16 Material to any person or in any circumstance not authorized under this Stipulated Protective Order, the 17 Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized 18 disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform 19 the person or persons to whom unauthorized disclosures were made of all the terms of this Order, and (d) 20 request such person or persons to execute the “Acknowledgment and Agreement to Be Bound” that is 21 attached hereto as Exhibit A. 22 11. 23 24 25 26 27 INADVERTENT MATERIAL PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED When a Producing Party gives notice to Receiving Parties that certain inadvertently produced material is subject to a claim of privilege or other protection, the obligations of the Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure may be established in an e-discovery order that provides for production without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), the inadvertent disclosure of 28 13 1 privileged or work product protected material shall not constitute a waiver of, nor prejudice to, any privilege 2 or immunity with respect to such information or document(s) or of any work product doctrine or other 3 immunity that may attach thereto, including without limitation the attorney-client privilege, the joint defense 4 privilege, and the work product doctrine. Employing electronic keyword searching to identify and prevent 5 disclosure of privileged material constitutes “reasonable steps to prevent disclosure” under Rule 502(b)(2) 6 of the Federal Rules of Evidence. The entry of this Protective Order by the Court constitutes a court order 7 under Rule 502(d) of the Federal Rules of Evidence. 8 12. 12.1 9 10 MISCELLANEOUS Right to Further Relief. Nothing in this Order abridges the right of any person to seek its modification by the court in the future. 12.2 11 Right to Assert Other Objections. By stipulating to the entry of this Protective Order no 12 Party waives any right it otherwise would have to object to disclosing or producing any information or item 13 on any ground not addressed in this Stipulated Protective Order. Similarly, no Party waives any right to 14 object on any ground to use in evidence of any of the material covered by this Protective Order. 12.4 15 Filing Protected Material. Without written permission from the Designating Party or a court 16 order secured after appropriate notice to all interested persons, a Party may not file in the public record in 17 this action any Protected Material. A Party that seeks to file under seal any Protected Material must comply 18 with Civil Local Rule 79-5 and General Order 62. Protected Material may only be filed under seal pursuant 19 to a court order authorizing the sealing of the specific Protected Material at issue. Pursuant to Civil Local 20 Rule 79-5 and General Order 62, a sealing order will issue only upon a request establishing that the 21 Protected Material at issue is privileged, protectable as a trade secret, or otherwise entitled to protection 22 under the law. If a Receiving Party's request to file Protected Material under seal pursuant to Civil Local 23 Rule 79-5(d) and General Order 62 is denied by the court, then the Receiving Party may file the Protected 24 Material in the public record pursuant to Civil Local Rule 79-5(e) unless otherwise instructed by the court. 25 13. 26 FINAL DISPOSITION Within 60 days after the final disposition of this action, as defined in paragraph 4, each 27 Receiving Party must, upon request of the producing party, return all Protected Material to the Producing 28 Party or destroy such material. As used in this subdivision, “all Protected Material” includes all copies, 14 1 abstracts, compilations, summaries, and any other format reproducing or capturing any of the Protected 2 Material. Whether the Protected Material is returned or destroyed, the Receiving Party must submit a written 3 certification to the Producing Party (and, if not the same person or entity, to the Designating Party) by the 4 60-day deadline that (1) identifies (by category, where appropriate) all the Protected Material that was 5 returned or destroyed and (2) affirms that the Receiving Party has not retained any copies, abstracts, 6 compilations, summaries or any other format reproducing or capturing any of the Protected Material. 7 Notwithstanding this provision, Counsel are entitled to retain an archival copy of all pleadings, motion 8 papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence, deposition and trial 9 exhibits, expert reports, attorney work product, and consultant and expert work product, even if such 10 materials contain Protected Material. Any such archival copies that contain or constitute Protected Material 11 remain subject to this Protective Order as set forth in Section 4 (DURATION). 12 13 14 15 16 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. DATED: ___October 4, 2013_____________________ ___/s/ Joseph V. Mauch____________________ Attorneys for Plaintiff 17 DATED: _September 18, 2013_____________ _/s/ Benjamin J. Hodges____________ Attorneys for Defendant 18 PURSUANT TO STIPULATION, IT IS SO ORDERED. 19 20 21 October 23, 2013 DATED: ________________________ _____________________________________ William H. Orrick United States District Judge 22 23 24 25 26 27 28 15 EXHIBIT A 1 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _____________________________ [print or type full name], of _________________ 4 [print or type full address], declare under penalty of perjury that I have read in its entirety and understand 5 the Stipulated Protective Order that was issued by the United States District Court for the Northern District 6 of California on __________ in the case of Clamp-Swing Pricing Company v. Super Market Merchandising 7 and Supply, Inc., No. CV 12-02445- WHO. I agree to comply with and to be bound by all the terms of this 8 Stipulated Protective Order and I understand and acknowledge that failure to so comply could expose me to 9 sanctions and punishment in the nature of contempt. I solemnly promise that I will not disclose in any 10 manner any information or item that is subject to this Stipulated Protective Order to any person or entity 11 except in strict compliance with the provisions of this Order. 12 I further agree to submit to the jurisdiction of the United States District Court for the 13 Northern District of California for the purpose of enforcing the terms of this Stipulated Protective Order, 14 even if such enforcement proceedings occur after termination of this action. 15 I hereby appoint __________________________ [print or type full name] of 16 _______________________________________ [print or type full address and telephone number] as my 17 California agent for service of process in connection with this action or any proceedings related to 18 enforcement of this Stipulated Protective Order. 19 20 Date: _________________________________ 21 City and State where sworn and signed: _________________________________ 22 Printed name: ______________________________ [printed name] 23 24 Signature: __________________________________ [signature] 25 26 27 28 16

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