Photographic Illustrators Corporation v. Spot Lighting Supplies, Inc.

Filing 26

Order by Hon. Vince Chhabria granting 25 Stipulated Protective Order.(knm, COURT STAFF) (Filed on 10/2/2014)

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1 2 3 4 5 6 7 8 9 10 11 John V. Picone III, Bar No. 187226 jpicone@hopkinscarley.com Jennifer S. Coleman, Bar No. 213210 jcoleman@hopkinscarley.com Aleksandr Korzh, Bar No. 286613 akorzh@hopkinscarley.com HOPKINS & CARLEY A Law Corporation The Letitia Building 70 South First Street San Jose, CA 95113-2406 mailing address: P.O. Box 1469 San Jose, CA 95109-1469 Telephone: (408) 286-9800 Facsimile: (408) 998-4790 Attorneys for Plaintiff PHOTOGRAPHIC ILLUSTRATORS CORPORATION 12 UNITED STATES DISTRICT COURT 13 NORTHERN DISTRICT OF CALIFORNIA 14 PHOTOGRAPHIC ILLUSTRATORS CORPORATION, 15 Plaintiff, CASE NO. 5:14-CV-2010-VC [PROPOSED] STIPULATED PROTECTIVE ORDER 16 v. 17 18 SPOT LIGHTING SUPPLIES, INC. dba Lighting-spot.com, Defendant. 19 20 21 1. PURPOSES AND LIMITATIONS 22 Disclosure and discovery activity in this action are likely to involve production of 23 confidential, proprietary, or private information for which special protection from public 24 disclosure and from use for any purpose other than prosecuting this litigation may be warranted. 25 Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulated 26 Protective Order. The parties acknowledge that this Order does not confer blanket protections on 27 all disclosures or responses to discovery and that the protection it affords from public disclosure 28 and use extends only to the limited information or items that are entitled to confidential treatment H OPKINS & C ARLEY ATTO RNEY S AT LAW SAN JO SE 733\1146084.3 [PROPOSED] STIPULATED PROTECTIVE ORDER - 5:14-CV-2010-VC 1 under the applicable legal principles. The parties further acknowledge, as set forth in Section 2 12.3, below, that this Stipulated Protective Order does not entitle them to file confidential 3 information under seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and 4 the standards that will be applied when a party seeks permission from the court to file material 5 under seal. 6 2. 7 8 DEFINITIONS 2.1. Challenging Party: a Party or Non-Party that challenges the designation of information or items under this Order. 9 2.2. “CONFIDENTIAL” Information or Items: information (regardless of how it is 10 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule 11 of Civil Procedure 26(c). 12 13 2.3. well as their support staff). 14 15 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as 2.4. Designated House Counsel: House Counsel who seek access to “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information in this matter. 16 2.5. Designating Party: a Party or Non-Party that designates information or items that it 17 produces in disclosures or in responses to discovery as “CONFIDENTIAL” or “HIGHLY 18 CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” 19 2.6. Disclosure or Discovery Material: all items or information, regardless of the 20 medium or manner in which it is generated, stored, or maintained (including, among other things, 21 testimony, transcripts, and tangible things), that are produced or generated in disclosures or 22 responses to discovery in this matter. 23 2.7. Expert: a person with specialized knowledge or experience in a matter pertinent to 24 the litigation who (1) has been retained by a Party or its counsel to serve as an expert witness or 25 as a consultant in this action, (2) is not a past or current employee of a Party or of a Party’s 26 competitor, and (3) at the time of retention, is not anticipated to become an employee of a Party 27 or of a Party’s competitor. 28 /// H OPKINS & C ARLEY ATTO RNEY S AT LAW SAN JO SE 733\1146084.3 -2- [PROPOSED] STIPULATED PROTECTIVE ORDER - 5:14-CV-2010-VC 1 2.8. “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or 2 Items: extremely sensitive “Confidential Information or Items,” disclosure of which to another 3 Party or Non-Party would create a substantial risk of serious harm that could not be avoided by 4 less restrictive means. 5 6 2.9. Counsel does not include Outside Counsel of Record or any other outside counsel. 7 8 House Counsel: attorneys who are employees of a party to this action. House 2.10. Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 9 2.11. Outside Counsel of Record: attorneys who are not employees of a party to this 10 action but are retained to represent or advise a party to this action and have appeared in this action 11 on behalf of that party or are affiliated with a law firm which has appeared on behalf of that party. 12 13 2.12. consultants, retained experts, and Outside Counsel of Record (and their support staffs). 14 15 Party: any party to this action, including all of its officers, directors, employees, 2.13. Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this action. 16 2.14. Professional Vendors: persons or entities that provide litigation support services 17 (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and 18 organizing, storing, or retrieving data in any form or medium) and their employees and 19 subcontractors. 20 21 2.15. Protected Material: any Disclosure or Discovery Material that is designated as “CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” 22 2.16. Receiving Party: a Party that receives Disclosure or Discovery Material from a 23 Producing Party. 24 3. 25 SCOPE The protections conferred by this Stipulation and Order cover not only Protected Material 26 (as defined above), but also (1) any information copied or extracted from Protected Material; (2) 27 all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 28 conversations, or presentations by Parties or their Counsel that might reveal Protected Material. H OPKINS & C ARLEY ATTO RNEY S AT LAW SAN JO SE 733\1146084.3 -3- [PROPOSED] STIPULATED PROTECTIVE ORDER - 5:14-CV-2010-VC 1 However, the protections conferred by this Stipulation and Order do not cover the following 2 information: (a) any information that is in the public domain at the time of disclosure to a 3 Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as 4 a result of publication not involving a violation of this Order, including becoming part of the 5 public record through trial or otherwise; and (b) any information known to the Receiving Party 6 prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who 7 obtained the information lawfully and under no obligation of confidentiality to the Designating 8 Party. Any use of Protected Material at trial shall be governed by a separate agreement or order. 9 4. DURATION 10 Even after final disposition of this litigation, the confidentiality obligations imposed by 11 this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court 12 order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all 13 claims and defenses in this action, with or without prejudice; and (2) final judgment herein after 14 the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, 15 including the time limits for filing any motions or applications for extension of time pursuant to 16 applicable law. 17 5. 18 DESIGNATING PROTECTED MATERIAL 5.1. Exercise of Restraint and Care in Designating Material for Protection. Each Party 19 or Non-Party that designates information or items for protection under this Order must take care 20 to limit any such designation to specific material that qualifies under the appropriate standards. 21 To the extent it is practical to do so, the Designating Party must designate for protection only 22 those parts of material, documents, items, or oral or written communications that qualify – so that 23 other portions of the material, documents, items, or communications for which protection is not 24 warranted are not swept unjustifiably within the ambit of this Order. 25 Mass, indiscriminate, or routinized designations are prohibited. Designations that are 26 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 27 unnecessarily encumber or retard the case development process or to impose unnecessary 28 expenses and burdens on other parties) expose the Designating Party to sanctions. H OPKINS & C ARLEY ATTO RNEY S AT LAW SAN JO SE 733\1146084.3 -4- [PROPOSED] STIPULATED PROTECTIVE ORDER - 5:14-CV-2010-VC 1 If it comes to a Designating Party’s attention that information or items that it designated 2 for protection do not qualify for protection at all or do not qualify for the level of protection 3 initially asserted, that Designating Party must promptly notify all other parties that it is 4 withdrawing the mistaken designation. 5 5.2. Manner and Timing of Designations. Except as otherwise provided in this Order 6 (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, 7 Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so 8 designated before the material is disclosed or produced. 9 Designation in conformity with this Order requires: 10 (a) for information in documentary form (e.g., paper or electronic documents, but 11 excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing 12 Party affix the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ 13 EYES ONLY” to each page that contains protected material. If only a portion or portions of the 14 material on a page qualifies for protection, the Producing Party also must clearly identify the 15 protected portion(s) (e.g., by making appropriate markings in the margins) and must specify, for 16 each portion, the level of protection being asserted. 17 A Party or Non-Party that makes original documents or materials available for inspection 18 need not designate them for protection until after the inspecting Party has indicated which 19 material it would like copied and produced. During the inspection and before the designation, all 20 of the material made available for inspection shall be deemed “HIGHLY CONFIDENTIAL – 21 ATTORNEYS’ EYES ONLY.” After the inspecting Party has identified the documents it wants 22 copied and produced, the Producing Party must determine which documents, or portions thereof, 23 qualify for protection under this Order. Then, before producing the specified documents, the 24 Producing Party must affix the appropriate legend (“CONFIDENTIAL” or “HIGHLY 25 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” to each page that contains Protected 26 Material. If only a portion or portions of the material on a page qualifies for protection, the 27 Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate 28 markings in the margins) and must specify, for each portion, the level of protection being H OPKINS & C ARLEY ATTO RNEY S AT LAW SAN JO SE 733\1146084.3 -5- [PROPOSED] STIPULATED PROTECTIVE ORDER - 5:14-CV-2010-VC 1 asserted. The Parties shall have 21 days from the date of production of information in 2 documentary form to designate materials produced by a Non-Party pursuant to subpoena. 3 (b) for testimony given in deposition or in other pretrial or trial proceedings, that the 4 Designating Party identify on the record, before the close of the deposition, hearing, or other 5 proceeding, all protected testimony and specify the level of protection being asserted. When it is 6 impractical to identify separately each portion of testimony that is entitled to protection and it 7 appears that substantial portions of the testimony may qualify for protection, the Designating 8 Party may invoke on the record (before the deposition, hearing, or other proceeding is concluded) 9 a right to have up to 21 days to identify the specific portions of the testimony as to which 10 protection is sought and to specify the level of protection being asserted. Only those portions of 11 the testimony that are appropriately designated for protection within the 21 days shall be covered 12 by the provisions of this Stipulated Protective Order. Alternatively, a Designating Party may 13 specify, at the deposition or up to 21 days afterwards if that period is properly invoked, that the 14 entire transcript shall be treated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – 15 ATTORNEYS’ EYES ONLY.” 16 Parties shall give the other parties notice if they reasonably expect a deposition, hearing or 17 other proceeding to include Protected Material so that the other parties can ensure that only 18 authorized individuals who have signed the “Acknowledgment and Agreement to Be Bound” 19 (Exhibit A) are present at those proceedings. The use of a document as an exhibit at a deposition 20 shall not in any way affect its designation as “CONFIDENTIAL” or “HIGHLY 21 CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” 22 Transcripts containing Protected Material shall have an obvious legend on the title page 23 that the transcript contains Protected Material, and the title page shall be followed by a list of all 24 pages (including line numbers as appropriate) that have been designated as Protected Material and 25 the level of protection being asserted by the Designating Party. The Designating Party shall 26 inform the court reporter of these requirements. Any transcript that is prepared before the 27 expiration of a 21-day period for designation shall be treated during that period as if it had been 28 designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its entirety unless H OPKINS & C ARLEY ATTO RNEY S AT LAW SAN JO SE 733\1146084.3 -6- [PROPOSED] STIPULATED PROTECTIVE ORDER - 5:14-CV-2010-VC 1 otherwise agreed. After the expiration of that period, the transcript shall be treated only as 2 actually designated. 3 (c) for information produced in some form other than documentary and for any other 4 tangible items, that the Producing Party affix in a prominent place on the exterior of the container 5 or containers in which the information or item is stored the legend “CONFIDENTIAL” or 6 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” If only a portion or portions of 7 the information or item warrant protection, the Producing Party, to the extent practicable, shall 8 identify the protected portion(s) and specify the level of protection being asserted. 9 5.3. Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 10 designate qualified information or items does not, standing alone, waive the Designating Party’s 11 right to secure protection under this Order for such material. Upon timely correction of a 12 designation, the Receiving Party must make reasonable efforts to assure that the material is 13 treated in accordance with the provisions of this Order. 14 6. 15 CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1. Timing of Challenges. Any Party or Non-Party may challenge a designation of 16 confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality 17 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic 18 burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to 19 challenge a confidentiality designation by electing not to mount a challenge promptly after the 20 original designation is disclosed. 21 6.2. Meet and Confer. The Challenging Party shall initiate the dispute resolution 22 process by providing written notice of each designation it is challenging and describing the basis 23 for each challenge. To avoid ambiguity as to whether a challenge has been made, the written 24 notice must recite that the challenge to confidentiality is being made in accordance with this 25 specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge in 26 good faith and must begin the process by conferring directly (in voice to voice dialogue; other 27 forms of communication are not sufficient) within 14 days of the date of service of notice. In 28 conferring, the Challenging Party must explain the basis for its belief that the confidentiality H OPKINS & C ARLEY ATTO RNEY S AT LAW SAN JO SE 733\1146084.3 -7- [PROPOSED] STIPULATED PROTECTIVE ORDER - 5:14-CV-2010-VC 1 designation was not proper and must give the Designating Party an opportunity to review the 2 designated material, to reconsider the circumstances, and, if no change in designation is offered, 3 to explain the basis for the chosen designation. A Challenging Party may proceed to the next 4 stage of the challenge process only if it has engaged in this meet and confer process first or 5 establishes that the Designating Party is unwilling to participate in the meet and confer process in 6 a timely manner. 7 6.3. Judicial Intervention. If the Parties cannot resolve a challenge without court 8 intervention, the Designating Party shall file and serve a motion to retain confidentiality under 9 Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) within 21 days 10 of the initial notice of challenge or within 14 days of the parties agreeing that the meet and confer 11 process will not resolve their dispute, whichever is earlier. Each such motion must be 12 accompanied by a competent declaration affirming that the movant has complied with the meet 13 and confer requirements imposed in the preceding paragraph. Failure by the Designating Party to 14 make such a motion including the required declaration within 21 days (or 14 days, if applicable) 15 shall automatically waive the confidentiality designation for each challenged designation. In 16 addition, the Challenging Party may file a motion challenging a confidentiality designation at any 17 time if there is good cause for doing so, including a challenge to the designation of a deposition 18 transcript or any portions thereof. Any motion brought pursuant to this provision must be 19 accompanied by a competent declaration affirming that the movant has complied with the meet 20 and confer requirements imposed by the preceding paragraph. 21 The burden of persuasion in any such challenge proceeding shall be on the Designating 22 Party. Frivolous challenges and those made for an improper purpose (e.g., to harass or impose 23 unnecessary expenses and burdens on other parties) may expose the Challenging Party to 24 sanctions. Unless the Designating Party has waived the confidentiality designation by failing to 25 file a motion to retain confidentiality as described above, all parties shall continue to afford the 26 material in question the level of protection to which it is entitled under the Producing Party’s 27 designation until the court rules on the challenge. 28 /// H OPKINS & C ARLEY ATTO RNEY S AT LAW SAN JO SE 733\1146084.3 -8- [PROPOSED] STIPULATED PROTECTIVE ORDER - 5:14-CV-2010-VC 1 2 7. ACCESS TO AND USE OF PROTECTED MATERIAL 7.1. Basic Principles. A Receiving Party may use Protected Material that is disclosed or 3 produced by another Party or by a Non-Party in connection with this case only for prosecuting, 4 defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to 5 the categories of persons and under the conditions described in this Order. When the litigation has 6 been terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL 7 DISPOSITION). 8 Protected Material must be stored and maintained by a Receiving Party at a location and 9 in a secure manner that ensures that access is limited to the persons authorized under this Order. 10 7.2. Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered 11 by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any 12 information or item designated “CONFIDENTIAL” only to: 13 (a) the Receiving Party’s Outside Counsel of Record in this action, as well as 14 employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the 15 information for this litigation and who have signed the “Acknowledgment and Agreement to Be 16 Bound” that is attached hereto as Exhibit A; 17 (b) the officers, directors, and employees (including House Counsel) of the Receiving 18 Party to whom disclosure is reasonably necessary for this litigation and who have signed the 19 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 20 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is 21 reasonably necessary for this litigation and who have signed the “Acknowledgment and 22 Agreement to Be Bound” (Exhibit A); 23 (d) the court and its personnel; 24 (e) court reporters and their staff, professional jury or trial consultants, and 25 Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have 26 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 27 28 H OPKINS & C ARLEY ATTO RNEY S AT LAW SAN JO SE (f) during their depositions, witnesses in the action to whom disclosure is reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), 733\1146084.3 -9- [PROPOSED] STIPULATED PROTECTIVE ORDER - 5:14-CV-2010-VC 1 unless otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed 2 deposition testimony or exhibits to depositions that reveal Protected Material must be separately 3 bound by the court reporter and may not be disclosed to anyone except as permitted under this 4 Stipulated Protective Order. 5 6 (g) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information. 7 7.3. Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” 8 Information or Items. Unless otherwise ordered by the court or permitted in writing by the 9 Designating Party, a Receiving Party may disclose any information or item designated “HIGHLY 10 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to: 11 (a) the Receiving Party’s Outside Counsel of Record in this action, as well as 12 employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the 13 information for this litigation; 14 (b) Optional as deemed appropriate in case-specific circumstances: Designated House 15 Counsel of the Receiving Party3 (1) who has no involvement in competitive decision-making, (2) 16 to whom disclosure is reasonably necessary for this litigation, and (3) who has signed the 17 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 18 (c) Experts of the Receiving Party (1) to whom disclosure is reasonably necessary for 19 this litigation, and (2) who have signed the “Acknowledgment and Agreement to Be Bound” 20 (Exhibit A); 21 (d) the court and its personnel; 22 (e) court reporters and their staff, professional jury or trial consultants, and 23 Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have 24 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); and 25 (f) the author or recipient of a document containing the information or a custodian or 26 other person who otherwise possessed or knew the information. 27 /// 28 /// H OPKINS & C ARLEY ATTO RNEY S AT LAW SAN JO SE 733\1146084.3 - 10 - [PROPOSED] STIPULATED PROTECTIVE ORDER - 5:14-CV-2010-VC 1 7.4. Procedures for Approving or Objecting to Disclosure of “HIGHLY 2 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items to Designated House 3 Counsel or Experts. 4 (a)(1) Unless otherwise ordered by the court or agreed to in writing by the Designating 5 Party, a Party that seeks to disclose to Designated House Counsel any information or item that has 6 been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” pursuant to 7 paragraph 7.3(b) first must make a written request to the Designating Party that (1) sets forth the 8 full name of the Designated House Counsel and the city and state of his or her residence, and (2) 9 describes the Designated House Counsel’s current and reasonably foreseeable future primary job 10 duties and responsibilities in sufficient detail to determine if House Counsel is involved, or may 11 become involved, in any competitive decision-making. 12 (a)(2) Unless otherwise ordered by the court or agreed to in writing by the Designating 13 Party, a Party that seeks to disclose to an Expert (as defined in this Order) any information or item 14 that has been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” pursuant 15 to paragraph 7.3(c) first must make a written request to the Designating Party that identifies the 16 general categories of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information 17 that the Receiving Party seeks permission to disclose to the Expert. 18 (b) A Party that makes a request and provides the information specified in the preceding 19 respective paragraphs may disclose the subject Protected Material to the identified Designated 20 House Counsel or Expert unless, within 14 days of delivering the request, the Party receives a 21 written objection from the Designating Party. Any such objection must set forth in detail the 22 grounds on which it is based. 23 (c) A Party that receives a timely written objection must meet and confer with the 24 Designating Party (through direct voice to voice dialogue) to try to resolve the matter by 25 agreement within seven days of the written objection. If no agreement is reached, the Party 26 seeking to make the disclosure to Designated House Counsel or the Expert may file a motion as 27 provided in Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) 28 seeking permission from the court to do so. Any such motion must describe the circumstances H OPKINS & C ARLEY ATTO RNEY S AT LAW SAN JO SE 733\1146084.3 - 11 - [PROPOSED] STIPULATED PROTECTIVE ORDER - 5:14-CV-2010-VC 1 with specificity, set forth in detail the reasons why the disclosure to Designated House Counsel or 2 the Expert is reasonably necessary, assess the risk of harm that the disclosure would entail, and 3 suggest any additional means that could be used to reduce that risk. In addition, any such motion 4 must be accompanied by a competent declaration describing the parties’ efforts to resolve the 5 matter by agreement (i.e., the extent and the content of the meet and confer discussions) and 6 setting forth the reasons advanced by the Designating Party for its refusal to approve the 7 disclosure. 8 9 In any such proceeding, the Party opposing disclosure to Designated House Counsel or the Expert shall bear the burden of proving that the risk of harm that the disclosure would entail 10 (under the safeguards proposed) outweighs the Receiving Party’s need to disclose the Protected 11 Material to its Designated House Counsel or Expert. 12 8. 13 14 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 15 disclosure of any information or items designated in this action as “CONFIDENTIAL” or 16 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” that Party must: 17 18 (a) promptly notify in writing the Designating Party. Such notification shall include a copy of the subpoena or court order; 19 (b) promptly notify in writing the party who caused the subpoena or order to issue in 20 the other litigation that some or all of the material covered by the subpoena or order is subject to 21 this Protective Order. Such notification shall include a copy of this Stipulated Protective Order; 22 and 23 24 25 (c) cooperate with respect to all reasonable procedures sought to be pursued by the Designating Party whose Protected Material may be affected. If the Designating Party timely seeks a protective order, the Party served with the 26 subpoena or court order shall not produce any information designated in this action as 27 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” before a 28 determination by the court from which the subpoena or order issued, unless the Party has obtained H OPKINS & C ARLEY ATTO RNEY S AT LAW SAN JO SE 733\1146084.3 - 12 - [PROPOSED] STIPULATED PROTECTIVE ORDER - 5:14-CV-2010-VC 1 the Designating Party’s permission. The Designating Party shall bear the burden and expense of 2 seeking protection in that court of its confidential material – and nothing in these provisions 3 should be construed as authorizing or encouraging a Receiving Party in this action to disobey a 4 lawful directive from another court. 5 9. 6 A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION 7 (a) The terms of this Order are applicable to information produced by a Non-Party in 8 this action and designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – 9 ATTORNEYS’ EYES ONLY.” Such information produced by Non-Parties in connection with 10 this litigation is protected by the remedies and relief provided by this Order. Nothing in these 11 provisions should be construed as prohibiting a Non-Party from seeking additional protections. 12 (b) In the event that a Party is required, by a valid discovery request, to produce a 13 Non-Party’s confidential information in its possession, and the Party is subject to an agreement 14 with the Non-Party not to produce the Non-Party’s confidential information, then the Party shall: 15 1. promptly notify in writing the Requesting Party and the Non-Party that 16 some or all of the information requested is subject to a confidentiality agreement with a Non- 17 Party; 18 2. promptly provide the Non-Party with a copy of the Stipulated Protective 19 Order in this litigation, the relevant discovery request(s), and a reasonably specific description of 20 the information requested; and 21 3. make the information requested available for inspection by the Non-Party. 22 (c) If the Non-Party fails to object or seek a protective order from this court within 14 23 days of receiving the notice and accompanying information, the Receiving Party may produce the 24 Non-Party’s confidential information responsive to the discovery request. If the Non-Party timely 25 seeks a protective order, the Receiving Party shall not produce any information in its possession 26 or control that is subject to the confidentiality agreement with the Non-Party before a 27 determination by the court. Absent a court order to the contrary, the Non-Party shall bear the 28 burden and expense of seeking protection in this court of its Protected Material. H OPKINS & C ARLEY ATTO RNEY S AT LAW SAN JO SE 733\1146084.3 - 13 - [PROPOSED] STIPULATED PROTECTIVE ORDER - 5:14-CV-2010-VC 1 10. 2 UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 3 Material to any person or in any circumstance not authorized under this Stipulated Protective 4 Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the 5 unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the 6 Protected Material, (c) inform the person or persons to whom unauthorized disclosures were 7 made of all the terms of this Order, and (d) request such person or persons to execute the 8 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A. 9 10 11. 11 INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL When a Producing Party gives notice to Receiving Parties that certain inadvertently 12 produced material is subject to a claim of privilege or other protection, the obligations of the 13 Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This 14 provision is not intended to modify whatever procedure may be established in an e-discovery 15 order that provides for production without prior privilege review. Pursuant to Federal Rule of 16 Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a 17 communication or information covered by the attorney-client privilege or work product 18 protection, the parties may incorporate their agreement in the stipulated protective order 19 submitted to the court. 20 12. 21 22 MISCELLANEOUS 12.1. Right to Further Relief. Nothing in this Order abridges the right of any person to seek its modification by the court in the future. 23 12.2. Right to Assert Other Objections. By stipulating to the entry of this Protective 24 Order no Party waives any right it otherwise would have to object to disclosing or producing any 25 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no 26 Party waives any right to object on any ground to use in evidence of any of the material covered 27 by this Protective Order. 28 /// H OPKINS & C ARLEY ATTO RNEY S AT LAW SAN JO SE 733\1146084.3 - 14 - [PROPOSED] STIPULATED PROTECTIVE ORDER - 5:14-CV-2010-VC 1 12.3. Filing Protected Material. Without written permission from the Designating Party 2 or a court order secured after appropriate notice to all interested persons, a Party may not file in 3 the public record in this action any Protected Material. A Party that seeks to file under seal any 4 Protected Material must comply with Civil Local Rule 79-5. Protected Material may only be filed 5 under seal pursuant to a court order authorizing the sealing of the specific Protected Material at 6 issue. Pursuant to Civil Local Rule 79-5, a sealing order will issue only upon a request 7 establishing that the Protected Material at issue is privileged, protectable as a trade secret, or 8 otherwise entitled to protection under the law. If a Receiving Party's request to file Protected 9 Material under seal pursuant to Civil Local Rule 79-5(e) is denied by the court, then the 10 Receiving Party may file the Protected Material in the public record pursuant to Civil Local Rule 11 79-5(e)(2) unless otherwise instructed by the court. 12 13. 13 FINAL DISPOSITION Within 60 days after the final disposition of this action, as defined in paragraph 4, each 14 Receiving Party must return all Protected Material to the Producing Party or destroy such 15 material. As used in this subdivision, “all Protected Material” includes all copies, abstracts, 16 compilations, summaries, and any other format reproducing or capturing any of the Protected 17 Material. Whether the Protected Material is returned or destroyed, the Receiving Party must 18 submit a written certification to the Producing Party (and, if not the same person or entity, to the 19 Designating Party) by the 60-day deadline that (1) identifies (by category, where appropriate) all 20 the Protected Material that was returned or destroyed and (2) affirms that the Receiving Party has 21 not retained any copies, abstracts, compilations, summaries or any other format reproducing or 22 capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled to 23 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, 24 legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work 25 product, and consultant and expert work product, even if such materials contain Protected 26 Material. Any such archival copies that contain or constitute Protected Material remain subject to 27 this Protective Order as set forth in Section 4 (DURATION). 28 H OPKINS & C ARLEY ATTO RNEY S AT LAW SAN JO SE 733\1146084.3 - 15 - [PROPOSED] STIPULATED PROTECTIVE ORDER - 5:14-CV-2010-VC 1 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 2 3 Dated: September 30, 2014 Dated: September 30, 2014 By: By: 4 5 6 7 8 9 10 11 12 13 14 /s/ John V. Picone III John V. Picone III (CA Bar No. 187226) Jennifer S. Coleman (CA Bar No. 213210) Aleksandr Korzh (CA Bar No. 286613) HOPKINS & CARLEY A Law Corporation The Letitia Building 70 S. First Street San Jose, CA 95113 mailing address: P.O. Box 1469 San Jose, CA 95109-1469 Tel: (408) 286-9800 Fax: (408) 998-4790 Email: jpicone@hopkinscarley.com jcoleman@hopkinscarley.com akorzh@hopkinscarley.com /s/ Jessica Stuart Pliner PHILLIPS, SPALLAS & ANGSTADT LLP Todd A. Angstadt – (SBN 166404) Jessica Stuart Pliner – (SBN 261976) 505 Sansome Street, Sixth Floor San Francisco, California 94111 Telephone: (415) 278-9400 Facsimile: (415) 278-9411 tangstadt@psalaw.net jpliner@psalaw.net Attorneys for Defendant, Spot Lighting Supplies, LLC, dba Lighting-spot.com Attorneys for Plaintiff, Photographic Illustrators Corporation 15 16 PURSUANT TO STIPULATION, IT IS SO ORDERED. S RT 22 24 25 26 27 28 H OPKINS & C ARLEY ATTO RNEY S AT LAW SAN JO SE ER H 23 inc J u d ge V 733\1146084.3 - 16 - [PROPOSED] STIPULATED PROTECTIVE ORDER - 5:14-CV-2010-VC e Chha R NIA NO 21 br ia FO 20 _________________________________ [Name of Judge] DERED United States IS SO OR District/Magistrate Judge IT LI October 2, 2014 DATED: ________________________ A 19 RT U O 18 S DISTRICT TE C TA UNIT ED 17 N F D IS T IC T O R C 1 EXHIBIT A 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 5 understand the Stipulated Protective Order that was issued by the United States District Court for 6 the Northern District of California on [date] in the case of ___________ [insert formal name of 7 the case and the number and initials assigned to it by the court]. I agree to comply with and to be 8 bound by all the terms of this Stipulated Protective Order and I understand and acknowledge that 9 failure to so comply could expose me to sanctions and punishment in the nature of contempt. I 10 solemnly promise that I will not disclose in any manner any information or item that is subject to 11 this Stipulated Protective Order to any person or entity except in strict compliance with the 12 provisions of this Order. 13 I further agree to submit to the jurisdiction of the United States District Court for the 14 Northern District of California for the purpose of enforcing the terms of this Stipulated Protective 15 Order, even if such enforcement proceedings occur after termination of this action. 16 I hereby appoint __________________________ [print or type full name] of 17 _______________________________________ [print or type full address and telephone 18 number] as my California agent for service of process in connection with this action or any 19 proceedings related to enforcement of this Stipulated Protective Order. 20 21 Date: _________________________________ 22 City and State where sworn and signed: _________________________________ 23 Printed name: ______________________________ [printed name] 24 25 Signature: __________________________________ [signature] 26 27 28 H OPKINS & C ARLEY ATTO RNEY S AT LAW SAN JO SE 733\1146084.3 - 17 - [PROPOSED] STIPULATED PROTECTIVE ORDER - 5:14-CV-2010-VC

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