Newett v. Leapfrog Enterprises, Inc. et al

Filing 128

STIPULATION AND ORDER re 126 Stipulated Protective Order filed by KBC Asset Management NV. Signed by Judge Edward M. Chen on 4/28/17. (bpf, COURT STAFF) (Filed on 4/28/2017)

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1 ROBBINS GELLER RUDMAN & DOWD LLP 2 SHAWN A. WILLIAMS (213113) WILLOW E. RADCLIFFE (200087) 3 MATTHEW S. MELAMED (260272) Post Montgomery Center 4 One Montgomery Street, Suite 1800 San Francisco, CA 94104 5 Telephone: 415/288-4545 415/288-4534 (fax) 6 7 8 MOTLEY RICE LLC JAMES M. HUGHES (pro hac vice) 9 WILLIAM S. NORTON CHRISTOPHER F. MORIARTY 10 28 Bridgeside Blvd. Mount Pleasant, SC 29464 11 Telephone: 843/216-9000 843/216-9450 (fax) 12 13 14 Co-Lead Counsel for Plaintiffs 15 UNITED STATES DISTRICT COURT 16 NORTHERN DISTRICT OF CALIFORNIA 17 In re LEAPFROG ENTERPRISES, INC. SECURITIES LITIGATION 18 19 This Document Relates To: 20 ALL ACTIONS. 21 22 23 24 25 26 27 28 1258335_1 ) ) ) ) ) ) ) ) ) Master File No. 3:15-cv-00347-EMC CLASS ACTION [PROPOSED] STIPULATED PROTECTIVE ORDER 1 In order to protect the confidentiality of confidential information obtained by the parties in 2 connection with this case, the parties hereby agree as follows: 3 1. Any party may designate as “Confidential” (by stamping the relevant page or as 4 otherwise set forth herein) any document or response to discovery which that party considers in good 5 faith to contain information involving trade secrets or confidential business or financial information 6 subject to protection under the Federal Rules of Civil Procedure or applicable state law 7 (“Confidential Information”). Where a document or response consists of more than one page, the 8 first page and each page on which Confidential Information appears shall be so designated. 9 2. Except as otherwise provided in this Order, or as otherwise stipulated or ordered, 10 material that qualifies for protection under this Order must be clearly designated before the material 11 is disclosed or produced. 12 3. A party may designate information disclosed during a deposition or in response to 13 written discovery as “Confidential” by so indicating in said responses or on the record at the 14 deposition and requesting the preparation of a separate transcript excluding such material, to be paid 15 for by the party requesting preparation of such separate transcript. Additionally, a party may 16 designate in writing, within 21 days after receipt of said responses or of the deposition transcript for 17 which the designation is proposed, that the entire transcript or specific pages of the transcript and/or 18 specific responses be treated as Confidential Information. Any other party may object to such 19 proposal, in writing or on the record. Upon such objection, the parties shall follow the procedures 20 described in Paragraphs 11-12 below. Any transcript that is prepared before the expiration of a 2121 day period for designation shall be treated during that period as if it had been designated 22 “Confidential” in its entirety unless otherwise agreed by the parties. After the expiration of that 23 period, the transcript shall be treated as Confidential only if it is so designated pursuant to this 24 paragraph. After designation is made according to the procedure set forth in this Paragraph, the 25 designated documents or information shall be treated according to the designation until the matter is 26 resolved according to the procedures described in Paragraphs 10-11 below, and counsel for all 27 parties shall be responsible for marking all previously unmarked copies of the designated material in 28 their possession or control with the specified designation. The parties shall request that any 1258335_1 [PROPOSED] STIPULATED PROTECTIVE ORDER - 3:15-cv-00347-EMC -1- 1 transcript containing “Confidential” information shall be designated as such on the title page of the 2 transcript. 3 4. The terms of this Order are applicable to information produced by a non-party in this 4 action and designated as “Confidential.” A party may designate as “Confidential” documents or 5 discovery materials produced by a non-party by providing written notice to all parties of the relevant 6 document numbers or other identification of the documents or discovery materials the party believes 7 are “Confidential” within 30 days after receiving such documents or discovery materials. 8 5. All information produced or exchanged in the course of this case (other than 9 information that is publicly available) as well as: (i) any information copied or extracted from 10 Confidential Information; (ii) all copies, excerpts, summaries, or compilations of Confidential 11 Information; and (iii) any testimony, conversations, or presentations by Parties or their Counsel that 12 tends to reveal Confidential Information shall be subject to the protections conferred by this Order 13 and used by the party or parties to whom the information is produced solely for the purposes of this 14 litigation. The Confidential Information must be stored and maintained by the receiving party at a 15 location and in a secure manner that ensures that access is limited to the persons authorized under 16 this Order. 17 6. Except with the prior written consent of the other parties, or upon prior order of this 18 Court obtained upon notice to opposing counsel, Confidential Information shall not be disclosed to 19 any person other than: 20 (a) counsel for the respective parties to this litigation, including in-house counsel 21 and co-counsel retained for this litigation; 22 (b) employees of such counsel; 23 (c) individual defendants, class representative(s), lead plaintiff(s), or any officer 24 or employee of a party, to the extent deemed necessary by counsel for the prosecution or defense of 25 this litigation; 26 (d) consultants, investigators, outside vendors or expert witnesses retained for the 27 prosecution or defense of this litigation, or members of the purported class, provided that such 28 person shall execute a copy of the Certification annexed to this Order (which shall be retained by 1258335_1 [PROPOSED] STIPULATED PROTECTIVE ORDER - 3:15-cv-00347-EMC -2- 1 counsel to the party disclosing the Confidential Information to the consultant, expert witness or 2 purported class members, and made available for inspection by opposing counsel during the 3 pendency or after the termination of the action only upon good cause shown and upon order of the 4 Court) before being shown or given any Confidential Information; 5 (e) any authors or recipients of the Confidential Information; 6 (f) the Court, Court personnel, and court reporters; 7 (g) persons or entities that provide litigation support services (e.g., photocopying, 8 videotaping, translating, preparing exhibits or demonstrations, and organizing, storing or retrieving 9 data in any form or medium) and their employers and subcontractors; and (h) 10 witnesses (other than persons described in Paragraph 6(e)) who shall sign the 11 Certification annexed to this Order before being shown a confidential document, unless otherwise 12 agreed by the parties or ordered by the Court. “Confidential” information may, however, be 13 disclosed to a witness in a deposition even if he or she does not sign the Certification. At the 14 request of any party, the portion of the deposition transcript involving the Confidential Information 15 shall be designated “Confidential” pursuant to Paragraph 3 above. The use of a document as an 16 exhibit at a deposition shall not in any way affect its designation as “Confidential.” 17 7. Any persons receiving Confidential Information shall not reveal or discuss such 18 information to or with any person who is not entitled to receive such information, except as set forth 19 herein. Unless the Court requires some other method for applications and motions to the Court on 20 which a party submits Confidential Information, all documents and chamber copies containing 21 Confidential Information which are submitted to the Court shall be filed in accordance with Civil 22 Local Rule 79-5. 23 8. As to all documents and information filed under seal, a duplicate disclosing all non- 24 confidential information shall be filed and made part of the public record. The item may be redacted 25 to eliminate Confidential Information from the public document. The public document shall be titled 26 to show that it corresponds to an item filed under seal, e.g., “Redacted Copy of Sealed Declaration of 27 John Smith in Support of Motion for Summary Judgment.” 28 1258335_1 [PROPOSED] STIPULATED PROTECTIVE ORDER - 3:15-cv-00347-EMC -3- 1 9. Filing under seal shall be without prejudice to any party’s right to argue to the Court 2 that such document is not “Confidential” and need not be preserved under seal. 3 10. If a party contends that any material is not entitled to confidential treatment, such 4 party must give written notice to the party or non-party who designated the document or material as 5 “Confidential.” The objecting or challenging party shall identify the information or document(s) in 6 question, and shall specify the reason or reasons for the objection. A party that elects to initiate a 7 challenge to a confidentiality designation must also confer directly (in voice-to-voice dialogue; other 8 forms of communication are not sufficient) with counsel for the designating party. Absent good 9 cause, such as a large number of disputed documents for the parties to analyze, or unless the 10 challenging party and the designating party otherwise agree: (i) the parties shall meet and confer in 11 an effort to resolve their differences within 14 calendar days of the notification by the objecting 12 party; (ii) the designating party shall, within 14 calendar days, review the designated material, 13 reconsider the circumstances, and, if no change in designation is offered, explain the basis for the 14 chosen designation; and (iii) the conclusion of the meet and confer process shall occur no later than 15 28 calendar days after the challenging party has identified the contested documents to the 16 designating party. 17 11. If the parties cannot resolve their disagreement, the challenging party may contest the 18 confidentiality designation by raising the issue with the Court in a joint discovery letter, pursuant to 19 this Court’s Civil Standing Order on Discovery. While any such application is pending, the 20 documents or material subject to that application will remain Confidential Information until the 21 Court rules. 22 12. Nothing in this Order shall be construed as preventing any party from objecting to the 23 designation of any document as Confidential Information or preventing any party from seeking 24 further protection for any Confidential Information it produces in discovery. A party does not waive 25 its right to challenge a confidentiality designation by electing not to mount a challenge promptly 26 after the original designation is disclosed. 27 13. If a party learns that, by inadvertence or otherwise, it has disclosed Confidential 28 Information to any person or in any circumstance not authorized under this Order, the party must 1258335_1 [PROPOSED] STIPULATED PROTECTIVE ORDER - 3:15-cv-00347-EMC -4- 1 immediately: (i) notify in writing the designating party of the unauthorized disclosures; (ii) use its 2 best efforts to retrieve all copies of the Confidential Information; and (iii) inform the person or 3 persons to whom unauthorized disclosures were made of all the terms of this Order. If material is 4 appropriately designated as “Confidential” after the material was initially produced, the receiving 5 party, on timely written notification of the designation, must make reasonable efforts to assure that 6 the documents or material is treated in accordance with the provisions of this Order. 7 14. In the event that privileged or otherwise protected information is inadvertently 8 produced, the parties will comply with Federal Rule of Civil Procedure 26(b)(5)(B). 9 15. Any non-party to this agreement from whom discovery is sought has the same rights 10 under this agreement as a party to this agreement. Nothing in these provisions should be construed 11 as prohibiting a non-party from seeking additional protections. 12 16. If a party is served with a subpoena or an order issued in other litigation that would 13 compel disclosure of any information or items designated in this action as “Confidential,” the party 14 must so notify the designating party (by e-mail or fax if possible) immediately and in no event more 15 than 3 court days after receiving the subpoena or order. Such notification must include a copy of the 16 subpoena or court order. The party also must inform in writing the party who caused the subpoena 17 or order to issue in the other litigation that some or all the material covered by the subpoena or order 18 to issue is the subject of this Order. In addition, the party must deliver a copy of this Order promptly 19 to the party in the other action that caused the subpoena or order to issue. The purpose of imposing 20 these duties is to alert the interested parties to the existence of this Order and to afford the 21 designating party in this case an opportunity to try to protect its confidentiality interests in the court 22 from which the subpoena or order issued. The designating party shall bear the burdens and the 23 expenses of seeking protection of its confidential material – and nothing in these provisions should 24 be construed as authorizing or encouraging a party in this action to disobey a lawful directive from 25 another court. 26 17. This Order shall apply for pretrial purposes only. The parties acknowledge that this 27 Order does not confer blanket protections on all disclosures or responses to discovery and that the 28 protection it affords from public disclosure and use extends only to the limited information or items 1258335_1 [PROPOSED] STIPULATED PROTECTIVE ORDER - 3:15-cv-00347-EMC -5- 1 that are entitled under the applicable legal principles to treatment as confidential and only to 2 proceedings occurring before trial commences in this action. Any use of Confidential Information at 3 trial shall be governed by a separate agreement and/or order. 4 18. All provisions of this Order restricting the communication or use of Confidential 5 Information shall continue to be binding after the conclusion of this action, unless otherwise agreed 6 or ordered. Upon conclusion of the litigation, i.e., the final disposition of all issues and/or claims a 7 party in the possession of Confidential Information, other than that which is work product or 8 contained in the pleadings, correspondence and deposition transcripts, shall within 60 days either: 9 (a) return such document(s) to counsel for the party or non-party who provided such information; or 10 (b) destroy such document(s). Final disposition shall be deemed to be the later of: (i) dismissal of all 11 claims and defenses in this action, with or without prejudice; and (ii) final judgment herein after the 12 completion and exhaustion of all appeals, rehearings, remands, trials or reviews of this action, 13 including the time limits for filing any motions or applications for extension of time pursuant to 14 applicable law. The decision to comply with either (a) or (b) above is at the discretion of the 15 receiving party. The receiving party may also retain sufficient documentation to comply with 16 applicable ethics rules concerning the retention of client files. 17 19. By stipulating to the entry of this Order no party waives any right it otherwise would 18 have to object to disclosing or producing any information or item on any ground not addressed in 19 this Order. Similarly, no party waives any right to object on any ground to use in evidence of any of 20 the material covered by this Order. 21 IT IS SO STIPULATED THROUGH COUNSEL OF RECORD. 22 DATED: April 24, 2017 23 24 ROBBINS GELLER RUDMAN & DOWD LLP SHAWN A. WILLIAMS WILLOW E. RADCLIFFE MATTHEW S. MELAMED 25 26 s/ Willow E. Radcliffe WILLOW E. RADCLIFFE 27 28 1258335_1 [PROPOSED] STIPULATED PROTECTIVE ORDER - 3:15-cv-00347-EMC -6- 1 Post Montgomery Center One Montgomery Street, Suite 1800 San Francisco, CA 94104 Telephone: 415/288-4545 415/288-4534 (fax) 2 3 4 8 MOTLEY RICE LLC JAMES M. HUGHES WILLIAM S. NORTON CHRISTOPHER F. MORIARTY 28 Bridgeside Blvd. Mount Pleasant, SC 29464 Telephone: 843/216-9000 843/216-9450 (fax) 9 Co-Lead Counsel for Plaintiffs 5 6 7 10 11 12 DATED: April 24, 2017 MORRISON & FOERSTER LLP JORDAN ETH MARK R.S. FOSTER RYAN M. KEATS 13 14 15 s/ Mark R.S. Foster MARK R.S. FOSTER 17 425 Market Street San Francisco, CA 94105-2482 Telephone: 415/268-7000 415/268-7522 (fax) 18 Attorneys for Defendants 16 19 20 21 22 23 24 25 26 27 28 1258335_1 [PROPOSED] STIPULATED PROTECTIVE ORDER - 3:15-cv-00347-EMC -7- 1 I, Willow E. Radcliffe, am the ECF User whose ID and password are being used to file this 2 [Proposed] Stipulated Protective Order. In compliance with Civil Local Rule 5-1(i)(3), I hereby 3 attest that Mark R.S. Foster has concurred in this filing. 4 5 s/ Willow E. Radcliffe WILLOW E. RADCLIFFE 6 7 R NIA S UNIT ED LI ER A H 14 THE HONORABLE EDWARD M. CHEN UNITED STATES DISTRICT JUDGE n Che ard M. dge Edw Ju RT 13 4/28/17 DATED: _________________________ DERED SO OR ____________________________________ IT IS NO 12 IT IS SO ORDERED. S DISTRICT TE C TA RT U O 11 * ORDER 9 10 * FO * 8 N 15 D IS T IC T R OF C 16 17 18 19 20 21 22 23 24 25 26 27 28 1258335_1 [PROPOSED] STIPULATED PROTECTIVE ORDER - 3:15-cv-00347-EMC -8- 1 EXHIBIT A 2 CERTIFICATION 3 4 I hereby certify my understanding that Confidential Information is being provided to me 5 pursuant to the terms and restrictions of the Stipulated Protective Order dated 6 ___________________, in In re LeapFrog Enterprises, Inc., Sec. Litig., Case No. 3:15-cv-003477 EMC (N.D. Cal.). I have been given a copy of that Order and read it. I am familiar with the terms 8 of the Protective Order and I agree to be bound by such terms. I will not reveal the Confidential 9 Information to anyone, except as allowed by the Order. I will maintain all such Confidential 10 Information – including copies, notes, or other transcriptions made there from – in a secure manner 11 to prevent unauthorized access to it. I hereby consent to the jurisdiction of the United States District 12 Court for the Northern District of California for the purpose of enforcing the Protective Order. 13 14 DATED:_____________________ 15 _____________________________ Name 16 17 18 19 20 21 22 23 24 25 26 27 28 1258335_1 [PROPOSED] STIPULATED PROTECTIVE ORDER - 3:15-cv-00347-EMC -9- 1 2 CERTIFICATE OF SERVICE I hereby certify that on April 24, 2017, I authorized the electronic filing of the foregoing with 3 the Clerk of the Court using the CM/ECF system which will send notification of such filing to the 4 e-mail addresses denoted on the attached Electronic Mail Notice List, and I hereby certify that I 5 caused to be mailed the foregoing document or paper via the United States Postal Service to the non6 CM/ECF participants indicated on the attached Manual Notice List. 7 I certify under penalty of perjury under the laws of the United States of America that the 8 foregoing is true and correct. Executed on April 24, 2017. 9 s/ Willow E. Radcliffe WILLOW E. RADCLIFFE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1258335_1 ROBBINS GELLER RUDMAN & DOWD LLP Post Montgomery Center One Montgomery Street, Suite 1800 San Francisco, CA 94104 Telephone: 415/288-4545 415/288-4534 (fax) E-mail:

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