Hunter Douglas Inc. et al v. Ching Feng Home Fashions Co., Ltd.

Filing 68

STIPULATION AND ORDER RE 65 Protective Order for Litigation Involving Patents, Highly Sensitive Confidential Information and/or Trade Secrets. Signed by Judge Richard Seeborg on 6/12/17. (cl, COURT STAFF) (Filed on 6/13/2017)

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[COMPLETE LIST OF COUNSEL
IDENTIFIED ON SIGNATURE PAGES]

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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HUNTER DOUGLAS, INC. and
ANDREW J. TOTI TESTAMENTARY
TRUST,

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Plaintiffs,

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v.
CHING FENG HOME FASHIONS CO.,
LTD.,

CASE NO. 3:17-CV-01069-RS
STIPULATED [PROPOSED]
PROTECTIVE ORDER FOR
LITIGATION INVOLVING PATENTS,
HIGHLY SENSITIVE CONFIDENTIAL
INFORMATION AND/OR TRADE
SECRETS

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Defendant.
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STIPULATED [PROPOSED] PROTECTIVE ORDER FOR LITIGATION INVOLVING
PATENTS, HIGHLY SENSITIVE CONFIDENTIAL INFORMATION AND/OR TRADE
SECRETS
CASE NO. 3:17-CV-01069-RS

WHEREAS, Hunter Douglas, Inc. and the Andrew J. Toti Testamentary Trust

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(collectively, “Plaintiffs”), and Ching Feng Home Fashions Co., Ltd. (“Ching Feng”), have

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stipulated to certain modifications to the Court’s Stipulated Protective Order for Litigation

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Involving Patents, Highly Sensitive Confidential Information and/or Trade Secrets, and for good

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cause shown and upon the stipulation of the parties, the Court ORDERS as follows:

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1.

PURPOSES AND LIMITATIONS

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

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

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

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Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulated

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

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

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

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under the applicable legal principles. The parties further acknowledge, as set forth in Section 12.3,

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below, that this Stipulated Protective Order does not entitle them to file confidential information

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under seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and the standards

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

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2.

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DEFINITIONS
2.1.

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

information or items under this Order.
2.2.

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

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

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of Civil Procedure 26(c).

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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

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produces in disclosures or in responses to discovery as “CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”
STIPULATED [PROPOSED] PROTECTIVE ORDER FOR LITIGATION INVOLVING
PATENTS, HIGHLY SENSITIVE CONFIDENTIAL INFORMATION AND/OR TRADE
SECRETS
CASE NO. 3:17-CV-01069-RS

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2.5.

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

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

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testimony, transcripts, and tangible things), that are produced or generated in disclosures or

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responses to discovery in this matter.

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2.6.

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

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

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

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

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of a Party’s competitor.

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2.7.

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or

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

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

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less restrictive means.

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2.8.

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

Counsel does not include Outside Counsel of Record or any other outside counsel.
2.9.

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

entity not named as a Party to this action.
2.10.

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

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

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

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2.11.

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

consultants, retained experts, and Outside Counsel of Record (and their support staffs).
2.12.

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

Material in this action.
2.13.

Professional Vendors: persons or entities that provide litigation support services

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

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

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subcontractors.
STIPULATED [PROPOSED] PROTECTIVE ORDER FOR LITIGATION INVOLVING
PATENTS, HIGHLY SENSITIVE CONFIDENTIAL INFORMATION AND/OR TRADE
SECRETS
CASE NO. 3:17-CV-01069-RS

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2.14.

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

“CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”
2.15.

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

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Producing Party.

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3.

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

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(as defined above), but also (1) any information copied or extracted from Protected Material; (2)

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

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

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

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information: (a) any information that is in the public domain at the time of disclosure to a

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

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result of publication not involving a violation of this Order, including becoming part of the public

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record through trial or otherwise; and (b) any information known to the Receiving Party prior to

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

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the information lawfully and under no obligation of confidentiality to the Designating Party. Any

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use of Protected Material at trial shall be governed by a separate agreement or order.

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4.

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

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

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

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and defenses in this action, with or without prejudice; and (2) final judgment herein after the

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

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

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applicable law.

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5.

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DESIGNATING PROTECTED MATERIAL
5.1.

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

or Non-Party that designates information or items for protection under this Order must take care to
STIPULATED [PROPOSED] PROTECTIVE ORDER FOR LITIGATION INVOLVING
PATENTS, HIGHLY SENSITIVE CONFIDENTIAL INFORMATION AND/OR TRADE
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limit any such designation to specific material that qualifies under the appropriate standards. To

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the extent it is practical to do so, the Designating Party must designate for protection only those

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

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portions of the material, documents, items, or communications for which protection is not

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

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

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

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

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

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

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

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

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withdrawing the mistaken designation.

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5.2.

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

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

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

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designated before the material is disclosed or produced.

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Designation in conformity with this Order requires:
(a)

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

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

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Party affix the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’

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EYES ONLY” to each page that contains protected material. If only a portion or portions of the

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material on a page qualifies for protection, the Producing Party also must clearly identify the

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

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each portion, the level of protection being asserted.

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

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

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it would like copied and produced. During the inspection and before the designation, all of the
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material made available for inspection shall be deemed “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY.” After the inspecting Party has identified the documents it wants

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copied and produced, the Producing Party must determine which documents, or portions thereof,

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

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

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY”) to each page that contains Protected

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

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

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

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(b)

for testimony given in deposition or in other pretrial or trial proceedings,

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

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

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

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appears that substantial portions of the testimony may qualify for protection, the Designating Party

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may invoke on the record (before the deposition, hearing, or other proceeding is concluded) a right

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to have up to 21 days to identify the specific portions of the testimony as to which protection is

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sought and to specify the level of protection being asserted. Only those portions of the testimony

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that are appropriately designated for protection within the 21 days shall be covered by the

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provisions of this Stipulated Protective Order. Alternatively, a Designating Party may specify, at

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

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

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ATTORNEYS’ EYES ONLY.”

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

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

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

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

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

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– ATTORNEYS’ EYES ONLY.”
STIPULATED [PROPOSED] PROTECTIVE ORDER FOR LITIGATION INVOLVING
PATENTS, HIGHLY SENSITIVE CONFIDENTIAL INFORMATION AND/OR TRADE
SECRETS
CASE NO. 3:17-CV-01069-RS

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

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

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

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the level of protection being asserted by the Designating Party. The Designating Party shall inform

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the court reporter of these requirements. Any transcript that is prepared before the expiration of a

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

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its entirety unless otherwise

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agreed. After the expiration of that period, the transcript shall be treated only as actually

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designated.
(c)

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for information produced in some form other than documentary and for any

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

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container or containers in which the information or item is stored the legend “CONFIDENTIAL”

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or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” If only a portion or portions of

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

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identify the protected portion(s) and specify the level of protection being asserted.
5.3.

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

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

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right to secure protection under this Order for such material. Upon timely correction of a

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

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in accordance with the provisions of this Order.

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6.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1.

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

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

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

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

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

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original designation is disclosed.

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6.2.

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

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

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challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must

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recite that the challenge to confidentiality is being made in accordance with this specific Section of

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

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begin the process by conferring directly (in voice to voice dialogue; other forms of communication

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are not sufficient) within 14 days of the date of service of notice. In conferring, the Challenging

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Party must explain the basis for its belief that the confidentiality designation was not proper and

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must give the Designating Party an opportunity to review the designated material, to reconsider the

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

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designation. A Challenging Party may proceed to the next stage of the challenge process only if it

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has engaged in this meet and confer process first or establishes that the Designating Party is

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unwilling to participate in the meet and confer process in a timely manner.

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6.3.

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

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

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Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) within 21 days of

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

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

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

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

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

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shall automatically waive the confidentiality designation for each challenged designation. In

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addition, the Challenging Party may file a motion challenging a confidentiality designation at any

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

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transcript or any portions thereof. Any motion brought pursuant to this provision must be

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

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and confer requirements imposed by the preceding Section.

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

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Party. Frivolous challenges and those made for an improper purpose (e.g., to harass or impose
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unnecessary expenses and burdens on other parties) may expose the Challenging Party to

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

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

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

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designation until the court rules on the challenge.

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7.

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ACCESS TO AND USE OF PROTECTED MATERIAL
7.1.

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

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

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

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the categories of persons and under the conditions described in this Order. When the litigation has

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been terminated, a Receiving Party must comply with the provisions of Section 13 below (FINAL

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DISPOSITION).

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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

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

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information or item designated “CONFIDENTIAL” only to:

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(a)

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

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

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information for this litigation;

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(b)

No more than three (3) officers, directors, and employees (including House

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

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

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(c)

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

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

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and Agreement to Be Bound” (Exhibit A);

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(d)

the court and its personnel;

(e)

court reporters and their staff, outside mediators, professional jury or trial

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consultants and mock jurors used by the same, and Professional Vendors to whom disclosure is

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

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Agreement to Be Bound” (Exhibit A);
(f)

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during their depositions, witnesses in the action to whom disclosure is

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

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

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transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be

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separately bound by the court reporter and may not be disclosed to anyone except as permitted

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under this Stipulated Protective Order.
(g)

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the author or recipient of a document containing the information or a

custodian or other person who otherwise possessed or knew the information.
7.3.

Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

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Information or Items. Unless otherwise ordered by the court or permitted in writing by the

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Designating Party, a Receiving Party may disclose any information or item designated “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to:
(a)

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

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

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information for this litigation;
(b)

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

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

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

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been followed;

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(c)

the court and its personnel;

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(d)

court reporters and their staff, outside mediators, professional jury or trial

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consultants and mock jurors used by the same, and Professional Vendors to whom disclosure is

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

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Agreement to Be Bound” (Exhibit A); and

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(e)

the author or recipient of a document containing the information or a

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

Procedures for Approving or Objecting to Disclosure of “HIGHLY

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items to Experts.
(a)

Unless otherwise ordered by the court or agreed to in writing by the

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Designating Party, a Party that seeks to disclose to an Expert (as defined in this Order) any

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information or item that has been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’

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

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Party that (1) identifies the general categories of “HIGHLY CONFIDENTIAL – ATTORNEYS’

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EYES ONLY” information that the Receiving Party seeks permission to disclose to the Expert, (2)

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sets forth the full name of the Expert and the city and state of his or her primary residence, (3)

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attaches a copy of the Expert’s current resume, (4) identifies the Expert’s current employer(s), (5)

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identifies each person or entity from whom the Expert has received compensation or funding for

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work in his or her areas of expertise or to whom the expert has provided professional services,

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including in connection with a litigation, at any time during the preceding five years, and (6)

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identifies (by name and number of the case, filing date, and location of court) any litigation in

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connection with which the Expert has offered expert testimony, including through a declaration,

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report, or testimony at a deposition or trial, during the preceding five years.

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(b)

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

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preceding respective Section may disclose the subject Protected Material to the identified Expert

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unless, within seven days of delivering the request, the Party receives a written objection from the

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Designating Party. Any such objection must set forth in detail the grounds on which it is based.

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(c)

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

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the Designating Party (through direct voice to voice dialogue) to try to resolve the matter by

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agreement within seven days of the written objection. If no agreement is reached, the Party

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seeking to make the disclosure to the Expert may file a motion as provided in Civil Local Rule 7

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(and in compliance with Civil Local Rule 79-5, if applicable) seeking permission from the court to

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

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reasons why the disclosure to the Expert is reasonably necessary, assess the risk of harm that the
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disclosure would entail, and suggest any additional means that could be used to reduce that risk. In

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addition, any such motion must be accompanied by a competent declaration describing the parties’

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efforts to resolve the matter by agreement (i.e., the extent and the content of the meet and confer

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discussions) and setting forth the reasons advanced by the Designating Party for its refusal to

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approve the disclosure.

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In any such proceeding, the Party opposing disclosure to the Expert shall bear the burden

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of proving that the risk of harm that the disclosure would entail (under the safeguards proposed)

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outweighs the Receiving Party’s need to disclose the Protected Material to its Expert.

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8.

PROSECUTION BAR
Absent written consent from the Producing Party, any individual who receives access to

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information shall not be involved

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in the prosecution of patents or patent applications relating to the technology claimed in the

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patents asserted in this action and any patent or application claiming priority to or otherwise

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related to the patents asserted in this action, before any foreign or domestic agency, including the

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United States Patent and Trademark Office (“the Patent Office”). For purposes of this paragraph,

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“prosecution” includes directly or indirectly drafting, amending, advising, or otherwise affecting

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the scope or maintenance of patent claims. To avoid any doubt, “prosecution” as used in this

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paragraph does not include representing a party challenging a patent before a domestic or foreign

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agency (including, but not limited to, a reissue protest, ex parte reexamination or inter partes

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reexamination). This Prosecution Bar shall begin when access to “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY” information is first received by the affected individual and shall

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end two years after final termination of this action.

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9.

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LITIGATION

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PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER

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

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

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” that Party must:

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(a)

promptly notify in writing the Designating Party. Such notification shall

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

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promptly notify in writing the party who caused the subpoena or order to

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

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

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Order; and
(c)

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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 subpoena

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

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or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” before a determination by the

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court from which the subpoena or order issued, unless the Party has obtained the Designating

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Party’s permission. The Designating Party shall bear the burden and expense of seeking protection

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in that court of its confidential material – and nothing in these provisions should be construed as

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authorizing or encouraging a Receiving Party in this action to disobey a lawful directive from

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another court.

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10.

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LITIGATION

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

(a)

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

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Party in this action and designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY.” Such information produced by Non-Parties in connection with

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

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

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

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

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with the Non-Party not to produce the Non-Party’s confidential information, then the Party shall:
1.

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promptly notify in writing the Requesting Party and the Non-Party

that some or all of the information requested is subject to a confidentiality agreement with a NonParty;
STIPULATED [PROPOSED] PROTECTIVE ORDER FOR LITIGATION INVOLVING
PATENTS, HIGHLY SENSITIVE CONFIDENTIAL INFORMATION AND/OR TRADE
SECRETS
CASE NO. 3:17-CV-01069-RS

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2.

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

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

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description of the information requested; and
3.

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make the information requested available for inspection by the Non-

Party.
(c)

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

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

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

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Party timely seeks a protective order, the Receiving Party shall not produce any information in its

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possession or control that is subject to the confidentiality agreement with the Non-Party before a

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

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

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11.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected

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

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

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

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Material, (c) inform the person or persons to whom unauthorized disclosures were made of all the

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

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

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12.

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MATERIAL

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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED

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

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

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

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inadvertent production will not constitute a waiver of said privilege or other protection. This

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

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that provides for production without prior privilege review pursuant to Federal Rule of Evidence
STIPULATED [PROPOSED] PROTECTIVE ORDER FOR LITIGATION INVOLVING
PATENTS, HIGHLY SENSITIVE CONFIDENTIAL INFORMATION AND/OR TRADE
SECRETS
CASE NO. 3:17-CV-01069-RS

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502(d) and (e).

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13.

12.1.

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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.

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

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

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information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no

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Party waives any right to object on any ground to use in evidence of any of the material covered

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by this Protective Order.
12.3.

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Filing Protected Material. Without written permission from the Designating Party

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

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

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Protected Material must comply with Civil Local Rule 79-5. Protected Material may only be filed

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

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issue. Pursuant to Civil Local Rule 79-5, a sealing order will issue only upon a request

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

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otherwise entitled to protection under the law. If a Receiving Party's request to file Protected

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Material under seal pursuant to Civil Local Rule 79-5(e) is denied by the court, then the Receiving

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Party may file the Protected Material in the public record pursuant to Civil Local Rule 79-5(e)(2)

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unless otherwise instructed by the court.

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14.

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FINAL DISPOSITION
After the final disposition of this action, as defined in Section 4, and within 60 days of

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written request by the disclosing party, each Receiving Party must return all Protected Material to

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

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includes all copies, abstracts, compilations, summaries, and any other format reproducing or

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capturing any of the Protected Material. Whether the Protected Material is returned or destroyed,

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the Receiving Party must submit a written certification to the Producing Party (and, if not the same

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person or entity, to the Designating Party) by the 60-day deadline that (1) identifies (by category,
STIPULATED [PROPOSED] PROTECTIVE ORDER FOR LITIGATION INVOLVING
PATENTS, HIGHLY SENSITIVE CONFIDENTIAL INFORMATION AND/OR TRADE
SECRETS
CASE NO. 3:17-CV-01069-RS

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1

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

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

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

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

5

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

6

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

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

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

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STIPULATED [PROPOSED] PROTECTIVE ORDER FOR LITIGATION INVOLVING
PATENTS, HIGHLY SENSITIVE CONFIDENTIAL INFORMATION AND/OR TRADE
SECRETS
CASE NO. 3:17-CV-01069-RS

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1

EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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

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_________________________________ [print or type full address], declare under penalty of perjury that I

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have read in its entirety and understand the Stipulated Protective Order that was issued by the United States

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District Court for the Northern District of California on ___________ [date] in the case of Hunter Douglas

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Inc., et al., v. Ching Feng Home Fashions Co., Ltd., Case No. 3:17-CV-01069-RS. I agree to comply with

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and to be bound by all the terms of this Stipulated Protective Order and I understand and acknowledge that

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failure to so comply could expose me to sanctions and punishment in the nature of contempt. I solemnly

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

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Protective Order to any person or entity except in strict compliance with the provisions of this Order.

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I further agree to submit to the jurisdiction of the United States District Court for the

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Northern District of California for the purpose of enforcing the terms of this Stipulated Protective Order,

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even if such enforcement proceedings occur after termination of this action.

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I hereby appoint __________________________ [print or type full name] of

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_______________________________________ [print or type full address and telephone number] as my

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California agent for service of process in connection with this action or any proceedings related to

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enforcement of this Stipulated Protective Order.

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Date: _________________________________

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City and State where sworn and signed: _________________________________

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Printed name: ______________________________
[printed name]

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Signature: __________________________________

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STIPULATED [PROPOSED] PROTECTIVE ORDER FOR LITIGATION INVOLVING
PATENTS, HIGHLY SENSITIVE CONFIDENTIAL INFORMATION AND/OR TRADE
SECRETS
CASE NO. 3:17-CV-01069-RS

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IT IS SO STIPULATED, through Counsel of Record.

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DATED: June 8, 2017

Respectfully submitted,
KILPATRICK TOWNSEND & STOCKTON LLP
By: s/ Frederick L. Whitmer
KILPATRICK TOWNSEND & STOCKTON LLP
Frederick L. Whitmer, pro hac vice
1114 Avenue of the Americas
New York, NY 10036
Email: [e-mail]
Telephone: [phone]
Facsimile: [phone]
Matthew C. Holohan, (SBN 239040)
Kent T. Dallow, pro hac vice
1400 Wewatta Street
Denver, CO 80202
Email: [e-mail]
[e-mail]
Telephone:
[phone]
Facsimile:
[phone]
A. James Isbester (SBN 129820)
Two Embarcadero Center, Suite 1900
San Francisco, CA 94111
Email: [e-mail]
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Plaintiffs Hunter Douglas Inc. and Andrew J. Toti
Testamentary Trust

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STIPULATED [PROPOSED] PROTECTIVE ORDER FOR LITIGATION INVOLVING
PATENTS, HIGHLY SENSITIVE CONFIDENTIAL INFORMATION AND/OR TRADE
SECRETS
CASE NO. 3:17-CV-01069-RS

17

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Dated:

June 8, 2017

K&L GATES LLP
By: /s/ Peter E. Soskin (with permission)
Harold H. Davis, Jr.
Jas S. Dhillon
Rachel E. Burnim
Peter E. Soskin
K&L GATES LLP
4 Embarcadero Center, Suite 1200
San Francisco, California 94111
Tel: [phone]
Fax: [phone]
Jay C. Chiu (SBN 205385)
[e-mail]
K&L GATES LLP
1 Park Plaza
Twelfth Floor
Irvine, CA 92614
Tel: [phone]
Fax: [phone]
Attorneys for Defendant Ching Feng Home Fashions Co.,
Ltd.

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STIPULATED [PROPOSED] PROTECTIVE ORDER FOR LITIGATION INVOLVING
PATENTS, HIGHLY SENSITIVE CONFIDENTIAL INFORMATION AND/OR TRADE
SECRETS
CASE NO. 3:17-CV-01069-RS

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PURSUANT TO STIPULATION, IT IS ORDERED that the forgoing Order is
approved.

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Dated: 6/12/17
UNITED STATES DISTRICT/MAGISTRATE JUDGE

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12687919V.4

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STIPULATED [PROPOSED] PROTECTIVE ORDER FOR LITIGATION INVOLVING
PATENTS, HIGHLY SENSITIVE CONFIDENTIAL INFORMATION AND/OR TRADE
SECRETS
CASE NO. 3:17-CV-01069-RS

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