Pimental v. Google, Inc. et al
Filing
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[MODIFIED] STIPULATED PROTECTIVE ORDER re 62 . Signed by Judge Yvonne Gonzalez Rogers on 3/27/12. (fs, COURT STAFF) (Filed on 3/27/2012)
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PERKINS COIE LLP
BOBBIE J. WILSON (Bar No. 148317)
JOSHUA A. REITEN (Bar No. 238985)
Four Embarcadero Center, Suite 2400
San Francisco, CA 94111-4131
Telephone: (415) 344-7000
Facsimile: (415) 344-7050
E-mail:
bwilson@perkinscoie.com
DEBRA R. BERNARD (Pro hac vice)
131 S. Dearborn St. Suite 1700
Chicago, Il 60603
Telephone: (312) 324-8559
Facsimile: (312) 324-9559
E-mail:
dbernard@perkinscoie.com
Attorneys for Defendants
GOOGLE INC. and SLIDE, INC.
[Additional Counsel on Signature Page]
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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OAKLAND DIVISION
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NICOLE PIMENTAL and JESSICA
FRANKLIN, individually and on behalf of
all others similarly situated,
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Plaintiffs,
v.
GOOGLE INC., a Delaware corporation,
and SLIDE, INC., a Delaware corporation,
Defendants.
This Document Relates to All Actions.
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[MODIFIED] STIPULATED PROTECTIVE ORDER
Case No. 11-cv-02585-YGR
Case No. 11-cv-02585-YGR
[MODIFIED] STIPULATED PROTECTIVE
ORDER FOR THE TREATMENT OF
CONFIDENTIAL MATERIAL
To expedite the production of discovery material, to facilitate the prompt resolution of
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disputes over confidentiality of discovery material, to adequately protect information the parties
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are entitled to keep confidential, to ensure that only the materials the parties are entitled to keep
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confidential are subject to such treatment, and to ensure that the parties are permitted reasonably
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necessary uses of confidential discovery material in preparation for and in the conduct of this
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litigation, pursuant to Fed. R. Civ. P. 26(c), it is hereby ORDERED THAT:
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I.
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INFORMATION SUBJECT TO THIS ORDER
A.
Protected Information Generally
1.
All documents, tangible things, physical objects, written discovery
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responses, testimony, or other information produced by the producing party in this litigation is
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considered “Discovery Material.” This Order applies not only to Discovery Material produced in
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this litigation, but also to any information copied or extracted therefrom or otherwise reflecting
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Protected Information, in any form. Any Discovery Material containing or including confidential
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information may be designated as such by the producing party by marking it “CONFIDENTIAL”
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or “CONFIDENTIAL – OUTSIDE COUNSEL ONLY” prior to or at the time copies are
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furnished to the receiving party, and shall be treated in accordance with the terms of this
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Order. Each of the identified categories of confidential Discovery Material shall be identified
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collectively in this Order as “Protected Information.”
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2.
All Protected Information not reduced to documentary, tangible or physical
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form, or which cannot be conveniently designated as set forth in paragraph I.A.1 or pursuant to
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another confidentiality designation set forth in this Order, shall be designated by the producing
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party by informing the receiving party of the designation in writing.
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3.
Any Discovery Material (including physical objects and tangible things)
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made available for inspection by counsel for the receiving party prior to producing copies of items
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selected by the receiving party shall initially be considered, as a whole, to constitute Protected
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Information (unless otherwise designated at the time of inspection) and shall be subject to this
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Order. Thereafter, the producing party shall have a reasonable time to review and designate the
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appropriate documents as CONFIDENTIAL or CONFIDENTIAL – OUTSIDE COUNSEL
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ONLY prior to furnishing copies to the receiving party.
4.
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Any Protected Information that is obtained by any party from any person
pursuant to discovery in this litigation shall be used solely for purposes of this litigation.
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5.
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its own Protected Information.
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6.
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Any Discovery Material that is or, after its disclosure to a receiving
party, becomes part of the public domain as a result of publication not involving a violation of this
Order or other obligation to maintain the confidentiality of such material;
b.
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The following Discovery Material is not Protected Information:
a.
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Nothing in this Order shall limit any producing party’s use or disclosure of
Any Discovery Material that the receiving party can show was
already publicly known prior to the disclosure; and,
c.
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Any Discovery Material that the receiving party can show by
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written records was received by it from an alternate source that obtained the material lawfully and
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under no obligation of confidentiality to the producing party.
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B.
Protected Information Designated Confidential
1.
For purposes of this Order, Protected Information designated
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CONFIDENTIAL shall mean all Discovery Material produced for or disclosed in connection with
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this action to a receiving party that constitutes confidential or commercially sensitive technical,
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sales, marketing, personal, or financial information of the producing party (including any party to
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this action and any non-party producing information or material voluntarily or pursuant to a
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subpoena or a court order in connection with this action), or information that the producing party
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is under a legal obligation to maintain as confidential, whether embodied in documentary, tangible
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or physical form, or the factual knowledge of persons, and which has been so designated by the
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producing party.
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2.
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therein shall be available only to:
Protected Information designated CONFIDENTIAL and the contents
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a.
Outside litigation counsel of record and supporting personnel employed in
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the law firm(s) of outside litigation counsel of record, such as attorneys, paralegals, legal
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translators, legal secretaries, law clerks, project managers and litigation support personnel;
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b.
Up to two in-house counsel of any party with responsibility for managing
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this litigation, who are members of at least one state bar in good standing, and supporting
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personnel employed by the legal department of any party to this litigation;
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c.
Technical advisers and their necessary support personnel engaged by
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counsel of record for the parties, subject to the provisions of section III herein, and provided that
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such individuals have first been given a copy of this Order and have executed the Confidentiality
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Agreement attached hereto as Attachment A. The term “technical adviser” shall mean
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independent outside technical expert witnesses, consulting experts, or technical consultants (i.e.,
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not employees of a party) retained by counsel of record for the parties who are deemed reasonably
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necessary to assist such counsel in connection with this litigation;
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d.
Independent contractors engaged by counsel of record for the parties, to the
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extent reasonably necessary to assist such counsel in connection with this litigation, including but
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not limited to (i) legal translators retained to translate in connection with this action; (ii)
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independent stenographic reporters and videographers retained to record and transcribe testimony
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in connection with this action; (iii) graphics or design services retained by counsel for purposes of
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preparing demonstrative or other exhibits for deposition, trial, or other court proceedings in the
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actions; (iv) non-technical jury or trial consulting services, including mock jurors; (v) electronic
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discovery vendors retained to assist with the organization and management of electronic
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discovery; and (vi) private investigators, provided that such persons or entities have first been
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given a copy of this Order and have executed the Confidentiality Agreement attached hereto as
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Attachment A, and a signed copy has been provided to the producing party;
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e.
Any fact witness during the course of a deposition subject to the provisions
of section V herein; and
f.
The Court, its personnel, and any other person (such as a master or
mediator) who serves in a judicial or quasi-judicial function, professional stenographic reporters
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engaged to transcribe testimony (under seal or with other suitable precautions determined by the
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Court), and jurors.
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C.
Information Designated Confidential – Outside Counsel Only
1.
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For purposes of this Order, Protected Information designated
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CONFIDENTIAL – OUTSIDE COUNSEL ONLY shall mean Protected Information that contains
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extremely sensitive information, the disclosure of which to another party would create a risk of
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competitive injury that could not be avoided by less restrictive means. Protected Information
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designated CONFIDENTIAL – OUTSIDE COUNSEL ONLY includes, but is not limited to: (i)
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marketing, financial, sales, web traffic, research and development, or technical, data or
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information; (ii) commercially sensitive competitive information, including, without limitation,
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information obtained from a nonparty pursuant to a current Nondisclosure Agreement (“NDA”);
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(iii) information or data relating to future products not yet commercially released and/or strategic
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plans; (iv) trade secret, or other confidential research and development information; and, (v)
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commercial agreements, settlement agreements or settlement communications, the disclosure of
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which is likely to cause harm to the competitive position of the producing party.
2.
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Protected Information alternatively designated “CONFIDENTIAL
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OUTSIDE ATTORNEYS’ EYES ONLY,” “HIGHLY CONFIDENTIAL” or “RESTRICTED
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CONFIDENTIAL” shall be treated as if designated CONFIDENTIAL – OUTSIDE COUNSEL
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ONLY. In determining whether Protected Information should be designated as CONFIDENTIAL
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– OUTSIDE COUNSEL ONLY, each party agrees to use such designation only in good faith.
3.
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Protected Information designated CONFIDENTIAL – OUTSIDE
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COUNSEL ONLY and the contents therein shall be available only to the persons or entities listed
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in paragraphs I.B.2.a, c, d, e and f, subject to any terms set forth or incorporated therein, and not
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to any person or entity listed in paragraph I.B.2.b.
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II.
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USE OF PROTECTED INFORMATION AT HEARING OR TRIAL
In the event that a party intends to use any Protected Information during any hearing or
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trial, that party shall provide a minimum of two (2) business days’ notice to the producing party.
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Subject to challenges under section IV, the parties will not oppose any reasonable request by the
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producing party that courtroom be sealed, if allowed by the Court, during the presentation of any
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testimony, evidence, or argument relating to or involving the use of any Protected Information.
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III.
DISCLOSURE TO TECHNICAL ADVISERS
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A.
Purpose
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Protected Information designated by the producing party and such copies of Protected
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Information as are reasonably necessary for maintaining, defending, or evaluating this litigation
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may be furnished and disclosed to the receiving party’s technical advisers and their necessary
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support personnel.
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B.
No Disclosure Without Protective Order Subscription
No disclosure of Protected Information to a technical adviser or their necessary support
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personnel shall occur until that person has signed the form attached hereto as Attachment A, and a
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signed copy has been provided to the producing party; and to the extent there has been an
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objection under paragraph III.C, that objection is resolved according to the procedures set forth
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below.
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C.
Prior Notice of Intent to Disclose Protected Information to an Advisor
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A party desiring to disclose Protected Information to a technical adviser shall also give
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prior written notice of the intended disclosure by email to all counsel of record in the litigation,
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and the producing party shall have ten (10) business days after such notice is given to object in
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writing to the disclosure. The party desiring to disclose Protected Information to a technical
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adviser must provide the following information for each technical adviser: name, address,
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curriculum vitae, and current employer. The party desiring to disclose Protected Information to a
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technical adviser must also provide written certification that each technical adviser does not
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currently have, has not previously had, and is not reasonably likely in the future to develop, a
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relationship with a competitor of the producing party that would create a reasonable risk of
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disclosure, whether intentional or not, of the Protected Information or any part of it to that
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competitor. No Protected Information shall be disclosed to such expert(s) or consultant(s) until
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after the expiration of the foregoing notice period and resolution of any objection.
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D.
Objections to Technical Advisors
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A party objecting to disclosure of Protected Information to a technical adviser shall state
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with particularity the ground(s) of the objection. The objecting party’s consent to the disclosure
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of Protected Information to a technical adviser shall not be unreasonably withheld, and its
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objection must be based on that party’s good faith belief that disclosure of its Protected
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Information to the technical adviser will result in specific business or economic harm to that party.
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E.
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If after consideration of the objection, the party desiring to disclose the Protected
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Resolution of Objections to Technical Advisors
Information to a technical adviser refuses to withdraw the technical adviser, that party shall
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provide notice to the objecting party. Except as specifically set forth in the Court’s “Standing
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Order In Civil Cases,” no motions regarding discovery disputes, including disputes over the
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disclosure of Protected Information to a technical adviser, may be filed without prior leave of
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Court. A Party that receives a timely written objection to the disclosure of Protected Information
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to a technical adviser must meet and confer with the objecting party in person to try to resolve the
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matter by agreement within ten (10) days of the written objection. Thereafter, if no agreement is
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reached, the objecting party shall cause to be filed a joint letter brief as provided in Paragraph 8 of
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the Court’s Standing Order in Civil Cases. The joint letter brief must attest that, prior to filing the
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request for relief, counsel met and conferred in person and must concisely summarize those
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remaining issues counsel were unable to resolve, including the reasons advanced for why the
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disclosure of Protected Information to a technical adviser is reasonably necessary, assess the risk
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of harm that the disclosure would entail, and suggest any additional means that could be used to
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reduce that risk. In addition, any such joint letter brief must summarize the reasons advanced by
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the objecting party for its refusal to approve the disclosure. The Court will then advise the parties
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if additional briefing, a telephonic conference, or a personal appearance will be necessary. A
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failure by the objecting party to cause to be filed a joint letter brief within the ten (10) business
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day period, absent an agreement of the parties to the contrary or for an extension of such ten (10)
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business day period, shall operate as an approval of disclosure of Protected Information to the
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technical adviser. The parties agree to cooperate in good faith to shorten the time frames set forth
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in this paragraph if necessary to abide by any discovery or briefing schedules.
F.
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Burden for Objections to Technical Advisors
1.
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The objecting party shall have the burden of showing to the Court “good
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cause” for preventing the disclosure of its Protected Information to the technical adviser. For
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purposes of this paragraph, “good cause” includes, but is not limited to, a particularized showing
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that the challenged technical advisor currently has, previously had, or is reasonably likely in the
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future to develop, a relationship with a competitor of the producing party that would create a
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reasonable risk of disclosure, whether intentional or not, of the Protected Information or any part
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of it to that competitor.
2.
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A party who has not previously objected to disclosure of Protected
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Information to a technical adviser or whose objection has been resolved with respect to previously
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produced Protected Information shall not be precluded from raising an objection to a technical
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adviser at a later time with respect to Protected Information that is produced after the time for
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objecting to such a technical adviser has expired. Any such objection shall be handled in
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accordance with the provisions set forth above in section III.
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IV.
CHALLENGES TO CONFIDENTIALITY DESIGNATIONS
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A.
Use of Reasonable Care and No Waiver
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The parties shall use reasonable care when designating Protected Information. Nothing in
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this Order shall prevent a receiving party from contending that any Protected Information has
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been improperly designated. A receiving party may at any time request that the producing party
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cancel or modify the Protected Information designation with respect to any document or any
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information contained therein.
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B.
Objections to Confidentiality Designations
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A party shall not be obligated to challenge the propriety of a designation of any category
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of Protected Information at the time of production, and a failure to do so shall not preclude a
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subsequent challenge thereto. In the event that a party objects to the designation of Protected
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Information, such a challenge shall be written, shall be served on counsel for the producing party,
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and shall particularly identify the Protected Information that the receiving party contends should
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be designated differently and explain both the factual and legal basis for the objection to the
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designation. Upon receipt of the written objection, counsel for the producing party shall, within
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five (5) days, provide a written response to the objecting party explaining both the factual and
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legal basis for the designation as Protected Information. The parties shall use their best efforts to
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resolve promptly and informally such disputes. Except as specifically set forth in the Court’s
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“Standing Order In Civil Cases,” no motions regarding discovery disputes, including disputes
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over the designation of Protected Information, may be filed without prior leave of Court. If the
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parties are unable to resolve an objection without court intervention, any request for discovery
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relief must be summarized jointly by the parties in a joint letter brief no longer than four (4) pages
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as provided in the Court’s Standing Order in Civil Cases. The joint letter brief must attest that,
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prior to filing the request for relief, counsel met and conferred in person and must concisely
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summarize those remaining issues that counsel were unable to resolve. The joint letter brief may
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cite to limited and specific legal authority only for resolution of dispositive issues. The joint letter
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brief may not be accompanied by declarations; however any specific excerpt of disputed
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discovery material may be attached. The Court will then advise the parties if additional briefing, a
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telephonic conference, or a personal appearance will be necessary.
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C.
Treatment of Protected Information During Challenge to a Designation
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Unless otherwise resolved by agreement between the parties, until a determination by the
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Court, the Protected Information at issue shall be treated as having been properly designated and
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subject to the terms of this Order.
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V.
LIMITATIONS ON THE USE OF PROTECTED INFORMATION
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A.
Restrictions on Use of Protected Information
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All Protected Information shall be held in confidence by each person to whom it is
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disclosed, shall be used only for purposes of this litigation, shall not be used for any business
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purpose or in connection with any other legal proceeding, and shall not be disclosed to any person
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who is not entitled to receive such Protected Information as herein provided. All produced
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Protected Information shall be carefully maintained so as to preclude access by persons who are
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not entitled to receive such Protected Information.
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B.
Examinations and Court Filings Concerning Protected Information
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Except as may be otherwise ordered by the Court, any person may be examined as a
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witness at depositions and trial and may testify concerning all Protected Information of which
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such person has prior knowledge. Without in any way limiting the generality of the foregoing:
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1.
A present director, officer, and/or employee of a producing party may be
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examined and may testify concerning all Protected Information which has been produced by that
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party and of which the witness has personal knowledge;
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2.
A former director, officer, agent and/or employee of a producing party may
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be interviewed, examined and may testify concerning all Protected Information of which he or she
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has personal knowledge, including any Protected Information that refers to matters of which the
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witness has personal knowledge, which has been produced by that party and which pertains to the
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period or periods of his or her employment; and
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3.
Non-parties may be examined or testify concerning any Protected
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Information of a producing party, which appears on its face or from other documents or testimony
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to have been received from or communicated to the non-party as a result of any contact or
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relationship with the producing party or a representative of the producing party. Any person other
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than the witness, his or her attorney(s), or any person qualified to receive Protected Information
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under this Order shall be excluded from the portion of the examination concerning such Protected
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Information, unless the producing party consents to persons other than qualified recipients being
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present at the examination. If the witness is represented by an attorney who is not qualified under
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this Order to receive such Protected Information, then prior to the examination, the attorney must
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provide a signed statement, in the form of Attachment A hereto, that he or she will comply with
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the terms of this Order and maintain the confidentiality of Protected Information disclosed during
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the course of the examination. In the event that such attorney declines to sign such a statement
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prior to the examination, the parties, by their attorneys, shall jointly seek a protective order from
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the Court prohibiting the attorney from disclosing Protected Information.
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4.
Every fact witness shall be informed at the start of a deposition that he or
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she may be shown documents designated as Protected Information in this litigation, and that such
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Protected Information and the contents therein are being furnished to the witness solely for use in
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this litigation. Every fact witness shall be shown a copy of this Order. No fact witness may retain
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any documents designated as Protected Information.
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5.
Without written permission from the designating party or a court order
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secured after appropriate notice to all interested persons, a party may not file in the public record
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in this action any Protected Information. A party that seeks to file under seal any Protected
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Information must comply with Civil Local Rule 79-5 and General Order 62. Protected
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Information may only be filed under seal pursuant to a court order authorizing the sealing of the
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specific Protected Information at issue. Pursuant to Civil Local Rule 79-5 and General Order 62,
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a sealing order will issue only upon a request establishing that the Protected Information at issue
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is privileged, protectable as a trade secret, or otherwise entitled to protection under the law. To
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avoid unnecessary sealing of Court records and motion practice relating to sealed filings, any
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party preparing a filing with the Court that may contain Protected Information may identify to the
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producing party or non-party the specific Protected Information at issue and request a waiver of
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the confidentiality protections for that specific Protected Information. Upon receipt of such a
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request to waive confidentiality protections, the producing party or non-party shall respond in
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good faith within twenty-four (24) hours. If a receiving party’s request to file Protected
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Information under seal pursuant to Civil Local Rule 79 5 and General Order 62 is denied by the
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court, then the Receiving Party may file the information in the public record pursuant to Civil
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Local Rule 79-5(e) unless otherwise instructed by the court.
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6.
Outside attorneys of record for the parties are hereby authorized to be the
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persons who may retrieve confidential exhibits and/or other confidential matters filed with the
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Court upon termination of this litigation without further order of this Court, and are the persons to
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whom such confidential exhibits or other confidential matters may be returned by the Clerk of the
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Court, if they are not so retrieved. No material or copies thereof so filed shall be released, except
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by order of the Court, to outside counsel of record, or as otherwise provided for hereunder.
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7.
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Protected Information shall not be copied or otherwise produced by a
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receiving party, except for transmission to qualified recipients, without the written permission of
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the producing party, or, in the alternative, by further order of the Court. Nothing herein shall,
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however, restrict a qualified recipient from making working copies, abstracts, digests and analyses
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of Protected Information designated CONFIDENTIAL or CONFIDENTIAL – OUTSIDE
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COUNSEL ONLY for use in connection with this litigation, and such working copies, abstracts,
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digests and analyses shall be deemed Protected Information under the terms of this
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Order. Further, nothing herein shall restrict a qualified recipient from converting or translating
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Protected Information designated CONFIDENTIAL or CONFIDENTIAL – OUTSIDE
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COUNSEL ONLY into machine-readable form for incorporation into a data retrieval system used
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in connection with this action, provided that access to that Protected Information, in whatever
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form stored or reproduced, shall be limited to qualified recipients.
8.
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Testimony given at deposition may be designated as Protected Information
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by outside litigation counsel of record by making a statement orally to that effect on the record at
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any time during the deposition. Within fifteen (15) business days of receipt of the final certified
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transcript of any deposition, the producing party may request that the original and all copies of the
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deposition transcript, in whole or in part, be marked CONFIDENTIAL or CONFIDENTIAL –
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OUTSIDE COUNSEL ONLY. Confidential designations shall be made by notifying all parties in
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writing of the specific pages and lines of the transcript that should be treated as Protected
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Information. Deposition transcripts shall be treated by default as CONFIDENTIAL – OUTSIDE
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COUNSEL ONLY until the expiration of the time to make a confidentiality designation unless
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otherwise agreed to by the parties. Any portions so designated shall thereafter be treated in
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accordance with the terms of this Order. Objections to confidentiality designations under this
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paragraph shall be governed by the procedure set forth in section IV above.
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C.
Unauthorized Disclosure of Protected Information
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If a receiving party is reasonably certain that it has disclosed, by inadvertence or
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otherwise, Protected Information to any person or in any circumstance not authorized under this
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Order, the receiving party must immediately: (i) notify in writing the producing party of the
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unauthorized disclosure(s); (ii) use its best efforts to retrieve all copies of the Protected
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Information; (c) inform the person or persons to whom unauthorized disclosures were made of all
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the terms of this Order; and (d) request that such person or persons execute the confidentiality
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agreement attached hereto as Attachment A. Compliance with this paragraph V.C upon the
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discovery of an unauthorized disclosure of Protected Information is mandatory and shall not
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excuse a violation of this Order by a receiving party or exempt a violating receiving party from
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sanctions pursuant to paragraph V.D below.
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D.
Violations
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If any party violates the limitations on the use of Protected Information as described in this
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section V, the party violating this Order shall be subject to sanctions as ordered by the Court. In
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the event motion practice is required to enforce the limitations on the use of Protected Information
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described in Section V, the prevailing party on such a motion shall be awarded costs, expenses,
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and fees, including attorney or other professional fees, incurred in connection with the discovery
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of the violation and the preparation, filing, and arguing of the motion or any other proceedings
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resulting from the violation.
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VI.
NON-PARTY USE OF THIS PROTECTIVE ORDER
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A.
Purpose
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A non-party producing Discovery Material voluntarily or pursuant to a subpoena or a court
19
order may designate such Discovery Material as Protected Information pursuant to the terms of
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this Protective Order.
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B.
Non-Party Access
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A non-party’s use of this Protective Order to protect its Protected Information does not
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entitle that non-party access to the Protected Information produced by any party or non-party in
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this case.
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VII.
NO WAIVER OF PRIVILEGE
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Nothing in this Protective Order shall require production of Discovery Material that a
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party contends is protected from disclosure by the attorney-client privilege, the work product
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immunity, common interest doctrine, or other privilege, doctrine, right, or immunity (collectively
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“Privileged Information”). In accordance with Rule 502 of the Federal Rules of Evidence, the
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parties hereby stipulate, and the Court orders that no inadvertent or unintentional production of
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Privileged Information shall prejudice the producing party or otherwise constitute a waiver or
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estoppel as to any such privilege, doctrine, right or immunity. Disclosures among defendants’
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attorneys of work product or other communications relating to issues of common interest shall not
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effect or be deemed a waiver of any applicable privilege or protection from disclosure. Any party
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that inadvertently produces Privileged Information may obtain the return of those materials by
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promptly notifying the recipient(s) and expressly articulating the basis for the asserted privilege or
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immunity. The recipient(s) shall gather and return all copies of the inadvertently produced
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Privileged Information to the producing party, or certify to the producing party that they have
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been destroyed and/or deleted. Notwithstanding this provision, outside litigation counsel of
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record are not required to delete inadvertently produced Privileged Information that may reside on
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their respective firm’s electronic back-up systems that are over-written in the normal course of
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business, provided such inadvertently produced Privileged Information is not used for any other
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purpose following counsel’s receipt of the producing party’s notice that the Privileged
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Information should not have been produced. Disputes regarding whether Discovery Material is
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discoverable or not discoverable shall be resolved in the same manner as disputes regarding
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whether Discovery Material that has been produced qualifies as Protected Information, subject to
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the terms of this section VII.
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VIII. MISCELLANEOUS PROVISIONS
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A.
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Any of the notice requirements herein may be waived, in whole or in part, but only in
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Waiver
writing signed by the attorney-in-charge for the party against whom such waiver will be effective.
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B.
Inadvertent or Unintentional Production
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Inadvertent or unintentional production of documents or things containing Protected
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Information that are not designated as one of the categories of Protected Information at the time of
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production shall not be deemed a waiver in whole or in part of a claim for confidential
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treatment. With respect to documents, the producing party shall immediately upon discovery
-13[MODIFIED] STIPULATED PROTECTIVE ORDER
Case No. 11-cv-02585-YGR
1
notify the other parties of the error in writing and provide replacement pages bearing the
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appropriate confidentiality legend. In the event of any disclosure of Protected Information other
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than in a manner authorized by this Protective Order, including any unintentional or inadvertent
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disclosure, counsel for the party responsible for the disclosure shall immediately notify opposing
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counsel of all of the pertinent facts, and make every effort to prevent further unauthorized
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disclosure including, retrieving all copies of the Protected Information from the recipient(s)
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thereof, and securing the agreement of the recipients not to further disseminate the Protected
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Information in any form. Compliance with the foregoing shall not prevent the producing party
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from seeking further relief from the Court. Compliance with this paragraph VIII.B shall not
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excuse a violation of this Order or exempt a violating party from sanctions pursuant to paragraph
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V.D above.
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C.
Conclusion of Litigation
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Within sixty (60) business days after the entry of a final non-appealable judgment or order,
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or the expiration of the deadline for any party to appeal any final judgment or order, or the
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complete settlement of all claims asserted against all parties in this action, each party shall, at the
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option of the producing party, either return or destroy all physical objects and documents which
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embody Protected Information it has received, and shall destroy in whatever form stored or
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reproduced, all physical objects and documents, including but not limited to, correspondence,
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memoranda, notes and other work product materials, which contain or refer to any category of
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Protected Information. All Protected Information not embodied in physical objects and
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documents shall remain subject to this Order. In the event that a party is dismissed before the
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entry of a final non-appealable judgment or order, this same procedure shall apply to any
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Protected Information received from or produced to the dismissed party. Notwithstanding this
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provision, outside litigation counsel of record are not required to delete Protected Information that
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may reside on their respective firm’s electronic back-up systems that are over-written in the
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normal course of business. Notwithstanding the foregoing, outside counsel shall be entitled to
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maintain two (2) copies of all pleadings, motions and trial briefs (including all supporting and
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opposing papers and exhibits thereto), written discovery requests and responses (and exhibits
-14[MODIFIED] STIPULATED PROTECTIVE ORDER
Case No. 11-cv-02585-YGR
1
thereto), deposition transcripts (and exhibits thereto), trial transcripts, and exhibits offered or
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introduced into evidence at any hearing or trial, and their attorney work product which refers or is
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related to any Protected Information designated CONFIDENTIAL or CONFIDENTIAL –
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OUTSIDE COUNSEL ONLY for archival purposes only. If a party opts to destroy Protected
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Information designated CONFIDENTIAL or CONFIDENTIAL – OUTSIDE COUNSEL ONLY,
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the party must provide a Certificate of Destruction to the producing party.
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D.
Subpoenas
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If at any time documents containing Protected Information are subpoenaed by any court,
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arbitral, administrative or legislative body, or are otherwise requested in discovery, the person to
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whom the subpoena or other request is directed shall immediately give written notice thereof to
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every party or non-party who has produced such documents and to its counsel, and shall provide
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each such party with an opportunity to object to the production of such documents. If a producing
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party does not take steps to prevent disclosure of such documents within ten (10) business days of
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the date written notice is given, the party to whom the referenced subpoena is directed may
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produce such documents in response thereto, but shall take all reasonable measures to have such
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documents treated in accordance with terms of this Protective Order.
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E.
Communications with Testifying Experts
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Testifying experts shall not be subject to discovery of any draft of their reports in this case
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and such draft reports, notes, outlines, or any other writings leading up to an issued report(s) in
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this litigation are exempt from discovery. In addition, all communications between counsel for a
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party and that party’s testifying expert, and all materials generated by a testifying expert with
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respect to that person’s work, are exempt from discovery unless they relate to the expert’s
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compensation or identify facts, data or assumptions relied upon by the expert in forming any
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opinions in this litigation and such information is not already disclosed in the expert’s report.
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F.
Post-Filing Communications
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No party shall be required to identify on their respective privilege log any document or
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communication dated on or after the filing of the lawsuit, which absent this provision, the party
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would have been obligated to so identify on said privilege log. The parties shall exchange their
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Case No. 11-cv-02585-YGR
1
respective privilege document logs at a time to be agreed upon by the parties following the
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production of documents.
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G.
Modification of Protections
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This Order is entered without prejudice to the right of any party, either by agreement with
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other parties to this action, or by applying to the Court if agreement cannot be reached among
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parties, to extend additional protection, or to reduce or rescind the restrictions of this Order, when
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convenience or necessity requires. Furthermore, without application to the Court, any party that
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is a beneficiary of the protections of this Order may enter a written agreement releasing any other
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party hereto from one or more requirements of this Order even if the conduct subject to the release
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would otherwise violate the terms herein.
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H.
No Agreement Concerning Discoverability
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The identification or agreed upon treatment of certain types of Discovery Material does
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not reflect agreement by the parties that the disclosure of such categories of Discovery Material is
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required or appropriate in this action. The parties reserve the right to argue that any particular
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category of Discovery Material should not be produced.
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I.
No Limitation on Legal Representation
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Nothing in this Protective Order shall preclude or impede outside litigation counsel of
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record’s ability to communicate with or advise their client in connection with this litigation based
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on such counsel’s review and evaluation of Protected Information, provided however, that such
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communications or advice shall not disclose or reveal the substance or content of any Protected
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Information other than as permitted under this Protective Order.
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J.
Agreement Upon Execution
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Each of the parties agrees to be bound by the terms of this Protective Order as of the date
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counsel for such party executes this Protective Order, even if prior to entry of this order by the
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Court.
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K.
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The section headings used in this Order shall be intended for convenience only and shall
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Section Headings
not be deemed to supersede or modify any provisions.
-16[MODIFIED] STIPULATED PROTECTIVE ORDER
Case No. 11-cv-02585-YGR
1
L.
Interpretation, Enforcement and Continuing Jurisdiction
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The United States District Court for the Northern District of California is responsible for
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the interpretation and enforcement of this Stipulated Protective Order. After termination of this
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litigation, the provisions of this Stipulated Protective Order shall continue to be binding except
5
with respect to that Discovery Material that becomes a matter of public record. This Court retains
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and shall have continuing jurisdiction over the parties and recipients of the Protected Information
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for enforcement of the provision of this Stipulated Protective Order following termination of this
8
litigation for a period of one year. All disputes concerning Protected Information produced under
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the protection of this Stipulated Protective Order shall be resolved by the United States District
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Court for the Northern District of California.
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DATED: March 22, 2012
PERKINS COIE LLP
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By: /s/ Bobbie J. Wilson
BOBBIE J. WILSON
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Attorneys for Defendants
GOOGLE INC. and SLIDE, INC.
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DATED: March 22, 2012
EDELSON MCGUIRE, LLP
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By: /s/ Rafey S. Balabanian
RAFEY S. BALABANIAN
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Attorneys for Plaintiffs NICOLE PIMENTAL
and JESSICA FRANKLIN, individually and
on behalf of all others similarly situated
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DATED: March 22, 2012
WEISS & LURIE
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By: /s/ Jordan L. Lurie
JORDAN L. LURIE
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Attorneys for Plaintiffs NICOLE PIMENTAL
and JESSICA FRANKLIN, individually and
on behalf of all others similarly situated
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-17[MODIFIED] STIPULATED PROTECTIVE ORDER
Case No. 11-cv-02585-YGR
1
PURSUANT TO STIPULATION, IT IS SO ORDERED.
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DATED: March 27, 2012
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YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE
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-18[MODIFIED] STIPULATED PROTECTIVE ORDER
Case No. 11-cv-02585-YGR
1
ATTACHMENT A TO THE STIPULATED PROTECTIVE ORDER
FOR THE TREATMENT OF CONFIDENTIAL INFORMATION
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CONFIDENTIALITY AGREEMENT
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4
1. My name is ________________________________________________________________.
2. I reside at __________________________________________________________________.
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3. My present employer is _______________________________________________________.
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4. My present occupation or job description is _______________________________________.
5. I have been engaged as ______________________________________________________ on
behalf of _______________________________________________________________ in the
preparation and conduct of litigation styled Nicole Pimental and Jessica Franklin, individually
and on behalf of all others similarly situated, v. Google Inc. and Slide, Inc.
6. I have received a copy of the Stipulated Protective Order dated ______, 20__, and I have
carefully read and understand its provisions. I agree to comply with and be bound by all the
provisions of said Order. I understand that I am to retain all copies of any documents
designated as CONFIDENTIAL or CONFIDENTIAL – OUTSIDE COUNSEL ONLY, or any
similar designation, in a secure manner and in accordance with the terms of said Order, and
that all copies are to remain in my personal custody until I have completed my assigned
duties, whereupon the copies and any writings prepared by me containing any information
containing any Protected Information or documents designated CONFIDENTIAL or
CONFIDENTIAL – OUTSIDE COUNSEL ONLY, or any similar designation, are to be
returned to counsel who provided me with such material.
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7. I will not divulge Protected Information to persons other than those specifically authorized by
17
said Order, and I will not copy or use except solely for the purpose of this action, any
Protected Information obtained pursuant to said Order, except as provided in said Order. I
also agree to notify any stenographic or clerical personnel who are required to assist me of the
terms of said Order.
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8. In accordance with paragraph III.C of the Order (if applicable), I have attached to this
Confidentiality Agreement my curriculum vitae and any other required information sufficient
to identify my current employer and employment history for the past ten (10) years, and a
listing of cases in which I have testified as an expert at trial or by deposition within the
preceding five (5) years. Further, I certify that I do not currently have, have not previously
had, and am not reasonably likely in the future to develop, a relationship with a competitor of
the producing party that would create a reasonable risk of disclosure, whether intentional or
not, of the Protected Information or any part of it to that competitor.
9. I state under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct.
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By: ______________________________________________
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Executed on ___________, 20____.
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-19[MODIFIED] STIPULATED PROTECTIVE ORDER
Case No. 11-cv-02585-YGR
1
General Order No. 45.X Attestation
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I, Bobbie Wilson, hereby attest, pursuant to N.D. Cal. General Order No. 45, that the
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concurrence to the filing of this document has been obtained from each signatory hereto.
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DATED: March 22, 2012
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PERKINS COIE LLP
By: /s/ Bobbie J. Wilson
BOBBIE J. WILSON
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Attorneys for Defendants
GOOGLE INC. and SLIDE, INC.
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-20[MODIFIED] STIPULATED PROTECTIVE ORDER
Case No. 11-cv-02585-YGR
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