Exeltis USA Inc. v. First Databank, Inc.

Filing 108

ORDER by Judge Haywood S. Gilliam, Jr. Granting 104 Stipulated Protective Order.(ndrS, COURT STAFF) (Filed on 10/11/2018)

1
2
3
4
5
6
7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15

Ryan M. Sandrock (SBN 251781)
[e-mail]
SIDLEY AUSTIN LLP
555 California Street
Suite 2000
San Francisco, CA 94104
Telephone: [phone]
Facsimile: [phone]

Jonathan R. Donnellan (pro hac vice)
[e-mail]
Ravi V. Sitwala (pro hac vice)
[e-mail]
THE HEARST CORPORATION
300 West 57th Street
New York, New York 10019
Telephone: [phone]
Facsimile: [phone]

Richard D. Raskin (pro hac vice)
[e-mail]
SIDLEY AUSTIN LLP
One South Dearborn
Chicago, Illinois 60603
Telephone: [phone]
Facsimile: [phone]

Thomas R. Burke (SBN 141930)
[e-mail]
DAVIS WRIGHT TREMAINE LLP
505 Montgomery Street, Suite 800
San Francisco, CA 94111-6533
Telephone: [phone]
Facsimile: + 1 415 276-6599

Benjamin M. Mundel (pro hac vice)
[e-mail]
Daniel J. Hay (pro hac vice)
[e-mail]
SIDLEY AUSTIN LLP
1501 K St NW
Washington, DC 20005
Telephone: [phone]
Facsimile: [phone]

Attorneys for Defendant
FIRST DATABANK, INC

Attorneys for Plaintiff
EXELTIS USA, INC.

16

UNITED STATES DISTRICT COURT

17

NORTHERN DISTRICT OF CALIFORNIA

18

OAKLAND DIVISION

19

EXELTIS USA, INC., a New Jersey Corporation,

20
21
22
23
24

Plaintiff,

Case No. 4:17-cv-04810-HSG
STIPULATED PROTECTIVE ORDER

vs.
FIRST DATABANK, INC., a Missouri
Corporation,
Defendant.

25
26
27
28

STIPULATED PROTECTIVE ORDER
CASE NO. 4:17-CV-04810-HSG

1

1.

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

2
3

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

4

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

5

the parties hereby stipulate to and petition the Court to enter the following Stipulated Protective

6

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

7

or responses to discovery and that the protection it affords from public disclosure and use extends

8

only to the limited information or items that are entitled to confidential treatment under the

9

applicable legal principles. The parties further acknowledge, as set forth in paragraph 12.3, below,

10

that this Stipulated Protective Order does not entitle them to file confidential information under seal;

11

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

12

applied when a party seeks permission from the Court to file material under seal.

13

2.

14
15
16

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

17

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

18

Civil Procedure 26(c).

19
20
21
22
23

2.3

Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well

as their support staff).
2.4

Designated House Counsel: House Counsel who seek access to “HIGHLY

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information in this matter.
2.5

Designating Party: a Party or Non-Party that designates information or items that it

24

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

25

CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”

26

2.6

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

27

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

28

2
STIPULATED PROTECTIVE ORDER
CASE NO. 4:17-CV-04810-HSG

1

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

2

discovery in this matter.

3

2.7

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

4

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

5

consultant in this action.

6

2.8

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items:

7

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

8

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

9

restrictive means.

10

2.9

11
12
13
14

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.
2.10

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

entity not named as a Party to this action.
2.11

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

15

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

16

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

17

understood and agreed that counsel at The Hearst Corporation Office of General Counsel who have

18

made an appearance in this action are Outside Counsel of Record for purposes of this Order.

19
20
21
22
23

2.12

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).
2.13

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

Material in this action.
2.14

Professional Vendors: persons or entities that provide litigation support services

24

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

25

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

26
27
28

2.15

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

“CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”
3
STIPULATED PROTECTIVE ORDER
CASE NO. 4:17-CV-04810-HSG

2.16

1

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

2

Producing Party.

3

3.

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

4
5

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

6

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

7

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

8

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

9

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

10

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

11

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

12

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

13

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

14

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

15

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

16

4.

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

17
18

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

19

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

20

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

21

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

22

time limits for filing any motions or applications for extension of time pursuant to applicable law.

23

With respect to defendant First Databank, Inc., final disposition shall mean the final disposition of

24

this action.

25

5.

26
27
28

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
4
STIPULATED PROTECTIVE ORDER
CASE NO. 4:17-CV-04810-HSG

1

limit any such designation to specific material that qualifies under the appropriate standards. The

2

Designating Party must designate for protection only those parts of material, documents, items, or

3

oral or written communications that qualify – so that other portions of the material, documents,

4

items, or communications for which protection is not warranted are not swept unjustifiably within

5

the ambit of this Order.

6

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

7

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

8

encumber or delay the case development process or to impose unnecessary expenses and burdens on

9

other parties) expose the Designating Party to sanctions.

10

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

11

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

12

asserted, that Designating Party must promptly notify all other Parties that it is withdrawing the

13

mistaken designation.

14

5.2

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

15

as otherwise stipulated or ordered, Disclosure or Discovery Material that qualifies for protection

16

under this Order must be clearly so designated before the material is disclosed or produced.

17
18

Designation in conformity with this Order requires:
(a) for information in documentary form (e.g., paper or electronic documents, but

19

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

20

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

21

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

22

a page qualifies for protection, the Producing Party also must clearly identify the protected portion(s)

23

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

24

of protection being asserted.

25

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

26

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

27

would like copied and produced. During the inspection and before the designation, all of the material

28

5
STIPULATED PROTECTIVE ORDER
CASE NO. 4:17-CV-04810-HSG

1

made available for inspection shall be deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’

2

EYES ONLY.” After the inspecting Party has identified the documents it wants copied and

3

produced, the Producing Party must determine which documents, or portions thereof, qualify for

4

protection under this Order. Then, before producing the specified documents, the Producing Party

5

must affix the appropriate legend (“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

6

ATTORNEYS’ EYES ONLY”) to each page that contains Protected Material. If only a portion or

7

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

8

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

9

specify, for each portion, the level of protection being asserted.

10

(b) for testimony given in deposition or in other pretrial or trial proceedings, that the

11

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

12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

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

20

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

21

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

22

ATTORNEYS’ EYES ONLY.” Parties shall give the other parties notice if they reasonably expect

23

a deposition, hearing or other proceeding to include Protected Material so that the other parties can

24

ensure that only authorized individuals who have signed the “Acknowledgment and Agreement to

25

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

26

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

27

CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”

28

6
STIPULATED PROTECTIVE ORDER
CASE NO. 4:17-CV-04810-HSG

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

1
2

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

3

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

4

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

5

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

6

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

7

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

8

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

9

designated.
(c) for information produced in some form other than documentary and for any other

10
11

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

12

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

13

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

14

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

15

the protected portion(s).
5.3

16

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

17

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

18

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

19

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

20

accordance with the provisions of this Order.

21

6.

22

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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

23

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

24

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

25

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

26

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

27

designation is disclosed.

28

7
STIPULATED PROTECTIVE ORDER
CASE NO. 4:17-CV-04810-HSG

1

6.2

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

2

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

3

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

4

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

5

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

6

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

7

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

8

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

9

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

10

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

11

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

12

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

13

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

14

6.3

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

15

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

16

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

17

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

18

will not resolve their dispute, whichever is earlier. Each such motion must be accompanied by a

19

competent declaration affirming that the movant has complied with the meet and confer

20

requirements imposed in the preceding paragraph. Failure by the Designating Party to make such a

21

motion including the required declaration within 21 days (or 14 days, if applicable) shall

22

automatically waive the confidentiality designation for each challenged designation. In addition, the

23

Challenging Party may file a motion challenging a confidentiality designation at any time if there is

24

good cause for doing so, including a challenge to the designation of a deposition transcript or any

25

portions thereof. Any motion brought pursuant to this provision must be accompanied by a

26

competent declaration affirming that the movant has complied with the meet and confer

27

requirements imposed by the preceding paragraph.

28

8
STIPULATED PROTECTIVE ORDER
CASE NO. 4:17-CV-04810-HSG

1

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

2

Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose

3

unnecessary expenses and burdens on other parties) may expose the Challenging Party to sanctions.

4

Unless the Designating Party has waived the confidentiality designation by failing to file a motion to

5

retain confidentiality as described above, all parties shall continue to afford the material in question

6

the level of protection to which it is entitled under the Producing Party’s designation until the Court

7

rules on the challenge.

8

7.

9

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

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

10

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

11

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

12

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

13

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

14

DISPOSITION).

15
16
17

Protected Material must be stored and maintained by a Receiving Party at a location and in a
secure manner that ensures that access is limited to the persons authorized under this Order.
7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by

18

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

19

information or item designated “CONFIDENTIAL” only to:

20

(a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees

21

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

22

this litigation and who have signed the “Acknowledgment and Agreement to Be Bound” that is

23

attached hereto as Exhibit A;

24

(b) the officers, directors, and employees (including House Counsel) of the Receiving

25

Party to whom disclosure is reasonably necessary for this litigation and who have signed the

26

“Acknowledgment and Agreement to Be Bound” (Exhibit A);

27
28

(c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is
9
STIPULATED PROTECTIVE ORDER
CASE NO. 4:17-CV-04810-HSG

1

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

2

to Be Bound” (Exhibit A);

3

(d) the Court and its personnel;

4

(e) court reporters and their staff, professional jury or trial consultants, mock jurors, and

5

Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have

6

signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(f) during their depositions, witnesses in the action to whom disclosure is reasonably

7
8

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

9

unless otherwise agreed by the Designating Party or ordered by the Court. Pages of transcribed

10

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

11

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

12

Stipulated Protective Order; and
(g) the author or recipient of a document containing the information or a custodian or

13
14
15

other person who otherwise possessed or knew the information.
7.3

Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

16

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

17

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

18

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to:

19

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

20

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

21

information for this litigation and who have signed the “Acknowledgment and Agreement to Be

22

Bound” that is attached hereto as Exhibit A;

23

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

24

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

25

(Exhibit A), and (3) are not a current officer, director, or employee of a competitor of a Party or

26

anticipated to become one;

27
28

(c) the Court and its personnel;
10
STIPULATED PROTECTIVE ORDER
CASE NO. 4:17-CV-04810-HSG

(d) court reporters and their staff, professional jury or trial consultants, mock jurors,

1
2

and Professional Vendors to whom disclosure is reasonably necessary for this litigation and who

3

have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); and
(e) the author or recipient of a document containing the information or a custodian

4
5
6

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

Procedures for Approving or Objecting to Disclosure of “HIGHLY

7

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items to Designated House

8

Counsel.

9

(a) Unless otherwise ordered by the Court or agreed to in writing by the

10

Designating Party, a Party that seeks to disclose to Designated House Counsel any information or

11

item that has been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

12

pursuant to paragraph 7.3(b) first must make a written request to the Designating Party that (1)

13

sets forth the full name of the Designated House Counsel and the city and state of his or her

14

residence, and (2) describes the Designated House Counsel’s current and reasonably foreseeable

15

future primary job duties and responsibilities in sufficient detail to determine if House Counsel is

16

involved, or may become involved, in any competitive decision-making.

17

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

18

preceding respective paragraphs may disclose the subject Protected Material to the identified

19

Designated House Counsel unless, within 14 days of delivering the request, the Party receives a

20

written objection from the Designating Party. Any such objection must set forth in detail the

21

grounds on which it is based.

22

(c) A Party that receives a timely written objection must meet and confer with the

23

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

24

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

25

seeking to make the disclosure to Designated House Counsel may file a motion as provided in

26

Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) seeking

27

permission from the Court to do so. Any such motion must describe the circumstances with

28

11
STIPULATED PROTECTIVE ORDER
CASE NO. 4:17-CV-04810-HSG

1

specificity, set forth in detail the reasons why the disclosure to Designated House Counsel is

2

reasonably necessary, assess the risk of harm that the disclosure would entail, and suggest any

3

additional means that could be used to reduce that risk. In addition, any such motion must be

4

accompanied by a competent declaration describing the parties’ efforts to resolve the matter by

5

agreement (i.e., the extent and the content of the meet and confer discussions) and setting forth the

6

reasons advanced by the Designating Party for its refusal to approve the disclosure.
In any such proceeding, the Party opposing disclosure to Designated House Counsel shall

7
8

bear the burden of proving that the risk of harm that the disclosure would entail (under the

9

safeguards proposed) outweighs the Receiving Party’s need to disclose the Protected Material to

10

its Designated House Counsel.

11

8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER

12

LITIGATION

13

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

14

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

15

CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” that Party must:

16
17
18

(a) promptly notify in writing the Designating Party. Such notification shall include a
copy of the subpoena or court order;
(b) promptly notify in writing the party who caused the subpoena or order to issue in the

19

other litigation that some or all of the material covered by the subpoena or order is subject to this

20

Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and

21
22
23

(c) cooperate with respect to all reasonable procedures sought to be pursued by the
Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served with the subpoena

24

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

25

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

26

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

27

permission. The Designating Party shall bear the burden and expense of seeking protection in that

28

12
STIPULATED PROTECTIVE ORDER
CASE NO. 4:17-CV-04810-HSG

1

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

2

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

3

another court.

4

9.

5
6

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS
LITIGATION
(a) The terms of this Order are applicable to information produced by a Non-Party in this

7

action and designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’

8

EYES ONLY.” Such information produced by Non-Parties in connection with this litigation is

9

protected by the remedies and relief provided by this Order. Nothing in these provisions should be

10

construed as prohibiting a Non-Party from seeking additional protections.

11

(b) In the event that a Party is required, by a valid discovery request, to produce a Non-

12

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

13

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

14
15
16

(1) 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 Non-Party;
(2) promptly provide the Non-Party with a copy of the Stipulated Protective Order in

17

this litigation, the relevant discovery request(s), and a reasonably specific description of the

18

information requested; and

19

(3) make the information requested available for inspection by the Non-Party.

20

(c) If the Non-Party fails to object or seek a protective order from this court within 14

21

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

22

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

23

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

24

control that is subject to the confidentiality agreement with the Non-Party before a determination by

25

the Court. Absent a court order to the contrary, the Non-Party shall bear the burden and expense of

26

seeking protection in this court of its Protected Material.

27
28

13
STIPULATED PROTECTIVE ORDER
CASE NO. 4:17-CV-04810-HSG

1

10.

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

2
3

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

4

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

5

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

6

inform the person or persons to whom unauthorized disclosures were made of all the terms of this

7

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

8

Be Bound” that is attached hereto as Exhibit A.

9

11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED

10

MATERIAL

11

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

12

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

13

are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to

14

modify whatever procedure may be established in an e-discovery order that provides for production

15

without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the

16

parties reach an agreement on the effect of disclosure of a communication or information covered by

17

the attorney-client privilege or work product protection, the parties may incorporate their agreement

18

in the stipulated protective order submitted to the Court.

19

12.

20
21
22

MISCELLANEOUS
12.1

Right to Further Relief. Nothing in this Order abridges the right of any person to seek

its modification by the Court in the future.
12.2

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

23

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

24

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

25

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

26

this Protective Order.

27
28

12.3

Filing Protected Material. Without written permission from the Designating Party or a
14
STIPULATED PROTECTIVE ORDER
CASE NO. 4:17-CV-04810-HSG

1

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

2

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

3

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

4

pursuant to a court order authorizing the sealing of the specific Protected Material at issue. Pursuant

5

to Civil Local Rule 79-5, a sealing order will issue only upon a request establishing that the

6

Protected Material at issue is privileged, protectable as a trade secret, or otherwise entitled to

7

protection under the law. If a Receiving Party's request to file Protected Material under seal pursuant

8

to Civil Local Rule 79-5(d) is denied by the Court, then the Receiving Party may file the information

9

in the public record pursuant to Civil Local Rule 79-5(e) unless otherwise instructed by the Court.

10

13.

FINAL DISPOSITION

11

Within 60 days after the final disposition of this action, as defined in section 4, each

12

Receiving Party must return all Protected Material to the Producing Party or destroy such material.

13

As used in this subdivision, “all Protected Material” includes all copies, abstracts, compilations,

14

summaries, and any other format reproducing or capturing any of the Protected Material. Whether

15

the Protected Material is returned or destroyed, the Receiving Party must submit a written

16

certification to the Producing Party (and, if not the same person or entity, to the Designating Party)

17

by the 60 day deadline that (1) identifies (by category, where appropriate) all the Protected Material

18

that was returned or destroyed and (2) affirms that the Receiving Party has not retained any copies,

19

abstracts, compilations, summaries or any other format reproducing or capturing any of the Protected

20

Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy of all

21

pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda,

22

correspondence, deposition and trial exhibits, expert reports, attorney work product, and consultant

23

and expert work product, even if such materials contain Protected Material. Any such archival copies

24

that contain or constitute Protected Material remain subject to this Protective Order as set forth in

25

Section 4 (DURATION).

26
27
28

15
STIPULATED PROTECTIVE ORDER
CASE NO. 4:17-CV-04810-HSG

1

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

2
3

DATED: October 10, 2018

Respectfully submitted,

4
By: /s/ Benjamin M. Mundel_______
Benjamin M. Mundel (pro hac vice)
SIDLEY AUSTIN LLP
1501 K St NW
Washington, DC 20005
Telephone: [phone]
Facsimile: [phone]

5
6
7
8
9

Attorney for Exeltis USA, Inc.

10
By: /s/ Ravi V. Sitwala
Ravi V. Sitwala (pro hac vice)
THE HEARST CORPORATION
300 West 57th Street
New York, New York 10019
Telephone: [phone]
Facsimile: [phone]

11
12
13
14
15

Attorney for First Databank, Inc.

16
17
18
19
20
21
22
23
24
25
26
27
28

16
STIPULATED PROTECTIVE ORDER
CASE NO. 4:17-CV-04810-HSG

SIGNATURE ATTESTATION

1
2

I am the ECF User whose identification and password are being used to file the

3

foregoing Stipulated Protective Order. In compliance with Local Rule 5-1(i)(3), I hereby attest

4

that the other signatories have concurred in this filing.

5
6

DATED: October 10, 2018

THE HEARST CORPORATION

7
8

By: /s/ Ravi V. Sitwala
Ravi V. Sitwala (pro hac vice)

9

Attorney for First Databank, Inc.

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

17
STIPULATED PROTECTIVE ORDER
CASE NO. 4:17-CV-04810-HSG

1

PURSUANT TO STIPULATION, IT IS SO ORDERED.

2
3
4

DATED: October 11, 2018

_____________________________________
Haywood S. Gilliam, Jr.
U.S. District Judge

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

18
STIPULATED PROTECTIVE ORDER
CASE NO. 4:17-CV-04810-HSG

1

EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3

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

4

type full address], declare under penalty of perjury that I have read in its entirety and understand the

5

Stipulated Protective Order that was issued by the United States District Court for the Northern

6

District of California on [date] in the case of Exeltis USA, Inc. v. First Databank, Inc., No. 4:17-CV-

7

04810-HSG. I agree to comply with and to be bound by all the terms of this Stipulated Protective

8

Order and I understand and acknowledge that failure to so comply could expose me to sanctions and

9

punishment in the nature of contempt. I solemnly promise that I will not disclose in any manner any

10

information or item that is subject to this Stipulated Protective Order to any person or entity except

11

in strict compliance with the provisions of this Order.

12

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

13

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

14

if such enforcement proceedings occur after termination of this action.

15

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

16

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

17

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

18

to enforcement of this Stipulated Protective Order.

19
20

Date: ______________________________________

21

City and State where sworn and signed: _________________________________

22
23

Printed name: _______________________________

24
25

Signature: __________________________________

26
27
28

19
STIPULATED PROTECTIVE ORDER
CASE NO. 4:17-CV-04810-HSG