Young v. Cree, Inc.

Filing 83

ORDER GRANTING 78 Amended MOTION for Protective Order filed by Cree, Inc. Signed by Judge Thomas S. Hixson on 1/22/2019. (cdnS, COURT STAFF) (Filed on 1/22/2019)

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Stuart M. Richter (SBN 126231)
[e-mail]
Andrew J. Demko (SBN 247320)
[e-mail]
KATTEN MUCHIN ROSENMAN LLP
2029 Century Park East, Suite 2600
Los Angeles, CA 90067-3012
Telephone: [phone]
Facsimile: 310.788.4471
Rebecca K. Lindahl (pro hac vice)
[e-mail]
KATTEN MUCHIN ROSENMAN LLP
550 South Tryon Street, Suite 2900
Charlotte, NC 29202-4213
Telephone: [phone]
Facsimile: 704.344.2277
Attorneys for Defendant Cree, Inc.

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION

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[PROPOSED] PROTECTIVE ORDER

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JEFF YOUNG, individually and on
behalf of all others similarly situated,
Plaintiff,
v.

Case No.

4:17-cv-06252-YGR

Hon. Yvonne Gonzalez Rogers
[PROPOSED] PROTECTIVE
ORDER

CREE, Inc.,
Defendant.

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[PROPOSED] PROTECTIVE ORDER
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Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, good cause

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having been shown, the following Protective Order (the “Order”) is hereby entered

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to facilitate and expedite discovery in this action.

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Disclosure and discovery activity in this action are likely to involve

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production of confidential, proprietary, or private information for which special

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protection from public disclosure may be warranted. The parties acknowledge that

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this Order does not confer blanket protections on all disclosures or responses to

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

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

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under the applicable legal principles. The parties further acknowledge that Civil

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

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

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under seal.

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IT IS HEREBY ORDERED that Plaintiff, Defendant, and any person
subject to this Order shall adhere to the following terms:
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Definition of Protected Material. “Protected Material” means all

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documents, tangible items, testimony, written discovery responses, and

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information that have been properly designated by any party or non-party as

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“CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” pursuant to this Order.

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Such information produced by non-parties in connection with this litigation is also

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

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provisions should be construed as prohibiting a non-party from seeking additional

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protections.

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2.

Criteria for Designation.

A party or non-party may designate

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material as “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” only in

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accordance with the following procedures:

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(a)

“CONFIDENTIAL” Material.

A party or non-party (the

“Designating Party”) may designate documents, tangible items, testimony, or other
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information (collectively, “material”) as “CONFIDENTIAL” if the party or non-

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party reasonably believes that the material contains a trade secret or other

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proprietary or confidential business, technical, sales, marketing, financial or other

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commercial information.

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(b)

“ATTORNEYS’ EYES ONLY” Material. The Designating

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Party may designate documents, tangible items, testimony, or other information

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(collectively, “material”) as “ATTORNEYS’ EYES ONLY” if the party or non-

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party reasonably believes that the material (i) qualifies as “CONFIDENTIAL” as

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defined above; and (ii) the confidentiality of such material cannot be adequately

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maintained so as to protect the reasonable interests of the Designating Party unless

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the disclosure of the material is limited to the persons to whom “ATTORNEYS’

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EYES ONLY” material may be disclosed pursuant to this Order.

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3. Manner of Designation.

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

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Party or Non-Party that designates information or items for protection under this

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Order must take care to limit any such designation to specific material that

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qualifies under the appropriate standards. To the extent it is practical to do so, the

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

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

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portions of the material, documents, items, or communications for which

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protection is not warranted are not swept unjustifiably within the ambit of this

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Protective Order.

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Mass, indiscriminate, or routinized designations are prohibited. Designations

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that are shown to be clearly unjustified or that have been made for an improper

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purpose (e.g., to unnecessarily encumber or retard the case development process or

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to impose unnecessary expenses and burdens on other parties) expose the

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Designating Party to court remedies.

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

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designated for protection do not qualify for protection at all or do not qualify for

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the level of protection initially asserted, that Designating Party must promptly

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notify all other parties that it is withdrawing the mistaken designation.

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The Designating Party shall designate Protected Material in the following
manner:

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(a) For information in documentary form (e.g., paper or electronic

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documents, but excluding transcripts of depositions or other pretrial or trial

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proceedings), by placing the notation “CONFIDENTIAL” or “ATTORNEYS’

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EYES ONLY” on each page of such document. If only a portion or portions of the

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

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

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

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(b) For information produced in some form other than documentary and

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for any other tangible items, by placing the notation “CONFIDENTIAL” or

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“ATTORNEYS’ EYES ONLY” on the item, or if such is not practicable, as

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otherwise agreed by the parties If only a portion or portions of the information or

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

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

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(c) For testimony given in deposition or in other pretrial or trial

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proceedings, by (i) designating such testimony as “CONFIDENTIAL” or

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“ATTORNEYS’ EYES ONLY” within the time periods allowed pursuant to

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paragraph 4(c) of this Order; and (ii) requesting that the court reporter place the

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notation “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” on each page of

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the transcript so designated, which designated pages of the transcript shall be

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separately bound and conspicuously marked on its cover; any testimony taken by

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the parties during which Protected Material is being disclosed shall be taken as if

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in camera without any persons in attendance other than the persons listed in
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Paragraph 6 below, except that the parties may by unanimous consent agree that

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additional persons may attend; and

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(d) For declarations, affidavits, written discovery responses, court filings

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or pleadings, by placing the notation “CONFIDENTIAL” or “ATTORNEYS’

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EYES ONLY” on the face of such document.

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4. Time of Designation. Unless otherwise agreed, the designation of any

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material as “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” shall be made

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at the following times:

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(a) For documents, at the time of the production of documents;

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(b) For declarations, affidavits, written discovery responses, and
pleadings, at the time of the service or filing, whichever occurs first; and

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(c) For testimony, either (i) at the time that such testimony is given, or (ii)

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within thirty (30) days after the receipt of the transcript of such testimony by the

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Designating Party; and

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(d) For documents received from a third-party in response to a subpoena,

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within thirty (30) days after the receipt of such documents by the Designating

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Party.

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5. Resolution of Disputes Regarding Designation.

If a party receiving

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Protected Material (the “Receiving Party”) believes that any information is

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improperly designated, as provided in this Order, it may, at any time, contest such

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designation by sending written notice to the Designating Party. Receiving Party

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does not waive its right to challenge a confidentiality designation by electing not to

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mount a challenge promptly after the original designation is disclosed. The parties

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shall attempt to resolve each challenge in good faith and must confer directly (in

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voice to voice dialogue; relying solely on other forms of communication is not

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sufficient) within 14 days of the date of notice. In conferring, the challenging party

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

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proper and must give the Designating Party an opportunity to review the
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designated material, to reconsider the circumstances, and, if no change in

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designation is offered, to explain the basis for the chosen designation. If the parties

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cannot in good faith resolve the dispute, the parties will submit a joint letter brief

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that addresses their positions on removing or changing the designation; provided,

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however, that the Designating Party shall have the burden of proving that such

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particular Protected Material is properly designated. Protected Material that is

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subject to a dispute shall be treated as originally designated until the parties agree

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or the Court orders otherwise. In addition, the parties may submit a joint letter brief

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addressing their respective positions on a confidentiality designation at any time if

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

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deposition transcript or any portions thereof. Any joint letter brief brought pursuant

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to this provision must be accompanied by a competent declaration affirming that

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the parties have complied with the meet and confer requirements imposed.

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6. Persons to Whom Protected Material May Be Disclosed.

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(a) Disclosure of “CONFIDENTIAL” Material. Material designated as

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“CONFIDENTIAL” may be disclosed, and copies may be provided, only to the

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following:

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i. The parties to this action;

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ii. The parties’ outside counsel of record and such counsel’s

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support staff, legal assistants, and clerical personnel (collectively, “Outside

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Counsel”);

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iii. Any expert witness or consultant (collectively, “Expert”)

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retained by a party or its respective attorneys in connection with this action, but

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only after such person has been provided with a copy of this Order and has

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acknowledged his or her willingness to abide by the Order by executing the

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attached Confidentiality Agreement;

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iv. Any witness who may testify at a deposition or trial in this

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action with respect to Confidential Material, but only after such person has been
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provided with a copy of this Order and has acknowledged his or her willingness to

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abide by the Order by executing the attached Confidentiality Agreement;

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v. Any non-party support services including, but not limited to,

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outside copying services, court reporting services, court reporters, and

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videographers as may be reasonably necessary in connection with the preparation

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or conduct of this action; and

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vi. The Court and its personnel and any mediator or arbitrator
having jurisdiction over this action.

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vii. the author or recipient of a document containing the

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information or a custodian or other person who otherwise possessed or knew the

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information.

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(b) Disclosure of “ATTORNEYS’ EYES ONLY” Material. Material

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designated as “ATTORNEYS’ EYES ONLY” may be disclosed, and copies may

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be provided, only to the following:

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i. The parties’ outside counsel of record and such counsel’s

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support staff, legal assistants, and clerical personnel (collectively, “Outside

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Counsel”);

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ii. Any expert witness or consultant (collectively, “Expert”)
retained by a party or its respective attorneys in connection with this action;

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iii. Any non-party support services including, but not limited to,

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outside copying services, court reporting services, court reporters, and

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videographers as may be reasonably necessary in connection with the preparation

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or conduct of this action; and

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iv. The Court and its personnel and any mediator or arbitrator
having jurisdiction over this action.

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v. the author or recipient of a document containing the

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information or a custodian or other person who otherwise possessed or knew the

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information.
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(c) Additional

Authorized

Disclosure

of

Protected

Materials.

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Notwithstanding anything to the contrary in ¶¶ 6(a) or 6(b) of this Order, particular

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Protected Materials that have been designated as “CONFIDENTIAL” or

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“ATTORNEYS’ EYES ONLY” may be disclosed and copies may be provided:

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i. To any other persons with the prior written consent of the
Designating Party; and

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ii. To any other persons with the prior authorization of the Court.

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7. Disclosure and Use of Protected Material. The Receiving Party shall not

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disclose Protected Material except in accordance with this Order, nor use Protected

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Material for any purpose other than preparing for and conducting the prosecution

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and defense of the claims between or involving the parties to this proceeding and

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any review or appellate proceedings that may follow. Disclosure of any Protected

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Material shall be limited to disclosure reasonably necessary for the prosecution and

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defense of claims in this proceeding.

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8. No Limitation on Ability to Advise Clients. Nothing in this Order shall

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bar or otherwise restrict any attorney from rendering advice to his or her client

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with respect to this litigation and, in the course thereof, referring to or relying

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generally upon his or her examination of documents or information designated as

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Protected Material; provided, however, that in rendering such advice and in

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otherwise communicating with his or her clients, the attorney shall not disclose the

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content or the source of such information or documents contrary to the terms of

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this Order.

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9. Filings with This Court. To the extent that Protected Material is sought to

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be filed with this Court, each such document and thing sought to be filed under

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seal shall follow the requirements and procedures of Local Rule 79-5.

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10. Duty to Return Documents and Things. Within sixty (60) days after the

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entry of a final non-appealable judgment or order concluding the above-captioned

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action or the complete settlement of all claims asserted against all parties in this
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action, each party shall, at its option, either return to the Designating Party or

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destroy all Protected Material received from the Designating Party, and shall

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destroy in whatever form stored or reproduced all work product and any other

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documents or tangible things that contain or refer to Protected Material. Outside

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Counsel for any party or non-party properly receiving Protected Material shall

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provide written certification of compliance with this provision to counsel for the

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Designating Party within ninety (90) days after the entry of a final non-appealable

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judgment or order concluding this action or the complete settlement of all claims

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asserted against all parties to this action. Counsel of record may retain one set of

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all papers filed with the Court, including any Protected Material filed under seal

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and need not destroy any work product containing any Protected Material.

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Protected Material used as exhibits in hearings or other aspects of this matter may

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be resealed at the request of either party.

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11. Inadvertent Disclosure of Protected Material.

Inadvertent failure to

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identify documents or items as “CONFIDENTIAL” or “ATTORNEYS’ EYES

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ONLY” information pursuant to the terms of this Order shall not constitute a

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waiver of any otherwise valid claim for protection, so long as such claim is

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asserted within thirty (30) days of the discovery of the inadvertent disclosure. At

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such time, arrangements shall be made for the Designating Party to appropriately

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mark the information in accordance with the terms of this Order. The Receiving

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Party shall have no liability, under this Order or otherwise, for any disclosure of

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information contained in documents or items not bearing a confidentiality legend

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occurring before the Receiving Party was placed on notice of the Designating

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Party’s claims of confidentiality.

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12. Inadvertent Disclosure of Work Produce or Privileged Information.

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

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

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obligations of the Receiving Parties are those set forth in Federal Rule of Civil
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Procedure 26(b)(5)(B). If, after conferring, the parties are unable to reach a

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satisfactory agreement, the Producing Party may file a motion regarding the matter,

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but must do so within ten (10) business days after conferring with the Receiving

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Party. The Receiving Party shall not disclose to any person the document or thing

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for which the belated claim of immunity or privilege is being made, other than

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those persons who have had it in their possession prior to receipt of notification

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from the Producing Party, until ten (10) business days after receipt of the

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notification or, if a motion seeking the return of the inadvertently disclosed

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documents or information is filed with the Court, until the disposition of any such

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motion.

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13. Subpoena of “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY”

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Information. If any individual or entity subpoenas, orders production, or requests

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discovery of Protected Material that a Receiving Party has obtained subject to this

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Order, the Receiving Party shall promptly notify the Designating Party of same and

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shall not produce the Protected Material until the Designating Party has had

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reasonable time (at least ten (10) business days) to object or take other appropriate

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steps. If the Designating Party timely seeks a protective order, the Party served

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with the subpoena or court order shall not produce any information designated in

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this action as “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” before a

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determination by the court from which the subpoena or order issued, unless the

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Party has obtained the Designating Party’s permission. The Designating Party shall

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bear the burden and expense of seeking protection in that court of its confidential

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material – and nothing in these provisions should be construed as authorizing or

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

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another court.

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14. Duty to Report. When any attorney of record in this action becomes aware

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of any disclosure of Protected Material to any person or in any circumstance not

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authorized under this Protective Order, such attorney shall promptly report any
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such violation to Outside Counsel for the Designating Party, use its best efforts to

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retrieve all unauthorized copies of the Protected Material, inform the person or

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

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Protective Order, and request such person or persons to execute the attached

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Exhibit A attached hereto.

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15. Continuing Jurisdiction.

After the conclusion of the above-captioned

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action, the provisions of this Order shall continue to be binding until further order

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of this Court, and this Court shall retain jurisdiction over the parties and any other

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person who has had access to Protected Material pursuant to this Order, in order to

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enforce the provisions of this Order.
16. Limitations of Order. The restrictions set forth in any of the preceding
paragraphs shall not apply to material that:
(a) was, is, or becomes public in a manner other than by violation of this

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Order;

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(b) was already lawfully possessed by the non-designating party before

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the disclosure by the Designating Party (except for documents or items in the

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possession of the non-designating party that are subject to a confidentiality or non-

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disclosure agreement); or

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(c) was independently developed by the non-designating party by

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personnel who did not receive or have access to the Designating Party’s Protected

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Material.

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17. Modification or Amendment of Order. This Order is without prejudice to

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the right of any party to seek modification or amendment of this Order by further

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Order of this Court upon motion and notice.

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IT IS SO ORDERED.

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22nd
January
DATED this ___ day of ________________, 2019.
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___________________________________

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_ U.S. Magistrate Judge Thomas S. Hixson

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