Google Inc. v. American Blind & Wallpaper Factory, Inc.
Filing
59
Proposed Order [Proposed] Stipulated Protective Order by Google Inc., Google Inc.. (Hamm, Klaus) (Filed on 8/24/2005)
Google Inc. v. American Blind & Wallpaper Factory, Inc.
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Case 5:03-cv-05340-JF
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
GOOGLE INc. , a Delaware corporation
Case No. C 03- 5340- JF
(EAI)
Plaintiff
(PROPOSED) STIPULATED PROTECTIVE ORDER
14 AMERICAN BLIND & WALLPAPER
15 d/b/a decoratetoday.com, Inc. , and DOES I100 , inclusive
FACTORY , INC. , a Delaware corporation
Defendants.
AMERICAN BLIND & W ALLP APER
18 FACTORY, INc., a Delaware corporation
d/b/a decoratetoday. com , Inc.
Counter Plaintiff
GOOGLE INc. , AMERICA ONLINE, INC. 22 NETSCAPE COMMUNICATIONS CORPORATION , COMPUSERVE
23 INTERACTIVE
SERVICES , INC. , ASK JEEVES , INC. and EARTH LINK, INC.
Counter Defendant/ Third- Partv Defendants.
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The parties, by counsel, hereby stipulate to the entry of the following Protective Order
pursuant to Federal Rule of Civil Procedure 26(c) and Federal Rule of Evidence 501:
Designated Material
Designated Material" means any document or other information , including magnetic
media, electronic media and any material derived from such media, provided during discovery in
this action which is believed in good faith to contain or reflect confidential , proprietary or other
sensitive matter by the person or entity producing or filing it (the " Designating Party
). Such
material may be designated as either "CONFIDENTIAL" or, in limited circumstances, as
CONFIDENTIAL - ATTORNEYS' EYES ONLY" by the Designating Party in accordance
with the procedures set forth below. Such designations are intended to avoid invasions of
individual privacy and to protect proprietary information , confidential business or financial
information , and/or trade secrets relating to the Designating Party s business, personal, or
financial affairs.
Materials That May Be Marked "CONFIDENTIAL"
The following information may be designated as "CONFIDENTIAL" : information
documents , testimony or materials that the Designating Party properly regards as proprietary, confidential , as implicating privacy concerns, or as business information not disclosed in the
ordinary course ofbusiness.
Materials That May Be Marked "CONFIDENTIAL - ATTORNEYS' EYES ONLY"
The following information may be designated as "CONFIDENTIAL - ATTORNEYS' EYES ONLY" : information, documents, testimony or materials that the Designating Party
properly regards as relating to (i) current or future revenues , costs, profits, or other highlysensitive , non-public financial matters; (ii) bids, proposals, offers or other documents relating to
attempts to acquire a competing business; (iii) future strategic business , sales or marketing plans
or activities; or (iv) non-public patent applications or other highly-sensitive trade secrets, the
disclosure of which would irreparably harm the Designating Party.
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Access
Designated Material shall not be used or disclosed for any purposes other than the
litigation of this action and may be disclosed only as follows:
Disclosure Of CONFIDENTIAL Designated Material
Material designated "CONFIDENTIAL" may be disclosed, as necessary for the
prosecution or defense of this action , to (i) a reasonable number of current officers, directors or
employees of a party who have a legitimate purpose for reviewing such material in connection
with this litigation, (ii) former officers, directors or employees of a party who have a legitimate purpose for reviewing such material in connection with this litigation, (iii) the parties' attorneys
and their attorneys ' support staff, (iv) witnesses or potential witnesses who have a legitimate
purpose for reviewing such material in connection with this litigation, and (v) those individuals
to whom Designated Materials may be disclosed under the terms of paragraphs (c), (d), (f) and
(h) below. Before material designated " CONFIDENTIAL" may be disclosed to any person
authorized hereunder, such person must be shown a copy, and must agree to be bound by the
terms , of this Order.
Disclosure Of CONFIDENTIAL - ATTORNEYS' EYES ONLY Designated Material
(i.
Material designated "CONFIDENTIAL - ATTORNEYS' EYES ONLY"
may be disclosed to outside counsel of record (and their support staff) for
the parties to this action.
(ii.
Material designated "CONFIDENTIAL - ATTORNEYS' EYES ONLY"
may also be disclosed to two in-house attorneys, whose primary
responsibilities are related to litigation ("Designated Counsel") for each
party. Should any of the attorneys serving as Designated Counsel leave
the employment of a party, that party may designate a new attorney to
serve as Designated Counsel in the manner described above.
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(iii.
Material designated "CONFIDENTIAL - ATTORNEYS' EYES ONLY"
may also be disclosed to Independent Experts pursuant to paragraph (c)
below.
(iv.
Material designated "CONFIDENTIAL - ATTORNEYS' EYES ONLY"
may also be disclosed to other persons pursuant to paragraphs (d), (f) and
(h) below.
Disclosure To Independent Experts
For purposes of this Protective Order Independent Expert" means an expert or
independent consultant or contractor who is not an employee of the party, and who is retained for
the purposes of advising and assisting counsel in the preparation or trial of this action, or is
retained to give expert testimony, or is retained for both purposes. Designated Material may be
disclosed to Independent Experts, and his or her assistants, to whom it is necessary to disclose
Designated Material for the purpose of this action, provided that he or she must (i) execute a
copy of the Declaration as set forth in paragraph 16 of this Order, (ii) agree to retain any
Designated Materials without making any further copies thereof, and (iii) ~gree to return all
copies of Designated Materials at the conclusion of his /her services.
Disclosure By Stipulation
Material designated as "CONFIDENTIAL" or "CONFIDENTIAL - ATTORNEYS'
EYES ONLY" may be disclosed upon written agreement by all of the parties to this action to any
other person who agrees in writing to be bound by this Order.
Disclosure To Court
Except as provided in paragraph 5 , this Order shall not apply to disclosures of Designated
Material to the Court or its staff in connection with the Court' s administration and adjudication
24 . of this action, or to Court reporters.
Copies
Copies and extracts of Designated Materials may be made by or for the foregoing
persons , provided that all copies and extracts are appropriately marked. The Parties may utilize
third party copying and imaging providers. All copies and extracts are subject to paragraph 9 of
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this Order.
Custody Of Designated Materials
A person with custody of Designated Materials shall maintain them in a manner that
limits access only to those persons who have agreed to be bound by this Order.
Authors And Addressees
The designation of any document as "CONFIDENTIAL" or "CONFIDENTIAL
ATTORNEYS' EYES ONLY" shall not preclude any party from showing the document to any
person who appears as an author, addressee or recipient on the face of the document, provided
however, that if: (i) the document has been annotated by another person; and (ii) the annotations
are designated as "CONFIDENTIAL" or "CONFIDENTIAL-ATTORNEYS' EYES ONLY
then the annotations shall be redacted from the copy of the document shown to the author
addressee or recipient, unless the annotations were made by someone employed by the
Designating Party and the person to whom the document will be shown is also employed by the
Designating Party.
Information Otherwise Available
The restrictions set forth in this Order shall not apply to information:
(i.
Which is lawfully known to the receiving party or the public before the
date of its transmission to the receiving party;
(ii.
Which becomes publicly known after the date of its transmission to the
receiving party, provided however, that such information shall not have
become publicly known by any act or omission of the receiving party which would constitute a breach of this Order; or
(iii.
Which , after disclosure to the receiving party, is revealed to the public by
a person having the unrestricted right to do so.
Information Obtained From Third Parties Other Than Through Discovery
Nothing in this Order shall preclude any party herein , its attorneys or any other person
from disclosing or using, in any manner or for any purpose, any Designated Materials if the same
information or documents (i) are obtained lawfully from a third- party otherwise than through
(PROPOSED) STIPULA TED PROTECTIVE ORDER CASE NO. C 03-5340-JF (EM)
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formal discovery in this proceeding; and (ii) were not subject to any restriction on disclosure
while in the possession of such third-party (e. , where the third party owed(es) no duty of nondisclosure to the party claiming confidentiality of the information).
Designating Documents
When a party producing documents wishes to designate some portion as
CONFIDENTIAL" or "CONFIDENTIAL - ATTORNEYS' EYES ONLY" such designation
shall be made by placing a conspicuous legend on each page of the document prior to
production. This designation of confidential information need not be made until copies of the
materials are requested after inspection and selection by counsel. Making documents and things
available for inspection by a party s counsel shall not constitute a waiver of any claim of confidentiality, and all materials provided for inspection by a party s counsel shall be treated as though designated as "CONFIDENTIAL - ATTORNEYS' EYES ONL Y" at the time of the
inspection. When a party wishes to designate as "CONFIDENTIAL" or "CONFIDENTIAL
ATTORNEYS' EYES ONLY" a document produced by someone else , that party becomes the
Designating Party for purposes of that designation, which shall be made within ten business days
from the date that the Designating Party receives notice that the document has been produced, by
notice to all parties, identifying with particularity the designated documents.
Designating Depositions
Timing
Deposition transcripts or portions thereof may be designated as "CONFIDENTIAL" or
CONFIDENTIAL - ATTORNEYS' EYES ONLY" by a party either: (i) before the testimony
is recorded, in which case the transcript of the designated testimony shall be bound in a separate
volume and marked by the reporter, as the Designating Party may direct, or (ii) by captioned
written notice to the reporter and all counsel of record, given within ten business days after the
reporter sends written notice that the transcript or portion thereof is complete. Pending
expiration ofthe ten business days, the deposition transcript shall be treated as if it had been
designated "CONFIDENTIAL - ATTORNEYS' EYES ONLY."
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Exclusion Of Persons
Where testimony is designated "CONFIDENTIAL - ATTORNEYS' EYES ONLY"
a party during a deposition, the Designating Party may exclude from the deposition all persons
other than the court reporter(s) and videographer(s), if any, and those persons to whom the Designated Material may be disclosed under paragraph 2 of this Order.
Exhibits
Any party may mark a deposition exhibit as Designated Material and examine any
witness thereon, provided that the deposition witness is one to whom the exhibit may be
disclosed under paragraph 2 of this Order and the exhibit and related transcript pages receive the
same confidentiality designation as the exhibit.
Court Procedures
Should a party include or make specific reference to Designated Material designated by another party in a submission to the Court, that party shall follow the procedures set forth in
Civil Local Rule 79. 5 to request that the papers, or portions of the papers, including such
Designated Material be sealed.
Subpoena By Other Courts Or Agencies
If a third party, another Court or an administrative agency subpoenas or orders production
of documents or information or materials, designated for protection under this Protective Order
that a party has obtained under the terms of this Order, such party shall promptly (a) notify the
Designating Party of the pendency of such subpoena or order; (b) inform in writing the party that caused the subpoena or order to issue that some or all the material covered by the subpoena or
order is the subject of this Order; and (c) deliver a copy of this Order promptly to the party that
caused the subpoena or order to issue.
The purpose of imposing these duties is to alert the interested parties to the existence of
this Order and to afford the Designating Party in this case an opportunity to try to protect its
confidentiality interests in the court from which the subpoena or order issued. The Designating
Party shall bear the burdens and expenses of seeking protection in that court of its confidential
material. Nothing in these provisions should be construed as authorizing or encouraging anyone
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to disobey a lawful directive from another court.
Objections
A party challenging a "CONFIDENTIAL" or "CONFIDENTIAL - ATTORNEYS'
EYES ONLY" designation shall do so in writing and shall state the basis for the challenge. The
Designating Party shall, within five days after receiving such notice, respond in writing. Ifthe
Designating Party fails to respond timely in writing, then the Designating Party shall be deemed
to have waived the claim of confidentiality. The challenging party may move the Court for an
order that material is not properly designated. Before filing such a motion, counsel shall meet
and confer in a good faith effort to resolve their differences. The Designating Party may file a
brief in opposition to the challenging party s motion within five days. Pending a decision from
the Court, the information shall be treated as properly designated under this Order. At all times
the burden shall remain on the Designating Party to sustain the claim of confidentiality.
No Prejudice
Nothing in this Order shall preclude any party from seeking and obtaining
additional or different protection with respect to the confidentiality of discovery.
This Order shall not diminish any existing obligation orright with respect to
Designated Material, nor shall it prevent a disclosure to which the Designating
Party consents in writing before the disclosure takes place.
Unless all parties stipulate otherwise, evidence of the existence or nonexistence of
a designation under this Order shall not be admissible for any purpose during any
proceeding on the merits ofthis action.
A party may seek to make late designations of information and materials by
stipulation or court order if the party failed to make a timely designation through
mistake or inadvertence.
Final Disposition
Within sixty days of final termination of this action (including any appeals), each party
shall assemble and destroy or return all Designated Materials, including copies, abstracts
summaries , documents or materials containing information taken from them (but excluding any
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materials which, in the judgment of counsel, are work product materials) to counsel for the person that produced the material. Each party shall further certify to the owner of the Designated Materials that such destruction or return occurred. In the case of materials designated under this
Order by someone other than the party producing those materials , the materials shall be returned
to counsel for the Designating Party, or destroyed. The attorneys of record in this case may
retain one copy of any Designated Material , solely for archival purposes, that are attached to any
pleading filed with the Court or have been marked as an exhibit to a deposition , or which is part
of deposition testimony, interrogatory response(s), or response(s) to request(s) for admission.
10.
Modification And Survival
The restrictions imposed by this Order may be modified or terminated only by written
stipulation of all parties or by order of this Court. This Order shall survive termination of this
action.
11.
No Contract
This proposed Order is for the Court' s consideration and approval as an Order. It shall
not be construed to create a contract between the parties or between the parties and their
respective counsel.
12.
Inadvertent Disclosure Of Designated Material
If any party inadvertently discloses Designated Material to a person or persons other than
those designated under paragraph 2 of this Order, that party promptly shall notify the
Designating Party of the disclosure and undertake all reasonable efforts to retrieve the
Designated Material.
13.
Attorney- Client And Work Product Material
If any party inadvertently produces materials protected by the attorney- client or work
product doctrines, that party may notify counsel to whom the material was produced and the
material will be returned. Inadvertent production of such privileged material will not constitute a
waiver of the attorney-client privilege or work product privilege. The parties agree that upon
notification of such an inadvertent production , any copies already made of the privileged
material will either be returned or destroyed.
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14.
Designations Not Admissions
Nothing in this Protective Order shall be construed as an admission or agreement that any
specific information is or is not confidential , subject to discovery, relevant, or admissible in .
evidence in this litigation.
15.
Privileged Log
No party need identify on its privileged log any attorney- client communications or work
product materials created on or after the filing of this suit
November 26 2003 , because to
do so would be unduly burdensome given the volume of such attorney- client communications
and work product materials.
16.
Declarations
To become entitled to review materials designated as "CONFIDENTIAL" and/or
CONFIDENTIAL - ATTORNEYS' EYES ONLY"
as provided in paragraph 1 ,
the persons
identified in paragraphs 2(a)(ii), 2(a)(iv), (2)(b)(iii), 2(b)(iv) and 2(c) shall first be provided with
a copy of this Protective Order and shall be required to sign a Declaration in the form set forth as
Exhibit A hereto. None of the other persons listed in paragraph 2 shall be required to.sign such a
Declaration. The party on whose behalf the Declaration is signed shall retain the original
Declaration.
DATED: August 23 2005
KEKER & V AN NEST, LLP
By:
db. it~
MARK A. LEMLEY KLAUS H. HAMM Attorneys for Plaintiff and Counter Defendant
GOOGLE INC. and Third-Party Defendants
ASK JEEVES, INc. and EARTHLINK, INC.
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DATED: August 23 , 2005
HOWREY SIMON ARNOLD & WHITE , LLP
By:
ROB RTN. PHILLIPS
ETHAN B. AND ELMAN Attorneys for Defendant/Counter-Pia tiff AMERICAN BLIND AND W ALLP APER FACTORY , INC.
DATED: August 23 2005
TAYLOR & COMPANY LAW OFFICES , INC.
By:
STEPHENE. TAYLOR JAN J. KLOHONATZ Attorneys for Third Party Defendants AMERICA ONLINE, INc., NETSCAPE COMMUNICA nONS CORPORA nON and COMPUSERVE INTERACTNE SERVICES , INC.
PURSUANT TO STIPULATION, IT IS SO ORDERED.
DATED:
2005
UNITED STATES DISTRICT COURT JUDGE
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DATED: August 23, 2005
HOWREY SIMON ARNOLD & WHITE, LLP
By:
ROBERT N. PHILLIPS ETHAN B. ANDELMAN Attorneys for Defendant/Counter-Plaintiff AMERI CAN BLIND AND W ALLP APER FACTORY, INC.
DATED: August 23 , 2005
TAYLOR & COMPANY LAW OFFICES, INC.
By:
14
AYLOR
J\N J. KLO HONA T
Attorneys for Third Party Defendants AMERICA ONLINE, INC. , NETS CAPE COMMUNICATIONS CORPORATION and COMPUSERVE INTERACTIVE SERVICES, INC.
PURSUANT TO STIPULATION, IT IS SO ORDERED.
17 DATED:
2005
UNITED STATES DISTRICT COURT JUDGE
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EXHIBIT A
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
GOOGLE INC. , a Delaware corporation
Case No. C O3- 5340- JF
(EAI)
Plaintiff
CO NFID
ENTIALITY AGREEMENT
AMERICAN BLIND & W ALLP APER FACTORY , INc., a Delaware corporation d/b/a decoratetoday. com , Inc. , and DOES I100 , inclusive
Defendants.
AMERICAN BLIND & W ALLP APER FACTORY , INc. , a Delaware corporation d/b/a decoratetoday.com, Inc.
Counter Plaintiff
GOOGLE INc. , AMERICA ONLINE, INC. NETS CAPE COMMUNICATIONS CORPORATION , COMPUSER VE INTERACTIVE SERVICES, INC. , ASK JEEVES , INc. and EARTHLINK, INc.
Counter Defendant/ Third- Part Defendants.
, declare as follows:
1. I have received and carefully
read a copy ofthe Stipulated Protective Order entered in
the above-captioned litigation, and I understand its terms and conditions.
2. I agree to be bound by and comply with all of the terms of this Stipulated Protective
Order , and by such orders as the Court may issue regarding the confidential treatment to be
accorded documents, other materials and information in this litigation.
3. Specifically, I agree to hold in confidence and not to disclose any materials or
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information designated as "CONFIDENTIAL" or "CONFIDENTIAL - ATTORNEYS' EYES
ONL Y" shown to me during the course of this litigation.
4. I agree to return all documents and materials containing information designated as
CONFIDENTIAL" or "CONFIDENTIAL - ATTORNEYS' EYES ONLY" shown to me in the
course of this litigation.
5. I acknowledge that the Court may sanction me in the event that I violate the
provisions of the Stipulated Protective Order, and I hereby agree to submit to the jurisdiction of
this Court for said purposes.
6. I declare under the penalty of perjury that the foregoing is true and correct, and that
this Declaration was executed this
day of
2005.
SIGNATURE
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