In re KLA-Tencor Corp., Shareholder Derivative Litigation

Filing 391

STIPULATION AND ORDER re #264 Stipulation filed by Special Litigation Committee of the Board of Directors of KLA-Tencor Corporation. Signed by Judge Howard R. Lloyd on 9/11/08. (hrllc1, COURT STAFF) (Filed on 9/11/2008)

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1 SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP JAMES E. LYONS (State Bar No. 112582) 2 TIMOTHY A. MILLER (State Bar No. 154744) Four Embarcadero Center, Suite 3800 3 San Francisco, California 94111-4144 Telephone: [phone] Facsimile: [phone] jlyo [e-mail] m 5 [e-mail] m 6 Attorneys for the Special Lit igat ion Co mmittee of Nominal Defendant KLA-Tencor Corporation 7 8 9 10 11 12 IN RE KLA-TENCOR CORP. SHAREHOLDER ) DERIVATIVE LITIGATION ) 13 ) ) 14 ) ________________________________________ ) 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT

*E-FILED 9/11/08*

FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

Case No. C-06-03445-JW (HRL) STIPULATION AND [PROPOSED] PROTECTIVE ORDER REGARDING CONFIDENTIALITY AS AMENDED Date: Time: Judge: N/A N/A Honorable James Ware

STIPULATION AND [PRO POSED] PROTECTIVE ORDER; CASE NO. C-06-03445-JW (HRL)

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IT IS HEREBY STIPULATED AND AGREED, by and between the parties to the above-

2 captioned act ion, through their respect ive counsel, as fo llows: 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Order. 2. This Stipulat ion shall govern the handling of all Material provided during the course 1. Definit ions. a. "Action" shall refer to the conso lidated shareho lder derivat ive act ion

captioned In re KLA-Tencor Corporation Shareho lder Derivat ive Lit igat ion, Case. No. C-06-03445-JW (HRL). b. " of etl t i" hlm a i om t n r a l s f o gnr e, C ni n aMa r lsa enn r ao ( gr e o hw ee t di ea l f i e ds ad

stored or maintained) or tangible things that qualify for protection under standards developed under F. R. Civ. P. 26(c). c. "Designat ing Person" shall refer to a Person (including a Party) that

designates Material as "Confident ial" under this Stipulat ion. d. "Material" shall mean all documents, testimo ny and discovery responses,

including all copies, excerpts and summaries thereof. e. "Party" or "Parties" shall refer to any part y to this action, including all o f its

officers, directors, emplo yees, consultants, retained experts, and outside counsel (and their support staff). f. "Person" shall refer to and include (a) all Part ies to the Act ion; and (b) any

other person receiving, producing or disclosing Material in the Act ion. g. "Producing Person" shall refer to a Person (including a Party) that produces

Material in the Act ion. h. "Receiving Person" shall refer to a Person (including a Party) that receives

Material fro m a Producing Person. i. "Stipulat ion" shall refer to this Confidentialit y Stipulat ion and Protective

26 of the Act ion by the Parties to the Act ion or by non-parties, either vo luntarily or as required by 27 discovery requests made pursuant to the Federal Rules of Civil Procedure or as permitted by Court 28 order. The provisio ns of this Stipulat ion shall apply to any Person.

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3.

All Material shall be used only for the purpose of preparing for, and conducting, the

2 Act ion, including any appeals thereof, and shall not be used by the Parties or any other person for 3 any co mmercial, business, compet it ive or other purpose. 4 4. This Stipulat ion shall not apply to any document, testimo ny or other informat ion

5 that (a) is already in a Receiving Person's possession at the time it is produced, (b) becomes 6 generally available to the public other than as a result of disclosure in vio lat ion of this Stipulat ion 7 or in breach of other legal obligat ion, or (c) becomes available to a Party through voluntary or 8 required production from a person or Party who obtained the document, testimo ny or other 9 informat ion without any confident ialit y restrict ion. 10 5. Each Party or non-party that designates informat ion or items for protection under

11 this Order must take care to limit any such designation to specific material that qualifies under the 12 appropriate standards. A Designat ing Person must take care to designate for protection only those 13 parts of material, documents, items, or oral or written co mmunicat ions that qualify ­ o that other s 14 portions of the material, documents, items, or communicat ions for which protection is not 15 warranted are not swept unjustifiably within the ambit of this Order. Mass, indiscriminate, or 16 routinized designat ions are prohibited. Designat ions that are shown to be clearly unjust ified, or 17 that have been made for an improper purpose (e.g., to unnecessarily encumber or retard the case 18 development process, or to impose unnecessary expenses and burdens on other parties), expose the 19 Designat ing Person t snt n. fto e t a a ys r nnpr 'aet n htnom t n o acos Iicm so Pr 'o a o- a ys tno t i r ao i t t ti a f i 20 or items that it designated for protection do not qualify for protection at all, or do not qualify for 21 the level o f protection init ially asserted, that Party or non-party must prompt ly notify all other 22 parties that it is withdrawing the mistaken designatio n. 23 6. If Material is inspected at the Producing Person's cho ice of locat ion, all such

24 Material shall be presumed at such inspection to have been designated as Confident ial Material by 25 the Producing Person unt il such time as the Producing Person provides copies to the Party that 26 requested the Material. Production of Confidential Material for inspect ion and copying shall not 27 constitute a waiver of confident ialit y. 28

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7.

Each Party shall have 10 days fro m the actual receipt of any Material produced by

2 any other Party or any third-part y to designate any such Material as "Confidential." During this 103 day period, any person receiving any such Material shall treat that Material as "Confidential" under 4 the terms of this Stipulation. 5 8. Any Material designated as "Confident ial" in accordance wit h this Stipulat ion also

6 will render "Confident ial" any copies, excerpts, summaries or other documents reflect ing or 7 referring to the substance or contents of such Material, subject to the provisio ns of paragraph 4 of 8 this Stipulat ion. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and 9. Confident ial Material shall be subject to the following restrict ions: a. Confident ial Material shall not be given, shown, made available or

communicated in any way to anyone except those persons specified in subparagraph 9(b) below to whom it is necessary that such Confident ial Material be given or shown for the purpose permitted under paragraph 3 above.
Except as ordered by the Court,

b.

Confidential Material may be disclosed, for the purposes set forth in

paragraph 3 above, only to a "Qualified Person," defined as fo llows: i. counsel o f record for the Parties, and attorneys, clerical, paralegal

and other staff emplo yed by such counsel, including any outside vendor providing lit igat ion support or photocopying services, who are assisting in the conduct of the Act ion; ii. iii. the Parties (subject to the limitat ion of paragraph 9(b)(iii), below); those officers and emplo yees of the Parties deemed necessary to aid

counsel in the conduct of the Act ion, subject to paragraph 10, below; iv. witnesses (other than Parties) at any deposit ion or hearing in the

Act ion, subject to paragraph 10, below; v. such consultants and experts retained by the Parties, or their

respective counsel, as they in good fait h deem necessary to provide assistance in connect ion with the conduct of the Action, subject to paragraph 10, below; vi. the Court, court personnel, potential jurors, jurors or alternate jurors;

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1 2 conduct of the Act ion. 3 10.

vii.

court reporters and their emplo yees used in connection with the

Each Qualified Person described in paragraph 9(b), above, other than the Parties and

4 their respect ive counsel (including their partners and emplo yees), court personnel and court 5 reporters and their emplo yees, to whom Confidential Material is disclosed shall first be provided 6 with a copy of this Stipulat ion and advised that such Confidential Material is being disclosed 7 pursuant to and subject to the terms of this Stipulatio n and that Confidential Material may not be 8 disclosed other than pursuant to the terms hereof. It shall be the responsibilit y o f counsel providing 9 such access to provide to each person to whom Confidential Material is disclo sed a copy of this 10 Stipulation. Prior to disclo sing Confident ial Material to each person described in subparagraph 11 9(b)(iv), above, or to any o fficer or emplo yee of a Party, counsel shall cause each such person to 12 execute a Certificate in the form attached as Exhibit A hereto. Counsel disclo sing Confident ial 13 Material to persons under subparagraph 9(b) shall be responsible for ho lding executed certificates. 14 11. All documents and things that are produced in the Act ion, whether voluntarily or as

15 required by Court order or under the Federal Rules of Civil Procedure, if such documents or things 16 contain Confidential Material, shall bear a stamp stating "Confident ial" on each page of any such 17 document or on a sticker affixed to any such tangible thing. It shall be the responsibilit y of the 18 Producing Person to cause all Confident ial Material to be stamped by the time such Confident ial 19 Material is produced. If a document alleged to be Confident ial Material is nevertheless 20 inadvertent ly produced without a "Confident ial" designation, such production, in and of itself, shall 21 in no way prejudice or otherwise const itute a waiver of, or estoppel as to, any claim o f 22 confident ialit y to which the Producing Person would otherwise be ent it led. As soon as practicable, 23 a Producing Person shall notify a Receiving Person in writ ing of its inadvertent production of 24 Confident ial Material, ident ifying the Confident ial Material wit h reasonable part icularit y. Upon 25 receiving such written notificat ion, the Receiving Person shall treat the Material ident ified in the 26 written notificat ion as though it had been designated as "Confident ial" by the Producing Person 27 under the terms of this Stipulat ion. Within five court days of sending such written notificat ion, the 28 Producing Person shall provide replacement copies of the specified documents to the Receiving

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1 Person that have been properly designated as "Confidential" under this Stipulat ion, and the 2 Receiving Person shall return the inadvertent ly produced undesignated documents, and all copies 3 thereof, to the Producing Person (or certify in writ ing that all such copies have been destroyed). 4 12. Informat ion or testimo ny disclosed at a deposit ion may be designated as

5 Confident ial Material by the person providing such testimo ny, by a Party or by a Producing Person 6 if such person either: 7 8 9 10 11 a. ident ifies on the record at the deposit ion those portio ns of the testimo ny that

are designated as Confident ial Material; or b. provides written notificat ion to all Parties within 10 days of receipt of the

transcript of the deposition specifying those pages and lines of the transcript that are designated as Confident ial Material.

12 The ent ire transcript of any deposit ion shall be treated as Confident ial Material unt il 30 days after 13 the conclusio n of the deposit ion. Each page of deposit ion transcript designated as Confident ial 14 Material shall be stamped, as set forth in paragraph 11 above, by the court reporter or counsel. 15 13. No document that has been designated "Confident ial" by any part y shall be filed,

16 independent ly or as an attachment or exhibit to any other document, in the public court file except 17 as provided in Civil Local Rule 79-5. In particular, in addit ion to compliance with all other 18 provisio ns of Civil Local Rule 79-5, any Part y or other person wishing to file a document 19 designated as "Confident ial" by another Party or person must comply wit h the procedure set forth 20 in Civil Local Rule 79-5(d), which provides: 21 22 23 24 25 26 27 28 If a party wishes to file a document that has been designated confident ial by another party pursuant to a protective order, or if a party wishes to refer in a memorandum or other filing to informat ion so designated by another party, the submitting party must file and serve an Administrative Motion for a sealing order and lodge the document, memorandum or other filing in accordance wit h this rule. If only a portion of the document, memorandum or other filing is sealable, the submitting part y must also lodge with the Court a redacted version of the document, memorandum or other filing to be placed in the public record if the Court approves the requested sealing order. Within five days thereafter, the designat ing party must file wit h the Court and serve a declarat ion establishing that the designated information is sealable, and must lodge and serve a narrowly tailored proposed sealing order, or must withdraw the designation o f confident ialit y. If the designat ing party does not file

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14.

its responsive declarat ion as required by this subsection, the document or proposed filing will be made part of the public record. In the event it beco mes necessary at a deposit ion or hearing to show any

Confident ial Material to a witness, as described in subparagraph 9(b)(iii), above, any testimo ny related to the Confident ial Material shall be deemed to be Confidential Material, and the pages and lines o f the transcript that set forth such testimony shall be stamped as set forth in paragraph 12 of this Stipulat ion. 15. No Party concedes that any Material designated by any other person as Confident ial

Material does in fact contain or reflect trade secrets, proprietary or confident ial information, or has been properly designated as Confident ial Material, and entering into this Stipulat ion shall not prejudice, in any way, the right of a Party to seek at any t ime a determinat ion by the Court of whether any part icular document or informat ion should be subject to the terms of this Stipulat ion. 16. Unless a prompt challenge to a Designat ing Person's confident ialit y designation is

necessary to avoid foreseeable substant ial unfairness, unnecessary econo mic burdens, or a later significant disruption or delay of the lit igat ion, a Party does not waive its right to challenge a confident ialit y designat ion by elect ing not to mount a challenge promptly after the original designation is disclo sed. 17. Meet and Confer. A Party that elects to init iate a challenge to a Designating

Person's confident ialit y designat ion must do so in good fait h and must begin the process by conferring directly (in vo ice to voice dialogue; other forms of co mmunicat ion are not sufficient) with counsel for the Designat ing Person. In conferring, the challenging Party must explain the basis for its belief that the confident ialit y designat ion was not proper and must give the Designat ing Person an opportunit y to review the designated material, to reconsider the circumstances, and, if no change in designat ion is offered, to explain the basis for the chosen designation. A challenging Party may proceed to the next stage of the challenge process only if it has engaged in this meet and confer process first. 18. Judicial Intervention. A Party that elects to press a challenge to a confident ialit y

designation after considering the justificat ion offered by the Designating Person may file and serve

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1 a motion under Civil Local Rule 7 (and in co mpliance wit h Civil Local Rule 79-5, if applicable) 2 that identifies the challenged material and sets forth in detail the basis for the challenge. Each such 3 mot ion must be acco mpanied by a co mpetent declaration that affirms that the movant has complied 4 with the meet and confer requirements imposed in the preceding paragraph and that sets forth with 5 specificit y the justificat ion for the confident ialit y designation that was given by the Designat ing 6 Person in the meet and confer dialogue. The burden of persuasion in any such challenge 7 proceeding shall be on the Designat ing Person. Unt il the court rules on the challenge, all parties 8 shall cont inue to afford the material in quest ion the level o f protection to which it is ent itled under 9 the Producing Person's designat ion. 10 19. Subject to paragraph 3, above, should any non-party seek access to Confident ial

11 Material, by request, subpoena or otherwise, the Party or other recipient of the Confidential 12 Material fro m whom such access is sought, as applicable, shall pro mpt ly notify the Producing 13 Person who produced such Confident ial Material of such requested access. If any Receiving 14 Person (a) is subpoenaed in another action, (b) is served with a demand in another action to which 15 he or it is a party, or (c) is served with any other legal process by one not a party to this Act ion, 16 seeking Material which was produced and designated as Confident ial, the Receiving Person shall 17 give written notice, by hand or facsimile transmissio n, within five business days of receipt of such 18 subpoena, demand or legal process, to those who produced or designated the Material. The 19 Receiving Person shall not produce any of the Producing Person's Confidential Material, unless 20 ordered by a court to do so, until the later of (i) at least five business days after providing the 21 required notice to the Producing Person, or (ii) the date of production specified in, or required by, 22 the subpoena, demand or other legal process. The Producing Person shall be so lely responsible for 23 assert ing any object ion to the requested production. 24 20. This Stipulat ion, inso far as it restricts the communicat ion and use of Confidential

25 Material, shall cont inue to be binding throughout and after the conclusio n of the Act ion, including 26 any appeals. 27 21. This Stipulat ion shall be wit hout prejudice to the rights of a Producing Person to

28 seek further limit s on disclo sure or protections for the confident ialit y of any Material (whether or

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1 not Confident ial) in addit io n to the limits and protections provided herein, including, without 2 limitation, that access to or disclosure of any Material be limited so lely to counsel emplo yed by a 3 Party or to other specified persons. 4 22. Notwithstanding any provisio n contained herein, nothing in this Stipulat ion shall

5 restrict in any way the right of a Party to make use of its own Material in any way it deems fit. 6 23. Wit hin thirt y days after the conclusio n of the Act ion, including all appeals, all

7 Confident ial Material, copies thereo f and documents reflecting such Confident ial Material shall be 8 returned to the Producing Person who produced such Confident ial Material or destroyed, at the 9 discretion of the Producing Person. If a Receiving Person believes that destruction of Confidential 10 Material produced in this act ion would const itute a vio lat ion of the Private Securit ies Lit igation 11 Reform Act of 1995 (the "PSLRA") or any other legal obligation to preserve documents, then the 12 Receiving Person shall return copies thereof and documents reflect ing such Confident ial Material 13 to the Producing Person who produced such Confident ial Material in accordance with this 14 paragraph. If the Confident ial Material is destroyed, counsel for the applicable Parties shall cert ify 15 in writ ing that all such Confident ial Material within their possession or control has been destroyed. 16 Notwithstanding the foregoing, counsel for the Parties may retain pleadings, other papers filed wit h 17 the Court or served in the course of the Act ion, discovery responses, and deposit ion transcripts.
for a period of 6 months after final termination of this action,

18

24.

The Court retains jurisdict ion to make such amendments, modificat ions, or additions

19 to this Stipulat ion as it may fro m time to time deem appropriate or may consider upon the motion 20 of any part y. 21 22 23 24 25 26 27 28 IT IS SO STIPULATED AND AGREED. /// /// /// /// /// /// ///

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1 DATED: May 22, 2008 2 3 4 5 6 7 8 9 10

SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP JAMES E. LYONS TIMOTHY A. MILLER By: /s/ Timothy A. Miller

Four Embarcadero Center, Suite 3800 San Francisco, CA 94111 Telephone: [phone] Facsimile: [phone] Attorneys for the Special Lit igat ion Co mmittee of the KLA-Tencor Board of Directors

I, Timothy A. Miller, am the ECF User whose ID and password are being used to file this STIPULATION AND [PROPOSED] PROTECTIVE ORDER REGARDING 11 CONFIDENTIALITY. In compliance with General Order 45, X.B., I hereby attest that each of the 9 signatories identified below has concurred in this filing. 12 13 DATED: May 22, 2008 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP JOHN H. HEMANN JOSEPH E. FLOREN BENJAMIN P. SMITH By: /s/ Joseph E. Floren

One Market Street, Spear Street Tower San Francisco, CA 94105-1126 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants Jeffrey L. Hall, Richard P. Wallace, John H. Kispert, Dean Morton, Michael Marks, Stephen Kaufman, Dennis Fortino and Nominal Defendant KLA-Tencor Corporation

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1 DATED: May 22, 2008 2 3 4 5 6 7 8 9 10 11 12 13 DATED: May 22, 2008 14 15 16 17 18 19 20 21 22 DATED: May 22, 2008 23 24 25 26 27 28

COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP SHAWN A. WILLIAMS AELISH M. BAIG /s/ Shawn A. Willia ms 100 Pine Street, Suite 2600 San Francisco, CA 94111 Telephone: [phone] Facsimile: [phone] COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP DARREN J. ROBBINS TRAVIS E. DOWNS III 655 West Broadway, Suite 1900 San Diego, CA 92101-3301 Telephone: [phone] Facsimile: [phone] Lead Counsel for Plaint iffs FENWICK & WEST LLP KEVIN P. MUCK DEAN S. KRISTY By: /s/ Kevin P. Muck

555 California Street, 12th Floor San Francisco, CA 94104 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants Edward W. Barnho lt, H. Raymo nd Bingham, Robert J. Boehlke, Robert T. Bond, Richard J. Elkus, Jr., Leo Chamberlain, and Lida Urbanek ORRICK, HERRINGTON & SUTCLIFFE LLP WALTER F. BROWN, JR. ROBERT P. VARIAN By: /s/ Robert P. Varian 405 Howard Street San Francisco, CA 94105 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant Gary Dickerson

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1 DATED: May 22, 2008 2 3 4 5 6 7 8 9 DATED: May 22, 2008 10 11 12 13 14 15 16 17 18 19 20 21 22 DATED: May 22, 2008 23 24 25 26 27 28

SHEARMAN & STERLING LLP PATRICK D. ROBBINS JEFFREY S. FACTER EMILY V. GRIFFEN By: /s/ Emily V. Griffen 525 Market Street, Suite 1500 San Francisco, CA 94105 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant Kenneth Levy LAW OFFICE OF MARK A. BELNICK, LLC MARK A. BELNICK (admitted pro hac vice) By: /s/ Mark A. Belnick

120 West 45th Street, Suite 1700B New York, NY 10036 Telephone: [phone] Facsimile: [phone] CHRISTOPHER D. KERCHER (pro hac vice) AKIN GUMP STRAUSS HAUER & FELD LLP 590 Madison Avenue New York, NY 10022 Telephone: [phone] STEVEN S. KAUFHOLD AKIN GUMP STRAUSS HAUER & FELD LLP 580 California Street, 15th Floor San Francisco, CA 94104 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant Stuart J. Nicho ls RAMSEY & EHRLICH LLP ISMAIL RAMSEY MILES F. EHRLICH By: /s/ Ismail Ramsey

803 Hearst Avenue Berkeley, CA 94710 Telephone: [phone] Facsimile: [phone] Attorneys for Arthur Schnitzer

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1 DATED: May ____, 2008 2 3 4 5 6 7 8 9 DATED: May 22, 2008 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated:
9/11/08

DLA PIPER US LLP SHIRLI FABBRI WEISS DAVID A. PRIEBE By: /s/ Shirli Fabbri Weiss

200 Universit y Avenue East Palo Alto, California 94303 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant Kenneth L. Schroeder HELLER EHRMAN LLP MICHAEL J. SHEPARD WARRINGTON S. PARKER, III By: /s/ Warrington S. Parker, III

333 Bush Street San Francisco, CA 94014 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant Jon D. Tompkins

PURSUANT TO STIPULATION, IT IS SO ORDERED.

The Honorable Howard R. Lloyd United States Magistrate Judge

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1 2

EXHIBIT A I, _________________________, do hereby certify that I have been provided with a copy

3 of the Confident ialit y Stipulat ion and Protective Order in the consolidated action capt ioned in re 4 KLA-Tencor Corporation Shareholder Derivative Litigation, No. C-06-03445-JW (HRL) that I 5 have reviewed said Stipulat ion and Protective Order, and that I agree to be bound by the terms and 6 condit ions set forth therein and consent to the exercise of jurisdict ion of the United States District 7 Court for the Northern District of California in connect ion wit h any proceedings relating to the 8 Stipulation and Protective Order. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _______________________________________ signature Executed on this _______ of ______________, _________. day month year

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205289-San Franci sco Se rve r 1A - MSW