Walsh v. Apple, Inc. et al

Filing 326

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Walsh v. Apple, Inc. et al Doc. 326 Exhibit "A" Dockets.Justia.com DRAFT Exhibit B INSURANCE CARRIER ADDENDUM This is an addendum to the Stipulated Protective Order ("Protective Order") dated June 6, 2007, in the matter Oracle Corp. et al. v. SAP AG, et al. (the "Action"), 07-CV-1658, filed in the United States for the Northern District of California, San Francisco Division, and shall be made part of the Protective Order. All capitalized terms herein shall have the same meanings as those terms that are capitalized in the Protective Order. SAP Insurers and Insurer Receiver Party shall refer, respectively, to those liability insurers of SAP to which claims for coverage of the Action have been made and their counsel, and to those of the SAP Insurers that receive Discovery Materials designated as "Confidential Information" and "Highly Confidential Information Attorney's Eyes Only" under the Protective Order ("Designated Material") under this INSURANCE CARRIER ADDENDUM to the Protective Order. Notwithstanding all provisions contained in the Protective Order, pursuant to this Insurance Carrier Addendum (Exhibit B), upon request, the SAP Insurers shall be provided with copies of Discovery Materials, including, but not limited to Designated Material, which are in SAP's possession, custody, or control. This information is necessary for the SAP Insurers' evaluation of the allegations in the Action. The SAP Insurers and SAP share a common and mutual interest in the defense of the Action, notwithstanding the SAP Insurers' ongoing reservation of rights, and the exchange of information between SAP and the SAP Insurers shall not affect any privilege or attorney work-product protection that may apply to such information, or the protections granted by the Protective Order. Additional Provisions Applicable to the SAP Insurers. The following provisions shall be added to the Protective Order, but shall only apply with respect to the SAP Insurers, SAP's insurance broker for the SAP Insurers, and SAP's insurance coverage counsel as provided for in this INSURANCE CARRIER ADDENDUM who sign Exhibit C INSURER DECLARATION OF COMPLIANCE. The SAP Insurers shall each appoint no more than two carrier representatives and two attorneys representing each of the SAP Insurers, all of whom shall sign Exhibit C and who then shall be included within the Protective Order and designated as an Insurer Receiving Party, along with their necessary administrative staff. Each Insurer Receiving Party shall have the same rights and obligations, and be subject to the same restrictions, as the Receiving Parties under the Protective Order, with the following caveats: Nothing in the Protective Order shall restrict or prevent an Insurer Receiving Party from using Discovery Material for the purposes of: (i) presentations to, or file review by, supervisors or management at the respective SAP Insurer to evaluate insurance coverage, potential liability and exposure, or to determine insurance payments, (ii) preparation by the Insurer Receiving Party of confidential written analyses, summaries, memoranda or other documents or records derived from Discovery Material for coverage evaluation, the evaluation of potential liability and exposure, the determination of insurance payments and/or the resolution of any coverage dispute, (iii) file review by, preparation of reports for, and responses to requests made by, re-insurers, auditors, or regulators (nothing in the Protective Order shall constrain a Insurer Receiving Party from fulfilling all of its obligations and duties to reinsurers, auditors, or regulators under contract, statute, or #320230v1 other legal instrument), and (iv) responding to court order, subpoena, or like obligation. Additionally, nothing in the Protective Order shall restrict or prevent an Insurer Receiving Party from using Discovery Material or written analyses, summaries, memoranda or other documents that have been prepared by such Insurer Receiving Party from the Discovery Material, in any coverage dispute with SAP, including in a mediation, arbitration or coverage litigation. However, any Designated Material used in any coverage dispute, if any, with SAP shall be treated as confidential and in any publicly filed dispute between SAP and SAP's Insurers, any Designated Material covered by this Protective Order shall be submitted for filing under seal. The parties further acknowledge that this Protective Order creates no entitlement to file confidential information under seal; Civil Local Rule 79-5 (or its equivalent) sets forth the procedures that must be followed and reflects the standards that will be applied when a party seeks permission from the court to file materials under seal. Further, an Insurer Receiving Party's obligations under Paragraph 20 of this Protective Order do not arise until final resolution between SAP and all SAP Insurers of all coverage determinations and issues (and related payments, if any) pertaining to the relevant policies. The Insurer Receiving Party will not be required to return or destroy any materials prepared solely by the Insurer Receiving Party and shall be entitled to retain all information and materials which it is required to retain by regulation or law. However, each Insurer Receiving Party retaining such information and materials shall keep them confidential. Nothing in the Protective Order or this Addendum shall constitute an admission by the Insurer Receiving Party that any of the claims against SAP are covered, in whole or in part, under any insurance policy. Neither the Protective Order nor this Addendum shall be construed as a waiver or amendment of any terms and/or conditions of any insurance policy, including but not limited to SAP's duties of information and cooperation. SAP's insurance broker for the SAP Insurers shall appoint no more than two employees, both of whom shall sign Exhibit C and who then shall be included within the Protective Order and designated as SAP Insurance Broker Receiving Party, along with their necessary administrative staff. The SAP Insurance Broker Receiving Party shall have the same rights and obligations, and be subject to the same restrictions, as the Receiving Parties under the Protective Order. SAP's insurance coverage counsel shall appoint no more than two attorneys, both of whom shall sign Exhibit C and who then shall be included within the Protective Order and designated as SAP Insurance Coverage Counsel Receiving Party, along with their necessary administrative staff. The SAP Insurance Coverage Counsel Receiving Party shall have the same rights and obligations, and be subject to the same restrictions, as the Receiving Parties under the Protective Order. For the purposes of the application of Paragraph 20 of the Protective Order to SAP's insurance coverage counsel, SAP's insurance coverage counsel shall be entitled to retain all attorney work product to the extent permitted by outside counsel for the Parties pursuant to Paragraph 20 of the Protective Order. #320230v1 Exhibit C INSURER DECLARATION OF COMPLIANCE I, [print or type full name], of [print] [Company name], declare that I have read in its entirety or type full address], for and understand the Stipulated Protective Order (as amended by Exhibit B Insurance Carrier Addendum) ("Stipulated Protective Order") that was amended by the United States District Court for the Northern District of California on [date] in the case of Oracle Corporation, et al. v. SAP AG, et al. I agree to comply with and to be bound by all the terms of this Stipulated Protective Order. I promise that I will not disclose in any manner any information or item that is subject to this Stipulated Protective Order to any person or entity except in compliance with the provisions of this Stipulated Protective Order. Date: City and State where sworn and signed: Printed name: [printed name] Signature: [signature] #320230v1

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