Lansmont Corporation v. SPX Corporation et al

Filing 69

STIPULATED PROTECTIVE ORDER re 68 (MODIFIED BY THE COURT). Signed by Magistrate Judge Howard R. Lloyd on 1/3/2012. (hrllc2, COURT STAFF) (Filed on 1/3/2012)

*E-FILED 01-03-2012*
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[COUNSEL LISTED ON SIGNATURE PAGES]

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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(SAN JOSE DIVISION)
LANSMONT CORPORATION,

Civil Action No. 5:10-cv-05860-EJD

Plaintiff,
STIPULATED PROTECTIVE ORDER,
AND [PROPOSED] ORDER THEREON

v.
SPX CORPORATION, a Delaware
corporation; SPECTRIS, PLC, a private
limited company; BRÜEL & KJAER, a
corporation; and HBM, INC., a corporation,
Defendants.

[Re: Docket No. 68]
The Honorable Edward J. Davila
United States District Judge
Courtroom 1, 5th Floor

MODIFIED BY THE COURT

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STIPULATED PROTECTIVE ORDER.

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1. PURPOSES AND LIMITATIONS
Disclosure and discovery activity in this action are likely to involve production of
confidential, proprietary, or private information for which special protection from public disclosure
and from use for any purpose other than prosecuting this litigation would be warranted.
Accordingly, the parties hereby stipulate to and petition the Court to enter the following Stipulated
Protective Order. The parties acknowledge that this Order does not confer blanket protections on all
disclosures or responses to discovery and that the protection it affords extends only to the limited
information or items that are entitled under the applicable legal principles to treatment as
confidential. The parties further acknowledge, as set forth in Section 12.3, below, that this
Stipulated Protective Order creates no entitlement to file confidential information under seal;
Northern District of California Civil Local Rule 79-5 and General Order 62 set forth the procedures
that must be followed and reflect the standards that will be applied when a party seeks permission
from the Court to file material under seal.
2. 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: confidential or other sensitive

information (regardless of how generated, stored, or maintained) or tangible things that qualify for
protection under standards developed under F.R.Civ.P. 26(c), including, but not limited to, trade
secrets, development, research, and/or commercial information.
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Counsel (without qualifier): Outside Counsel of Record and House Counsel

(as well as their support staffs).
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Designating Party: a Party or Non-Party that designates information or items

that it produces in disclosures or in responses to discovery as “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”
2.5

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

medium or manner in which it is generated, stored, or maintained (including, among other things,
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testimony, transcripts, and tangible things), that are produced or generated in disclosures or

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responses to discovery in this matter.

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

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pertinent to the litigation who (1) has been retained by a Party or its counsel to serve as an expert

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witness or as a consultant in this action, (2) who is not a past or a current employee of a Party or of a

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competitor of a Party’s and who, at the time of retention, is not anticipated to become an employee

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of a Party or a competitor of a Party’s, and (3) at the time of retention, is not anticipated to become

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an employee of a Party or of a Party’s competitor.

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2.7

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or

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Items: extremely sensitive “CONFIDENTIAL Information or Items,” disclosure of which to another

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

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restrictive means.

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2.8

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Counsel does not include Outside Counsel of Record or any other outside counsel.

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House Counsel: attorneys who are employees of a party to this action. House

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

legal entity not named as a Party to this action.

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

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

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action on behalf of that party or are affiliated with a law firm which has appeared on behalf of that

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party.

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Party: any party to this action, including all of its officers, directors,

employees, consultants, retained experts, and Outside Counsel of Record (and their support staff).
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Producing Party: a Party or Non-Party that produces Disclosure or Discovery

Material in this action.
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Professional Vendors: persons or entities that provide litigation support

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services (e.g., photocopying; videotaping; translating; preparing exhibits or demonstrations;

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

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subcontractors.
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2.14

Protected Material: any Disclosure or Discovery Material that is designated

as “CONFIDENTIAL” or as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”
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Receiving Party: a Party that receives Disclosure or Discovery Material from

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a Producing Party.

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3. SCOPE

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

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

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

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

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

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

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

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

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

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

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

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

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4. DURATION

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

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

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

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defenses in this action, with prejudice and conclusion of any subsequent alternative dispute

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resolution procedures; and (2) final judgment herein after the completion and exhaustion of all

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appeals, rehearings, remands, trials, or reviews of this action, including the time limits for filing any

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motions or applications for extension of time pursuant to applicable law. For a period of six months
after final disposition of this action, this court will retain jurisdiction to enforce the terms of
this order.
5. DESIGNATING PROTECTED MATERIAL

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

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To the extent it is practical to do so, the Designating Party must take care to designate for protection

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only those parts of material, documents, items, or oral or written communications that qualify – so

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that other portions of the material, documents, items, or communications for which protection is not

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warranted are not swept unjustifiably within the ambit of this Order.

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

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

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unnecessarily encumber or retard the case development process, or to impose unnecessary expenses

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and burdens on other parties), expose the Designating Party to sanctions.

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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 the level of

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protection initially asserted, that Party or non-Party must promptly notify all other Parties that it is

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withdrawing the mistaken designation.

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5.2

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

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Order (see, e.g., second paragraph of section 5.2(a), below), or as otherwise stipulated or ordered,

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material that qualifies for protection under this Order must be clearly so designated before the

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material is disclosed or produced.

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Designation in conformity with this Order requires:
(a) for information in documentary form (apart from transcripts of depositions

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or other pretrial or trial proceedings), that the Producing Party affix the legend “CONFIDENTIAL”

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or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” to each page that contains

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protected material. If only a portion or portions of the material on a page qualifies for protection, the

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Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate

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markings in the margins) and must specify, for each portion, the level of protection being asserted

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(either “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”).

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A Party or non-party that makes original documents or materials available for

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

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material it would like copied and produced. During the inspection and before the designation, all of
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the material made available for inspection shall be deemed “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY.” After the inspecting Party has identified the documents it wants

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copied and produced, the Producing Party must determine which documents, or portions thereof,

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qualify for protection under this Order, then, before producing the specified documents, the

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Producing Party must affix the appropriate legend (“CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY”) to each page that contains Protected Material.

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If only a portion or portions of the material on a page qualifies for protection, the Producing Party

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

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margins) and must specify, for each portion, the level of protection being asserted (either

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”).
(b) for testimony given in deposition or in other pretrial or trial proceedings,

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

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

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

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

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Party may invoke on the record (before the deposition or proceeding is concluded) a right to have up

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to 21 days after the reporter’s preparation of the transcript to identify the specific portions of the

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testimony as to which protection is sought and to specify the level of protection being asserted

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(“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”). Only

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those portions of the testimony that are designated for protection within those 21 days shall be

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covered by the provisions of this Stipulated Protective Order. Alternatively, a Designating Party

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may specify, at the deposition or up to 21 days afterwards if that period is properly invoked, that the

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

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ATTORNEYS’ EYES ONLY.”

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The use of a document as an exhibit at a deposition shall not in any way affect

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its designation as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY.”

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Transcripts containing Protected Material shall have an obvious legend on the

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

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

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

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

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

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

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

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(c) for information produced in some form other than documentary, and for

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any other tangible items, that the Producing Party affix in a prominent place on the exterior of the

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

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” If only portions of the information

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

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portions, specifying whether they qualify as “CONFIDENTIAL” or as “HIGHLY CONFIDENTIAL

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– ATTORNEYS’ EYES ONLY.” In the event a Receiving Party generates any “hard copy”

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transcription or printout from any designated non-paper media (including, but not limited to,

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documents produced in native electronic format), such Receiving Party must stamp each page

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” and the hard

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copy, transcription. or printout shall be treated as it is designated.

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

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designate qualified information or items as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY” does not, standing alone, waive the Designating Party’s right to

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secure protection under this Order for such material. Upon timely correction of a designation,

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

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with the provisions of this Order.

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6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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

of confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality
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designation is necessary to avoid foreseeable substantial unfairness, unnecessary economic burdens,

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

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

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designation is disclosed.

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

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

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

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

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

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and must begin the process by conferring directly (in voice-to-voice dialogue; other forms of

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

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Challenging Party 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 designated material, to

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

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chosen designation. A Challenging Party may proceed to the next stage of the challenge process

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

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

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6.3
Judicial Intervention. If the Parties cannot resolve a challenge without court
they shall comply with the undersigned's Standing Order re Civil Discovery
intervention, the Challenging Party shall file and serve a motion challenging confidentiality
Disputes. Any Discovery Dispute Joint Report (DDJR) shall attest that the meet-and-confer
according to the applicable rules and procedures for bringing discovery motions in this action (and in
requirements imposed in the preceding paragraph have been satisfied.
compliance with Civil Local Rule 79-5 and General Order 62, if applicable). Each such motion must

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be accompanied by a competent declaration affirming that the movant has complied with the meet

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and confer requirements imposed in the preceding paragraph. In any court proceeding regarding the

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propriety of the designation of Protected Litigation Material, the burden of proof with respect to the

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propriety or correctness of the designation of information as Protected Litigation Material shall rest

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upon the Designating Party. Frivolous challenges and those made for an improper purpose (e.g., to

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harass or impose unnecessary expenses and burdens on other parties) may expose the Challenging

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Party to sanctions. All parties shall continue to afford the material in question the level of protection

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to which it is entitled under the Designating Party’s designation until the court rules on the

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challenge.

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7. ACCESS TO AND USE OF PROTECTED MATERIAL

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7.1

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

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

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prosecuting, defending, or attempting to settle this litigation, including in the context of any related

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alternative dispute resolution procedures, including arbitration and/or mediation. Such Protected

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Material may be disclosed only to the categories of persons and under the conditions described in

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this Order. When the litigation has been terminated, a Receiving Party must comply with the

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provisions of section 13, below (FINAL DISPOSITION).
Protected Material must be stored and maintained by a Receiving Party at a location

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and in a secure manner that ensures that access is limited to the persons authorized under this Order.
7.2

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Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

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

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disclose any information or item designated CONFIDENTIAL only to:

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

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

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information for this litigation;

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(b) the officers, directors, and employees (including House Counsel) of the
Receiving Party to whom disclosure is reasonably necessary for this litigation;

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

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for this litigation and who have signed the “Agreement to Be Bound by Protective Order” (Exhibit

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A);

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(d) the Court and its personnel;

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(e) a duly appointed arbitrator, mediator, or other alternative dispute

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resolution professional and his/her personnel;
(f) court reporters and their staffs;

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(g) professional jury or trial consultants who have signed the
“Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(h) Professional Vendors to whom disclosure is reasonably necessary for this

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litigation and for whom an authorized representative has signed the “Acknowledgment and

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Agreement to Be Bound” (Exhibit A);

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(i) during their depositions, witnesses in the action to whom disclosure is

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reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound”

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(Exhibit A);

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(j) the author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information.
7.3

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Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

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

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

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to:

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

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employees of said Counsel to whom it is reasonably necessary to disclose the information for this

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

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(b) Designated House Counsel of the Receiving Party (1) who have no

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material involvement in competitive decision-making, (2) to whom disclosure is reasonably

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necessary for this litigation, (3) who has signed the “Acknowledgment and Agreement to Be Bound”

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(Exhibit A), and (4) as to whom the procedures set forth in paragraph 7.4(a)(1), below, have been

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followed;

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

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

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Bound” (Exhibit A), and (3) as to whom the procedures set forth in section 7.4(a)(2), below, have

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been followed;

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(d) the Court and its personnel;

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(e) a duly appointed arbitrator, mediator, or other alternative dispute
resolution professional and his/her personnel;

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(f) court reporters and their staffs;

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(g) professional jury or trial consultants who have signed the

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

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(h) Professional Vendors to whom disclosure is reasonably necessary for this

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litigation and for whom an authorized representative has signed the “Acknowledgment and

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Agreement to Be Bound” (Exhibit A);

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(i) the author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information.
7.4

Procedures for Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’

EYES ONLY” Information or Items to Designated House Counsel or “Experts”
(a)(1) Unless otherwise ordered by the court or agreed to in writing by the

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

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

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

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that (i) sets forth the full name and title of the Designated House Counsel, and (ii) describes the

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Designated House Counsel’s current and reasonably foreseeable future primary job duties and

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responsibilities in sufficient detail to determine if House Counsel is involved, or may become

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involved, in any competitive decision-making.

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(a)(2) Unless otherwise ordered by the court or agreed to in writing by the

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Designating Party, a Party that seeks to disclose to an Expert (as defined in this Order) any

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information or item that has been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY” pursuant to paragraph 7.3(c) first must make a written request to the Designating Party that

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(i) sets forth the full name of the Expert and the city and state of his or her primary residence, (ii)

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attaches a copy of the Expert’s current resume or curriculum vitae, (iii) identifies the Expert’s

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current employer(s), (iv) identifies each person or entity from whom the Expert has received

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compensation or funding for work in his or her areas of expertise or to whom the expert has provided
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professional services, including in connection with litigation, at any time during the preceding three

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years, and (v) identifies (by name and number of the case, filing date, and location of court) any

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litigation in connection with which the Expert has offered expert testimony, including through a

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declaration, report, or testimony at a deposition or trial, during the preceding three years.

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

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paragraph 7.3(a)(1) or paragraph 7.3(a)(2) may disclose the Designating Party’s “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY” to the identified Designated House Counsel or

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Expert, as the case may be, unless, within seven days of delivering the request, the Party receives a

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

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grounds on which it is based. If the Designating Party does not serve an objection to the disclosure

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within seven days, the disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

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information to the Designated House Counsel may proceed.

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(c) A Party that makes a timely written objection under paragraph 7.4(b) shall

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attempt to resolve the matter in good faith and must make itself available to confer directly (in voice-

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to-voice dialogue; other forms of communication are not sufficient) with the Party seeking to

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disclose within 14 days of the date of service of the objection. A Designating Party (i.e., the

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objecting Party) may proceed to the next stage of the challenge process only if it has first engaged in

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this meet and confer process. If the Parties cannot resolve the matter without court intervention, the
they shall comply with the undersigned's Standing Order re Civil Discovery Disputes.
Designating Party shall file and serve a motion for a protective order according to the applicable

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rules and procedures for bringing discovery motions in this action (and in compliance with Civil
attest that
DDJR
Local Rule 79-5 and General Order 62, if applicable). Each such motion must be accompanied by a

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competent declaration affirming that the movant has complied with the meet and confer
have been satisfied.
requirements imposed by this paragraph. In any court proceeding regarding the propriety of

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disclosing information to Designated House Counsel or an Expert, the Designating Party shall bear

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the burden of proof with respect to demonstrating that the risk of harm the disclosure would entail

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(under the safeguards proposed) outweighs the need to disclose the “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY” information to the identified Designated House Counsel or Expert.

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

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expenses and burdens on other parties) may expose the Designating Party to sanctions. If a timely

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objection is served, no disclosure of the Designating Party’s “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY” information shall be made to the Designated House Counsel or
resolves the dispute
Expert in question until the court rules on the motion for a protective order or until the Parties
judicial intervention is not sought
disputing the matter have otherwise reached a resolution. If the Designating Party fails to file and
of the Designating Party's
serve a motion for a protective order within thirty days of the date its objection to disclosure was

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served, the disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information

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to the identified Designated House Counsel or Expert may proceed and the challenge shall be

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ineffectual.

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^

7.5 Alternative Dispute Resolution. Nothing in this Order shall prevent a Receiving

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Party from using Protected Material that is disclosed or produced by another Party or by a Non-Party

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in connection with this case in the context of any related alternative dispute resolution procedures,

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including arbitration and/or mediation. Once the alternative dispute resolution procedure has been

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

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DISPOSITION). The Receiving Party shall provide a copy of this Order to the alternative dispute

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resolution professionals involved, and shall ensure that they comply with this Order.

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8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER
LITIGATION.
If a Party is served with a subpoena or an order issued in other litigation that would compel

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

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

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(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

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

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

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(c) cooperate with respect to all reasonable procedures sought to be pursued by the
Designating Party whose Protected Material may be affected.
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STIPULATED PROTECTIVE ORDER

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If the Designating Party timely seeks a protective order, the Party served with the subpoena

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

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

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

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

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

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

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another court.

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9. 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

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

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

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

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

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

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

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

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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

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

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information requested; and

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3. make the information requested available for inspection by the Non-Party.
(c) If the Non-Party fails to object or seek a protective order from this court within

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

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

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Party timely seeks a protective order, the Receiving Party shall not produce any information in its
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Civil Action No. 5:10-cv-05860-EJD

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STIPULATED PROTECTIVE ORDER

1

possession or control that is subject to the confidentiality agreement with the Non-Party before a

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determination by the court. Absent a court order to the contrary, the Non-Party shall bear the burden

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and expense of seeking protection in this Court of its Protected Material. Any disclosure or
discovery dispute shall be brought to the court's attention in compliance with the undersigned's
Standing Order
10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL Civil Discovery re
Disputes.
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected

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

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

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

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

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

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Be Bound” that is attached hereto as Exhibit A.

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11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED
MATERIAL
If information is produced in discovery that is subject to a claim of privilege or of protection

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as trial-preparation material, the Party making the claim may notify any Party that received the

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information of the claim and the basis for it. After being notified, a Party (1) must promptly return

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or destroy the specified information and any copies it has, (2) must not sequester, use, or disclose the

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information until the claim is resolved, and (3) must take reasonable steps to retrieve the information

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if the Party disclosed it before being notified. These obligations include a restriction against

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presenting the information to the court for a determination of the claim. The Party making the claim

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must serve a privilege log that complies with Federal Rule of Civil Procedure 26(b)(5) within

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fourteen days of notifying any other Party of the claim. The Party making the claim must also

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preserve the information until the claim is resolved. The matter shall be resolved on the basis of the

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information set forth in the privilege log and in accordance with the standards of Federal Rule of

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Evidence 502(b). This paragraph 11 expressly incorporates the protections of Federal Rule of

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Evidence 502(d).

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STIPULATED PROTECTIVE ORDER

1

12. MISCELLANEOUS

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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.

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12.2

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

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

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producing any information or item on any ground not addressed in this Stipulated Protective Order.

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Similarly, no Party waives any right to object on any ground to use in evidence of any of the material

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covered by this Protective Order.

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12.3

Filing Protected Material. Without written permission from the

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Designating Party or a court order secured after appropriate notice to all interested persons, a Party

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may not file in the public record in this action any Protected Material. A Party that seeks to file

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under seal any Protected Material must comply with Civil Local Rule 79-5 and General Order 62.

13

Protected Material may only be filed under seal pursuant to a court order authorizing the sealing of

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the specific Protected Material at issue. Pursuant to Civil Local Rule 79-5 and General Order 62, a

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sealing order will issue only upon a request establishing that the Protected Material at issue is

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privileged, protectable as a trade secret, or otherwise entitled to protection under the law. If a

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Receiving Party’s request to file Protected Material under seal is denied by the court, then the

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Receiving Party may file the Protected Material in the public record unless otherwise instructed by

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the court.

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13. FINAL DISPOSITION.

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

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

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

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

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

26

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

27

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

28

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

1

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

2

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

3

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

4

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

5

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

6

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

7

forth in Section 4 (DURATION).

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9
10
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12
13
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STIPULATED PROTECTIVE ORDER

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
Dated: December 22, 2011

By: /s/ Robert G. Retana________________
Bruce L. Simon
Robert G. Retana
William J. Newsom

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6

44 Montgomery Street , Suite 2450
San Francisco, CA 94104
Telephone: [phone]
Facsimile: 415-433-9008
[e-mail]
[e-mail]
[e-mail]
Attorneys for Plaintiff
LANSMONT CORPORATION

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PEARSON SIMON WARSHAW & PENNY LLP

Dated: December 22, 2011

13

SHEPPARD MULLIN RICHTER & HAMPTON LLP

By: /s/ Nathaniel Bruno____________________
Philip F. Atkins-Pattenson
Nathaniel Bruno
Four Embarcadero Center, 17th Floor
San Francisco, CA 94111-4106
Telephone: [phone]
Facsimile: 415-434-3947
[e-mail]
[e-mail]
Attorneys for Defendant
SPX CORPORATION

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23

ATTORNEY’S E-FILING ATTESTATION
As the attorney e-filing this document, and pursuant to General Order 45, Nathaniel
Bruno (counsel for Defendant SPX Corporation) hereby attests that Robert G. Retana (counsel
for Plaintiff Lansmont Corporation) concurs in this filing. /s/ Nathaniel Bruno

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STIPULATED PROTECTIVE ORDER

AS MODIFIED BY THE COURT,
1

PURSUANT TO STIPULATION, IT IS SO ORDERED.

^

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5

Dated:

January 3, 2012

6

The Honorable Edward J. Davila Howard R. Lloyd
United States District Court Judge
Magistrate

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Civil Action No. 5:10-cv-05860-EJD

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STIPULATED PROTECTIVE ORDER

1

EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3

I, _______________________________ [print or type full name],

4

of _____________________________________ [print or type full address], declare under penalty

5

of perjury that I have read in its entirety and understand the Stipulated Protective Order that was

6

issued by the United States District Court for the Northern District of California in the case of

7

Lansmont Corporation v. SPX Corporation, Civil Action No. 5:10-cv-05860-EJD. I agree to

8

comply with and to be bound by all the terms of this Stipulated Protective Order and I understand

9

and acknowledge that failure to so comply could expose me to sanctions and punishment in the

10

nature of contempt. I solemnly promise that I will not disclose in any manner any information or

11

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

12

compliance with the provisions of this Order.

13

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

14

Northern District of California for the purpose of enforcing the terms of this Stipulated Protective

15

Order, even if such enforcement proceedings occur after termination of this action.

16

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

17

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

18

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

19

to enforcement of this Stipulated Protective Order.

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21

Date: ________________________________

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City and State where sworn and signed: ___________________________________

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Printed name:

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Signature:

[printed name]
[signature]

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STIPULATED PROTECTIVE ORDER