Elias v. Hewlett-Packard Company

Filing 37

ORDER GRANTING Joint Stipulation and Protective Order. Signed by Judge Lucy H. Koh on 3/05/2013. (lhklc3, COURT STAFF) (Filed on 3/5/2013)

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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DAVID ELIAS, Individually and On Behalf of
all Others Similarly Situated and the General
Public,

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JOINT STIPULATION AND
[PROPOSED] PROTECTIVE ORDER

Plaintiff,

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CASE NO. 12-CV-0421 LHK

v.
HEWLETT-PACKARD COMPANY,

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Defendant.

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WHEREAS, the Parties to the above-referenced action pending before this Court have agreed
to enter into a protective order to be applied to this matter;
NOW, THEREFORE, the Parties, by and through their respective counsel, having stipulated

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and agreed that an order pursuant to Federal Rule of Civil Procedure 26(c) is necessary to protect the

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confidentiality of documents and other information obtained in the course of discovery in this Action,

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it is hereby ORDERED THAT:

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1.

SCOPE OF ORDER. This Stipulation and Protective Order includes in its scope any

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documents, things, and information (including all documents and tangible things as defined in

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Rule 34(a) of the Federal Rules of Civil Procedure or any applicable Local Rule) that are produced,
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disclosed or filed in the above-captioned action entitled Elias v. Hewlett-Packard Co., No. 12 Civ.
0421 LHK (the “Action”), by or on behalf of any party or non-party, voluntarily or involuntarily,
whether pursuant to formal or informal discovery requests, subpoena, deposition notice, or motion
practice, and whether revealed in a document, a deposition, a response to any type of written
discovery, a submission to the Court, or otherwise (“Litigation Material”). Nothing in this Order
shall obligate any Party or non-party to produce any Litigation Material to any other party that it is
not otherwise required to produce under the Federal Rules of Civil Procedure or any applicable local
rule.
2.

including all Litigation Material designated as or reflecting RESTRICTED INFORMATION or
RESTRICTED OUTSIDE COUNSEL ONLY INFORMATION, as defined below, shall be used
solely for the purposes of prosecuting, defending, or attempting to settle this Action, and for no other
purpose, absent further order of the Court. However, nothing herein shall prevent or in any way limit
disclosure, use or dissemination of any documents, things, or information that are in the public
domain.
3.

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“Party” or “Parties” shall mean any or all parties to this Action.

(b)

“Producing Party” shall mean a Party or non-party on behalf of which

documents, things, or information is produced, furnished, or disclosed, during the course of this
Action, in response to requests for production of documents, interrogatories, requests for admission,
depositions, or any other requests for discovery pursuant to the Federal Rules of Civil Procedure, or
in the form of pleadings, briefs, motions, memoranda, testimony adduced at trial, materials
introduced into evidence, or other form of information produced, furnished, or disclosed by or on
behalf of such a Party or non-party.

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DEFINITIONS.
(a)

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USE OF LITIGATION MATERIAL GENERALLY. All Litigation Material,

(c)

“Receiving Party” shall mean any party to which documents, things, or

information is produced, furnished, or disclosed, whether voluntarily or in response to a formal or
informal discovery request, subpoena, deposition notice, or court order, by any Producing Party in
this Action.
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(d)

qualifies for protection under standards developed under Fed. R. Civ. Proc. 26(c), including:
(i) confidential or proprietary technical or scientific information; (ii) confidential know-how;
(iii) confidential, proprietary, or sensitive business, personal, or financial information; (iv) customer
and supplier information; (v) marketing strategies and information; (vi) any information which is not
generally known and which the Producing Party would not normally reveal to third parties or would
cause third parties to maintain in confidence; or (vii) confidential information of a non-party that the
Producing Party is bound by a separate confidentiality agreement or court order to maintain in
confidence. RESTRICTED INFORMATION shall not include information that is available for
public access.

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(e)

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information, the disclosure of which could cause competitive or commercial injury to the parties, or
where the information contains competitive information of third parties and the parties have a
contractual obligation with such third parties to protect such information. In addition, the Court may
order that other categories of information may be designated " RESTRICTED OUTSIDE COUNSEL
ONLY INFORMATION".
4.

DESIGNATION OF DOCUMENTS OR OTHER LITIGATION MATERIAL.
(a)

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Any Party or non-party may designate, at or prior to the time of production,

any non-public Litigation Material (and copies thereof) produced or disclosed by or on behalf of such
Party or non-party, or any portion of such material, as either:
(i)

RESTRICTED INFORMATION, by placing on each page and each

thing to which the designation applies a legend substantially as follows: “RESTRICTED
INFORMATION SUBJECT TO PROTECTIVE ORDER,” “RESTRICTED INFORMATION,” or
other similar designation; or

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“RESTRICTED OUTSIDE COUNSEL ONLY INFORMATION” shall mean

Litigation Material which any Producing Party, in good faith, believes to contain competitive

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“RESTRICTED INFORMATION” shall mean Litigation Material which

(ii)

RESTRICTED OUTSIDE COUNSEL ONLY INFORMATION, by

placing on each page and each thing to which the designation applies a legend substantially as
follows: “RESTRICTED OUTSIDE COUNSEL ONLY INFORMATION SUBJECT TO
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PROTECTIVE ORDER,” “RESTRICTED OUTSIDE COUNSEL ONLY INFORMATION,”
“OUTSIDE COUNSEL ONLY,” or other similar designation plainly indicating “Outside Counsel
Only” Litigation Material.
(b)

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

The Producing Party must designate for protection only those parts of material, documents, items, or
oral or written communications that qualify – so that other portions of the material, documents, items,
or communications for which protection is not warranted are not swept unjustifiably within the ambit
of this Order. Mass indiscriminate or routinized designations are prohibited. Designations that are
shown to be clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily
encumber or retard the case development process or to impose unnecessary expenses and burdens on
other parties) expose the Producing Party to sanctions.

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(c)

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If it comes to a Party’s or non-party’s attention that information or items that it

designated for protection do not qualify for protection at all, or do not qualify for the level of
protection initially asserted, that Party or non-party must promptly notify all other parties that it is
withdrawing the mistaken designation.
5.

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Each Party or non-party that designates information or items for protection under this Order

PROCEDURE FOR OBJECTION TO DESIGNATION.
(a)

The designation of an item as RESTRICTED INFORMATION or

RESTRICTED OUTSIDE COUNSEL ONLY INFORMATION may be challenged, among other
reasons, because (i) the information is or comes to be publicly disclosed in a printed publication,
(ii) the information is or comes to be generally publicly known, or (iii) the information is or comes to
be otherwise known to the Parties through other means without any breach of the confidentiality
obligations hereunder. Any inadvertent disclosure of RESTRICTED INFORMATION or
RESTRICTED OUTSIDE COUNSEL ONLY INFORMATION under this Protective Order shall not
serve as a basis for challenging the RESTRICTED INFORMATION or RESTRICTED OUTSIDE
COUNSEL ONLY INFORMATION designation of the information in question.
(b)

At any time, any Party may object in good faith to the designation or redesignation of any

Litigation Material as RESTRICTED INFORMATION or RESTRICTED OUTSIDE COUNSEL ONLY

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INFORMATION by providing counsel for the Producing Party with written notice of the reasons for its
objection. Unless a prompt challenge to a Producing Party’s confidentiality designation is necessary to

avoid foreseeable, substantial unfairness, unnecessary economic burdens, or a significant disruption
or delay of the litigation, a Party does not waive its right to challenge a confidentiality designation by
electing not to mount a challenge promptly after the original designation is disclosed.
The Producing Party shall, within seven (7) calendar days after receiving such written notice, advise
the objecting party, in writing, of the basis for its designation. Within seven (7) calendar days
thereafter, the parties shall confer in a good-faith effort to resolve the matter.
(c)

and confer, file and serve a motion to retain confidentiality under Civil Local Rule 7 (and in compliance

with Civil Local Rule 79-5, the Court’s standing order and/or General Order 62, if applicable). Each
such motion must be accompanied by a competent declaration affirming that the movant has
complied with the meet and confer requirements imposed in the preceding paragraph. Failure by the
Designating Party to make such a motion including the required declaration within 7 days of the
Parties’ meet and confer shall automatically waive the confidentiality designation for each challenged
designation. In addition, the Challenging Party may file a motion challenging a confidentiality
designation at any time if there is good cause for doing so, including a challenge to the designation of
a deposition transcript or any portions thereof. Any motion brought pursuant to this provision must be
accompanied by a competent declaration affirming that the movant has complied with the meet and
confer requirements imposed by the preceding paragraph.

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Failing such resolution, the Producing Party may, within seven (7) days after the Parties’ meet

(d)

The burden of persuasion in any such challenge proceeding shall be on the

Producing Party. Until the Court rules on the challenge, all parties shall continue to afford the
material in question the level of protection to which it is entitled under the Producing Party’s
designation.
(e)

Unless the Producing Party has waived the confidentiality designation by

failing to file a motion to retain confidentiality as described above, RESTRICTED INFORMATION
or RESTRICTED OUTSIDE COUNSEL ONLY INFORMATION shall be treated as such and shall
be subject to the provisions hereof unless and until one of the following occurs: (i) the party who
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designated the Litigation Material as RESTRICTED INFORMATION or RESTRICTED OUTSIDE
COUNSEL ONLY INFORMATION changes or removes such designation in writing; or (ii) the
Court orders the change or removal of such designation. If Litigation Material was properly shown to
a person who would not be entitled to see it as reclassified, that person shall be advised that the
Litigation Material has been reclassified and should be instructed not to use the Litigation Material
for any purpose other than the litigation of this Action.
6.

USE OF RESTRICTED INFORMATION OR RESTRICTED OUTSIDE

COUNSEL ONLY INFORMATION. RESTRICTED INFORMATION shall not be made
available, nor shall the contents thereof be disclosed, to persons other than QUALIFIED PERSONS,
as defined in Paragraph 7 herein, and RESTRICTED OUTSIDE COUNSEL ONLY
INFORMATION shall not be made available, nor shall the contents thereof be disclosed, to persons
other than SPECIALLY QUALIFIED PERSONS, as defined in Paragraph 8 herein, except that
RESTRICTED INFORMATION and RESTRICTED OUTSIDE COUNSEL ONLY
INFORMATION may be made available or the contents thereof disclosed in accordance with the
provisions of Paragraphs 10 and 11 herein. All RESTRICTED INFORMATION and RESTRICTED
OUTSIDE COUNSEL ONLY INFORMATION shall be carefully maintained by the Receiving Party
in secure facilities and access to such RESTRICTED INFORMATION and RESTRICTED
OUTSIDE COUNSEL ONLY INFORMATION shall be permitted only to persons having access
thereto under the terms of this Protective Order.
7.

QUALIFIED PERSONS. QUALIFIED PERSONS as used herein shall include only

the following:
(a)

a Party (such as the named plaintiff);

(b)

a Receiving Party’s outside litigation counsel of record;

(c)

the support personnel (such as paralegals, administrative assistants, secretaries,

and clerical and administrative staff) of a Receiving Party’s outside litigation counsel of record as
necessarily incident to the litigation of this Action;

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(d)

establishments retained by, but not regularly employed by, outside litigation counsel of record as
necessarily incident to the litigation of this Action;

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(e)

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incident to the litigation of this Action;
(g)

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transcribing or recording testimony at depositions, hearings, or trial in this Action;
(h)

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witnesses testifying at trial or at deposition, as provided in Paragraph 13

below, and only after the witness has executed an Agreement to Abide by Protective Order in the
form attached hereto as Exhibit B; and.

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any arbitrator, referee, special master, mediator and/or the Court, their

personnel, jurors and alternate jurors, and court reporters, stenographers, and videographers

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the support personnel (such as administrative assistants, secretaries, and

clerical and administrative staff) of a Qualified Consultant and Qualified Expert as necessarily

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Qualified Consultants and Qualified Experts, as provided in Paragraph 10;

(f)

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personnel at document duplication, coding, imaging, or scanning service

(i) the author or recipient of a document containing the information or a custodian or
other person who otherwise possessed or knew the information
8.

SPECIALLY QUALIFIED PERSONS. SPECIALLY QUALIFIED PERSONS as

used herein shall include only those QUALIFIED PERSONS listed in Paragraphs 7(a), (b), (c), (d),
(e), (g), (h), (i) and any persons specially qualified to receive RESTRICTED OUTSIDE COUNSEL
ONLY INFORMATION by virtue of the Producing Party having approved of the proposed Specially
Qualified Person pursuant to Paragraph 11, or if the Court has ruled on an application by the
Receiving Party that the proposed Specially Qualified Person may receive the RESTRICTED
OUTSIDE COUNSEL ONLY INFORMATION of the Producing Party.
9.

AGREEMENT BY QUALIFIED PERSONS AND SPECIALLY QUALIFIED

PERSONS.
(a)

Except as provided in this Protective Order, RESTRICTED INFORMATION

shall not be made available to any QUALIFIED PERSON, nor shall RESTRICTED OUTSIDE
COUNSEL ONLY INFORMATION be made available to any SPECIALLY QUALIFIED PERSON,
unless such QUALIFIED PERSON or SPECIALLY QUALIFIED PERSON has first read this
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Stipulation and Protective Order and has agreed in writing (i) to be bound by the terms hereof, (ii) to
maintain the confidentiality of the information and not to use or disclose the information to anyone
other than as provided herein, and (iii) to utilize such information solely for the purpose of this
Action (as evidenced by signing an Agreement to Abide by Protective Order, in the form set forth in
Exhibit A or B hereto, as appropriate).

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(b)

and clerical and administrative staff) need not sign an Agreement to Abide by Protective Order to
constitute QUALIFIED PERSONS or SPECIALLY QUALIFIED PERSONS if their supervisors
have done so. In addition, the assent to this Stipulation and Protective Order by counsel for a Party or
non-party binds such counsel, his or her law firm, and support personnel employed by such law firm
for purposes of constituting QUALIFIED PERSONS and/or SPECIALLY QUALIFIED PERSONS.

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(c)

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(d)

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Counsel for a Party obtaining an Agreement to Abide by Protective Order shall

retain a copy of that Agreement during the course of this Action until the case involving that
Counsel’s client is terminated by judgment, dismissal, or settlement.

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The Court and other individuals set forth in Paragraph 7(g) need not sign an

Agreement to Abide by Protective Order.

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Support personnel (such as paralegals, administrative assistants, secretaries,

(e)

In the event that any QUALIFIED PERSON or SPECIALLY QUALIFIED

PERSON ceases to be actively engaged in the litigation of this Action, access by such person to
RESTRICTED INFORMATION or RESTRICTED OUTSIDE COUNSEL ONLY INFORMATION
shall be terminated. The provisions of this Protective Order, however, shall otherwise remain in full
force and effect as to such QUALIFIED PERSON or SPECIALLY QUALIFIED PERSON.
10.

APPROVAL OF PROPOSED QUALIFIED CONSULTANTS AND

QUALIFIED EXPERTS.
(a)

A consultant or expert retained by a Party shall become a Qualified Consultant

or Qualified Expert, as the case may be, as to a particular Producing Party and may receive the
RESTRICTED INFORMATION of that Producing Party only after the proposed Qualified
Consultant or Qualified Expert has executed an Agreement to Abide by Protective Order in the form
attached hereto as Exhibit B, provided that if the Party chooses a consultant or expert who currently
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serves, or in the last three (3) years has served as an employee of, or as a consultant or expert witness
for, the Producing Party, the Party shall notify the Producing Party before disclosing any
RESTRICTED INFORMATION to that individual and shall give the opportunity to move for a
protective order preventing or limiting such disclosure. Qualified Consultants or Qualified Experts
may only receive RESTRICTED OUTSIDE COUNSEL ONLY INFORMATION if they become a
SPECIALLY QUALIFIED PERSON as set forth in Paragraph 11.

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(b)

A Producing Party may object to the designation of any person as a Qualified

Consultant or Qualified Expert. Such objection must be for good cause, stating with particularity the
reasons for the objection, and must be in writing served on all Parties within fourteen (14) days of the
discovery by the Producing Party of the identity of the Qualified Consultant or Qualified Expert.
Failure to object within the period referenced in this Paragraph shall constitute approval. If a written
notice of objection is served, no RESTRICTED INFORMATION or RESTRICTED OUTSIDE
COUNSEL ONLY INFORMATION of the Producing Party shall be disclosed to the proposed
Qualified Consultant or Qualified Expert until the objection is resolved by agreement or by an order
of the Court.
(c)

A Party that receives a timely written objection pursuant to Paragraph 10(b)

must meet and confer with the Producing Party (through direct voice to voice dialogue) to try to
resolve the matter by agreement within seven (7) days of the written objection. If no agreement is
reached, the Party seeking to make the disclosure to the Qualified Consultant or Qualified Expert
may file a motion within seven (7) days after the parties’ meet and confer as provided in Civil Local
Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) seeking permission from the
Court to do so. Any such motion must describe the circumstances with specificity, set forth in detail
the reasons for which the disclosure to the Qualified Consultant or Qualified Expert is reasonably
necessary, assess the risk of harm that the disclosure would entail, and suggest any additional means
that might be used to reduce that risk. In addition, any such motion must be accompanied by a
competent declaration in which the movant describes the parties’ efforts to resolve the matter by
agreement (i.e., the extent and the content of the meet and confer discussions) and sets forth the
reasons advanced by the Producing Party for its refusal to approve the disclosure.
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(d)

demonstrating by a preponderance of the evidence that the proposed Qualified Consultant or
Qualified Expert should not be permitted to receive RESTRICTED INFORMATION or
RESTRICTED OUTSIDE COUNSEL ONLY INFORMATION.
11.

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APPROVAL OF PROPOSED SPECIALLY QUALIFIED PERSONS.
(a)

A person shall become a Specially Qualified Person as to a particular

Producing Party and may receive RESTRICTED OUTSIDE COUNSEL ONLY INFORMATION of
that Producing Party only after the following conditions have been satisfied: (i) the proposed
Specially Qualified Person has executed an Agreement to Abide by Protective Order in the form
attached hereto as Exhibit A or B hereto, as appropriate; (ii) the executed Agreement and a list of any
known present or former relationships or engagements between the proposed Specially Qualified
Person and any Party or known competitor of a Party have been served on the Producing Party; and
(iii) the Producing Party has failed to object to the proposed Specially Qualified Person in the manner
and within the time specified in Paragraph 11(b), or the Court has ruled that the proposed Specially
Qualified Person may receive RESTRICTED OUTSIDE COUNSEL ONLY INFORMATION.

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The Producing Party objecting pursuant to Paragraph 10(b) shall have the burden of

(b)

A Producing Party shall have nine (9) days from the date of facsimile or

electronic mail service of the materials and information served pursuant to Paragraphs 11(a) or this
Paragraph 11(b), to object to a proposed Specially Qualified Person. Such objection must be for
good cause, stating with particularity the reasons for the objection, and must be in writing served on
all Parties. Failure to object within the period referenced in this Paragraph shall constitute approval.
If a written notice of objection is served, no RESTRICTED INFORMATION or RESTRICTED
OUTSIDE COUNSEL ONLY INFORMATION of the Producing Party shall be disclosed to the
proposed Specially Qualified Person until the objection is resolved by agreement or by an order of
the Court.
(c)

A Party that receives a timely written objection pursuant to Paragraph 11(a)

must meet and confer with the Producing Party (through direct voice to voice dialogue) to try to
resolve the matter by agreement within seven (7) days of the written objection. If no agreement is
reached, the Party seeking to make the disclosure to the Specially Qualified Person may file a motion
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within seven (7) days after the parties’ meet and confer as provided in Civil Local Rule 7 (and in
compliance with Civil Local Rule 79-5, if applicable) seeking permission from the Court to do so.
Any such motion must describe the circumstances with specificity, set forth in detail the reasons for
which the disclosure to the Specially Qualified Person is reasonably necessary, assess the risk of
harm that the disclosure would entail, and suggest any additional means that might be used to reduce
that risk. In addition, any such motion must be accompanied by a competent declaration in which the
movant describes the parties’ efforts to resolve the matter by agreement (i.e., the extent and the
content of the meet and confer discussions) and sets forth the reasons advanced by the Producing
Party for its refusal to approve the disclosure.

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(d)

burden of demonstrating by a preponderance of the evidence that the proposed Specially Qualified
Person should not be permitted to receive RESTRICTED INFORMATION or RESTRICTED
OUTSIDE COUNSEL ONLY INFORMATION.
12.

OUTSIDE COUNSEL ONLY INFORMATION to any of the following:
(a)

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any current employee of the Producing Party;

(c)

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the Producing Party;

(b)

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LIMITED DISCLOSURE TO PARTIES WITH PRIOR ACCESS. Nothing

herein shall prevent the disclosure of any RESTRICTED INFORMATION or RESTRICTED

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The Producing Party objecting pursuant to Paragraph 11(b) shall have the

anyone who authored or received the RESTRICTED INFORMATION or

RESTRICTED OUTSIDE COUNSEL ONLY INFORMATION, as evidenced by the identification of
the person as an author, recipient, or copyee on the face of the RESTRICTED INFORMATION or
RESTRICTED OUTSIDE COUNSEL ONLY INFORMATION.
13.

LIMITED DISCLOSURE TO WITNESSES TESTIFYING AT TRIAL OR AT

DEPOSITION. RESTRICTED INFORMATION or RESTRICTED OUTSIDE COUNSEL ONLY
INFORMATION may be made available, or the contents thereof disclosed, to witnesses testifying at
trial or at deposition, or who provide an affidavit or certification, only if:
(a)

in the case of a document, it appears that the witness has previously seen or

received the RESTRICTED INFORMATION or RESTRICTED OUTSIDE COUNSEL ONLY
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INFORMATION contained therein, either because the document identifies the witness as an author,
recipient or copyee, or because the document comes from the files of the witness;

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(b)

OUTSIDE COUNSEL ONLY INFORMATION has a reasonable, good-faith belief based upon the
witness’s testimony or the testimony of other witnesses that the witness has had previous access to
the RESTRICTED INFORMATION or RESTRICTED OUTSIDE COUNSEL ONLY
INFORMATION;

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(c)

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the Producing Party agrees in writing or on the record that the witness may

have access to the RESTRICTED INFORMATION or RESTRICTED OUTSIDE COUNSEL ONLY
INFORMATION for purposes of his or her testimony at trial and/or at deposition; or

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the lawyer disclosing such RESTRICTED INFORMATION or RESTRICTED

(d)

the witness is employed by or affiliated with the Producing Party.

If the basis of the disclosure is (a) or (b) above, then immediately after the disclosure, the lawyer
disclosing such RESTRICTED INFORMATION or RESTRICTED OUTSIDE COUNSEL ONLY
INFORMATION must make an inquiry with respect to the witness’s previous access to such
information, and if it becomes apparent on such inquiry that the witness has not had previous access
to the RESTRICTED INFORMATION or RESTRICTED OUTSIDE COUNSEL ONLY
INFORMATION, the item shall be withdrawn and no further inquiry regarding the RESTRICTED
INFORMATION or RESTRICTED OUTSIDE COUNSEL ONLY INFORMATION shall be
permitted. Any witness testifying at trial or at deposition or who provides an affidavit or
certification, or his or her counsel, who receives RESTRICTED INFORMATION or RESTRICTED
OUTSIDE COUNSEL ONLY INFORMATION shall not reveal or discuss the contents of that
information to or with any person who is not entitled to receive such information pursuant to this
Protective Order.
14.

DESIGNATION OF DEPOSITION TESTIMONY. A Party or non-party may

designate information disclosed during a deposition as RESTRICTED INFORMATION or
RESTRICTED OUTSIDE COUNSEL ONLY INFORMATION by so indicating on the record at the
deposition. A Party or non-party may also designate in writing, within fourteen (14) calendar days of
the receipt of the final version of the transcript (the “Designation Period”), specific pages of the
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transcript to be treated as RESTRICTED INFORMATION or RESTRICTED OUTSIDE COUNSEL
ONLY INFORMATION. Until the Designation Period has elapsed for a given transcript or portion
thereof, that transcript or such portion shall be treated as RESTRICTED OUTSIDE COUNSEL
ONLY INFORMATION. When information contained or incorporated in a deposition transcript is
designated as RESTRICTED INFORMATION or RESTRICTED OUTSIDE COUNSEL ONLY
INFORMATION, arrangements shall be made with the court reporter by the Party making the
designation to label the relevant pages RESTRICTED INFORMATION or RESTRICTED OUTSIDE
COUNSEL ONLY INFORMATION, as the case may be.
15.

ATTENDANCE AT DEPOSITIONS. During depositions of any Party or non-party,

a Party or non-party claiming that information to be disclosed or upon which questions may be based
is RESTRICTED INFORMATION or RESTRICTED OUTSIDE COUNSEL ONLY
INFORMATION may exclude from the room any person who is not a QUALIFIED PERSON or
SPECIALLY QUALIFIED PERSON, as appropriate under this Protective Order.
16.

FILING RESTRICTED INFORMATION AND RESTRICTED OUTSIDE

COUNSEL ONLY INFORMATION. Without written permission from the Producing Party, or a
court order secured after appropriate notice to all interested persons, a Party may not file in the public
record in this action any RESTRICTED INFORMATION or RESTRICTED OUTSIDE COUNSEL
ONLY INFORMATION. Requests by any Party to file RESTRICTED INFORMATION and
RESTRICTED OUTSIDE COUNSEL ONLY INFORMATION under seal shall be governed by
Civil Local Rule 79-5 and General Order 62.
17.

USE OF RESTRICTED INFORMATION OR RESTRICTED OUTSIDE

COUNSEL ONLY INFORMATION AT HEARINGS OR TRIAL. Nothing in this Protective
Order shall prevent a Party from using any RESTRICTED INFORMATION or RESTRICTED
OUTSIDE COUNSEL ONLY INFORMATION at a hearing or at trial. The Parties may request, as
appropriate and pursuant to this Protective Order, a ruling from the Court that attendance at those
portions of any hearing or at trial, or access to the transcripts of those portions of any hearing or the
trial, in which RESTRICTED INFORMATION or RESTRICTED OUTSIDE COUNSEL ONLY

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INFORMATION is disclosed be restricted to court personnel, QUALIFIED PERSONS, and
SPECIALLY QUALIFIED PERSONS.
18.

PROCEDURE FOR POST-PRODUCTION DESIGNATION. At any time prior to

the final pretrial conference in this Action, a Producing Party may seek additional protection for
previously produced Litigation Material by designating such Litigation Material as RESTRICTED
INFORMATION or RESTRICTED OUTSIDE COUNSEL ONLY INFORMATION, or changing the
classification of any Litigation Material designated RESTRICTED INFORMATION or
RESTRICTED OUTSIDE COUNSEL ONLY INFORMATION, by providing written notice to the
Receiving Party. If Litigation Material was properly shown to a person who would not be entitled to
see it as newly designated or redesignated, that person shall be advised by the Receiving Party that
the Litigation Material has been designated or redesignated as RESTRICTED INFORMATION or
RESTRICTED OUTSIDE COUNSEL ONLY INFORMATION, as the case may be, and instructed
not to use the Litigation Material for any purpose other than the litigation of this Action. That person
and the Receiving Party shall not be subject to liability for failure to comply with such terms, until
receipt of such written notice.
19.

AVAILABILITY TO NON-PARTIES. Any non-party, whether an individual or

entity, from whom discovery is sought may invoke the protection of this Protective Order by giving
written notice to the Party seeking such discovery. The non-party shall thereafter be treated as
Producing Party and bound by this Protective Order in the same manner as the parties to this action.
20.

NOTICE TO NON-PARTIES. Any Party issuing a subpoena to a non-party shall

enclose a copy of this Protective Order. Within ten (10) calendar days, the non-party must either
request the protection of this Protective Order or notify the issuing party that the non-party does not
intend to seek the protection of this Protective Order or wishes to seek different protection.
21.

NO WAIVER.
(a)

Nothing in this Protective Order shall prejudice the right of any Party to object

to the production of any document or part thereof upon any appropriate ground, including any
applicable privilege, and nothing herein shall be construed as a waiver of such right. Moreover,
nothing in this Protective Order shall prejudice the right of any Party to object to the admissibility at
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trial of any Litigation Material or other evidentiary material on any appropriate ground, and nothing
herein shall be construed as a waiver of such right. Nothing in this Order abridges the right of any
person to seek its modification by the court in the future.

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(b)

Entering into, agreeing to and/or complying with the terms of this Protective

Order shall not (i) operate as an admission by any Party that any particular Litigation Material
contains or reflects currently valuable trade secrets or protected proprietary or commercial
information; or (ii) operate as an admission by any Party that any particular Litigation Material is, or
is not, relevant to this Action.
22.

PARTIES’ OWN INFORMATION. Nothing in this Protective Order shall limit any

Producing Party’s use of its own documents, things or information. Nor shall anything in this
Protective Order prevent any Producing Party from disclosing its RESTRICTED INFORMATION or
RESTRICTED OUTSIDE COUNSEL ONLY INFORMATION to any person. Such disclosures
shall not affect any designation of such information as RESTRICTED INFORMATION or
RESTRICTED OUTSIDE COUNSEL ONLY INFORMATION pursuant to the terms of this
Protective Order so long as the disclosure is made in a manner which is reasonably calculated to
maintain the confidentiality of the information.
23.

DISCLOSURES BEYOND PROTECTIVE ORDER. Nothing in this Protective

Order shall prevent disclosure beyond the terms of this Protective Order (i) if the Designating
Party(ies) consents to such disclosure; (ii) if the Court, after notice to all affected persons, allows
such disclosure; or (iii) if the Party to whom RESTRICTED INFORMATION or RESTRICTED
OUTSIDE COUNSEL ONLY INFORMATION has been produced thereafter becomes obligated to
disclose the information in response to a lawful subpoena or other legal process, provided that the
subpoenaed party gives prompt written notice to counsel for the Designating Party and permits
counsel for that party at least ten (10) calendar days from receipt of the written notice to intervene
and seek judicial protection from the enforcement of the subpoena and/or entry of an appropriate
protective order in the action in which the subpoena was issued
24.

INADVERTENT PRODUCTION OF PRIVILEGED LITIGATION

MATERIAL UNDER FEDERAL RULE OF CIVIL PROCEDURE 26(b)(5)(B) AND
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PROTECTIVE ORDER

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FEDERAL RULE OF EVIDENCE 502. The inadvertent production of Litigation Material which a
Party or non-party later claims should not have been produced because of a privilege, including but
not limited to the attorney-client privilege, work-product privilege, or joint defense privilege
(“Inadvertently Produced Privileged Material”) will not be deemed a waiver of any privileges. A
Party or non-party may request the return of any Inadvertently Produced Privileged Material. A
request for the return of any Inadvertently Produced Privileged Material shall identify the Litigation
Material inadvertently produced and the basis for withholding such Litigation Material from
production. If a Party or non-party requests the return, pursuant to this Paragraph, of any
Inadvertently Produced Privileged Material then in custody of another party, such party shall within
five (5) business days return to the requesting Party or non-party the Inadvertently Produced
Privileged Material and destroy all copies thereof. The party or parties returning such Inadvertently
Produced Privileged Material shall not assert as a ground for entering an order compelling production
of the Inadvertently Produced Privileged Material the fact or circumstances of the inadvertent
production. The return of any Inadvertently Produced Privileged Material shall not in any way
preclude the Receiving Party from moving the Court for an order that (i) the Litigation Material was
never privileged or otherwise immune from disclosure; or (ii) any applicable privilege or immunity
has been waived by some act other than the production of the Litigation Material.
25.

INADVERTENT DISCLOSURE OF RESTRICTED INFORMATION OR

RESTRICTED OUTSIDE COUNSEL ONLY INFORMATION.
(a)

If any Litigation Material that a Party or non-party intends to designate as

RESTRICTED INFORMATION or RESTRICTED OUTSIDE COUNSEL ONLY INFORMATION
is inadvertently disclosed without being marked in accordance with this Protective Order, the failure
to so mark the Litigation Material shall not be deemed a waiver of its confidentiality.
(b)

If any Litigation Material designated as RESTRICTED INFORMATION or

RESTRICTED OUTSIDE COUNSEL ONLY INFORMATION hereunder is disclosed, through
inadvertence or otherwise, to a person or party other than a QUALIFIED PERSON or
SPECIFICALLY QUALIFIED PERSON, as the case may be, then the party disclosing the
information shall use its best efforts to bind such person or party to the terms of this Protective Order
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PROTECTIVE ORDER

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and (a) such person shall be informed promptly of all provisions of this Protective Order by the
disclosing party; (b) such person shall be identified immediately to the Party that designated the
Litigation Material as RESTRICTED INFORMATION or RESTRICTED OUTSIDE COUNSEL
ONLY INFORMATION; and (c) the person to whom disclosure was made shall be requested to sign
an Agreement to Abide by Protective Order in the form of Exhibit C hereto, which signed Agreement
shall be served on the Party that designated the Litigation Material as RESTRICTED
INFORMATION or RESTRICTED OUTSIDE COUNSEL INFORMATION. Nothing in this
Paragraph shall affect the Producing Party’s remedies under this Protective Order or otherwise for
such unauthorized disclosure.
26.

RETURN OR DESTRUCTION OF RESTRICTED INFORMATION OR

RESTRICTED OUTSIDE COUNSEL ONLY INFORMATION UPON CONCLUSION OF
THIS ACTION.
(a)

At the conclusion of this Action, each party subject to the terms of this

Protective Order shall assemble and return to each Producing Party all originals and reproductions of
any Litigation Material containing information designated as RESTRICTED INFORMATION or
RESTRICTED OUTSIDE COUNSEL ONLY INFORMATION in its possession, custody or control
within sixty (60) days of the conclusion of this Action, including notes made therefrom or summaries
thereof, or, in lieu of returning Litigation Materials containing information designated as
RESTRICTED INFORMATION or RESTRICTED OUTSIDE COUNSEL ONLY INFORMATION,
a party may destroy all such Litigation Material within sixty (60) days of the conclusion of this
Action, provided the party electing to undertake such destruction certifies to the Producing Party in
writing that it has made a reasonable and good-faith effort to destroy such Litigation Material, and
that all such material has been destroyed to the best of its knowledge.
(b)

Notwithstanding Paragraph 26(a), and subject to Paragraph 6, outside litigation

counsel for each Party may retain a record including one copy of the following, irrespective of
whether or not RESTRICTED INFORMATION or RESTRICTED OUTSIDE COUNSEL ONLY
INFORMATION or another Party or non-party is included: (i) its correspondence file of this case;
(ii) its pleading file, including all briefs, memoranda, affidavits, supporting materials, and all papers
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served on the Party; (iii) any briefs and appendixes on appeal; (iv) all legal research memoranda;
(v) its file of deposition transcripts and accompanying exhibits; and (vi) its file of trial transcripts and
accompanying exhibits.

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(a)

modified by agreement among the Parties or further order of the Court.
(b)

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“Conclusion of this Action” shall mean such time as all appeal periods have

expired and any settlement or judgment has become final.

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All the provisions of this Protective Order shall survive the conclusion of this

Action, and shall continue to be binding after the conclusion of this Action unless subsequently

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SURVIVAL OF OBLIGATIONS.

(c)

For the purposes of enforcing this Protective Order and resolving any disputes

thereunder, the Court retains jurisdiction over the Parties and any persons provided access to
RESTRICTED INFORMATION or RESTRICTED OUTSIDE COUNSEL ONLY INFORMATION
under the terms of this Protective Order for a period of six months after the final termination of this
action.
28.

VIOLATIONS SANCTIONABLE. All persons bound by this Protective Order are

hereby notified that if this Protective Order is in any manner violated, the person or entity who
commits such violation may be subject to such sanctions as the Court on motion and after a hearing
deems just.
29.

RELIEF FROM PROTECTIVE ORDER. Entry of this Protective Order shall be

without prejudice to the application by any Party or non-party (i) for relief from any restriction
contained herein or (ii) for any order compelling or further restricting the production or use of any
Litigation Material produced, furnished, or disclosed in the course of discovery in this Action. The
Parties may amend or modify any provision of this Order by mutual agreement, which agreement
shall be embodied in a written stipulation to be approved by the Court.

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March 5, 2013
DATED: ___________________

__________________________________
United States District Judge Lucy H. Koh

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PROTECTIVE ORDER

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WE HEREBY CONSENT TO THE FORM AND ENTRY OF THE ABOVE ORDER:
Dated: March 4, 2013

GUTRIDE SAFIER LLP

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By:

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/s/ Seth A. Safier
Seth A. Safier

Respectfully submitted on behalf of Plaintiff
DAVID ELIAS

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GIBSON, DUNN & CRUTCHER LLP

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By:

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/s/ Samuel G. Liversidge
Samuel G. Liversidge

Respectfully submitted on behalf of Defendant
HEWLETT-PACKARD COMPANY

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PROTECTIVE ORDER

Case No. 12-CV-0421 LHK

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EXHIBIT A
Specially Qualified Person

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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DAVID ELIAS, Individually and On Behalf of
all Others Similarly Situated and the General
Public,

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CASE NO. 12-CV-0421 LHK
JOINT STIPULATION AND
[PROPOSED] PROTECTIVE ORDER

Plaintiff,
v.
HEWLETT-PACKARD COMPANY,

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Defendant.

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AGREEMENT TO ABIDE BY PROTECTIVE ORDER

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I, ____________________________________, being duly sworn, state that:
1.

My address is _________________________________________________________

________________________________________________________________________________.
2.

My present employer is _________________________________________________,

and the address of my present employment is ____________________________________________
________________________________________________________________________________.
3.

My present occupation or job description is _________________________________

________________________________________________________________________________
________________________________________________________________________________.
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PROTECTIVE ORDER

Case No. 12-CV-0421 LHK

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4.

I have attached hereto my current curriculum vitae and, to the best of my knowledge, a

complete list of any present or former relationships or engagements between myself and any Party to
the above-captioned action (the “Action”) or any known competitor thereof.
5.

I hereby acknowledge that I have read the Stipulation and Protective Order

(“PROTECTIVE ORDER”) in the above-captioned action (the “Action”), that I am familiar with the
terms thereof, and that I agree to be bound by the terms thereof.
5.

I hereby acknowledge that, pursuant to the PROTECTIVE ORDER, I may receive

information designated as RESTRICTED INFORMATION or RESTRICTED OUTSIDE COUNSEL
ONLY INFORMATION in this Action, and certify my understanding that such information is
provided to me pursuant to the terms and restrictions of the PROTECTIVE ORDER. I agree not to
reveal any RESTRICTED INFORMATION or RESTRICTED OUTSIDE COUNSEL ONLY
INFORMATION or any notes containing or reflecting such information to anyone not authorized to
receive such information pursuant to the terms of the PROTECTIVE ORDER, and I agree not to use,
directly or indirectly, or allow the use of any RESTRICTED INFORMATION or RESTRICTED
OUTSIDE COUNSEL ONLY INFORMATION for any purpose other than a purpose directly
associated with my duties in this litigation.
6.

I understand that I am to retain all copies of the materials that I receive which have

been designated as containing or reflecting RESTRICTED INFORMATION or RESTRICTED
OUTSIDE COUNSEL ONLY INFORMATION in a container, cabinet, drawer, room, or other safe
place in a manner consistent with the PROTECTIVE ORDER. I understand that all copies of any
such materials are to remain in my custody until the conclusion of this Action or the completion of
my assigned duties, whereupon the copies are to be destroyed or returned to the Producing Party.
Such return or destruction shall not relieve me from the obligations imposed upon me by the
PROTECTIVE ORDER. I further agree to notify any support personnel (such as paralegals,
administrative assistants, secretaries, and clerical and administrative staff) who are necessary to assist
me of the terms of the PROTECTIVE ORDER and of their obligation not to reveal any

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EXHIBIT A – AGREEMENT TO ABIDE BY PROTECTIVE ORDER

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RESTRICTED INFORMATION to anyone not authorized to receive such information pursuant to
the terms of the PROTECTIVE ORDER.
7.

I understand that I shall be subject to the jurisdiction of the U.S. District Court for the

Northern District of California in any proceeding relating to my performance under, compliance with,
or violation of the PROTECTIVE ORDER.
Signature: _________________________________
Date: _____________________________________

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PROTECTIVE ORDER
EXHIBIT A – AGREEMENT TO ABIDE BY PROTECTIVE ORDER

Case No. 12-CV-0421 LHK

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EXHIBIT B
Non-Parties, Including Qualified Consultant
or Qualified Expert

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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DAVID ELIAS, Individually and On Behalf of
all Others Similarly Situated and the General
Public,

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JOINT STIPULATION AND
[PROPOSED] PROTECTIVE ORDER

Plaintiff,

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CASE NO. 12-CV-0421 LHK

v.
HEWLETT-PACKARD COMPANY,

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Defendant.

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AGREEMENT TO ABIDE BY PROTECTIVE ORDER

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I, ____________________________________, being duly sworn, state that:

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1.

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My address is _________________________________________________________

________________________________________________________________________________.
2.

My present employer is _________________________________________________,

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and the address of my present employment is ____________________________________________

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________________________________________________________________________________.

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PROTECTIVE ORDER
EXHIBIT B – AGREEMENT TO ABIDE BY PROTECTIVE ORDER

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3.

My present occupation or job description is _________________________________

________________________________________________________________________________
________________________________________________________________________________.
4.

If I am a Qualifying Consultant or Qualifying Expert, I have attached hereto my

current curriculum vitae and, to the best of my knowledge, a complete list of any present or former
relationships or engagements between myself and any Party to the above-captioned action (the
“Action”) or any known competitor thereof.
5.

I hereby acknowledge that I have read the Stipulation and Protective Order

(“PROTECTIVE ORDER”) in this Action, that I am familiar with the terms thereof, and that I agree
to be bound by the terms thereof.
6.

I hereby acknowledge that, pursuant to the PROTECTIVE ORDER, I may receive

information designated as RESTRICTED INFORMATION in this Action, and certify my
understanding that such information is provided to me pursuant to the terms and restrictions of the
PROTECTIVE ORDER. I agree not to reveal any RESTRICTED INFORMATION or any notes
containing or reflecting such information to anyone not authorized to receive such information
pursuant to the terms of the PROTECTIVE ORDER, and I agree not to use, directly or indirectly, or
allow the use of any RESTRICTED INFORMATION for any purpose other than a purpose directly
associated with my duties in this litigation.
7.

I understand that I am to retain all copies of the materials that I receive which have

been designated as containing or reflecting RESTRICTED INFORMATION in a container, cabinet,
drawer, room, or other safe place in a manner consistent with the PROTECTIVE ORDER. I
understand that all copies of any such materials are to remain in my custody until the conclusion of
this Action or the completion of my assigned duties, whereupon the copies are to be destroyed or
returned to the Producing Party. Such return or destruction shall not relieve me from the obligations
imposed upon me by the PROTECTIVE ORDER. I further agree to notify any support personnel
(such as paralegals, administrative assistants, secretaries, clerical and administrative staff) who are
necessary to assist me of the terms of the PROTECTIVE ORDER and of their obligation not to reveal

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EXHIBIT B – AGREEMENT TO ABIDE BY PROTECTIVE ORDER

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any RESTRICTED INFORMATION to anyone not authorized to receive such information pursuant
to the terms of the PROTECTIVE ORDER.
8.

I understand that I shall be subject to the jurisdiction of the U.S. District Court for the

Northern District of California in any proceeding relating to my performance under, compliance with,
or violation of the PROTECTIVE ORDER.
Signature: _________________________________
Date: _____________________________________

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PROTECTIVE ORDER
EXHIBIT B – AGREEMENT TO ABIDE BY PROTECTIVE ORDER

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