E.K.D. et al v. Facebook, Inc.

Filing 56

PROTECTIVE ORDER Signed by Magistrate Judge Stephen C. Williams on 12/5/11. (amv)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
E.K.D., by her next friend Melissa K.
Dawes, and C.M.D., by his next friend
Jennifer E. DeYong, individually and on
behalf of all others similarly situated,
Plaintiffs,
v.
FACEBOOK, INC.,
Defendant.

)
)
)
)
)
)
)
)
)
)
)
)

No: 3:11-cv-00461-GPM-SCW
CLASS ACTION

PROTECTIVE ORDER

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 may be warranted.
This Order does not confer blanket protections on all disclosures or responses to discovery and
that the protection it affords from public disclosure and use extends only to the limited
information or items that are entitled to confidential treatment under the applicable legal
principles. As set forth in Section 13.3, below, this Protective Order does not entitle the Parties
to file confidential information under seal; a Party must separately seek 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: information (regardless of how it is

generated, stored or maintained) or tangible things that qualify for protection under Federal Rule
of Civil Procedure 26(c).

1.

2.3

Counsel (without qualifier): Outside Counsel of Record and House Counsel (as

well as their support staff).
2.4

Designating Party: a Party or Non-Party that designates information or items that

it produces in disclosures or in responses to discovery as “CONFIDENTIAL.”
2.5

Discovery Material: all items or information, regardless of the medium or manner

in which it is generated, stored, or maintained (including, among other things, documents,
interrogatory responses, responses to requests for admission, testimony, transcripts, and tangible
things), that are produced or generated in disclosures or responses to discovery in this matter.
2.6

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

the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a
consultant in this action.
2.7

House Counsel: attorneys (and their support staff) who are employees of a Party

to this action. House Counsel does not include Outside Counsel of Record or any other outside
counsel.
2.8

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

entity not named as a Party to this action.
2.9

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

action but are retained to represent or advise a Party to this action and have appeared in this
action on behalf of that Party or are affiliated with a law firm which has appeared on behalf of
that Party.
2.10

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

consultants, retained experts, and Outside Counsel of Record (and their support staffs).
2.11

Producing Party: a Party or Non-Party that produces Discovery Material in this

2.12

Professional Vendors: persons or entities that provide litigation support services

action.

(e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and
organizing, storing, or retrieving data in any form or medium) and their employees and
subcontractors.
2.

2.13

Protected

Material:

any

Discovery

Material

that

is

designated

as

“CONFIDENTIAL.”
2.14
3.

Receiving Party: a Party that receives Discovery Material from a Producing Party.

SCOPE
The protections conferred by this Protective Order cover not only Protected Material (as

defined above), but also (1) any information copied or extracted from Protected Material; (2) all
copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony,
conversations, or presentations by Parties or their Counsel that might reveal Protected Material.
However, the protections conferred by this Protective Order do not cover the following
information: (a) any information that is in the public domain at the time of disclosure to a
Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as
a result of publication not involving a violation of this Order; and (b) any information known to
the Receiving Party prior to the disclosure or obtained by the Receiving Party after the disclosure
from a source who obtained the information lawfully and under no obligation of confidentiality
to the Designating Party. Any use of Protected Material at trial shall be governed by a separate
agreement or order. If source code is sought in discovery, the Party from whom discovery is
sought may seek an additional Protective Order.
4.

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

this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court
order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all
claims and defenses in this action, with or without prejudice; and (2) final judgment herein after
the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this
action, including the time limits for filing any motions or applications for extension of time
pursuant to applicable law. After the final disposition of this action, this Court will retain
jurisdiction to enforce the terms of this protective order.

3.

5.

DESIGNATING PROTECTED MATERIAL
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 care
to limit any such designation to specific material that qualifies under the appropriate standards.
To the extent it is practical to do so, the Designating 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, routinized, or indiscriminate designations are prohibited. Designations 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) may
expose the Designating Party to sanctions upon sufficient findings as required under existing
provisions of the Federal Rules of Civil Procedure.
If it comes to a Designating Party’s attention that information or items that it designated
for protection do not qualify for protection at all, that Designating Party must promptly notify all
other Parties that it is withdrawing the mistaken designation.
5.2

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

(see, e.g., second paragraph of Section 5.2(a) below), or as otherwise stipulated or ordered,
Discovery Material that qualifies for protection under this Order must be clearly so designated
before the material is disclosed or produced.
Designation in conformity with this Order requires:
(a)

for information in documentary form (e.g., paper or electronic documents,

but excluding transcripts of depositions or other pretrial proceedings), that the Producing Party
affix the legend “CONFIDENTIAL” to each page that contains protected material.

For

documents produced in native format, the Producing Party shall append “CONFIDENTIAL” to
the filename.
A Party or Non-Party that makes original documents or materials available for inspection
need not designate them for protection until after the inspecting Party has indicated which
4.

material it would like copied and produced. During the inspection and before the designation, all
of the material made available for inspection shall be deemed “CONFIDENTIAL.” After the
inspecting Party has identified the documents it wants copied and produced, the Producing Party
must determine which documents, or portions thereof, qualify for protection under this Order.
Then, before producing the specified documents, the Producing Party must affix the legend
“CONFIDENTIAL” to each page that contains Protected Material.
(b)

for testimony given in deposition, that the Designating Party identifies on

the record or up to 14 days after receipt of the transcript, whether protection is sought. Only
those portions of the testimony that are appropriately designated for protection by the expiration
of the 14-day period referenced above shall be covered by the provisions of this Protective
Order.

If no designation is made at the deposition, the transcript shall be treated as

“CONFIDENTIAL” through the expiration of the 14-day period referenced above.
Alternatively, a Designating Party may specify, at the deposition or up to 14 days after receipt of
the transcript, that the entire transcript shall be treated as “CONFIDENTIAL.”

After the

expiration of that period, the transcript shall be treated only as actually designated.
Parties shall give the other Parties notice if they reasonably expect a deposition to include
Protected Material so that the other Parties can ensure that only authorized individuals who have
signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A) are present at the
deposition. The use of a document as an exhibit at a deposition shall not in any way affect its
designation as “CONFIDENTIAL.”
Transcripts containing Protected Material shall have an obvious legend on the title page
that the transcript contains Protected Material. The Designating Party shall inform the court
reporter of these requirements.
For court hearings and conferences, whether in-person or telephonic, a Party shall not
discuss, display, submit as evidence, or otherwise enter into the record Protected Material
produced by the other Party (or the contents thereof) unless it has previously identified that
Protected Material to the Designating Party at least 24 hours prior to such hearing or conference.
Notwithstanding the foregoing, this advance-notice requirement shall not apply in circumstances
5.

where the Party could not have reasonably anticipated so using Protected Material at the court
hearing or conference. Parties shall act with caution at court hearings and conferences so as not
to disclose Protected Material publicly without providing an opportunity for the Designating
Party to be heard concerning, as appropriate, sealing the courtroom, sealing the transcript, or
other relief. The Designating Party may move for such sealing or other relief either in writing or
orally, either before or during the court hearing or conference.
(c)

for information produced in some form other than documentary and for

any other tangible items, that the Producing Party affix in a prominent place on the exterior of
the container or containers in which the information or item is stored the legend
“CONFIDENTIAL.” If only a portion or portions of the information or item warrant protection,
the Producing Party, to the extent practicable, shall identify the protected portion(s).
5.3

Inadvertent Failures to Designate. An inadvertent failure to designate qualified

information or items does not, standing alone, waive the Designating Party’s right to secure
protection under this Order for such material. Upon timely correction of a designation after the
incorrect designation is actually discovered by the Designating Party, the Receiving Party must
make reasonable efforts to assure that the material is treated in accordance with the provisions of
this Order.
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
designation is necessary to avoid undue burden, 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.
6.2

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

process by providing written notice of each designation it is challenging and describing the basis
for each challenge. To avoid ambiguity as to whether a challenge has been made, the written
notice must recite that the challenge to confidentiality is being made in accordance with this
specific paragraph of the Protective Order. The Parties shall attempt to resolve each challenge in
6.

good faith and must begin the process by conferring within 14 days of the date of service of
notice.

In conferring, the Challenging Party must explain the basis for its belief that the

confidentiality designation was not proper and must give the Designating Party an opportunity to
review the designated material, to reconsider the circumstances, and, if no change in designation
is offered, to explain the basis for the chosen designation. A Challenging Party may proceed to
the next stage of the challenge process only if it has engaged in this meet and confer process first
or establishes that the Designating Party is unwilling to participate in the meet and confer
process in a timely manner.
6.3

Judicial Intervention. If the Parties cannot resolve a challenge without Court

intervention, the Challenging Party may notify the magistrate judge assigned to the case of a
challenge to 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. The
Court will then set the matter for hearing and briefing, if necessary.
The burden of persuasion in any such challenge proceeding shall be on the Designating
Party. Frivolous challenges and those made for an improper purpose (e.g., to harass or impose
unnecessary expenses and burdens on other Parties) may expose the Challenging Party to
sanctions. All Parties shall continue to afford the material in question the protection to which it
is entitled under the Producing Party’s designation until the Court rules on the challenge.
7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

Basic Principles. A Receiving Party and/or Receiving Party’s counsel may access

and use (only insofar as more specifically provided in this Order) Protected Material that is
disclosed or produced by another Party or by a Non-Party in connection with this case only for
prosecuting, defending, or attempting to settle this litigation. Such Protected Material may be
disclosed only to the categories of persons and under the conditions described in this Order.
When the litigation has been terminated, a Receiving Party must comply with the provisions of
Section 14 below (“FINAL DISPOSITION”).

7.

Protected Material must be stored and maintained by Receiving Party and Receiving
Party’s counsel at a location and in a secure manner1 that ensures that access is limited to the
persons authorized under this Order.
7.2

Disclosure of “CONFIDENTIAL” Information or Items.

Unless otherwise

ordered by the Court or permitted in writing by the Designating Party, any information or item
designated “CONFIDENTIAL” by the Designating Party shall be disclosed only to:
(a)

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

employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the
information for this litigation;
(b)

the officers, directors, and employees (including House Counsel) of the

Receiving Party to whom disclosure is reasonably necessary for this litigation and who have
signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A) (for the sake of clarity,
“CONFIDENTIAL” information or items shall not be disclosed to the named plaintiffs in this
action);
(c)

Experts (as defined in this Order) to whom disclosure is reasonably

necessary for this litigation and who have signed the “Acknowledgment and Agreement to Be
Bound” (Exhibit A) and as to whom the procedures set forth in Section 7.3, below, have been
followed;
(d)

the Court and its personnel;

(e)

court reporters and their staff, professional jury or trial consultants, and

Professional Vendors to whom disclosure is reasonably necessary for this litigation, provided
that all such individuals have signed the “Acknowledgment and Agreement to Be Bound”
(Exhibit A);
(f)

during their depositions, officers, directors, and employees of the

Designating Party to whom disclosure is reasonably necessary for this litigation; and

1

It may be appropriate under certain circumstances to require the Receiving Party to store any
electronic Protected Material in password-protected form.
8.

(g)

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

Additional Provisions Concerning Experts
(a)

Unless otherwise ordered by the Court or agreed to in writing by the

Designating Party, a Party that seeks to disclose any information or item that has been designated
“CONFIDENTIAL” to an Expert who is a current officer, director, or employee (or is anticipated
to become one) of MySpace, Friendster, Google, YouTube, Yelp, LinkedIn, Twitter, Foursquare,
Flickr, Etsy, SoundCloud, Tumblr, Blogspot, Wordpress, Blogger, Pandora, Apple, Amazon,
AOL, or Microsoft, or any social media company or interactive sharing website not included in
the foregoing list, first must make a written request to the Designating Party that (1) identifies
the general categories of “CONFIDENTIAL” information that the Receiving Party seeks
permission to disclose to the Expert, (2) sets forth the full name of the Expert and the city and
state of his or her primary residence, (3) attaches a copy of the Expert’s current resume, (4)
identifies the Expert’s current employer(s), (5) identifies each person or entity from whom the
Expert has received compensation or funding for work in his or her areas of expertise or to
whom the Expert has provided professional services, including in connection with a litigation, at
any time during the preceding four years,2 and (6) identifies (by name and number of the case,
filing date, and location of court) any litigation in connection with which the Expert has offered
expert testimony, including through a declaration, report, or testimony at a deposition or trial,
during the preceding four years. This written request shall be sent by email to Facebook’s
outside

counsel,

using

the

following

email

addresses:

[e-mail];

[e-mail]; and [e-mail].
(b)

Unless otherwise ordered by the Court or agreed to in writing by the

Designating Party, a Party that seeks to disclose any information or item that has been designated
“CONFIDENTIAL” to an Expert who has within the previous four years (including at present)
2

If the Expert believes any of this information is subject to a confidentiality obligation to a third
party, then the Expert should provide whatever information the Expert believes can be disclosed
without violating any confidentiality agreements, and the Party seeking to disclose to the Expert
shall be available to meet and confer with the Designating Party regarding any such engagement.
9.

acted as a consultant (or is anticipated to become one) to MySpace, Friendster, Google,
YouTube, Yelp, LinkedIn, Twitter, Foursquare, Flickr, Etsy, SoundCloud, Tumblr, Blogspot,
Wordpress, Blogger, Pandora, Apple, Amazon, AOL, or Microsoft, or any social media company
or interactive sharing website not included in the foregoing list, first must make a written request
to the Designating Party that (1) identifies the general categories of “CONFIDENTIAL”
information that the Receiving Party seeks permission to disclose to the Expert, (2) identifies the
Expert’s current (or anticipated) clients, as well as the Expert’s work experience for the previous
four years, and (3) provides for each a brief summary of the types of projects worked on (or
anticipated to be worked on) for each company or website listed above, or any social media
company or interactive sharing website not included in the foregoing list. This written request
shall be sent by email to Facebook’s outside counsel, using the following email addresses:
[e-mail]; [e-mail]; and [e-mail]. A request under
this Section 7.3(b) need not reveal the Expert’s name (unless the Expert has been designated as a
testifying expert).
Upon receiving a request under this Section 7.3(b), the Designating Party may conduct a
good-faith investigation to determine whether the disclosure of “CONFIDENTIAL” information
or items to the Expert should be challenged, but the Designating Party may not take any
affirmative steps to attempt to identify by name the generally described Expert under this Section
7.3(b). Notwithstanding the preceding sentence, if an objection is made and the matter is not
resolved by agreement (see Sections 7.3(c) and 7.3(d), below), the Designating Party may ask the
Court to order additional documents or information be disclosed to the Designating Party,
including, without limitation, the full name of the Expert or other documents and information
listed in Section 7.3(a).
(c)

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

Section 7.3(a) or Section 7.3(b), above, may disclose the subject Protected Material to the
identified Expert 15 days after making its disclosure pursuant to Section 7.3(a) or Section 7.3(b)
unless, within 14 days of delivering the request, the Party receives a written objection from the
Designating Party. Any such objection must set forth in detail the grounds on which it is based.
10.

(d)

A Party that receives a timely written objection must meet and confer with

the Designating Party to try to resolve the matter by agreement within seven days of the written
objection. If no agreement is reached, the Challenging Party may notify the magistrate judge
assigned to the case of the dispute between the Parties. The Court will then set the matter for
hearing and briefing, if necessary. The Challenging Party must be prepared to describe the
circumstances with specificity, set forth in detail the reasons why the disclosure to the Expert is
reasonably necessary, assess the risk of harm that the disclosure would entail, suggest any
additional means that could be used to reduce that risk, and set forth the reasons advanced by the
Designating Party for its refusal to approve the disclosure.
In any such proceeding, the Party opposing disclosure to the Expert shall bear the burden
of proving that the risk of harm that the disclosure would entail (under the safeguards proposed)
outweighs the Receiving Party’s need to disclose the Protected Material to its Expert.
To assist the Court in ruling on a dispute under Section 7.3, the Court may review, in
camera or otherwise, documents and information concerning the Expert at issue.

In its

discretion, the Court may order that additional documents or information be disclosed to the
Designating Party. For disputes arising under Section 7.3(b), this additional ordered disclosure
may include, without limitation, the full name of the Expert or other documents and information
listed in Section 7.3(a).
(e)

Notwithstanding the above, Discovery Material may be provided to

Experts or consultants only to the extent necessary for such Expert or consultant to prepare a
written opinion, to prepare to testify, or to assist counsel or the Parties, provided that such expert
or consultant is using said Discovery Material solely in connection with this Litigation, and
further provided that such Expert or consultant has previously executed an undertaking in the
form attached hereto as Exhibit A, agreeing in writing to be bound by the terms and conditions of
this Protective Order, consenting to the jurisdiction of this Court for purposes of enforcement of
the terms of this Protective Order, and agreeing not to disclose or use any Discovery Material for
purposes other than those permitted hereunder.

11.

8.

PROSECUTION BAR
Absent written consent from the Producing Party, the Receiving Party shall not disclose

the Producing Party’s “CONFIDENTIAL” information to any individual who is involved in the
prosecution of patents or patent applications relating to the subject matter of the
“CONFIDENTIAL” information he or she received before any foreign or domestic agency,
including the United States Patent and Trademark Office. For purposes of this paragraph,
“prosecution” includes directly or indirectly drafting, amending, advising, or otherwise affecting
the scope or maintenance of patent claims. To avoid any doubt, “prosecution” as used in this
paragraph does not include representing a party challenging a patent before a domestic or foreign
agency (including, but not limited to, a reissue protest, ex parte reexamination or inter partes
reexamination).
9.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
OTHER LITIGATION
If a Party is served with a subpoena or a court order issued in other litigation that compels

disclosure of any information or items designated in this action as “CONFIDENTIAL” that Party
must:
(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 the other litigation that some or all of the material covered by the subpoena or order is
subject to this Protective Order. Such notification shall include a copy of this Protective Order;
and
(c)

cooperate with respect to all reasonable procedures sought to be pursued

by the Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served with the
subpoena or court order shall not produce any information designated in this action as
“CONFIDENTIAL” before a determination by the court from which the subpoena or order
issued, unless the Party has obtained the Designating Party’s permission. The Designating Party
12.

shall bear the burden and expense of seeking protection in that court of its confidential material –
and nothing in these provisions should be construed as authorizing or encouraging a Receiving
Party in this action to disobey a lawful directive from another court.
10.

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 this action and designated as “CONFIDENTIAL.” Such information produced by NonParties in connection with this litigation is protected by the remedies and relief provided by this
Order. Nothing in these provisions should be construed as prohibiting a Non-Party from seeking
additional protections.
(b)

In the event that a Party is required, by a valid discovery request, to

produce a Non-Party’s confidential information in its possession, and the Party is subject to an
agreement with the Non-Party not to produce the Non-Party’s confidential information, then the
Party shall:
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 Protective

Order in this litigation, the relevant discovery request(s), and a reasonably specific description of
the information requested; and
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 14 days of receiving the notice and accompanying information, the Receiving Party may
produce the Non-Party’s confidential information responsive to the discovery request. If the
Non-Party timely seeks a protective order, the Receiving Party shall not produce any information
in its possession or control that is subject to the confidentiality agreement with the Non-Party

13.

before a determination by the Court.3 Absent a Court order to the contrary, the Non-Party shall
bear the burden and expense of seeking protection in this Court of its Protected Material.
11.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected

Material to any person or in any circumstance not authorized under this Protective Order, the
Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized
disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected Material,
(c) inform the person or persons to whom unauthorized disclosures were made of all the terms of
this Order, and (d) request such person or persons to execute the “Acknowledgment and
Agreement to Be Bound” that is attached hereto as Exhibit A.

Nothing herein limits the

Designating Party from seeking appropriate relief for any violations of this Protective Order,
including but not limited to sanctions against the Receiving Party or its attorneys.
12.

INADVERTENT PRODUCTION
PROTECTED MATERIAL

OF

PRIVILEGED

OR

OTHERWISE

If Discovery Material that is subject to a claim of attorney-client privilege, attorney work
product protection, or any other applicable privilege is inadvertently produced or disclosed
(“Inadvertent Production Material”), such inadvertent production shall in no way prejudice or
otherwise constitute a waiver of, or estoppel as to, any claim of attorney-client privilege, attorney
work product protection, or other applicable privilege unless so determined by the Court under
Federal Rule of Evidence 502(b).
(a)

If a claim of inadvertent production is made, pursuant to this Protective

Order, with respect to Discovery Material then in the custody of another Party, that Party shall:
(i) refrain from any further examination or disclosure of the claimed Inadvertent Production
Material; (ii) promptly make a good-faith effort to return the claimed Inadvertent Production
Material and all copies thereof (including summaries and excerpts) to counsel for the Producing

3

The purpose of this provision is to alert the interested parties to the existence of confidentiality
rights of a Non-Party and to afford the Non-Party an opportunity to protect its confidentiality
interests in this court.
14.

Party, or destroy all such claimed Inadvertent Production Material (including summaries and
excerpts) and certify in writing to that fact; and (iii) not use the Inadvertent Production Material
for any purpose until further order of the Court expressly authorizing such use.
(b)

If a Party wishes to request the Court to compel production of the claimed

Inadvertent Production Material, the Party may notify the magistrate judge assigned to the case.
The Court will then set the matter for hearing and briefing, if necessary. While such a request is
pending, the Discovery Material in question shall be treated in accordance with paragraph 12(a)
above.
(c)

If a Party, in reviewing Discovery Material it has received from the other

Party or any non-Party, finds anything the reviewing Party believes in good faith may be
Inadvertent Production Material, that Party shall: (i) refrain from any further examination or
disclosure of the potentially Inadvertent Production Material; (ii) promptly identify the material
in question to the Producing Party (by document number or other equally precise description);
and (iii) give the Producing Party seven (7) days to respond as to whether the material was, in
fact, inadvertently produced. If the Producing Party makes a claim of inadvertent production, the
provisions of paragraph 12(a) above shall apply.
13.

MISCELLANEOUS
13.1

Right to Further Relief. Nothing in this Order abridges the right of any person to

seek its modification by the Court in the future.
13.2

Right to Assert Other Objections. This Protective Order does not affect any right

a Party would otherwise have to object to disclosing or producing any information or item on any
ground not addressed in this Protective Order. Similarly, this Protective Order does not affect
any right a Party may have to object on any ground to use in evidence of any of the material
covered by this Protective Order.
13.3

Filing Protected Material. In the event that either party seeks to make any filing

with the Court containing Protected Material (including quoting from, characterizing, or
summarizing the Protected Material), whether in a motion, brief, or other court document, or by
way of an exhibit attached to such a document, the party making the filing shall file the
15.

document with the Court’s regular electronic filing system under seal. Within 7 days of service
of a document filed under seal, the party seeking to maintain the confidentiality of Protected
Material shall file a motion for an order allowing that information to be maintained under seal.
A Party’s motion to maintain confidentiality must be narrowly tailored to seek sealing only of
sealable material, and the Parties shall bear in mind the Seventh Circuit’s guidance concerning
the sealing of material filed with the court. See, e.g., Citizens First Nat. Bank v. Cincinnati Ins.
Co., 178 F.3d 943, 945 (7th Cir. 1999); Bond v. Utreras, 585 F.3d 1061 (7th Cir. 2009). In the
event a motion to maintain the Protected Material under seal is not filed within 7 days or the
motion is denied in its entirety, the Clerk shall unseal the document. If the Court grants any
portion of a motion to maintain Protected Material under seal, the party that filed the motion to
maintain Protected Material under seal (or, if both Parties filed such a motion, the Party that
made the original filing containing the Protected Material) shall promptly provide to the Clerk a
publicly-available version of the original filing that redacts the appropriate portions of the
original filing in conformity with the Court’s order.
14.

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

Receiving Party must return all Protected Material to the Producing Party or destroy such
material. As used in this subdivision, “all Protected Material” includes all copies, abstracts,
compilations, summaries, and any other format reproducing or capturing any of the Protected
Material. Whether the Protected Material is returned or destroyed, the Receiving Party must
submit a written certification to the Producing Party (and, if not the same person or entity, to the
Designating Party) by the 60 day deadline that (1) identifies (by category, where appropriate) all
the Protected Material that was returned or destroyed and (2) affirms that the Receiving Party has
not retained any copies, abstracts, compilations, summaries or any other format reproducing or
capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled to
retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts,
legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work
product, and consultant and expert work product, even if such materials contain Protected
16.

Material. Any such archival copies that contain or constitute Protected Material remain subject
to this Protective Order as set forth in Section 4 (“DURATION”).
IT IS SO ORDERED.
DATED: December 5, 2011
/s/ Stephen C. Williams_______________
STEPHEN C. WILLIAMS
United States Magistrate Judge

17.

EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I,

__________________________

[print

or

type

full

name],

of

________________________________________________________ [print or type full address],
declare under penalty of perjury that I have read in its entirety and understand the Protective
Order that was issued by the United States District Court for the Southern District of Illinois on
____________________ [date] in the case of E.K.D., et al.v. Facebook, Inc., Case No. 3:11-cv00461-GPM-SCW. I agree to comply with and to be bound by all the terms of this Protective
Order and I understand and acknowledge that failure to so comply could expose me to sanctions
and punishment in the nature of contempt. I solemnly promise that I will not disclose in any
manner any information or item that is subject to this Protective Order to any person or entity
except in strict compliance with the provisions of this Order.
I further agree to submit to the jurisdiction of the United States District Court for the
Southern District of Illinois for the purpose of enforcing the terms of this Protective Order, even
if such enforcement proceedings occur after termination of this action.
I hereby appoint __________________________ [print or type full name] of
_______________________________________________________________ [print or type full
address and telephone number] as my Illinois agent for service of process in connection with this
action or any proceedings related to enforcement of this Protective Order.
Date: __________
City and State where sworn and signed: ____________
Printed name: ___________________________
[printed name]
Signature:

____________________________

18.