Juel v. Apple Inc.

Filing 51

ORDER re 49 Joint Case Management Statement filed by Apple Inc., Continuing Case Management Conference and Entering Stipulated Interim Protective Order. Signed by Judge Lucy H. Koh on 2/18/2013. (Attachments: # 1 Exhibit A)(lhklc3, COURT STAFF) (Filed on 2/18/2013)

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PENELOPE A. PREOVOLOS (SBN 87607)
[e-mail]
TIFFANY CHEUNG (SBN 211497)
[e-mail]
SUZANNA P. BRICKMAN (SBN 250891)
[e-mail]
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, California 94105-2482
Telephone:
415.268.7000
Facsimile:
415.268.7522

JOSEPH J. TABACCO, JR. (SBN 75484)
[e-mail]
CHRISTOPHER T. HEFFELFINGER (SBN
118058)
[e-mail]
ANTHONY D. PHILLIPS (SBN 259688)
[e-mail]
BERMAN DEVALERIO
One California Street, Suite 900
San Francisco, California 94111
Telephone:
415.433.3200
Facsimile:
415.433.6382

Attorneys for Defendant
APPLE INC.

Liaison Counsel for Plaintiffs

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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ROBERT HERSKOWITZ, et al.,

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PHOEBE JUEL, et al.
Plaintiffs,
v.
APPLE INC.,

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Defendant.

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[PROPOSED] STIPULATED PROTECTIVE ORDER
CASE NOS. 5:12-CV-02131-LHK AND 5:12-CV-03124-LHK
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No. 5:12-cv-02131-LHK
No. 5:12-cv-03124-LHK
[PROPOSED] STIPULATED
PROTECTIVE ORDER

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Plaintiffs and Defendant Apple Inc. (“Apple”) anticipate that documents, testimony, or

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information containing or reflecting confidential, proprietary, trade secret, and/or commercially

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sensitive information are likely to be disclosed or produced during the course of discovery, initial

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disclosures, and any supplemental disclosures in this case and request that the Court enter this

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Order setting forth the conditions for treating, obtaining, and using such information.

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Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, the Court finds good cause for

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entering the following Stipulated Protective Order Regarding the Disclosure and Use of

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Discovery Materials (“Stipulation and Protective Order”).

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1. PURPOSES AND LIMITATIONS

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Disclosure and discovery activity in these actions are likely to involve production of

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confidential, proprietary, or private information for which special protection from public

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disclosure and from use for any purpose other than prosecuting this litigation would be warranted.

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Accordingly, the parties hereby stipulate to and petition the Court to enter the following

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Stipulated Protective Order.

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The parties acknowledge that this Stipulation and Protective Order governs discovery in

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the consolidated actions Herskowitz v. Apple Inc., Case No. 12-CV-02131-LHK and Juel v. Apple

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Inc., Case No. 12-CV-03124-LHK. The parties also acknowledge that this Stipulation and

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Protective Order does not confer blanket protections on all disclosures or responses to discovery

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and that the protection it affords extends only to the limited information or items that are entitled

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under the applicable legal principles to treatment as confidential. The parties further

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acknowledge, as set forth in Paragraph 11 below, that this Stipulation and Protective Order

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creates no entitlement to file confidential information under seal; Civil Local Rule 79-5 sets forth

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the procedures that must be followed and reflects the standards that will be applied when a party

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seeks permission from the Court to file material under seal.

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2. DEFINITIONS

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2.1

“Action” or “Actions” mean the above-captioned consolidated actions,

presently pending in the United States District Court for the Northern District of California.
[PROPOSED] STIPULATED PROTECTIVE ORDER
CASE NOS. 5:12-CV-02131-LHK AND 5:12-CV-03124-LHK
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2.2

Party: Any party to these Actions, including all of its officers, directors,

employees, consultants, retained experts, and outside counsel (and their support staff).

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2.3

Disclosure or Discovery Material: All items or information, regardless of

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the medium or the manner in which it is generated, stored or maintained (including, among other

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things, testimony, transcripts, or tangible things), that is produced or generated in disclosures or

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responses to discovery in this matter.

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2.4

“CONFIDENTIAL” Information or Items: Disclosure or Discovery

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Material that is non-public and that a Party or non-party in good faith believes must be held

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confidential to protect personal privacy interests or confidential, proprietary, and/or commercially

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sensitive information, including trade secrets, or otherwise have a compelling need for privacy.

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2.5

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

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Information or Items: Disclosure or Discovery Material that is extremely confidential and/or

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sensitive in nature, disclosure of which to another Party or Non-party the Producing Party

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reasonably believes is likely to cause economic harm or competitive disadvantage to the

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Producing Party, is highly personal non-public information, or will otherwise compromise or

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jeopardize the Producing Party’s business interests. The parties agree that the following

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information, if nonpublic, shall be presumed to merit the “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY” designation: trade secrets, pricing information, financial data,

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sales information, sales or marketing forecasts or plans, business plans, sales or marketing

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strategy, product development information, engineering documents, testing documents, employee

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information, and other nonpublic information of similar competitive and business sensitivity.

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2.6

provided, produced or made available for inspection by a Producing Party.

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Receiving Party: A Party that receives Disclosure or Discovery Material

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Producing Party: A Party or non-party that provides, produces or makes

available for inspection Disclosure or Discovery Material in the course of these Actions.

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2.8

Designating Party: A Party or non-party that designates information or

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items that it produces in disclosures or in responses to discovery as CONFIDENTIAL or

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HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.
[PROPOSED] STIPULATED PROTECTIVE ORDER
CASE NOS. 5:12-CV-02131-LHK AND 5:12-CV-03124-LHK
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2.9

Protected Material: Any Disclosure or Discovery Material that is

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designated as or deemed to be CONFIDENTIAL or HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY.

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2.10

Outside Counsel: Attorneys who are not employees of a Party but who are

employed at law firms that appear on the pleadings as counsel for a Party in these actions.

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2.11

In-House Counsel: Attorneys who are employees of a Party.

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2.12

Counsel (without qualifier): Outside Counsel and In-House Counsel (as

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well as their support staffs).

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2.13

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

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pertinent to the litigation who has been retained by a Party or its Counsel to serve as an expert

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witness or as a consultant in these actions and who is not a past or a current employee of a Party

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or of any entity on the Restricted Competitors List and who, at the time of retention, is not

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anticipated to become an employee of a Party or any entity on the Restricted Competitors List.

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This definition includes any professional jury or trial consultant retained in connection with this

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litigation but does not include mock jurors. A list of Apple Inc.’s (“Apple”) restricted

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competitors will be separately produced to Outside Counsel (“Restricted Competitors List”).

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2.14

Professional Vendors: Persons or entities that provide litigation support

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

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

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subcontractors.

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3. SCOPE

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This Protective Order shall govern all Protected Material in whatever form, including

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documents, data, information, interrogatory responses, deposition testimony, deposition

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transcripts, responses to requests for admission, and any other Protected Material provided,

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produced, or made available for inspection in response to any method of discovery conducted in

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these Actions. The protections conferred by this Stipulation and Protective Order cover not only

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Protected Material (as defined above) but also any information copied or extracted therefrom, as

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well as all copies, excerpts, summaries or compilations thereof, plus testimony, conversations or
[PROPOSED] STIPULATED PROTECTIVE ORDER
CASE NOS. 5:12-CV-02131-LHK AND 5:12-CV-03124-LHK
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presentations by Parties or Counsel to or in court or in other settings that might reveal Protected

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Material.

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Nothing herein shall be construed to prevent a Producing Party from reviewing, using or
disclosing its own Protected Material in any manner that it deems appropriate.
This Protective Order is without prejudice to the right of any Party to seek further or

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additional protection of any Discovery Material or to modify this Order in any way, including,

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without limitation, an order that certain matter not be produced at all.

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The parties agree that this Protective Order does not address the production of source code
(including source code and source code listings, object code and object code listings, executable

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code and similar sensitive software code, whether in printed or electronic form). Should such

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source code be identified for production, the party requesting the source code will provide notices

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to all other parties before engaging the Producing party in negotiations regarding a source code

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protective order and all parties will collectively negotiate a protective order governing the

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production of source code.

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The parties agree that this Protective Order does not cover the disclosure of Protected

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Material to any Expert. The parties further agree that no disclosure of protected material to any

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Expert shall take place and that such disclosure is not permitted unless and until the Court enters a

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separate protective order governing the disclosure of protected materials to Experts. Accordingly,

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the parties reserve all rights to negotiate and, if necessary, litigate with respect to a separate

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protective order governing the disclosure of protected materials to Experts.

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4. DURATION

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After the termination of these Actions, the confidentiality obligations imposed by this

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Stipulation and Protective Order shall remain in effect until a Designating Party agrees otherwise

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in writing or a Court order otherwise directs.

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5. DESIGNATING PROTECTED MATERIAL

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5.1

Procedures for Designating Material for Protection: Any Party to this

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litigation, or any non-party who produces Disclosure or Discovery Material, shall have the right

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to designate as CONFIDENTIAL or HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES
[PROPOSED] STIPULATED PROTECTIVE ORDER
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ONLY any Protected Material it produces. All Protected Material shall bear a legend on each

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page stating that the material is “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL —

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ATTORNEYS’ EYES ONLY.” Materials designated as or deemed to be CONFIDENTIAL or

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HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES ONLY consistent with this Stipulation and

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Protective Order are subject to the provisions of this Stipulation and Protective Order and shall be

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protected, used, handled and disposed of in accordance with the provisions of this Stipulation and

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Protective Order.

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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

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appropriate standards set forth herein. A Designating Party must take care to designate for

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protection only those materials, documents, items, or oral or written communications that so

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qualify.

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5.2

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

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Stipulation and Protective Order (see, e.g., second paragraph of 5.2(a), below) or as otherwise

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stipulated or ordered, material that qualifies for protection under this Stipulation and Protective

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Order must be clearly designated as such before the material is disclosed or produced.

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Designation in conformity with this Stipulation and Protective Order requires:

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(a)

For Information in Documentary Form (apart from transcripts of

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depositions or other pretrial proceedings): That the Producing Party affix the legend

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” on each

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page that contains Protected Material. In order to speed up the process of producing large

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volumes of Protected Material, multi-page documents in which Protected Material is pervasive

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may be marked “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY” throughout. Where it is not possible to affix a legend to particular Protected Material,

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the Producing Party shall take reasonable steps to give all Receiving Parties notice of the

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Protected Material’s status as such. Except as otherwise agreed, within 45 days after receipt of

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Disclosure or Discovery Material, any Receiving Party may designate the material as

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”
[PROPOSED] STIPULATED PROTECTIVE ORDER
CASE NOS. 5:12-CV-02131-LHK AND 5:12-CV-03124-LHK
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A Party or non-party that makes original documents or materials available for inspection

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

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material it would like copied and produced. During the inspection and before the designation, all

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of the material made available for inspection shall be deemed “HIGHLY CONFIDENTIAL –

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

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copied and produced, the Producing Party must determine which documents qualify for protection

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under this Order. Then, before producing the specified documents, the Producing Party must

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affix the appropriate legend (“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY”) on each page that contains Protected Material, except that multi-

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page documents may be designated in accordance with the preceding paragraph.

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(b)

For Testimony Given in Deposition or in Other Pretrial

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Proceedings: Any Party or non-party offering or sponsoring the testimony may identify on the

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record, before the close of the deposition, hearing or other proceeding, all protected testimony and

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may further specify any portions of the testimony that qualify as “CONFIDENTIAL” or

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Alternatively, within thirty (30)

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days of receipt of a transcript or recording of a deposition or other pretrial proceeding, the

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offering or sponsoring Party or non-party may designate such transcript or recording or any

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portion thereof as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY” by notifying all Parties, in writing, of the specific pages and lines of the transcript or

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recording that should be treated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY.” All transcripts or recordings of depositions or other pretrial

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proceedings shall be treated as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” for

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thirty (30) days after receipt of the transcript or recording, or until written notice of a designation

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is received, whichever occurs first. In the case of a non-party witness, testimony can be

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designated as containing “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’

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EYES ONLY” information by a Party, the non-party witness or upon agreement of the Parties.

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Transcript pages containing Protected Material must be separately bound by the court
reporter, who must affix to the top of each such page the legend “CONFIDENTIAL” or
[PROPOSED] STIPULATED PROTECTIVE ORDER
CASE NOS. 5:12-CV-02131-LHK AND 5:12-CV-03124-LHK
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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” as instructed by the Party or non-

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party offering or sponsoring the witness or presenting the testimony.

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In the event the deposition is videotaped, the original and all copies of the videotape shall

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be marked by the video technician to indicate that the contents of the videotape are subject to this

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Stipulation and Protective Order, substantially along the lines of “This videotape contains

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confidential testimony used in this case and is not to be viewed or the contents thereof to be

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displayed or revealed except pursuant to the terms of the operative Stipulation and Protective

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Order in this matter or pursuant to written stipulation of the parties.”

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Counsel for any Producing Party shall have the right to exclude from oral depositions,

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other than the deponent, deponent’s counsel, the reporter and videographer (if any), any person

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who is not authorized by this Stipulation and Protective Order to receive or access Protected

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Material based on the designation of such Protected Material. Such right of exclusion shall be

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applicable only during periods of examination or testimony regarding such Protected Material.

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(c)

For Information Produced in A Form Other than Documentary, and

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for Any Other Tangible Items: The Producing Party shall affix in a prominent place on the

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exterior of the container or containers in which the information or item is stored the legend

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”

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(d)

For Inspection of Things or Premises: The Producing Party shall

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state in writing prior to the inspection that “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY” information or material will be revealed.

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5.3

Contractual Obligations to Non-Parties: During the course of these actions,

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a Party or non-party may be requested to produce information that is subject to contractual or

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other obligations of confidentiality owed to a non-party. The Party or non-party subject to the

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contractual or other obligation of confidentiality shall promptly contact the person to whom the

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obligation is owed to determine whether that person is willing to permit disclosure of the

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confidential information under the terms of this Stipulation and Protective Order. If that person is

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so willing, the information, if otherwise discoverable, shall be produced in accordance with this

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Stipulation and Protective Order. If the person to whom the obligation is owed is not willing to
[PROPOSED] STIPULATED PROTECTIVE ORDER
CASE NOS. 5:12-CV-02131-LHK AND 5:12-CV-03124-LHK
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permit disclosure of the confidential information under the terms of this Stipulation and

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Protective Order, or fails to respond before responses or production is due, the Party seeking the

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information in this litigation shall be so notified and given a description of the documents

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withheld, the reason for withholding the documents, the person to whom the obligation of

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confidentiality is owed and the person’s contact information. This description shall be produced

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as promptly as practicable.

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5.4

Upward Designation of Information or Items Produced by Other Parties or

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Non-Parties. A Party may upward designate (i.e., change any documents or other material

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produced without a designation to a designation of “CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or change any Protected Material produced

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as “CONFIDENTIAL” to a designation of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY,”) any Disclosure or Discovery Material produced by any other Party or non-party,

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provided that said Disclosure or Discovery Material contains the upward designating Party’s own

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CONFIDENTIAL or HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY information,

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or otherwise is entitled to protective treatment under Fed. R. Civ. P. 26(c). Upward designation

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shall be accomplished by providing written notice to all Parties identifying (by Bates number or

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other individually identifiable information) the Disclosure or Discovery Material to be re-

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designated within sixty (60) days of production by the Producing Party. Failure to upward

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designate within sixty (60) days of production, alone, will not prevent a Party from obtaining the

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agreement of all Parties to upward designate certain Disclosure or Discovery Material or from

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moving the Court for such relief. Any Party may object to the upward designation of Disclosure

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or Discovery Material pursuant to the procedures set forth herein regarding challenging

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designations.

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5.5

Inadvertent Failures to Designate and Redesignation: A Producing Party

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that inadvertently fails to designate Disclosure or Discovery Material as “CONFIDENTIAL” or

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” pursuant to this Stipulation and

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Protective Order at the time of its production shall be able to make a correction to its designation,

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with the Receiving Party reserving the right to assert such re-designation is improper pursuant to
[PROPOSED] STIPULATED PROTECTIVE ORDER
CASE NOS. 5:12-CV-02131-LHK AND 5:12-CV-03124-LHK
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the procedures set forth herein regarding challenging designations. Such failure shall be

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corrected by providing to the Receiving Party written notice of the error and substituted copies of

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the inadvertently unmarked or mis-marked Disclosure or Discovery Materials. Any party

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receiving such inadvertently unmarked or mis-marked Disclosure or Discovery Materials shall,

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within five (5) days of receipt of the substitute copies, destroy or return to the law firm

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representing the Producing Party all copies of such mis-designated documents. The Producing

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Party shall comply with Paragraph 5.2 when redesignating Disclosure or Discovery Material as

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Protected Material. Following any redesignation of Disclosure or Discovery Material as

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Protected Material (or redesignation of “CONFIDENTIAL” material as “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY”), the Party receiving such Protected Material

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shall take reasonable steps to comply with the redesignation, including, without limitation,

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retrieving all copies and excerpts of any redesignated Protected Material from persons not entitled

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to receive it as re-designated.

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A Receiving Party shall not be in breach of this Stipulation and Protective Order for any

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use of such inadvertently-non-designated or inadvertently-mis-designated material before the

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Receiving Party receives notice of the inadvertent failure to designate, unless an objectively

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reasonable person would have realized that the material should have been appropriately

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designated with a confidentiality designation under this Stipulation and Protective Order. Once a

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Receiving Party has received notice of the inadvertent failure to designate pursuant to this

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provision, the Receiving Party shall treat such material at the appropriately designated level

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pursuant to the terms of this Stipulation and Protective Order, reserving all rights to assert that

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such re-designation is not proper under the procedures set forth herein regarding challenging

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designations.

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6.

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DISCLOSURE OF DISCOVERY MATERIALS PROTECTED BY THE
ATTORNEY-CLIENT PRIVILEGE OR WORK PRODUCT DOCTRINE
(a)

Each party shall make efforts that are ‘reasonably designed’ to protect its

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privileged materials. See Gomez v. Vernon, 255 F.3d 1118, 1131-32 (9th Cir. 2001). What
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constitutes efforts that are reasonably designed to protect privileged materials depends on the
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[PROPOSED] STIPULATED PROTECTIVE ORDER
CASE NOS. 5:12-CV-02131-LHK AND 5:12-CV-03124-LHK
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circumstances; the law does not require ‘strenuous or Herculean efforts,’ just ‘reasonable efforts.’

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See, e.g., Hynix Semiconductor, Inc. v. Rambus, Inc. 2008 WL 350641, *1–2 (N.D. Cal., Feb. 2,

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2008); see also, FED. R. CIV. PRO. 26(f)(3) advisory committee’s notes to 2006 amendments

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(discussing the substantial costs and delays that can result from attempts to avoid waiving

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privilege, particularly when discovery of electronic information is involved). When a particular

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Rule 34 request requires a production or inspection that is too voluminous, expedited or complex

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(such as certain electronic productions) to allow for an adequate preproduction review, the parties

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may enter into non-waiver agreements for that particular production. If the requesting party is

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unwilling to enter into such an agreement, the Producing Party may move the court for a non-

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waiver order.

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(b)

The inadvertent production by a Party of Discovery Material subject to the

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attorney-client privilege, work-product protection, or any other applicable privilege or protection,

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despite the Producing Party’s reasonable efforts to prescreen such Discovery Material prior to

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production, will not waive the applicable privilege and/or protection if a request for return of such

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inadvertently produced Discovery Material is made promptly after the Producing Party learns of

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its inadvertent production.

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(c)

Upon a request from any Producing Party who has inadvertently produced

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Discovery Material that it believes is privileged and/or protected, each Receiving Party shall

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immediately return such Protected Material or Discovery Material, and all copies, to the

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Producing Party, except for any pages containing privileged markings by the Receiving Party

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which shall instead be destroyed and certified as such by the Receiving Party to the Producing

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Party.

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(d)

Nothing herein shall prevent the Receiving Party from preparing a record

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for its own use containing the date, author, addresses, and topic of the inadvertently produced

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Discovery Material and such other information as is reasonably necessary to identify the

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Discovery Material and describe its nature to the Court in any motion to compel production of the

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Discovery Material.

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[PROPOSED] STIPULATED PROTECTIVE ORDER
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7. CHALLENGING CONFIDENTIALITY DESIGNATIONS

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7.1

Timing of Challenges: The Receiving Party must challenge the

Designating Party’s designations within ninety (90) days of receipt of the challenged information.

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7.2

Meet and Confer: A Party that elects to initiate a challenge to a

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Designating Party’s confidentiality designation must do so in good faith and must begin the

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process by conferring directly (in voice-to-voice dialogue; other forms of communication are not

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sufficient) with counsel for the Designating Party. In conferring, the challenging Party must

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identify the specific Bates range(s) for the challenged document(s), explain the basis for its belief

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that the confidentiality designation was not proper and must give the Designating Party a

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reasonable opportunity to review the designated material, reconsider the circumstances and, if no

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change in designation is offered, explain the basis for the chosen designation. A challenging

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

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meet-and-confer process.

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7.3

Judicial Intervention: A Party that elects to press a challenge to a

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confidentiality designation after considering the justification offered by the Designating Party

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may file and serve a motion under Civil Local Rule 7 (and in compliance with Civil Local

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Rule 79-5, if applicable) that identifies the challenged material and sets forth in detail the basis

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for the challenge. Each such motion must be accompanied by a competent declaration affirming

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that the movant has complied with the meet-and-confer requirements imposed in the preceding

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paragraph and setting forth with specificity the justification for the confidentiality designation

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that was given by the Designating Party in the meet-and-confer dialogue.

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Nothing in this Stipulation and Protective Order shall preclude or prejudice either party

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from arguing for or against any designation, establish any presumption that a particular

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designation is valid, or alter the burden of proof that would otherwise apply in a dispute over

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discovery or disclosure of information. Until the Court rules on the challenge, all parties shall

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continue to afford the material in question the level of protection to which it is entitled under the

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Designating Party’s designation.

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[PROPOSED] STIPULATED PROTECTIVE ORDER
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8. ACCESS TO AND USE OF PROTECTED MATERIAL

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8.1

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

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disclosed or produced by another Party or by a non-party in connection with these Actions only

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for this case or any related appellate proceeding. A Receiving Party may not use Protected

5

Material for any other purpose, including, without limitation, any other litigation or any business

6

or competitive function. Such Protected Material may be disclosed only to the categories of

7

persons and under the conditions described in this Order and may not be disclosed to the media.

8

For purposes of this Stipulation and Protective Order, and specifically as utilized in the preceding

9

sentence, “disclosed” or “disclose” shall mean any physical or electronic showing of the

10

Protected Materials to any person, including communication in any form of the contents (in whole

11

or in part) or existence of the Protected Materials. When this litigation has been terminated, a

12

Receiving Party must comply with the provisions of Paragraph 12 below (FINAL

13

DISPOSITION).

14
15

Protected Material must be stored and maintained by a Receiving Party at a location and
in a secure manner ensuring that access is limited to the persons authorized under this Order.

16

8.2

Disclosure of “CONFIDENTIAL” Information or Items: Unless otherwise

17

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

18

disclose any information or item designated “CONFIDENTIAL” only to:

19

(a)

The Receiving Party’s Outside Counsel and such Outside Counsel’s

20

immediate paralegals and staff, and any copying or clerical litigation support services working at

21

the direction of such counsel, paralegals, and staff, to whom it is reasonably necessary to disclose

22

the information for these Actions;

23

(b)

the former and current officers, directors, and employees (including

24

In-House Counsel) of the Receiving Party to whom disclosure is reasonably necessary for these

25

Actions and who have signed the “General Acknowledgment of Confidentiality and Agreement to

26

Be Bound by Protective Order” that is attached hereto as Exhibit A-1;

27

(c)

any insurer or indemnitor of any defendant in these actions;

28
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1
2

(d)

the Court and any mediators or arbitrators and their respective

(e)

court reporters, their staffs, and professional vendors to whom

personnel;

3
4

disclosure is reasonably necessary for these Actions and who have signed the “General

5

Acknowledgment of Confidentiality and Agreement to Be Bound by Protective Order” that is

6

attached hereto as Exhibit A-1;

7
8

(f)

mock jurors, subject to the provisions of Paragraphs 8.6 and 8.7

(g)

the author(s) and recipient(s) of the “CONFIDENTIAL” Material

below; and

9
10

who have signed the “General Acknowledgment of Confidentiality and Agreement to Be Bound

11

by Protective Order” that is attached hereto as Exhibit A-1;

12
13

(h)

any other person with the prior written consent of the Producing

Party.

14

8.3

Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

15

ONLY” Information or Items: Unless otherwise ordered by the Court or permitted in writing by

16

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

17

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to:

18

(a)

In-House Counsel of the Receiving Party to whom disclosure is

19

reasonably necessary for these Actions and who have signed the “General Acknowledgment of

20

Confidentiality and Agreement to Be Bound by Protective Order” that is attached hereto as

21

Exhibit A-1;

22

(b)

The Receiving Party’s Outside Counsel of record in these Actions

23

and such Outside Counsel’s immediate paralegals and staff, and any copying or clerical litigation

24

support services working at the direction of such counsel, paralegals, and staff, to whom it is

25

reasonably necessary to disclose the information for these Actions;

26
27

(c)

the Court, and any mediators or arbitrators, and their respective

personnel;

28
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1

(d)

court reporters, their staffs, and professional vendors to whom

2

disclosure is reasonably necessary for these Actions and who have signed the “General

3

Acknowledgment of Confidentiality and Agreement to Be Bound by Protective Order” that is

4

attached hereto as Exhibit A-1; and

5

(e)

the author(s) and recipient(s) of the “HIGHLY CONFIDENTIAL –

6

ATTORNEYS’ EYES ONLY” Material who have signed the “General Acknowledgment of

7

Confidentiality and Agreement to Be Bound by Protective Order” that is attached hereto as

8

Exhibit A-1.

9
10

8.4

General Procedure for Disclosure of “CONFIDENTIAL” or “HIGHLY

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items:

11

(a)

Before any information or item designated “CONFIDENTIAL,” or

12

substance or summary thereof, shall be disclosed to the persons or entities identified in sub-

13

paragraphs (b), (d), (f), (g), (h), and (i) of paragraph 8.2 above, the Parties are hereby ordered to

14

tender a copy of this Stipulation and Protective Order to each such person and witness in order

15

that each such entity or person to whom such disclosure of “CONFIDENTIAL” information or

16

item is made shall be on notice and fully informed that the existence and substance of the

17

Stipulation and Protective Order is, and is intended to be, equally binding upon it, him or her.

18

Before any information or item designated “CONFIDENTIAL,” or substance or summary

19

thereof, is disclosed to any such person, each such person shall sign and abide by the terms of the

20

General Acknowledgment of Confidentiality and Agreement to Be Bound by Protective Order,

21

attached hereto as Exhibit A-1, The person to whom the “CONFIDENTIAL” information or item

22

is disclosed shall not give, show, or otherwise divulge any of the “CONFIDENTIAL” information

23

or item to any entity or person except as specifically provided for by this Stipulation and

24

Protective Order.

25

(b)

Before any information or item designated “HIGHLY

26

CONFIDENTIAL - ATTORNEYS’ EYES ONLY,” or substance or summary thereof, shall be

27

disclosed to the persons or entities identified in sub-paragraphs (b), (c), (e) and (f) of paragraph

28

8.3 above, the Parties are hereby ordered to tender a copy of this Stipulation and Protective Order
[PROPOSED] STIPULATED PROTECTIVE ORDER
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1

to each such person and witness in order that each such entity or person to whom such disclosure

2

of “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY” information or item is made

3

shall be on notice and fully informed that the existence and substance of the Stipulation and

4

Protective Order is, and is intended to be, equally binding upon it, him or her. Before any

5

information or item designated “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY,” or

6

substance or summary thereof, is disclosed to any such person, each such person shall sign and

7

abide by the terms of the General Acknowledgment of Confidentiality and Agreement to Be

8

Bound by Protective Order, attached hereto as Exhibit A-1, The person to whom the “HIGHLY

9

CONFIDENTIAL - ATTORNEYS’ EYES ONLY” information or item is disclosed shall not

10

give, show, or otherwise divulge any of the “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES

11

ONLY” information to any entity or person except as specifically provided for by this Stipulation

12

and Protective Order.

13

8.5

Procedure for Disclosure of “CONFIDENTIAL” Information or Items to

14

Mock Jurors: A Receiving Party may disclose to mock jurors materials prepared by its outside

15

counsel that are derived from information or items designated “CONFIDENTIAL” (but not

16

materials that are derived from information or items designated “HIGHLY CONFIDENTIAL –

17

ATTORNEYS’ EYES ONLY”), so long as the derivative materials do not include the as-

18

produced information itself. Before providing such material to a mock juror, the Receiving Party

19

must, in compliance with Paragraph 8.4(a) above, tender a copy of this Stipulation and Protective

20

Order to each mock juror in order that each person to whom such disclosure is made shall be on

21

notice and fully informed that the existence and substance of the Stipulation and Protective Order

22

is, and is intended to be, equally binding upon it, him or her, as well as upon the Parties and their

23

counsel. Before any materials prepared by outside counsel that are derived from information or

24

items designated “CONFIDENTIAL” are disclosed to a mock juror, each such person shall sign

25

and abide by the terms of the General Acknowledgment of Confidentiality and Agreement to Be

26

Bound by Protective Order, attached hereto as Exhibit A-1. The mock juror to whom the material

27

is disclosed shall not give, show, or otherwise divulge any of the information contained therein to

28

any entity or person except as specifically provided for by this Stipulation and Protective Order.
[PROPOSED] STIPULATED PROTECTIVE ORDER
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15

1
2
3

8.6

Procedure for Disclosure of “CONFIDENTIAL” or “HIGHLY

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items to Experts:
Notwithstanding any other provisions of this Protective Order, the parties may not

4

disclose to any Expert any information or item that has been designated “CONFIDENTIAL” or

5

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” unless and until the Court enters a

6

supplemental protective order governing the disclosure of “CONFIDENTIAL” and “HIGHLY

7

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information to Experts.

8

8.7

The Party’s Counsel who discloses “CONFIDENTIAL” or “HIGHLY

9

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Material shall be responsible for assuring

10

compliance with the terms of this Stipulation and Protective Order with respect to persons to

11

whom such Protected Material is disclosed and shall obtain and retain the originals of the

12

“General Acknowledgment of Confidentiality and Agreement to Be Bound by Protective Order”

13

executed by qualified recipients of Protected Material (if such execution was required by terms of

14

this Stipulation and Protective Order).

15

9.

16

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
IN OTHER LITIGATION

If a Receiving Party is served with a subpoena or an order issued in other litigation that
17
would compel disclosure of any information or items designated in these actions as
18
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” the
19
Receiving Party must so notify the Designating Party in writing (by email, if possible)
20
immediately and in no event more than three court days after receiving the subpoena or order.
21
Such notification must include a copy of the subpoena or Court order.
22
The Receiving Party must also immediately inform in writing the party who caused the
23
subpoena or order to issue in the other litigation that some or all of the material covered by the
24
subpoena or order is the subject of this Stipulation and Protective Order. In addition, the
25
Receiving Party must deliver a copy of this Stipulation and Protective Order promptly to the party
26
in the other action that caused the subpoena or order to issue.
27
28
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1

The purpose of imposing these duties is to alert the interested parties to the existence of

2

this Stipulation and Protective Order and to afford the Designating Party in this case an

3

opportunity to try to protect its confidentiality interests in the court from which the subpoena or

4

order issued. The Designating Party shall bear the burden and expense of seeking protection in

5

that court of its Protected Material. Nothing in these provisions should be construed as

6

authorizing or encouraging a Receiving Party in these actions to disobey a lawful directive from

7

another court.

8

10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

9

If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected

10

Material to any person or in any circumstance not authorized under this Stipulation and Protective

11

Order, the Receiving Party must immediately: (a) notify the Designating Party in writing of the

12

unauthorized disclosure (by email, if possible) immediately and in no event more than three court

13

days after learning of the disclosure; (b) use its best efforts to retrieve all copies of the Protected

14

Material; (c) inform the person or persons to whom unauthorized disclosures were made of all the

15

terms of this Order; and (d) request such person or persons to execute the “General

16

Acknowledgment of Confidentiality and Agreement to Be Bound by Protective Order”

17

(Exhibit A-1). Unauthorized or inadvertent disclosure does not change the status of Discovery

18

Material or waive the right to maintain the disclosed document or information as Protected.

19

11. FILING PROTECTED MATERIAL

20

Without written permission from the Designating Party or a Court order secured after

21

appropriate notice to all interested persons, a Party may not file any Protected Material in the

22

public record in these actions. A Party that seeks to file under seal any Protected Material must

23

comply with Civil Local Rule 79-5. A Party who seeks to introduce Protected Material at a

24

hearing, pretrial or other proceeding shall advise the Court at the time of introduction that the

25

information sought to be introduced is protected. If the Party who designated the information as

26

Protected Material requests the protection be continued, the Court will review the information to

27

determine if the information is entitled to continued protection. Prior to disclosure of Protected

28
[PROPOSED] STIPULATED PROTECTIVE ORDER
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1

Material at a hearing, the Producing Party may seek further protections against public disclosure

2

from the Court.

3

12. FINAL DISPOSITION

4

Unless otherwise ordered or agreed in writing by the Producing Party, within 90 days after

5

the final termination of these Actions and upon receiving a written request to do so from the

6

Producing Party or Designating Party, each Receiving Party must destroy all Protected Material,

7

return it to the Producing Party, or make the Protected Material available for pick-up by the

8

Producing Party. As used in this order, “final termination” shall be deemed to be the later of (1)

9

dismissal of all claims and defenses in these Actions, with or without prejudice, and (2) final

10

judgment herein after the completion and exhaustion of all appeals, rehearings, remands, trials, or

11

reviews of these Actions, including the time limits for filing any motions or applications for

12

extension of time pursuant to applicable laws. As used in this paragraph, “all Protected Material”

13

includes all copies, abstracts, compilations, summaries or any other form of reproducing or

14

capturing any of the Protected Material. Whether the Protected Material is returned or destroyed

15

upon request by the Producing Party, the Receiving Party must submit a written certification to

16

the Producing Party (and, if not the same person or entity, to the Designating Party) by the 90-day

17

deadline that represents that all Protected Material that was returned or destroyed and affirms that

18

the Receiving Party has not retained any copies, abstracts, compilations, summaries, or other

19

forms of reproducing or capturing any of the Protected Material. Notwithstanding this provision,

20

Counsel are entitled to retain copies of all pleadings, motion papers, transcripts, legal memoranda,

21

correspondence, and attorney work product (but not document productions), even if such

22

materials contain Protected Material, for archival purposes. Any such copies of pleadings,

23

motion papers, transcripts, legal memoranda, correspondence, and attorney work product that

24

contain or constitute Protected Material remain subject to this Stipulation and Protective Order as

25

set forth in Paragraph 4 (DURATION), above.

26

13. DISCOVERY FROM EXPERTS OR CONSULTANTS

27
28

(a)

Testifying experts shall not be subject to discovery with respect to any

draft of his or her report(s) in this case. Draft reports, notes, or outlines for draft reports
[PROPOSED] STIPULATED PROTECTIVE ORDER
CASE NOS. 5:12-CV-02131-LHK AND 5:12-CV-03124-LHK
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1

developed and drafted by the testifying expert and/or his or her staff are also exempt from

2

discovery.

3

(b)

Discovery of materials provided to testifying experts shall be limited to

4

those materials, facts, consulting expert opinions, and other matters actually relied upon by the

5

testifying expert in forming his or her final report, trial, or deposition testimony or any opinion in

6

this case. No discovery can be taken from any non-testifying expert except to the extent that such

7

non-testifying expert has provided information, opinions, or other materials to a testifying expert

8

relied upon by that testifying expert in forming his or her final report(s), trial, and/or deposition

9

testimony or any opinion in this case.

10

(c)

No conversations or communications between counsel and any testifying or

11

consulting expert will be subject to discovery unless the conversations or communications are

12

relied upon by such experts in formulating opinions that are presented in reports or trial or

13

deposition testimony in this case.

14

(d)

Materials, communications, and other information exempt from discovery

15

under the foregoing Paragraphs 13 (a)–(c) shall be treated as attorney-work product for the

16

purposes of this litigation and Order.

17

14. MISCELLANEOUS

18
19

14.1

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

person to seek its modification by the Court in the future.

20

14.2

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

21

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

22

producing any information or item on any ground not addressed in this Stipulation and Protective

23

Order. Similarly, no Party waives any right to object on any ground to use in evidence of any of

24

the material covered by this Stipulation and Protective Order.

25

14.3

Computation of Time: The computation of any period of time prescribed

26

or allowed by this Order shall be governed by the provisions for computing time set forth in

27

Federal Rules of Civil Procedure 6.

28
[PROPOSED] STIPULATED PROTECTIVE ORDER
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1

14.4

Fact of Designation Not Admissible: The fact of designation, or failure to

2

designate, Disclosure or Discovery Materials as CONFIDENTIAL or HIGHLY

3

CONFIDENTIAL – ATTORNEYS’ EYES ONLY pursuant to this Stipulation and Protective

4

Order shall not be admissible for any purpose in a trial on the merits or at any other proceeding

5

other than at a proceeding arising from or related to this Stipulation and Protective Order.

6
7

14.5

attorneys, and their successors, executors, heirs, assigns, and employees.

8
9
10

14.6

The provisions of this Stipulation and Protective Order do not apply to any

trial proceedings in these Actions. The Parties will separately request the Court to enter an Order
governing the handling of such materials at trial.

11
12

Successors: This Order shall be binding upon the Parties hereto, their

14.7

The Court shall retain jurisdiction to enforce the terms of this Stipulation

and Protective Order.

13

14.8

Nothing in this Stipulation and Order shall alter the requirements for and

14

scope of expert discovery in accordance with Federal Rule of Civil Procedure 26, local rules, and

15

case law.

16

14.9

The procedures set forth in this Stipulation and Order shall apply to every

17

action that is subject to this proceeding, whether filed in or transferred to this Court for so long as

18

such actions are pending.

19

STIPULATED AND AGREED TO BY:
Dated: February ____, 2013

20
21

MORRISON & FOERSTER LLP
Attorneys for Defendant
APPLE INC.

22

By: ___/s/ Penelope A. Preovolos

23

Penelope A. Preovolos
[e-mail]
Tiffany Cheung, Esq.
[e-mail]
Suzanna P. Brickman, Esq.
[e-mail]
San Francisco, California 94105
Telephone: [phone]
Facsimile: 415.268.7522

24
25
26
27
28

[PROPOSED] STIPULATED PROTECTIVE ORDER
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1

Dated: February ____, 2013

BERMAN DEVALERIO
Liaison Counsel for Plaintiffs

2
3

By: /s/ Joseph J. Tabacco, Jr.

4

Joseph J. Tabacco, Jr.
[e-mail]
Anthony D. Phillips
[e-mail]
One California St., Suite 900
San Francisco, California 94111
Telephone: [phone]
Facsimile: 415.433.6382

5
6
7
8

Robert J. Axelrod, Esq.
[e-mail]
POMERANTZ GROSSMAN HUFFORD
DAHLSTROM & GROSS LLP
600 Third Avenue
New York, New York 10016
Telephone: [phone]
Facsimile: 212.661.1373

9
10
11
12
13

Judd B. Grossman, Esq. (pro hac vice)
[e-mail]
GROSSMAN LLP
590 Madison Avenue, 18th Floor
New York, New York 10022
Telephone: [phone]
Facsimile: 212.521.4044

14
15
16
17

PATRICK J. PEROTTI (Pro Hac Vice)
MICHAEL R. RUDICK (Pro Hac Vice)
DWORKEN & BERNSTEIN CO., L.P.A.
60 South Park Place
Painesville, Ohio 44077
Telephone: [phone]
Facsimile: [phone]

18
19
20
21

JOHN A. KITHAS (SBN 64284)
CHRIS D. LAND (SBN 238261)
LAW OFFICES OF JOHN A. KITHAS
One Embarcadero Center, Suite 1020
San Francisco, California 94111
Telephone: [phone]
Facsimile: [phone]

22
23
24
25
26
27

PURSUANT TO STIPULATION, IT IS SO ORDERED.
Date: February 18, 2013
Hon. Lucy H. Koh
United States District Judge

28

[PROPOSED] STIPULATED PROTECTIVE ORDER
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21

1

EXHIBIT A-1

2

GENERAL ACKNOWLEDGMENT OF CONFIDENTIALITY AND AGREEMENT TO
BE BOUND BY PROTECTIVE ORDER

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17

I, ___________________________________, declare under penalty of perjury that I have
read in its entirety and understand the Stipulation and Protective Order that was issued by the
United States District Court for the Northern District of California on _______________, 201__
in the consolidated case of Herskowitz v. Apple Inc., Case No. 5:12-CV-02131-LHK, and Juel v.
Apple Inc., Case No. 5:12-CV-03124-RMW, pending in the Northern District of California.
I agree to comply with and be bound by all the terms of the Stipulation and 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 the Stipulation and Protective Order to any
person or entity except in strict compliance with the provisions of the Stipulation and Order.
I further agree to submit to the jurisdiction of the United States District Court for the
Northern District of California for the purpose of enforcing the terms of the Stipulation and
Protective Order even if such enforcement proceedings occur after termination of this action.
Executed on at

at

.

18
19
20

Name:

21

Address:

22
23
24
25
26
27
28
[PROPOSED] STIPULATED PROTECTIVE ORDER
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