Navcom Techonology, Inc et al v. OKI Semiconductor America, Inc et al
Filing
59
STIPULATED PROTECTIVE ORDER (MODIFIED BY THE COURT). Signed by Magistrate Judge Howard R. Lloyd on January 24, 2013. (hrllc1, COURT STAFF) (Filed on 1/24/2013)
*E-FILED: January 24, 2013*
1
2
3
4
5
6
7
MORGAN, LEWIS & BOCKIUS LLP
BRETT M. SCHUMAN (SBN 189247)
bschuman@morganlewis.com
RACHEL M. WALSH (SBN 250568)
rwalsh@morganlewis.com
One Market, Spear Street Tower
San Francisco, California 94105-1126
Telephone:
415.442.1000
Facsimile:
415.442.1001
Attorneys for Plaintiffs
NavCom Technology, Inc., and Deere &
Company
MICHAEL A. LADRA (SBN 64307)
mike.ladra@lw.com
MATTHEW RAWLINSON (SBN 231890)
matt.rawlinson@lw.com
ALLISON S. DAVIDSON (SBN 267964)
allison.davidson@lw.com
LATHAM & WATKINS LLP
140 Scott Drive
Menlo Park, California 94025
Telephone:
(650) 328-4600
Facsimile:
(650) 463-2600
Attorneys for Defendant
Oki Electric Industry Co., Ltd.
8
9
UNITED STATES DISTRICT COURT
10
NORTHERN DISTRICT OF CALIFORNIA
11
NAVCOM TECHNOLOGY, INC.; and
DEERE & COMPANY,
12
Plaintiffs,
13
Case No. 5:12-cv-04175 EJD
STIPULATED PROTECTIVE ORDER
AND [PROPOSED] ORDER
(MODIFIED BY THE COURT)
v.
14
15
OKI ELECTRIC INDUSTRY CO., LTD.; and
DOES 1 through 10, inclusive,
16
Defendants.
17
18
1.
PURPOSES AND LIMITATIONS
19
Disclosure and discovery activity in this action are likely to involve production of
20
confidential, proprietary, or private information for which special protection from public
21
disclosure and from use for any purpose other than prosecuting this litigation may be warranted.
22
Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulated
23
Protective Order. The parties acknowledge that this Order does not confer blanket protections on
24
all disclosures or responses to discovery and that the protection it affords from public disclosure
25
and use extends only to the limited information or items that are entitled to confidential treatment
26
under the applicable legal principles. The parties further acknowledge, as set forth in Section
27
14.4, below, that this Stipulated Protective Order does not entitle them to file confidential
28
information under seal; Civil Local Rule 79-5 and General Order 62 set forth the procedures that
MORGAN, LEWIS &
BOCKIUS LLP
CASE NO. 5:12-CV-04175 EJD
STIPULATED PROTECTIVE ORDER
ATTORNEYS AT LAW
S AN FRANCISCO
DB2/ 23805227.1
1
must be followed and the standards that will be applied when a party seeks permission from the
2
court to file material under seal.
3
2.
4
5
6
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
7
generated, stored or maintained) or tangible things that qualify for protection under Federal Rule
8
of Civil Procedure 26(c).
9
10
11
2.3
Counsel (without qualifier): Outside Counsel 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
12
produces in disclosures or in responses to discovery as “CONFIDENTIAL” or “HIGHLY
13
CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”
14
2.5
Disclosure or Discovery Material: all items or information, regardless of the
15
medium or manner in which it is generated, stored, or maintained (including, among other things,
16
testimony, transcripts, and tangible things), that are produced or generated in disclosures or
17
responses to discovery in this matter.
18
2.6
Expert: a person with specialized knowledge or experience in a matter pertinent to
19
the litigation who (1) has been retained by a Party or its counsel to serve as an expert witness or
20
as a consultant in this action, (2) is not a past or current employee of a Party or of a Party’s
21
competitor, and (3) at the time of retention, is not anticipated to become an employee of a Party
22
or of a Party’s competitor.
23
2.7
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or
24
Items: extremely sensitive “Confidential Information or Items,” disclosure of which to another
25
Party or Non-Party would create a substantial risk of serious harm that could not be avoided by
26
less restrictive means.
27
28
2.8
House Counsel: attorneys who are employees of a party to this action. House
Counsel does not include Outside Counsel.
MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
2
S AN FRANCISCO
DB2/ 23805227.1
CASE NO. 5:12-CV-04175 EJD
STIPULATED PROTECTIVE ORDER
1
2
2.9
entity not named as a Party to this action.
3
4
2.10
2.11
Party: any party to this action, including all of its officers, directors, employees,
consultants, retained experts, and Outside Counsel (and their support staffs).
7
8
Outside Counsel: attorneys who are not employees of a party to this action but are
retained to represent or advise a party to this action.
5
6
Non-Party: any natural person, partnership, corporation, association, or other legal
2.12
Producing Party: a Party or Non-Party that produces Disclosure or Discovery
Material in this action.
9
2.13
Professional Vendors: persons or entities that provide litigation support services
10
(e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and
11
organizing, storing, or retrieving data in any form or medium) and their employees and
12
subcontractors.
13
14
2.14
Protected Material: any Disclosure or Discovery Material that is designated as
“CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”
15
2.15
Receiving Party: a Party that receives Disclosure or Discovery Material from a
16
Producing Party.
17
3.
18
SCOPE
The protections conferred by this Stipulation and Order cover not only Protected Material
19
(as defined above), but also (1) any information copied or extracted from Protected Material;
20
(2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony,
21
conversations, or presentations by Parties or their Counsel that might reveal Protected Material.
22
However, the protections conferred by this Stipulation and Order do not cover the following
23
information: (a) any information that is in the public domain at the time of disclosure to a
24
Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as
25
a result of publication not involving a violation of this Order, including becoming part of the
26
public record through trial or otherwise; and (b) any information known to the Receiving Party
27
prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who
28
MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
3
S AN FRANCISCO
DB2/ 23805227.1
CASE NO. 5:12-CV-04175 EJD
STIPULATED PROTECTIVE ORDER
1
obtained the information lawfully and under no obligation of confidentiality to the Designating
2
Party. Any use of Protected Material at trial shall be governed by a separate agreement or order.
3
4.
DURATION
4
Even after final disposition of this litigation, the confidentiality obligations imposed by
5
this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court
6
order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all
7
claims and defenses in this action, with or without prejudice; and (2) final judgment herein after
8
the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,
9
including the time limits for filing any motions or applications for extension of time pursuant to
10
11
12
applicable law. For a period of six months after final disposition of this litigation, this court
will retain jurisdiction to enforce the terms of this order.
5.
DESIGNATING PROTECTED MATERIAL
5.1
Exercise of Restraint and Care in Designating Material for Protection. Each Party
13
or Non-Party that designates information or items for protection under this Order must take care
14
to limit any such designation to specific material that qualifies under the appropriate standards.
15
To the extent it is practical to do so, the Designating Party must designate for protection only
16
those parts of material, documents, items, or oral or written communications that qualify – so that
17
other portions of the material, documents, items, or communications for which protection is not
18
warranted are not swept unjustifiably within the ambit of this Order.
19
Mass, indiscriminate, or routinized designations are prohibited. Designations that are
20
shown to be clearly unjustified or that have been made for an improper purpose (e.g., to
21
unnecessarily encumber or retard the case development process or to impose unnecessary
22
expenses and burdens on other parties) expose the Designating Party to sanctions.
23
If it comes to a Designating Party’s attention that information or items that it designated
24
for protection do not qualify for protection at all or do not qualify for the level of protection
25
initially asserted, that Designating Party must promptly notify all other parties that it is
26
withdrawing the mistaken designation.
27
28
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,
MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
4
S AN FRANCISCO
DB2/ 23805227.1
CASE NO. 5:12-CV-04175 EJD
STIPULATED PROTECTIVE ORDER
1
Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so
2
designated before the material is disclosed or produced.
3
Designation in conformity with this Order requires:
4
(a)
for information in documentary form (e.g., paper or electronic documents,
5
but excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing
6
Party affix the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’
7
EYES ONLY” to each page that contains protected material. If only a portion or portions of the
8
material on a page qualifies for protection, the Producing Party also must clearly identify the
9
protected portion(s) (e.g., by making appropriate markings in the margins) and must specify, for
10
11
each portion, the level of protection being asserted.
A Party or Non-Party that makes original documents or materials available for inspection
12
need not designate them for protection until after the inspecting Party has indicated which
13
material it would like copied and produced. During the inspection and before the designation, all
14
of the material made available for inspection shall be deemed “HIGHLY CONFIDENTIAL –
15
ATTORNEYS’ EYES ONLY.” After the inspecting Party has identified the documents it wants
16
copied and produced, the Producing Party must determine which documents, or portions thereof,
17
qualify for protection under this Order. Then, before producing the specified documents, the
18
Producing Party must affix the appropriate legend (“CONFIDENTIAL” or “HIGHLY
19
CONFIDENTIAL – ATTORNEYS’ EYES ONLY”) to each page that contains Protected
20
Material. If only a portion or portions of the material on a page qualifies for protection, the
21
Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate
22
markings in the margins) and must specify, for each portion, the level of protection being
23
asserted.
24
(b)
for testimony given in deposition or in other pretrial or trial proceedings,
25
that the Designating Party identify on the record, before the close of the deposition, hearing, or
26
other proceeding, all protected testimony and specify the level of protection being asserted. When
27
it is impractical to identify separately each portion of testimony that is entitled to protection and it
28
appears that substantial portions of the testimony may qualify for protection, the Designating
MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
5
S AN FRANCISCO
DB2/ 23805227.1
CASE NO. 5:12-CV-04175 EJD
STIPULATED PROTECTIVE ORDER
1
Party may invoke on the record (before the deposition, hearing, or other proceeding is concluded)
2
a right to have up to 21 days to identify the specific portions of the testimony as to which
3
protection is sought and to specify the level of protection being asserted. Only those portions of
4
the testimony that are appropriately designated for protection within the 21 days shall be covered
5
by the provisions of this Stipulated Protective Order. Alternatively, a Designating Party may
6
specify, at the deposition or up to 21 days afterwards on written notice, that the entire transcript
7
shall be treated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
8
ONLY.”
9
Parties shall give the other parties notice if they reasonably expect a deposition, hearing or
10
other proceeding to include Protected Material so that the other parties can ensure that only
11
authorized individuals who have signed the “Acknowledgment and Agreement to Be Bound”
12
(Exhibit A) are present at those proceedings. The use of a document as an exhibit at a deposition
13
shall not in any way affect its designation as “CONFIDENTIAL” or “HIGHLY
14
CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”
15
Transcripts containing Protected Material shall have an obvious legend on the title page
16
that the transcript contains Protected Material, and the title page shall be followed by a list of all
17
pages (including line numbers as appropriate) that have been designated as Protected Material and
18
the level of protection being asserted by the Designating Party. The Designating Party shall
19
inform the court reporter of these requirements. Any transcript that is prepared before the
20
expiration of a 21-day period for designation shall be treated during that period as if it had been
21
designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its entirety unless
22
otherwise agreed. After the expiration of that period, the transcript shall be treated only as
23
actually designated.
24
(c)
for information produced in some form other than documentary and for
25
any other tangible items, that the Producing Party affix in a prominent place on the exterior of the
26
container or containers in which the information or item is stored the legend “CONFIDENTIAL”
27
or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” If only a portion or portions of
28
MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
6
S AN FRANCISCO
DB2/ 23805227.1
CASE NO. 5:12-CV-04175 EJD
STIPULATED PROTECTIVE ORDER
1
the information or item warrant protection, the Producing Party, to the extent practicable, shall
2
identify the protected portion(s) and specify the level of protection being asserted.
3
5.3
Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to
4
designate qualified information or items does not, standing alone, waive the Designating Party’s
5
right to secure protection under this Order for such material. Upon timely correction of a
6
designation, the Receiving Party must make reasonable efforts to assure that the material is
7
treated in accordance with the provisions of this Order.
8
6.
9
CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1
Timing of Challenges. Any Party or Non-Party may challenge a designation of
10
confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality
11
designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic
12
burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to
13
challenge a confidentiality designation by electing not to mount a challenge promptly after the
14
original designation is disclosed.
15
6.2
Meet and Confer. The Challenging Party shall initiate the dispute resolution
16
process by providing written notice of each designation it is challenging and describing the basis
17
for each challenge. To avoid ambiguity as to whether a challenge has been made, the written
18
notice must recite that the challenge to confidentiality is being made in accordance with this
19
specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge in
20
good faith and must begin the process by conferring directly (in voice to voice dialogue; other
21
forms of communication are not sufficient) within 14 days of the date of service of notice. In
22
conferring, the Challenging Party must explain the basis for its belief that the confidentiality
23
designation was not proper and must give the Designating Party an opportunity to review the
24
designated material, to reconsider the circumstances, and, if no change in designation is offered,
25
to explain the basis for the chosen designation. A Challenging Party may proceed to the next
26
stage of the challenge process only if it has engaged in this meet and confer process first or
27
establishes that the Designating Party is unwilling to participate in the meet and confer process in
28
a timely manner.
MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
7
S AN FRANCISCO
DB2/ 23805227.1
CASE NO. 5:12-CV-04175 EJD
STIPULATED PROTECTIVE ORDER
1
3
Judicial Intervention. If the Parties cannot resolve a challenge without court
parties shall comply with the undersigned's Standing Order re Civil
intervention, the Designating Party shall file and serve a motion to retain confidentiality under
Discovery Disputes
Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5 and General Order 62, if
4
applicable) within 21 days of the initial notice of challenge or within 14 days of the parties
5
agreeing that the meet and confer process will not resolve their dispute, whichever is earlier. Each
Any Discovery Dispute Joint Report shall affirm that
such motion must be accompanied by a competent declaration affirming that the movant has
have been satisfied.
complied with the meet and confer requirements imposed in the preceding paragraph. Failure by
^
seek judicial intervention
the Designating Party to make such a motion including the required declaration within 21 days (or
2
6
7
8
9
6.3
10
14 days, if applicable) shall automatically waive the confidentiality designation for each
seek relief with respect to
challenged designation. In addition, the Challenging Party may file a motion challenging a
11
confidentiality designation at any time if there is good cause for doing so, including a challenge to
12
the designation of a deposition transcript or any portions thereof. Any motion brought pursuant to
13
this provision must be accompanied by a competent declaration affirming that the movant has
14
complied with the meet and confer requirements imposed by the preceding paragraph.
15
The burden of persuasion in any such challenge proceeding shall be on the Designating
16
Party. Frivolous challenges and those made for an improper purpose (e.g., to harass or impose
17
unnecessary expenses and burdens on other parties) may expose the Challenging Party to
18
19
sanctions. Unless the Designating Party has waived the confidentiality designation by failing to
seek relief
file a motion to retain confidentiality as described above, all parties shall continue to afford the
20
material in question the level of protection to which it is entitled under the Producing Party’s
21
designation until the court rules on the challenge.
22
7.
23
ACCESS TO AND USE OF PROTECTED MATERIAL
7.1
Basic Principles. A Receiving Party may use Protected Material that is disclosed or
24
produced by another Party or by a Non-Party in connection with this case only for prosecuting,
25
defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to
26
the categories of persons and under the conditions described in this Order. When the litigation has
27
been terminated, a Receiving Party must comply with the provisions of section 15 below (FINAL
28
DISPOSITION).
MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
8
S AN FRANCISCO
DB2/ 23805227.1
CASE NO. 5:12-CV-04175 EJD
STIPULATED PROTECTIVE ORDER
1
Protected Material must be stored and maintained by a Receiving Party at a location and
2
in a secure manner that ensures that access is limited to the persons authorized under this Order.
3
7.2
Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered
4
by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any
5
information or item designated “CONFIDENTIAL” only to:
6
(a)
the Receiving Party’s Outside Counsel in this action, as well as employees
7
of said Outside Counsel to whom it is reasonably necessary to disclose the information for this
8
litigation and who have signed the “Acknowledgment and Agreement to Be Bound” that is
9
attached hereto as Exhibit A;
10
(b)
the officers, directors, and employees (including House Counsel) of the
11
Receiving Party to whom disclosure is reasonably necessary for this litigation and who have
12
signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
13
(c)
Experts (as defined in this Order) of the Receiving Party to whom
14
disclosure is reasonably necessary for this litigation and who have signed the “Acknowledgment
15
and Agreement to Be Bound” (Exhibit A);
16
(d)
the court and its personnel;
17
(e)
court reporters and their staff, professional jury or trial consultants, and
18
Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have
19
signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
20
(f)
during their depositions, witnesses in the action to whom disclosure is
21
reasonably necessary and who is (i) the author of the original source of the “CONFIDENTIAL”
22
material, (ii) an actual or intended recipient of the “CONFIDENTIAL” material, (iii) someone for
23
whom there is a reasonable basis to believe has previously seen or received the
24
“CONFIDENTIAL” material, (iv) or who have signed the “Acknowledgment and Agreement to
25
Be Bound” (Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court.
26
Pages of transcribed deposition testimony or exhibits to depositions that reveal Protected Material
27
must be separately bound by the court reporter and may not be disclosed to anyone except as
28
permitted under this Stipulated Protective Order.
MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
9
S AN FRANCISCO
DB2/ 23805227.1
CASE NO. 5:12-CV-04175 EJD
STIPULATED PROTECTIVE ORDER
1
2
3
(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
Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
4
Information or Items. Unless otherwise ordered by the court or permitted in writing by the
5
Designating Party, a Receiving Party may disclose any information or item designated “HIGHLY
6
CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to:
7
(a)
the Receiving Party’s Outside Counsel in this action, as well as employees
8
of said Outside Counsel to whom it is reasonably necessary to disclose the information for this
9
litigation and who have signed the “Acknowledgment and Agreement to Be Bound” that is
10
attached hereto as Exhibit A;
11
(b)
House Counsel of the Receiving Party to whom it is reasonably necessary
12
to disclose the information for this litigation and who have signed the “Acknowledgment and
13
Agreement to Be Bound” that is attached hereto as Exhibit A;
14
(c)
Experts of the Receiving Party (1) to whom disclosure is reasonably
15
necessary for this litigation, (2) who have signed the “Acknowledgment and Agreement to Be
16
Bound” (Exhibit A), and (3) as to whom the procedures set forth in paragraph 7.4(a)(1), below,
17
have been followed;
18
(d)
the court and its personnel;
19
(e)
court reporters and their staff, professional jury or trial consultants, and
20
Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have
21
signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); and
22
23
24
25
(f)
the author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information.
7.4
Procedures for Approving or Objecting to Disclosure of “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY” to Experts
26
(a)
(1) Unless otherwise ordered by the court or agreed to in writing by the
27
Designating Party, a Party that seeks to disclose to an Expert (as defined in this Order) any
28
information or item that has been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’
MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
10
S AN FRANCISCO
DB2/ 23805227.1
CASE NO. 5:12-CV-04175 EJD
STIPULATED PROTECTIVE ORDER
1
EYES ONLY” pursuant to paragraph 7.3(c) first must make a written request to the Designating
2
Party that (1) identifies the general categories of “HIGHLY CONFIDENTIAL – ATTORNEYS’
3
EYES ONLY” information that the Receiving Party seeks permission to disclose to the Expert,
4
(2) sets forth the full name of the Expert and the city and state of his or her primary residence,
5
(3) attaches a copy of the Expert’s current resume, (4) identifies the Expert’s current employer(s),
6
(5) identifies each person or entity from whom the Expert has received compensation or funding
7
for work in his or her areas of expertise or to whom the expert has provided professional services,
8
including in connection with a litigation, at any time during the preceding five years, and
9
(6) identifies (by name and number of the case, filing date, and location of court) any litigation in
10
connection with which the Expert has offered expert testimony, including through a declaration,
11
report, or testimony at a deposition or trial, during the preceding five years.
12
(b)
A Party that makes a request and provides the information specified in the
13
preceding respective paragraphs may disclose the subject Protected Material to the identified
14
Expert unless, within 14 days of delivering the request, the Party receives a written objection
15
from the Designating Party. Any such objection must set forth in detail the grounds on which it is
16
based.
17
(c)
A Party that receives a timely written objection must meet and confer with
18
the Designating Party (through direct voice to voice dialogue) to try to resolve the matter by
19
20
agreement within seven days of the written objection. If no agreement is reached, the Party
parties shall comply with the undersigned's Standing Order re Civil Discovery Disputes.
seeking to make the disclosure to the Expert may file a motion as provided in Civil Local Rule 7
21
(and in compliance with Civil Local Rule 79-5 and General Order 62, if applicable) seeking
22
permission from the court to do so. Any such motion must describe the circumstances with
23
specificity, set forth in detail the reasons why the disclosure to the Expert is reasonably necessary,
24
assess the risk of harm that the disclosure would entail, and suggest any additional means that
25
could be used to reduce that risk. In addition, any such motion must be accompanied by a
26
competent declaration describing the parties’ efforts to resolve the matter by agreement (i.e., the
27
extent and the content of the meet and confer discussions) and setting forth the reasons advanced
28
by the Designating Party for its refusal to approve the disclosure.
MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
11
S AN FRANCISCO
DB2/ 23805227.1
CASE NO. 5:12-CV-04175 EJD
STIPULATED PROTECTIVE ORDER
1
In any such proceeding, the Party opposing disclosure to Designated House Counsel or the
2
Expert shall bear the burden of proving that the risk of harm that the disclosure would entail
3
(under the safeguards proposed) outweighs the Receiving Party’s need to disclose the Protected
4
Material to its Designated House Counsel or Expert.
5
8.
6
7
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
8
disclosure of any information or items designated in this action as “CONFIDENTIAL” or
9
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” [that Party must:
10
11
(a)
promptly notify in writing the Designating Party. Such notification shall
include a copy of the subpoena or court order;
12
(b)
promptly notify in writing the party who caused the subpoena or order to
13
issue in the other litigation that some or all of the material covered by the subpoena or order is
14
subject to this Protective Order. Such notification shall include a copy of this Stipulated
15
Protective Order; and
16
17
18
(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
19
subpoena or court order shall not produce any information designated in this action as
20
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” before a
21
determination by the court from which the subpoena or order issued, unless the Party has obtained
22
the Designating Party’s permission. The Designating Party shall bear the burden and expense of
23
seeking protection in that court of its confidential material – and nothing in these provisions
24
should be construed as authorizing or encouraging a Receiving Party in this action to disobey a
25
lawful directive from another court.
26
27
28
MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
12
S AN FRANCISCO
DB2/ 23805227.1
CASE NO. 5:12-CV-04175 EJD
STIPULATED PROTECTIVE ORDER
1
9.
A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS
LITIGATION
2
(a)
3
The terms of this Order are applicable to information produced by a Non-
4
Party in this action and designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
5
ATTORNEYS’ EYES ONLY.” Such information produced by Non-Parties in connection with
6
this litigation is protected by the remedies and relief provided by this Order. Nothing in these
7
provisions should be construed as prohibiting a Non-Party from seeking additional protections.
(b)
8
In the event that a Party is required, by a valid discovery request, to
9
produce a Non-Party’s confidential information in its possession, and the Party is subject to an
10
agreement with the Non-Party not to produce the Non-Party’s confidential information, then the
11
Party shall:
1.
12
promptly notify in writing the Requesting Party and the Non-Party
13
that some or all of the information requested is subject to a confidentiality agreement with a Non-
14
Party;
2.
15
promptly provide the Non-Party with a copy of the Stipulated
16
Protective Order in this litigation, the relevant discovery request(s), and a reasonably specific
17
description of the information requested; and
3.
18
19
make the information requested available for inspection by the
Non-Party.
(c)
20
If the Non-Party fails to object or seek a protective order from this court
21
within 14 days of receiving the notice and accompanying information, the Receiving Party may
22
produce the Non-Party’s confidential information responsive to the discovery request. If the Non-
23
Party timely seeks a protective order, the Receiving Party shall not produce any information in its
24
possession or control that is subject to the confidentiality agreement with the Non-Party before a
25
determination by the court. Absent a court order to the contrary, the Non-Party shall bear the
26
burden and expense of seeking protection in this court of its Protected Material. See
27
Paragraph 14.
28
MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
13
S AN FRANCISCO
DB2/ 23805227.1
CASE NO. 5:12-CV-04175 EJD
STIPULATED PROTECTIVE ORDER
1
10.
UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected
2
3
Material to any person or in any circumstance not authorized under this Stipulated Protective
4
Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the
5
unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the
6
Protected Material, (c) inform the person or persons to whom unauthorized disclosures were
7
made of all the terms of this Order, and (d) request such person or persons to execute the
8
“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A.
9
11.
INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED
MATERIAL
10
When a Producing Party gives notice to Receiving Parties that certain inadvertently
11
12
produced material is subject to a claim of privilege or other protection, the obligations of the
13
Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This
14
provision is not intended to modify whatever procedure may be established in an e-discovery
15
order that provides for production without prior privilege review. Pursuant to Federal Rule of
16
Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a
17
communication or information covered by the attorney-client privilege or work product
18
protection, the parties may incorporate their agreement in the stipulated protective order
19
submitted to the court.
20
12.
21
22
23
MISCELLANEOUS
12.1
Right to Further Relief. Nothing in this Order abridges the right of any person to
seek its modification by the court in the future.
12.2
Right to Assert Other Objections. By stipulating to the entry of this Protective
24
Order no Party waives any right it otherwise would have to object to disclosing or producing any
25
information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no
26
Party waives any right to object on any ground to use in evidence of any of the material covered
27
by this Protective Order.
28
MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
14
S AN FRANCISCO
DB2/ 23805227.1
CASE NO. 5:12-CV-04175 EJD
STIPULATED PROTECTIVE ORDER
1
12.3
Filing Protected Material. Without written permission from the Designating Party
2
or a court order secured after appropriate notice to all interested persons, a Party may not file in
3
the public record in this action any Protected Material. A Party that seeks to file under seal any
4
Protected Material must comply with Civil Local Rule 79-5 and General Order 62. Protected
5
Material may only be filed under seal pursuant to a court order authorizing the sealing of the
6
specific Protected Material at issue. Pursuant to Civil Local Rule 79-5 and General Order 62, a
7
sealing order will issue only upon a request establishing that the Protected Material at issue is
8
privileged, protectable as a trade secret, or otherwise entitled to protection under the law. If a
9
Receiving Party's request to file Protected Material under seal pursuant to Civil Local Rule 79-
10
5(d) and General Order 62 is denied by the court, then the Receiving Party may file the Protected
11
Material in the public record pursuant to Civil Local Rule 79-5(e) unless otherwise instructed by
12
the court.
13
13.
14
FINAL DISPOSITION
Within 60 days after the final disposition of this action, as defined in paragraph 4, each
15
Receiving Party must return all Protected Material to the Producing Party or destroy such
16
material. As used in this subdivision, “all Protected Material” includes all copies, abstracts,
17
compilations, summaries, and any other format reproducing or capturing any of the Protected
18
Material. Whether the Protected Material is returned or destroyed, the Receiving Party must
19
submit a written certification to the Producing Party (and, if not the same person or entity, to the
20
Designating Party) by the 60-day deadline that (1) identifies (by category, where appropriate) all
21
the Protected Material that was returned or destroyed and (2) affirms that the Receiving Party has
22
not retained any copies, abstracts, compilations, summaries or any other format reproducing or
23
capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled to
24
retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts,
25
legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work
26
product, and consultant and expert work product, even if such materials contain Protected
27
Material. Any such archival copies that contain or constitute Protected Material remain subject to
28
this Protective Order as set forth in Section 4 (DURATION).
MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
15
S AN FRANCISCO
DB2/ 23805227.1
CASE NO. 5:12-CV-04175 EJD
STIPULATED PROTECTIVE ORDER
14. In the event of any discovery or disclosure dispute, the parties and any affected
non-parties shall comply with the undersigned's Standing Order re Civil Discovery
Disputes.
IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
2
3
~-~-[_f<;, _ _ --#----##---~----"'--'-------~
_
DATED: ----=!-+-/-'--{
I
4
5
DATED:
-------'--\\--\-\-~~\')=----- ---'------'---\
\
Attorneys for Defendant
AS MODIFIED BY THE COURT
6
PURSUANT TO STIPULATION, IT IS SO ORDERED.
7
^
8
DATED: _________________________________________________
January 24, 2013
Hon. Edward l Davila
United States District Judge
9
10
HOWARD R. LLOYD
UNITED STATES MAGISTRATE JUDGE
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
MORGAN, LEWIS &
!lOcK! US LLP
ATIORNEYSATLAW
16
SAN F~ANCt'>CO
DB2/ 23805227 .l
CASE NO. 5:12-CV-04175 EJD
STIPULATED PROTECTIVE ORDER
1
EXHIBIT A
2
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
3
I, _____________________________ [print or type full name], of
4
_________________ [print or type full address], declare under penalty of perjury that I have read
5
in its entirety and understand the Stipulated Protective Order that was issued by the United States
6
District Court for the Northern District of California on [date] in the case of Navcom Technology,
7
Inc. et al. v. Oki Electric Industry Co., Ltd. et al., Case No. 5:12-cv-04175-EDJ. I agree to comply
8
with and to be bound by all the terms of this Stipulated Protective Order and I understand and
9
acknowledge that failure to so comply could expose me to sanctions and punishment in the nature
10
of contempt. I solemnly promise that I will not disclose in any manner any information or item
11
that is subject to this Stipulated Protective Order to any person or entity except in strict
12
compliance with the provisions of this Order.
13
I further agree to submit to the jurisdiction of the United States District Court for
14
the Northern District of California for the purpose of enforcing the terms of this Stipulated
15
Protective Order, even if such enforcement proceedings occur after termination of this action.
16
I hereby appoint __________________________ [print or type full name] of
17
_______________________________________ [print or type full address and telephone
18
number] as my California agent for service of process in connection with this action or any
19
proceedings related to enforcement of this Stipulated Protective Order.
20
21
Date: _________________________________
22
City and State where sworn and signed: _________________________________
23
Printed name: ______________________________
[printed name]
24
25
Signature: __________________________________
[signature]
26
27
28
MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
17
S AN FRANCISCO
DB2/ 23805227.1
CASE NO. 5:12-CV-04175 EJD
STIPULATED PROTECTIVE ORDER
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?