By The Glass, LLC v. Franmara, Inc.

Filing 28

ORDER granting 26 Stipulated Protective Order filed by Franmara, Inc.. Signed by Judge Lucy H. Koh on July 8, 2013. (lhklc2, COURT STAFF) (Filed on 7/8/2013)

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Case5:13-cv-00879-LHK Document26 Filed07/02/13 Page1 of 16 1 2 3 4 5 6 7 8 9 SCOTT M. LOWRY, CA Bar No. 244504 Scott@LawLB.com STUART O. LOWRY CA Bar No. 80336 Stuart@LawLB.com LOWRY BLIXSETH LLP 23632 Calabasas Road, Suite 201 Calabasas, California 91302 Tel. 818-584-6460 Fax. 818-574-6026 CHRIS KAO, CA Bar No. 227086 ckao@kaoandswope.com RICHARD SWOPE, CA Bar No. 233200 rswope@kaoandswope.com KAO & SWOPE LLP 115 Sansome Street, Suite 1204 San Francisco, CA 94104 Tel. 415.539.0996 Fax. 866.267.0243 Attorneys for Plaintiff: By The Glass, LLC UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 10 11 12 BY THE GLASS, LLC, a Nevada Limited Liability Company, Plaintiff, vs. 13 14 FRANMARA, INC., a California Corporation, and DOES 1-10, 17 Case No. 5:13-cv-00879-LHK STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING PATENTS, HIGHLY SENSITIVE CONFIDENTIAL INFORMATION AND/OR TRADE SECRETS Defendants. 15 16 LARIVIERE, GRUBMAN & PAYNE, LLP Robert W. Payne, Esq. (Bar No. 073901) Email: rpayne@lgpatlaw.com Scott J. Allen, Esq. (Bar No. 178925) Email: sallen@lgpatlaw.com Post Office Box 3140 19 Upper Ragsdale Drive Monterey, CA 93942-3140 Telephone: (831) 649-8800 Facsimile: (831) 649-8835 Attorneys for Defendant: Franmara, Inc. 1. PURPOSES AND LIMITATIONS Disclosure and discovery activity in this action are likely to involve production of 18 confidential, proprietary, or private information for which special protection from public disclosure 19 and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly, 20 the parties hereby stipulate to and petition the court to enter the following Stipulated Protective 21 Order. The parties acknowledge that this Order does not confer blanket protections on all 22 disclosures or responses to discovery and that the protection it affords from public disclosure and 23 use extends only to the limited information or items that are entitled to confidential treatment under 24 the applicable legal principles. The parties further acknowledge, as set forth in Section 14.4, below, 25 that this Stipulated Protective Order does not entitle them to file confidential information under 26 seal; Civil Local Rule 79-5 and General Order 62 set forth the procedures that must be followed 27 and the standards that will be applied when a party seeks permission from the court to file material 28 under seal. Case5:13-cv-00879-LHK Document26 Filed07/02/13 Page2 of 16 1 2. 2 3 DEFINITIONS 2.1 Challenging Party: a Party or Non-Party that challenges the designation of information or items under this Order. 4 2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is generated, 5 stored or maintained) or tangible things that qualify for protection under Federal Rule of Civil Procedure 6 26(c). 7 8 9 2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well as their support staff). 2.4 Designating Party: a Party or Non-Party that designates information or items that it 10 produces in disclosures or in responses to discovery as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL 11 – ATTORNEYS’ EYES ONLY”. 12 2.5 Disclosure or Discovery Material: all items or information, regardless of the medium or 13 manner in which it is generated, stored, or maintained (including, among other things, testimony, transcripts, 14 and tangible things), that are produced or generated in disclosures or responses to discovery in this matter. 15 2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to the 16 litigation who (1) has been retained by a Party or its counsel to serve as an expert witness or as a consultant 17 in this action, (2) is not a past or current employee of a Party or of a Party’s competitor, and (3) at the time 18 of retention, is not anticipated to become an employee of a Party or of a Party’s competitor. 19 2.7 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items: 20 extremely sensitive “Confidential Information or Items,” disclosure of which to another Party or Non-Party 21 would create a substantial risk of serious harm that could not be avoided by less restrictive means. 22 23 24 25 26 27 2.8 House Counsel: attorneys who are employees of a party to this action. House Counsel does not include Outside Counsel of Record or any other outside counsel. 2.9 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 2.10 Outside Counsel of Record: attorneys who are not employees of a party to this action but are retained to represent or advise a party to this action and have appeared in this action on behalf of that 28 2 Case5:13-cv-00879-LHK Document26 Filed07/02/13 Page3 of 16 1 party or are affiliated with a law firm which has appeared on behalf of that party. 2.11 2 3 retained experts, and Outside Counsel of Record (and their support staffs). 2.12 4 5 Party: any party to this action, including all of its officers, directors, employees, consultants, Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this action. 2.13 6 Professional Vendors: persons or entities that provide litigation support services (e.g., 7 photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, storing, or 8 retrieving data in any form or medium) and their employees and subcontractors. 2.14 9 10 Protected Material: any Disclosure or Discovery Material that is designated as “CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” 2.15 11 12 Party. 13 3. Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing SCOPE The protections conferred by this Stipulation and Order cover not only Protected Material (as 14 15 defined above), but also (1) any information copied or extracted from Protected Material; (2) all copies, 16 excerpts, summaries, or compilations of Protected Material; and (3) any testimony, conversations, or 17 presentations by Parties or their Counsel that might reveal Protected Material. However, the protections 18 conferred by this Stipulation and Order do not cover the following information: (a) any information that is in 19 the public domain at the time of disclosure to a Receiving Party or becomes part of the public domain after 20 its disclosure to a Receiving Party as a result of publication not involving a violation of this Order, including 21 becoming part of the public record through trial or otherwise; and (b) any information known to the 22 Receiving Party prior to the disclosure or obtained by the Receiving Party after the disclosure from a source 23 who obtained the information lawfully and under no obligation of confidentiality to the Designating Party. 24 Any use of Protected Material at trial shall be governed by a separate agreement or order. 25 4. 26 DURATION Even after final disposition of this litigation, the confidentiality obligations imposed by this Order 27 shall remain in effect until a Designating Party agrees otherwise in writing or a court order otherwise 28 directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and defenses in this 3 Case5:13-cv-00879-LHK Document26 Filed07/02/13 Page4 of 16 1 action, with or without prejudice; and (2) final judgment herein after the completion and exhaustion of all 2 appeals, rehearings, remands, trials, or reviews of this action, including the time limits for filing any motions 3 or applications for extension of time pursuant to applicable law. 4 5. DESIGNATING PROTECTED MATERIAL 5.1 5 Exercise of Restraint and Care in Designating Material for Protection. Each Party or Non- 6 Party that designates information or items for protection under this Order must take care to limit any such 7 designation to specific material that qualifies under the appropriate standards. To the extent it is practical to 8 do so, the Designating Party must designate for protection only those parts of material, documents, items, or 9 oral or written communications that qualify – so that other portions of the material, documents, items, or 10 communications for which protection is not warranted are not swept unjustifiably within the ambit of this 11 Order. 12 Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown to be 13 clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily encumber or 14 retard the case development process or to impose unnecessary expenses and burdens on other parties) 15 expose the Designating Party to sanctions. 16 If it comes to a Designating Party’s attention that information or items that it designated for 17 protection do not qualify for protection at all or do not qualify for the level of protection initially asserted, 18 that Designating Party must promptly notify all other parties that it is withdrawing the mistaken designation. 19 20 21 22 23 24 25 26 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, Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so designated before the material is disclosed or produced. Designation in conformity with this Order requires: (a) for information in documentary form (e.g., paper or electronic documents, but excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party affix the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” to each page that contains protected material. If only a portion or portions of the material on a page qualifies for protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate markings 4 Case5:13-cv-00879-LHK Document26 Filed07/02/13 Page5 of 16 1 2 in the margins) and must specify, for each portion, the level of protection being asserted. A Party or Non-Party that makes original documents or materials available for inspection need not 3 designate them for protection until after the inspecting Party has indicated which material it would like 4 copied and produced. During the inspection and before the designation, all of the material made available 5 for inspection shall be deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” After the 6 inspecting Party has identified the documents it wants copied and produced, the Producing Party must 7 determine which documents, or portions thereof, qualify for protection under this Order. Then, before 8 producing the specified documents, the Producing Party must affix the appropriate legend 9 (“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”) to each page that 10 contains Protected Material. If only a portion or portions of the material on a page qualifies for protection, 11 the Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate markings 12 in the margins) and must specify, for each portion, the level of protection being asserted. (b) for testimony given in deposition or in other pretrial or trial proceedings, that the 13 14 Designating Party identify on the record, before the close of the deposition, hearing, or other proceeding, all 15 protected testimony and specify the level of protection being asserted. When it is impractical to identify 16 separately each portion of testimony that is entitled to protection and it appears that substantial portions of 17 the testimony may qualify for protection, the Designating Party may invoke on the record (before the 18 deposition, hearing, or other proceeding is concluded) a right to have up to 21 days to identify the specific 19 portions of the testimony as to which protection is sought and to specify the level of protection being 20 asserted. Only those portions of the testimony that are appropriately designated for protection within the 21 21 days shall be covered by the provisions of this Stipulated Protective Order. Alternatively, a Designating 22 Party may specify, at the deposition or up to 21 days afterwards if that period is properly invoked, that the 23 entire transcript shall be treated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ 24 EYES ONLY.” 25 Parties shall give the other parties notice if they reasonably expect a deposition, hearing or other 26 proceeding to include Protected Material so that the other parties can ensure that only authorized individuals 27 who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A) are present at those 28 proceedings. The use of a document as an exhibit at a deposition shall not in any way affect its designation 5 Case5:13-cv-00879-LHK Document26 Filed07/02/13 Page6 of 16 1 as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Transcripts containing Protected Material shall have an obvious legend on the title page that the 2 3 transcript contains Protected Material, and the title page shall be followed by a list of all pages (including 4 line numbers as appropriate) that have been designated as Protected Material and the level of protection 5 being asserted by the Designating Party. The Designating Party shall inform the court reporter of these 6 requirements. Any transcript that is prepared before the expiration of a 21-day period for designation shall 7 be treated during that period as if it had been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ 8 EYES ONLY” in its entirety unless otherwise agreed. After the expiration of that period, the transcript shall 9 be treated only as actually designated. 10 (c) for information produced in some form other than documentary and for any other 11 tangible items, that the Producing Party affix in a prominent place on the exterior of the container or 12 containers in which the information or item is stored the legend “CONFIDENTIAL” or “HIGHLY 13 CONFIDENTIAL – ATTORNEYS’ EYES ONLY”. If only a portion or portions of the information or item 14 warrant protection, the Producing Party, to the extent practicable, shall identify the protected portion(s) and 15 specify the level of protection being asserted. 5.3 16 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to designate 17 qualified information or items does not, standing alone, waive the Designating Party’s right to secure 18 protection under this Order for such material. Upon timely correction of a designation, the Receiving Party 19 must make reasonable efforts to assure that the material is treated in accordance with the provisions of this 20 Order. 21 6. 22 CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 23 confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality designation is 24 necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens, or a significant 25 disruption or delay of the litigation, a Party does not waive its right to challenge a confidentiality 26 designation by electing not to mount a challenge promptly after the original designation is disclosed. 27 28 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process by providing written notice of each designation it is challenging and describing the basis for each challenge. To 6 Case5:13-cv-00879-LHK Document26 Filed07/02/13 Page7 of 16 1 avoid ambiguity as to whether a challenge has been made, the written notice must recite that the challenge to 2 confidentiality is being made in accordance with this specific paragraph of the Protective Order. The parties 3 shall attempt to resolve each challenge in good faith and must begin the process by conferring directly (in 4 voice to voice dialogue; other forms of communication are not sufficient) within 14 days of the date of 5 service of notice. In conferring, the Challenging Party must explain the basis for its belief that the 6 confidentiality designation was not proper and must give the Designating Party an opportunity to review the 7 designated material, to reconsider the circumstances, and, if no change in designation is offered, to explain 8 the basis for the chosen designation. A Challenging Party may proceed to the next stage of the challenge 9 process only if it has engaged in this meet and confer process first or establishes that the Designating Party 10 11 is unwilling to participate in the meet and confer process in a timely manner. 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court intervention, 12 the Designating Party shall file and serve a motion to retain confidentiality under Civil Local Rule 7 (and in 13 compliance with Civil Local Rule 79-5 and General Order 62, if applicable) within 21 days of the initial 14 notice of challenge or within 14 days of the parties agreeing that the meet and confer process will not 15 resolve their dispute, whichever is earlier. Each such motion must be accompanied by a competent 16 declaration affirming that the movant has complied with the meet and confer requirements imposed in the 17 preceding paragraph. Failure by the Designating Party to make such a motion including the required 18 declaration within 21 days (or 14 days, if applicable) shall automatically waive the confidentiality 19 designation for each challenged designation. In addition, the Challenging Party may file a motion 20 challenging a confidentiality designation at any time if there is good cause for doing so, including a 21 challenge to the designation of a deposition transcript or any portions thereof. Any motion brought pursuant 22 to this provision must be accompanied by a competent declaration affirming that the movant has complied 23 with the meet and confer requirements imposed by the preceding paragraph. 24 The burden of persuasion in any such challenge proceeding shall be on the Designating Party. 25 Frivolous challenges and those made for an improper purpose (e.g., to harass or impose unnecessary 26 expenses and burdens on other parties) may expose the Challenging Party to sanctions. Unless the 27 Designating Party has waived the confidentiality designation by failing to file a motion to retain 28 confidentiality as described above, all parties shall continue to afford the material in question the level of 7 Case5:13-cv-00879-LHK Document26 Filed07/02/13 Page8 of 16 1 protection to which it is entitled under the Producing Party’s designation until the court rules on the 2 challenge. 3 7. 4 ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or 5 produced by another Party or by a Non-Party in connection with this case only for prosecuting, defending, 6 or attempting to settle this litigation. Such Protected Material may be disclosed only to the categories of 7 persons and under the conditions described in this Order. When the litigation has been terminated, a 8 Receiving Party must comply with the provisions of section 15 below (FINAL DISPOSITION). 9 10 11 Protected Material must be stored and maintained by a Receiving Party at a location and in a secure manner1 that ensures that access is limited to the persons authorized under this Order. 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by the 12 court or permitted in writing by the Designating Party, a Receiving Party may disclose any information or 13 item designated “CONFIDENTIAL” only to: (a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees of 14 15 said Outside Counsel of Record to whom it is reasonably necessary to disclose the information for this 16 litigation and who have signed the “Acknowledgment and Agreement to Be Bound” that is attached hereto 17 as Exhibit A; (b) the officers, directors, and employees (including House Counsel) of the Receiving Party 18 19 to whom disclosure is reasonably necessary for this litigation and who have signed the “Acknowledgment 20 and Agreement to Be Bound” (Exhibit A); (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is 21 22 reasonably necessary for this litigation and who have signed the “Acknowledgment and Agreement to Be 23 Bound” (Exhibit A); 24 (d) the court and its personnel; 25 (e) court reporters and their staff, professional jury or trial consultants, and Professional 26 27 28 It may be appropriate under certain circumstances to require the Receiving Party to store any electronic Protected Material in password-protected form. 1 8 Case5:13-cv-00879-LHK Document26 Filed07/02/13 Page9 of 16 1 Vendors to whom disclosure is reasonably necessary for this litigation and who have signed the 2 “Acknowledgment and Agreement to Be Bound” (Exhibit A); (f) during their depositions, witnesses in the action to whom disclosure is reasonably 3 4 necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless 5 otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed deposition 6 testimony or exhibits to depositions that reveal Protected Material must be separately bound by the court 7 reporter and may not be disclosed to anyone except as permitted under this Stipulated Protective Order. (g) the author or recipient of a document containing the information or a custodian or other 8 9 10 person who otherwise possessed or knew the information. 7.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information 11 or Items. Unless otherwise ordered by the court or permitted in writing by the Designating Party, a 12 Receiving Party may disclose any information or item designated “HIGHLY CONFIDENTIAL – 13 ATTORNEYS’ EYES ONLY” only to: (a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees of 14 15 said Outside Counsel of Record to whom it is reasonably necessary to disclose the information for this 16 litigation and who have signed the “Acknowledgment and Agreement to Be Bound” that is attached hereto 17 as Exhibit A; 18 (b) Experts of the Receiving Party (1) to whom disclosure is reasonably necessary for this 19 litigation, (2) who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), and (3) as 20 to whom the procedures set forth in paragraph 7.4(a)(2), below, have been followed; 21 (c) the court and its personnel; 22 (d) court reporters and their staff, professional jury or trial consultants, and Professional 23 Vendors to whom disclosure is reasonably necessary for this litigation and who have signed the 24 “Acknowledgment and Agreement to Be Bound” (Exhibit A); and 25 26 (e) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information. 27 28 9 Case5:13-cv-00879-LHK Document26 Filed07/02/13 Page10 of 16 1 2 7.4 Procedures for Approving or Objecting to Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items to Designated House Counsel or Experts. 3 (a)(1) Unless otherwise ordered by the court or agreed to in writing by the Designating 4 Party, a Party that seeks to disclose to Designated House Counsel any information or item that has been 5 designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” pursuant to paragraph 7.3(b) first 6 must make a written request to the Designating Party that (1) sets forth the full name of the Designated 7 House Counsel and the city and state of his or her residence, and (2) describes the Designated House 8 Counsel’s current and reasonably foreseeable future primary job duties and responsibilities in sufficient 9 detail to determine if House Counsel is involved, or may become involved, in any competitive decision- 10 making.2 (a)(2) Unless otherwise ordered by the court or agreed to in writing by the Designating 11 12 Party, a Party that seeks to disclose to an Expert (as defined in this Order) any information or item that has 13 been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” pursuant to paragraph 14 7.3(c) first must make a written request to the Designating Party that (1) identifies the general categories of 15 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information that the Receiving Party seeks 16 permission to disclose to the Expert, (2) sets forth the full name of the Expert and the city and state of his or 17 her primary residence, (3) attaches a copy of the Expert’s current resume, (4) identifies the Expert’s current 18 employer(s), (5) identifies each person or entity from whom the Expert has received compensation or 19 funding for work in his or her areas of expertise or to whom the expert has provided professional services, 20 including in connection with a litigation, at any time during the preceding five years,3 and (6) identifies (by 21 22 23 24 25 2 It may be appropriate in certain circumstances to require any Designated House Counsel who receives “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information pursuant to this Order to disclose any relevant changes in job duties or responsibilities prior to final disposition of the litigation to allow the Designating Party to evaluate any later-arising competitive decision-making responsibilities. 3 26 27 28 If the Expert believes any of this information is subject to a confidentiality obligation to a third-party, then the Expert should provide whatever information the Expert believes can be disclosed without violating any confidentiality agreements, and the Party seeking to disclose to the Expert shall be available to meet and confer with the Designating Party regarding any such engagement. 10 Case5:13-cv-00879-LHK Document26 Filed07/02/13 Page11 of 16 1 name and number of the case, filing date, and location of court) any litigation in connection with which the 2 Expert has offered expert testimony, including through a declaration, report, or testimony at a deposition or 3 trial, during the preceding five years.4 (b) A Party that makes a request and provides the information specified in the preceding 4 5 respective paragraphs may disclose the subject Protected Material to the identified Designated House 6 Counsel or Expert unless, within 14 days of delivering the request, the Party receives a written objection 7 from the Designating Party. Any such objection must set forth in detail the grounds on which it is based. (c) A Party that receives a timely written objection must meet and confer with the 8 9 Designating Party (through direct voice to voice dialogue) to try to resolve the matter by agreement within 10 seven days of the written objection. If no agreement is reached, the Party seeking to make the disclosure to 11 Designated House Counsel or the Expert may file a motion as provided in Civil Local Rule 7 (and in 12 compliance with Civil Local Rule 79-5 and General Order 62, if applicable) seeking permission from the 13 court to do so. Any such motion must describe the circumstances with specificity, set forth in detail the 14 reasons why the disclosure to Designated House Counsel or the Expert is reasonably necessary, assess the 15 risk of harm that the disclosure would entail, and suggest any additional means that could be used to reduce 16 that risk. In addition, any such motion must be accompanied by a competent declaration describing the 17 parties’ efforts to resolve the matter by agreement (i.e., the extent and the content of the meet and confer 18 discussions) and setting forth the reasons advanced by the Designating Party for its refusal to approve the 19 disclosure. 20 In any such proceeding, the Party opposing disclosure to Designated House Counsel or the Expert 21 shall bear the burden of proving that the risk of harm that the disclosure would entail (under the safeguards 22 proposed) outweighs the Receiving Party’s need to disclose the Protected Material to its Designated House 23 Counsel or Expert. 24 25 26 27 28 4 It may be appropriate in certain circumstances to restrict the Expert from undertaking certain limited work prior to the termination of the litigation that could foreseeably result in an improper use of the Designating Party’s “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information. 11 Case5:13-cv-00879-LHK Document26 Filed07/02/13 Page12 of 16 8. 1 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 2 3 disclosure of any information or items designated in this action as “CONFIDENTIAL” or “HIGHLY 4 CONFIDENTIAL – ATTORNEYS’ EYES ONLY that Party must: (a) promptly notify in writing the Designating Party. Such notification shall include a copy 5 6 of the subpoena or court order; (b) promptly notify in writing the party who caused the subpoena or order to issue in the 7 8 other litigation that some or all of the material covered by the subpoena or order is subject to this Protective 9 Order. Such notification shall include a copy of this Stipulated Protective Order; and (c) cooperate with respect to all reasonable procedures sought to be pursued by the 10 11 Designating Party whose Protected Material may be affected.5 If the Designating Party timely seeks a protective order, the Party served with the subpoena 12 13 or court order shall not produce any information designated in this action as “CONFIDENTIAL” or 14 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” before a determination by the court from 15 which the subpoena or order issued, unless the Party has obtained the Designating Party’s permission. The 16 Designating Party shall bear the burden and expense of seeking protection in that court of its confidential 17 material – and nothing in these provisions should be construed as authorizing or encouraging a Receiving 18 Party in this action to disobey a lawful directive from another court. 19 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION 20 21 22 23 24 (a) The terms of this Order are applicable to information produced by a Non-Party in this action and designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Such information produced by Non-Parties in connection with this litigation is protected by the remedies and relief provided by this Order. Nothing in these provisions should be construed as prohibiting a Non-Party from seeking additional protections. 25 26 5 27 28 The purpose of imposing these duties is to alert the interested parties to the existence of this Protective Order and to afford the Designating Party in this case an opportunity to try to protect its confidentiality interests in the court from which the subpoena or order issued. 12 Case5:13-cv-00879-LHK Document26 Filed07/02/13 Page13 of 16 (b) 1 In the event that a Party is required, by a valid discovery request, to produce a Non- 2 Party’s confidential information in its possession, and the Party is subject to an agreement with the Non- 3 Party not to produce the Non-Party’s confidential information, then the Party shall: 1. promptly notify in writing the Requesting Party and the Non-Party that some or all 4 5 of the information requested is subject to a confidentiality agreement with a Non-Party; 2. promptly provide the Non-Party with a copy of the Stipulated Protective Order in 6 7 this litigation, the relevant discovery request(s), and a reasonably specific description of the information 8 requested; and 3. make the information requested available for inspection by the Non-Party. 9 (c) 10 If the Non-Party fails to object or seek a protective order from this court within 14 11 days of receiving the notice and accompanying information, the Receiving Party may produce the Non- 12 Party’s confidential information responsive to the discovery request. If the Non-Party timely seeks a 13 protective order, the Receiving Party shall not produce any information in its possession or control that is 14 subject to the confidentiality agreement with the Non-Party before a determination by the court.6 Absent a 15 court order to the contrary, the Non-Party shall bear the burden and expense of seeking protection in this 16 court of its Protected Material. 17 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 18 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 19 Material to any person or in any circumstance not authorized under this Stipulated Protective Order, the 20 Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized 21 disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform 22 the person or persons to whom unauthorized disclosures were made of all the terms of this Order, and (d) 23 request such person or persons to execute the “Acknowledgment and Agreement to Be Bound” that is 24 attached hereto as Exhibit A. 25 26 27 6 28 The purpose of this provision is to alert the interested parties to the existence of confidentiality rights of a Non-Party and to afford the Non-Party an opportunity to protect its confidentiality interests in this court. 13 Case5:13-cv-00879-LHK Document26 Filed07/02/13 Page14 of 16 11. 1 INADVERTENT MATERIAL PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED When a Producing Party gives notice to Receiving Parties that certain inadvertently 2 3 produced material is subject to a claim of privilege or other protection, the obligations of the Receiving 4 Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to 5 modify whatever procedure may be established in an e-discovery order that provides for production without 6 prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the parties reach an 7 agreement on the effect of disclosure of a communication or information covered by the attorney-client 8 privilege or work product protection, the parties may incorporate their agreement in the stipulated protective 9 order submitted to the court. 10 12. 12.1 11 12 MISCELLANEOUS 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 13 Right to Assert Other Objections. By stipulating to the entry of this Protective Order no 14 Party waives any right it otherwise would have to object to disclosing or producing any information or item 15 on any ground not addressed in this Stipulated Protective Order. Similarly, no Party waives any right to 16 object on any ground to use in evidence of any of the material covered by this Protective Order. 12.3 17 Filing Protected Material. Without written permission from the Designating Party or a court 18 order secured after appropriate notice to all interested persons, a Party may not file in the public record in 19 this action any Protected Material. A Party that seeks to file under seal any Protected Material must comply 20 with Civil Local Rule 79-5 and General Order 62. Protected Material may only be filed under seal pursuant 21 to a court order authorizing the sealing of the specific Protected Material at issue. Pursuant to Civil Local 22 Rule 79-5 and General Order 62, a sealing order will issue only upon a request establishing that the 23 Protected Material at issue is privileged, protectable as a trade secret, or otherwise entitled to protection 24 under the law. If a Receiving Party's request to file Protected Material under seal pursuant to Civil Local 25 Rule 79-5(d) and General Order 62 is denied by the court, then the Receiving Party may file the Protected 26 Material in the public record pursuant to Civil Local Rule 79-5(e) unless otherwise instructed by the court. 27 13. 28 FINAL DISPOSITION Within 60 days after the final disposition of this action, as defined in paragraph 4, each 14 Case5:13-cv-00879-LHK Document26 Filed07/02/13 Page15 of 16 1 Receiving Party must return all Protected Material to the Producing Party or destroy such material. As used 2 in this subdivision, “all Protected Material” includes all copies, abstracts, compilations, summaries, and any 3 other format reproducing or capturing any of the Protected Material. Whether the Protected Material is 4 returned or destroyed, the Receiving Party must submit a written certification to the Producing Party (and, if 5 not the same person or entity, to the Designating Party) by the 60-day deadline that (1) identifies (by 6 category, where appropriate) all the Protected Material that was returned or destroyed and (2) affirms that 7 the Receiving Party has not retained any copies, abstracts, compilations, summaries or any other format 8 reproducing or capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled 9 to retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal 10 memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work product, and 11 consultant and expert work product, even if such materials contain Protected Material. Any such archival 12 copies that contain or constitute Protected Material remain subject to this Protective Order as set forth in 13 Section 4 (DURATION). 14 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 15 DATED: July 1, 2013 /s/ Scott M. Lowry _____________________________________ Attorneys for Plaintiff DATED: July 1, 2013 /s/ Robert W. Payne _____________________________________ Attorneys for Defendant 16 17 18 19 PURSUANT TO STIPULATION, IT IS SO ORDERED. 20 21 22 July 8, 2013 DATED: ________________________ _____________________________________ Hon. Judge Koh United States District 23 24 25 26 27 28 15 Case5:13-cv-00879-LHK Document26 Filed07/02/13 Page16 of 16

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