Airwair International Ltd. v. Schultz et al

Filing 51

STIPULATED PROTECTIVE ORDER re 50 (MODIFIED BY THE COURT). Signed by Magistrate Judge Howard R. Lloyd on 12/11/2014. (hrllc2, COURT STAFF) (Filed on 12/11/2014)

1 BRYAN CAVE LLP
Marcy J. Bergman, California Bar No. 75826

2 Stephanie A. Blazewicz, California Bar No. 240359
Robert J. Esposito, California Bar No. 267031
560 Mission Street, 25th Floor
4 San Francisco, CA 94105
Telephone:
[phone]
5 Facsimile:
[phone]
Email:
[e-mail]
6
[e-mail]
[e-mail]

3

7

8 Attorneys for Plaintiff
AIRWAIR INTERNATIONAL LTD.

9
BUCHE & ASSOCIATES, P.C.

Bryan Cave LLP
560 Mission Street, Suite 2500
San Francisco, California 94105

10 John Karl Buche, California Bar No. 239477
11 Lindsay D. Molnar, California Bar No. 275156
875 Prospect, Suite 305
12 La Jolla, California 92037
Telephone:
[phone]
13 Facsimile:
[phone]
Email:
[e-mail]
14
[e-mail]

15

Attorneys for Defendant NPS (SHOES) LTD.

16
17

UNITED STATES DISTRICT COURT

18

NORTHERN DISTRICT OF CALIFORNIA – SAN JOSE

19 AIRWAIR INTERNATIONAL LTD., a
20

Plaintiff,

21
22

Case No. 13-cv-01190-LHK

company of the United Kingdom,
STIPULATED PROTECTIVE ORDER

vs.

[Re: Dkt. 50]

MATTHEW K. SCHULTZ, an individual doing

23 business as CALCEUS, a fictitious business

name; NPS (SHOES) LTD., a British Limited

MODIFIED BY THE COURT

24 Company; and DOES 1–50,
25

Defendants.

26
27
28
1
STIPULATED PROTECTIVE ORDER
SF/228040.1

1

1.

PURPOSES AND LIMITATIONS

2

Disclosure and discovery activity in this action are likely to involve production of

3 confidential, proprietary, or private information for which special protection from public
4 disclosure and from use for any purpose other than prosecuting this litigation may be warranted.
5 Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulated
6 Protective Order. The parties acknowledge that this Order does not confer blanket protections on
7 all disclosures or responses to discovery and that the protection it affords from public disclosure
8 and use extends only to the limited information or items that are entitled to confidential treatment
9 under the applicable legal principles. The parties further acknowledge, as set forth in Section 12.3,
10 below, that this Stipulated Protective Order does not entitle them to file confidential information

Bryan Cave LLP
560 Mission Street, Suite 2500
San Francisco, California 94105

11 under seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and the standards
12 that will be applied when a party seeks permission from the court to file material under seal.
13

2.

DEFINITIONS

14

2.1

Challenging Party: a Party or Non-Party that challenges the designation of

15 information or items under this Order.
2.2

16

“CONFIDENTIAL” Information or Items: information (regardless of how it is

17 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule
18 of Civil Procedure 26(c).
2.3

Counsel: Outside Counsel of Record and House Counsel (as well as their support

2.4

19

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

20 staff).
21

22 produces in disclosures or in responses to discovery as “CONFIDENTIAL” or “HIGHLY
23 CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
24

2.5

Disclosure or Discovery Material: all items or information, regardless of the

25 medium or manner in which it is generated, stored, or maintained (including, among other things,
26 testimony, transcripts, and tangible things), that are produced or generated in disclosures or
27 responses to discovery in this matter.
28

2.6

Expert: a person with specialized knowledge or experience in a matter pertinent to
2
STIPULATED PROTECTIVE ORDER

SF/228040.1

1 the litigation who (1) has been retained by a Party or its counsel to serve as an expert witness or as
2 a consultant in this action, (2) is not a past or current employee of a Party or of a Party’s
3 competitor, and (3) at the time of retention, is not anticipated to become an employee of a Party or
4 of a Party’s competitor.
2.7

5

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or

6 Items: extremely sensitive “Confidential Information or Items,” disclosure of which to another
7 Party or Non-Party would create a substantial risk of serious harm that could not be avoided by
8 less restrictive means.
2.8

9

House Counsel: attorneys who are employees of a party to this action. House

10 Counsel does not include Outside Counsel of Record or any other outside counsel.
2.9

Bryan Cave LLP
560 Mission Street, Suite 2500
San Francisco, California 94105

11

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

12 entity not named as a Party to this action.
2.10

13

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

14 action but are retained to represent or advise a party to this action and have appeared in this action
15 on behalf of that party or are affiliated with a law firm which has appeared on behalf of that party.
2.11

16

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

17 consultants, retained experts, and Outside Counsel of Record (and their support staffs).
2.12

18

Producing Party: a Party or Non-Party that produces Disclosure or Discovery

19 Material in this action.
2.13

20

Professional Vendors: persons or entities that provide litigation support services

21 (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and
22 organizing, storing, or retrieving data in any form or medium) and their employees and
23 subcontractors.
2.14

24

Protected Material: any Disclosure or Discovery Material that is designated as

25 “CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”
2.15

26

Receiving Party: a Party that receives Disclosure or Discovery Material from a

27 Producing Party.
28 / / /
3
STIPULATED PROTECTIVE ORDER
SF/228040.1

1

3.

SCOPE

2

The protections conferred by this Stipulation and Order cover not only Protected Material

3 (as defined above), but also (1) any information copied or extracted from Protected Material; (2)
4 all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony,
5 conversations, or presentations by Parties or their Counsel that might reveal Protected Material.
6 However, the protections conferred by this Stipulation and Order do not cover the following
7 information: (a) any information that is in the public domain at the time of disclosure to a
8 Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as a
9 result of publication not involving a violation of this Order, including becoming part of the public
10 record through trial or otherwise; and (b) any information known to the Receiving Party prior to

Bryan Cave LLP
560 Mission Street, Suite 2500
San Francisco, California 94105

11 the disclosure or obtained by the Receiving Party after the disclosure from a source who obtained
12 the information lawfully and under no obligation of confidentiality to the Designating Party. Any
13 use of Protected Material at trial shall be governed by a separate agreement or order.
14

4.

DURATION

15

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

16 Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order
17 otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims
18 and defenses in this action, with or without prejudice; and (2) final judgment herein after the
19 completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,
20 including the time limits for filing any motions or applications for extension of time pursuant to
For a period of six months after final disposition of this litigation, this

21 applicable law. court will retain jurisdiction to enforce the terms of this order.
5.
DESIGNATING PROTECTED MATERIAL
22
23

5.1

Exercise of Restraint and Care in Designating Material for Protection. Each Party

24 or Non-Party that designates information or items for protection under this Order must take care to
25 limit any such designation to specific material that qualifies under the appropriate standards. To
26 the extent it is practical to do so, the Designating Party must designate for protection only those
27 parts of material, documents, items, or oral or written communications that qualify – so that other
28 portions of the material, documents, items, or communications for which protection is not
4
STIPULATED PROTECTIVE ORDER
SF/228040.1

1 warranted are not swept unjustifiably within the ambit of this Order.
2

Mass, indiscriminate, or routinized designations are prohibited. Designations that are

3 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to
4 unnecessarily encumber or retard the case development process or to impose unnecessary
5 expenses and burdens on other parties) expose the Designating Party to sanctions.
6

If it comes to a Designating Party’s attention that information or items that it designated

7 for protection do not qualify for protection at all or do not qualify for the level of protection
8 initially asserted, that Designating Party must promptly notify all other parties that it is
9 withdrawing the mistaken designation.
10

5.2

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

Bryan Cave LLP
560 Mission Street, Suite 2500
San Francisco, California 94105

11 (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered,
12 Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so
13 designated before the material is disclosed or produced.
14

Designation in conformity with this Order requires:

15

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

16 excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party
17 affix the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
18 ONLY” to each page that contains protected material. If only a portion or portions of the material
19 on a page qualifies for protection, the Producing Party also must clearly identify the protected
20 portion(s) (e.g., by making appropriate markings in the margins) and must specify, for each
21 portion, the level of protection being asserted.
22

A Party or Non-Party that makes original documents or materials available for inspection

23 need not designate them for protection until after the inspecting Party has indicated which material
24 it would like copied and produced. During the inspection and before the designation, all of the
25 material made available for inspection shall be deemed “HIGHLY CONFIDENTIAL –
26 ATTORNEYS’ EYES ONLY.” After the inspecting Party has identified the documents it wants
27 copied and produced, the Producing Party must determine which documents, or portions thereof,
28 qualify for protection under this Order. Then, before producing the specified documents, the
5
STIPULATED PROTECTIVE ORDER
SF/228040.1

1 Producing Party must affix the appropriate legend (“CONFIDENTIAL” or “HIGHLY
2 CONFIDENTIAL – ATTORNEYS’ EYES ONLY”) to each page that contains Protected
3 Material. If only a portion or portions of the material on a page qualifies for protection, the
4 Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate
5 markings in the margins) and must specify, for each portion, the level of protection being asserted.
6

(b) for testimony given in deposition or in other pretrial or trial proceedings, that the

7 Designating Party identify on the record, before the close of the deposition, hearing, or other
8 proceeding, all protected testimony and specify the level of protection being asserted. When it is
9 impractical to identify separately each portion of testimony that is entitled to protection and it
10 appears that substantial portions of the testimony may qualify for protection, the Designating Party

Bryan Cave LLP
560 Mission Street, Suite 2500
San Francisco, California 94105

11 may invoke on the record (before the deposition, hearing, or other proceeding is concluded) a right
12 to have up to 21 days to identify the specific portions of the testimony as to which protection is
13 sought and to specify the level of protection being asserted. Only those portions of the testimony
14 that are appropriately designated for protection within the 21 days shall be covered by the
15 provisions of this Stipulated Protective Order. Alternatively, a Designating Party may specify, at
16 the deposition or up to 21 days afterwards if that period is properly invoked, that the entire
17 transcript shall be treated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
18 ATTORNEYS’ EYES ONLY.”
19

Parties shall give the other parties notice if they reasonably expect a deposition,

20 hearing or other proceeding to include Protected Material so that the other parties can
21 ensure that only authorized individuals who have signed the “Acknowledgment and
22 Agreement to Be Bound” (Exhibit A) are present at those proceedings. The use of a
23 document as an exhibit at a deposition shall not in any way affect its designation as
24 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”
25

Transcripts containing Protected Material shall have an obvious legend on the title

26 page that the transcript contains Protected Material, and the title page shall be followed by a
27 list of all pages (including line numbers as appropriate) that have been designated as
28 Protected Material and the level of protection being asserted by the Designating Party. The
6
STIPULATED PROTECTIVE ORDER
SF/228040.1

1 Designating Party shall inform the court reporter of these requirements. Any transcript that
2 is prepared before the expiration of a 21-day period for designation shall be treated during
3 that period as if it had been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’
4 EYES ONLY” in its entirety unless otherwise agreed. After the expiration of that period, the
5 transcript shall be treated only as actually designated.
6

(c) for information produced in some form other than documentary and for any other

7 tangible items, that the Producing Party affix in a prominent place on the exterior of the container
8 or containers in which the information or item is stored the legend “CONFIDENTIAL” or
9 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”. If only a portion or portions of the
10 information or item warrant protection, the Producing Party, to the extent practicable, shall

Bryan Cave LLP
560 Mission Street, Suite 2500
San Francisco, California 94105

11 identify the protected portion(s) and specify the level of protection being asserted.
12

5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to

13 designate qualified information or items does not, standing alone, waive the Designating Party’s
14 right to secure protection under this Order for such material. Upon timely correction of a
15 designation, the Receiving Party must make reasonable efforts to assure that the material is treated
16 in accordance with the provisions of this Order.
17

6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

18

6.1

Timing of Challenges. Any Party or Non-Party may challenge a designation of

19 confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality
20 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic
21 burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to
22 challenge a confidentiality designation by electing not to mount a challenge promptly after the
23 original designation is disclosed.
24

6.2

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

25 process by providing written notice of each designation it is challenging and describing the basis
26 for each challenge. To avoid ambiguity as to whether a challenge has been made, the written
27 notice must recite that the challenge to confidentiality is being made in accordance with this
28 specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge in
7
STIPULATED PROTECTIVE ORDER
SF/228040.1

1 good faith and must begin the process by conferring directly (in voice to voice dialogue; other
2 forms of communication are not sufficient) within 14 days of the date of service of notice. In
3 conferring, the Challenging Party must explain the basis for its belief that the confidentiality
4 designation was not proper and must give the Designating Party an opportunity to review the
5 designated material, to reconsider the circumstances, and, if no change in designation is offered, to
6 explain the basis for the chosen designation. A Challenging Party may proceed to the next stage of
7 the challenge process only if it has engaged in this meet and confer process first or establishes that
8 the Designating Party is unwilling to participate in the meet and confer process in a timely
9 manner.
Judicial Intervention. If the Parties cannot resolve a challenge without court
they shall comply with the undersigned's Standing Order re Civil Discovery
11 intervention, the Designating Party shall file and serve a motion to retain confidentiality under
Disputes
12 Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) within 21 days of

Bryan Cave LLP
560 Mission Street, Suite 2500
San Francisco, California 94105

10

6.3

13 the initial notice of challenge or within 14 days of the parties agreeing that the meet and confer
In each Discovery Dispute

14 process will not resolve their dispute, whichever is earlier. Each such motion must be
Joint Report (DDJR), the parties must attest that they have

15 accompanied by a competent declaration affirming that the movant has complied with the meet
16 and confer requirements imposed in the preceding paragraph. Failure by the Designating Party to
seek court intervention within the time period set out in Standing Order Section D

17 make such a motion including the required declaration within 21 days (or 14 days, if applicable)
18 shall automatically waive the confidentiality designation for each challenged designation. In
seek relief with respect to

19 addition, the Challenging Party may file a motion challenging a confidentiality designation at any
20 time if there is good cause for doing so, including a challenge to the designation of a deposition
In

DDJR

the parties

21 transcript or any portions thereof. Any motion brought pursuant to this provision must be
must attest that they have

22 accompanied by a competent declaration affirming that the movant has complied with the meet
23 and confer requirements imposed by the preceding paragraph.
24

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

25 Party. Frivolous challenges and those made for an improper purpose (e.g., to harass or impose
26 unnecessary expenses and burdens on other parties) may expose the Challenging Party to
27 sanctions. Unless the Designating Party has waived the confidentiality designation by failing to
seek court intervention

28 file a motion to retain confidentiality as described above, all parties shall continue to afford the
8
STIPULATED PROTECTIVE ORDER
SF/228040.1

1 material in question the level of protection to which it is entitled under the Producing Party’s
2 designation until the court rules on the challenge.
3

7.

ACCESS TO AND USE OF PROTECTED MATERIAL

4

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,
6 defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to
7 the categories of persons and under the conditions described in this Order. When the litigation has
8 been terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL
9 DISPOSITION).
10

Protected Material must be stored and maintained by a Receiving Party at a location and in

Bryan Cave LLP
560 Mission Street, Suite 2500
San Francisco, California 94105

11 a secure manner that ensures that access is limited to the persons authorized under this Order.
12

7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered

13 by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any
14 information or item designated “CONFIDENTIAL” only to:
15

(a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees of

16 said Outside Counsel of Record to whom it is reasonably necessary to disclose the information for
17 this litigation and who have signed the “Acknowledgment and Agreement to Be Bound” that is
18 attached hereto as Exhibit A;
19

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

20 Party to whom disclosure is reasonably necessary for this litigation and who have signed the
21 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
22

(c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is

23 reasonably necessary for this litigation and who have signed the “Acknowledgment and
24 Agreement to Be Bound” (Exhibit A);
25

(d) the court and its personnel;

26

(e) court reporters and their staff, professional jury or trial consultants, and Professional

27 Vendors to whom disclosure is reasonably necessary for this litigation and who have signed the
28 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
9
STIPULATED PROTECTIVE ORDER
SF/228040.1

1

(f) during their depositions, witnesses in the action to whom disclosure is reasonably

2 necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A),
3 unless otherwise agreed by the Designating Party or ordered by the court. Pages of
4 transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be
5 separately bound by the court reporter and may not be disclosed to anyone except as permitted
6 under this Stipulated Protective Order.
7

(g) the author or recipient of a document containing the information or a custodian or other

8 person who otherwise possessed or knew the information.
9

7.3

Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

Information or Items.

11
Bryan Cave LLP
560 Mission Street, Suite 2500
San Francisco, California 94105

10

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:
14

(a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees of

15 said Outside Counsel of Record to whom it is reasonably necessary to disclose the information for
16 this litigation and who have signed the “Acknowledgment and Agreement to Be Bound” that is
17 attached hereto 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),
20 and (3) as to whom the procedures set forth in paragraph 7.4(a), 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

(e) the author or recipient of a document containing the information or a custodian or other

26 person who otherwise possessed or knew the information.
27

For clarification, information and/or items marked “HIGHLY CONFIDENTIAL –

28 ATTORNEYS’ EYES ONLY” may not be viewed by House Counsel, including litigation support
10
STIPULATED PROTECTIVE ORDER
SF/228040.1

1 staff or any other employees of the Receiving Party.
2

7.4 Procedures for Approving or Objecting to Disclosure of “HIGHLY CONFIDENTIAL

3

– ATTORNEYS’ EYES ONLY” Information or Items to Experts.

4

(a) Unless otherwise ordered by the court or agreed to in writing by the Designating Party,

5 a Party that seeks to disclose to an Expert (as defined in this Order) any information or item that
6 has been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” first must
7 make a written request to the Designating Party that (1) identifies the general categories of
8 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information that the Receiving
9 Party seeks permission to disclose to the Expert, (2) sets forth the full name of the Expert and the
10 city and state of his or her primary residence, (3) attaches a copy of the Expert’s current resume,

Bryan Cave LLP
560 Mission Street, Suite 2500
San Francisco, California 94105

11 (4) identifies the Expert’s current employer(s), (5) identifies each person or entity from whom the
12 Expert has received compensation or funding for work in his or her areas of expertise or to whom
13 the expert has provided professional services, including in connection with a litigation, at any time
14 during the preceding five years, and (6) identifies (by name and number of the case, filing date,
15 and location of court) any litigation in connection with which the Expert has offered expert
16 testimony, including through a declaration, report, or testimony at a deposition or trial, during the
17 preceding five years.
18

(b) A Party that makes a request and provides the information specified in the preceding

19 respective paragraphs may disclose the subject Protected Material to the identified Expert unless,
20 within 14 days of delivering the request, the Party receives a written objection from the
21 Designating Party. Any such objection must set forth in detail the grounds on which it is based.
22

(c) A Party that receives a timely written objection must meet and confer with the

23 Designating Party (through direct voice to voice dialogue) to try to resolve the matter by
parties

24 agreement within seven days of the written objection. If no agreement is reached, the Party
shall comply with the undersigned's Standing Order re Civil Discovery Disputes

25 seeking to make the disclosure to the Expert may file a motion as provided in Civil Local Rule 7
26 (and in compliance with Civil Local Rule 79-5, if applicable) seeking permission from the court to
DDJR

27 do so. Any such motion must describe the circumstances with specificity, set forth in detail the
28 reasons why the disclosure to the Expert is reasonably necessary, assess the risk of harm that the
11
STIPULATED PROTECTIVE ORDER
SF/228040.1

1 disclosure would entail, and suggest any additional means that could be used to reduce that risk. In
DDJR

e

2 addition, any such motion must be accompanied by a competent declaration describing the parties’
3 efforts to resolve the matter by agreement (i.e., the extent and the content of the meet and confer
4 discussions) and setting forth the reasons advanced by the Designating Party for its refusal to
5 approve the disclosure.
6

In any such proceeding, the Party opposing disclosure to the Expert shall bear the burden

7 of proving that the risk of harm that the disclosure would entail (under the safeguards proposed)
8 outweighs the Receiving Party’s need to disclose the Protected Material to its Expert.
9

8.

OTHER LITIGATION

10

Bryan Cave LLP
560 Mission Street, Suite 2500
San Francisco, California 94105

11

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

If a Party is served with a subpoena or a court order issued in other litigation that compels

12 disclosure of any information or items designated in this action as “CONFIDENTIAL” or
13 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” that Party must:
14

(a) promptly notify in writing the Designating Party. Such notification shall include a copy

15 of the subpoena or court order;
16

(b) promptly notify in writing the party who caused the subpoena or order to issue in the

17 other litigation that some or all of the material covered by the subpoena or order is subject to this
18 Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and
19

(c) cooperate with respect to all reasonable procedures sought to be pursued by the

20 Designating Party whose Protected Material may be affected.
21

If the Designating Party timely seeks a protective order, the Party served with the subpoena

22 or court order shall not produce any information designated in this action as “CONFIDENTIAL”
23 or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” before a determination by the
24 court from which the subpoena or order issued, unless the Party has obtained the Designating
25 Party’s permission. The Designating Party shall bear the burden and expense of seeking protection
26 in that court of its confidential material – and nothing in these provisions should be construed as
27 authorizing or encouraging a Receiving Party in this action to disobey a lawful directive from
28 another court.
12
STIPULATED PROTECTIVE ORDER
SF/228040.1

9.

1

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-Party in

4 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 produce a Non-

9 Party’s confidential information in its possession, and the Party is subject to an agreement with the
10 Non-Party not to produce the Non-Party’s confidential information, then the Party shall:
1. promptly notify in writing the Requesting Party and the Non-Party that

Bryan Cave LLP
560 Mission Street, Suite 2500
San Francisco, California 94105

11

12 some or all of the information requested is subject to a confidentiality agreement with a Non13 Party;
2. promptly provide the Non-Party with a copy of the Stipulated Protective

14

15 Order in this litigation, the relevant discovery request(s), and a reasonably specific description of
16 the information requested; and
3. make the information requested available for inspection by the Non-Party.

17
18

(c)

If the Non-Party fails to object or seek a protective order from this court within 14

19 days of receiving the notice and accompanying information, the Receiving Party may produce the
20 Non-Party’s confidential information responsive to the discovery request. If the Non-Party timely
21 seeks a protective order, the Receiving Party shall not produce any information in its possession or
22 control that is subject to the confidentiality agreement with the Non-Party before a determination
23 by the court. Absent a court order to the contrary, the Non-Party shall bear the burden and expense
24 of seeking protection in this court of its Protected Material. All disclosure and discovery disputes
25
26

subject to the undersigned's Standing Order re Civil Discovery Disputes.
10.
UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected

27 Material to any person or in any circumstance not authorized under this Stipulated Protective
28 Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the
13
STIPULATED PROTECTIVE ORDER
SF/228040.1

1 unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected
2 Material, (c) inform the person or persons to whom unauthorized disclosures were made of all the
3 terms of this Order, and (d) request such person or persons to execute the “Acknowledgment and
4 Agreement to Be Bound” that is attached hereto as Exhibit A.
11.

5

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
PROTECTED MATERIAL

6

When a Producing Party gives notice to Receiving Parties that certain inadvertently

7

8 produced material is subject to a claim of privilege or other protection, the obligations of the
9 Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This
10 provision is not intended to modify whatever procedure may be established in an e-discovery order

Bryan Cave LLP
560 Mission Street, Suite 2500
San Francisco, California 94105

11 that provides for production without prior privilege review. Pursuant to Federal Rule of Evidence
12 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a
13 communication or information covered by the attorney-client privilege or work product protection,
14 the parties may incorporate their agreement in the stipulated protective order submitted to the
15 court.
16

12.

MISCELLANEOUS

17

12.1

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

18 seek its modification by the court in the future.
19

12.2

Right to Assert Other Objections. By stipulating to the entry of this Protective

20 Order no Party waives any right it otherwise would have to object to disclosing or producing any
21 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no
22 Party waives any right to object on any ground to use in evidence of any of the material covered
23 by this Protective Order.
24

12.3

Filing Protected Material. Without written permission from the Designating Party

25 or a court order secured after appropriate notice to all interested persons, a Party may not file in
26 the public record in this action any Protected Material. A Party that seeks to file under seal any
27 Protected Material must comply with Civil Local Rule 79-5. Protected Material may only be filed
28 under seal pursuant to a court order authorizing the sealing of the specific Protected Material at
14
STIPULATED PROTECTIVE ORDER
SF/228040.1

1 issue. Pursuant to Civil Local Rule 79-5, a sealing order will issue only upon a request
2 establishing that the Protected Material at issue is privileged, protectable as a trade secret, or
3 otherwise entitled to protection under the law. If a Receiving Party's request to file Protected
4 Material under seal pursuant to Civil Local Rule 79-5(e) is denied by the court, then the Receiving
5 Party may file the Protected Material in the public record pursuant to Civil Local Rule 79-5(e)(2)
6 unless otherwise instructed by the court.
7 ///
8 ///
9 ///
10 / / /

Bryan Cave LLP
560 Mission Street, Suite 2500
San Francisco, California 94105

11 / / /
12 / / /
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
15
STIPULATED PROTECTIVE ORDER
SF/228040.1

1

13.

FINAL DISPOSITION

2

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

3 Receiving Party must return all Protected Material to the Producing Party or destroy such material.
4 As used in this subdivision, “all Protected Material” includes all copies, abstracts, compilations,
5 summaries, and any other format reproducing or capturing any of the Protected Material. Whether
6 the Protected Material is returned or destroyed, the Receiving Party must submit a written
7 certification to the Producing Party (and, if not the same person or entity, to the Designating Party)
8 by the 60-day deadline that (1) identifies (by category, where appropriate) all the Protected
9 Material that was returned or destroyed and (2) affirms that the Receiving Party has not retained
10 any copies, abstracts, compilations, summaries or any other format reproducing or capturing any

Bryan Cave LLP
560 Mission Street, Suite 2500
San Francisco, California 94105

11 of the Protected Material. Notwithstanding this provision, Outside Counsel of Record are entitled
12 to retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts,
13 legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work
14 product, and consultant and expert work product, even if such materials contain Protected
15 Material. Any such archival copies that contain or constitute Protected Material remain subject to
16 this Protective Order as set forth in Section 4 (DURATION).
17

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

18
19 Dated: December 10, 2014

BRYAN CAVE LLP

20

22

By: /s/ Stephanie A. Blazewicz
Stephanie A. Blazewicz
Attorneys for Plaintiff
AIRWAIR INTERNATIONAL LTD.

23 Dated: December 10, 2014

BUCHE & ASSOCIATES, P.C.

21

24

By: /s/ Lindsay D. Molnar
Lindsay D. Molnar
Attorneys for Defendant
NPS (SHOES) LTD.

25
26
27
28

16
STIPULATED PROTECTIVE ORDER
SF/228040.1

AS MODIFIED BY THE COURT,
PURSUANT TO STIPULATION, IT IS SO ORDERED.
1
^

2

December 11, 2014
DATED: ________________________

3
4

_____________________________
Honorable Lucy H. Koh Howard R. Lloyd
United States District Court Judge
Magistrate

5
6
7
8
9
10

Bryan Cave LLP
560 Mission Street, Suite 2500
San Francisco, California 94105

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
17
STIPULATED PROTECTIVE ORDER
SF/228040.1

EXHIBIT A

1

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

2
I, _____________________________ [print or type full name], of _________________ [print or

3
type full address], declare under penalty of perjury that I have read in its entirety and understand the

4
Stipulated Protective Order that was issued by the United States District Court for the Northern District of

5
California on [date] in the case of ___________ [insert formal name of the case and the number and

6
initials assigned to it by the court]. I agree to comply with and to be bound by all the terms of this

7
Stipulated Protective Order and I understand and acknowledge that failure to so comply could expose me to

8
sanctions and punishment in the nature of contempt. I solemnly promise that I will not disclose in any

9
manner any information or item that is subject to this Stipulated Protective Order to any person or entity

10
except in strict compliance with the provisions of this Order.
Bryan Cave LLP
560 Mission Street, Suite 2500
San Francisco, California 94105

11
I further agree to submit to the jurisdiction of the United States District Court for the Northern

12
District of California for the purpose of enforcing the terms of this Stipulated Protective Order, even if such

13
enforcement proceedings occur after termination of this action.

14
15

I hereby appoint __________________________ [print or type full name] of

16 _______________________________________ [print or type full address and telephone number] as my
17 California agent for service of process in connection with this action or any proceedings related to
18 enforcement of this Stipulated Protective Order.
19
20

Date: _________________________________

21
City and State where sworn and signed: _________________________________

22
23
24 Printed name: ______________________________
25

Signature: __________________________________

26
27
28
18
STIPULATED PROTECTIVE ORDER
SF/228040.1