Campbell et al v. Facebook Inc.

Filing 109

MOTION for Extension of Time to File Plaintiffs' Motion for Extension of Class Certification and Summary Judgment Deadlines filed by Matthew Campbell, Michael Hurley. (Attachments: # 1 Proposed Order, # 2 Declaration of David Rudolph, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit 11, # 14 Exhibit 12, # 15 Exhibit 13, # 16 Exhibit 14, # 17 Exhibit 15, # 18 Exhibit 16, # 19 Exhibit 17, # 20 Exhibit 18, # 21 Exhibit 19, # 22 Exhibit 20, # 23 Exhibit 21)(Sobol, Michael) (Filed on 9/16/2015)

EXHIBIT 5

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IN THE UNITED ST ATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION

REMBRANDT SOCIAL MEDIA, LP
PLAINTIFF,
v.

CIV IL ACTION NO. I: I3-CV-l 58(TSE/TRJ)

FACEBOOK, INC. and
ADDTHIS, INC.
DEFENDANTS.
AGREED PROTECTIVE ORDER tuJ771ovr s.e/J.A//>VC /7r?vlli.f /t1/fS-

To expedite the flow of discovery information, to fac ilitate the prompt reso lution of
disputes over confidentiality of discovery information, to adequately protect infonnation the
parties are entitled to keep confidential while ensuring that only information the parties are
entitled to keep confi dential is subject to such treatment, to ensure that the level or protection is
consistent with the level of sensitivity of the information, and to permit reasonably necessary
uses of protected information by the parties in preparation fo r and conduct of trial , pursuant to
Fed. R. Civ. P. 26(c), it is HEREBY ORDERED THAT:
A. PROTECTEDINFORMATION

Protected Information shall mean all information prov ided by a Produci ng Party (whether
a party to the action or a non-par to a Receiving Party in this action, which is so des ignated by
ty)
the Producing Party in accordance with Section C. Protected Infonnation includes all such
information or items, regardless of the med ium or manner in which it is generated, stored, or
ma intained (includ ing, among other things, testimony, transcri pts, and tangible thi ngs).
Protected information includes (I) any information copied or extracted from designated

Pf

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infonnation; (2) all copies, excerpts, summaries, or compilations of designated infonnation; and
(3) any testimony, conversations, or presentations by Parties or their Counsel that might reveal
designated infonnation. A party may designate infonnation as Protected lnfonnation only to the
extent such infonnation is confidential and should be subject to restricted use and access in
accordance with one of the levels of protection set forth in Section B.

B. LEVELS OF PROTECTION
This Order provides four levels of protection. The Producing Party shall designate the
level of protection it believes in good faith is justified by the sensitivity of the infonnation in
accordance with sections C and D and I. A party to this action (the Receiving Party) may object
to the designation in accordance with section E. The levels of protection are as follows:

1. Confidential
Protected Information that qualifies for protection under Federal Rule of Civil Procedure
26(c) may be designated CONFIDENTIAL in accordance with Section C. Protected Information
marked CONFIDENTIAL shall be made available by the Receiving Party only to the following
persons and only after qualification in accordance with Section F:
(a) outside litigation counsel of record, who are not employees of a party to this action
but are retained to represent or advise a party to this action, and their support personnel to whom
it is reasonably necessary to disclose the information for this litigation;
(b) technical advisors and experts (consulting and testifying) and their support personnel
to whom it is reasonably necessary to disclose the infonnation for this litigation;
(c) independent litigation-support personnel providing services such as translation,
graphics, design, photocopying, document processing, jury consulting, and trial consulting, as
well as mock jurors, so long as each mock juror signs a non-disclosure agreement.

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(d) up to three in-house counsel for each party and their support personnel to whom it is
reasonably necessary to disclose the information for this litigation;
(e) up to three senior management level employees for each party who are assisting
counsel or making decisions in connection with this action to whom it is reasonably necessary to
disclose the information for this litigation;

(t) up to two in-house technical analysts for each party and one in-house financial analyst
for each party to whom it is reasonably necessary to disclose the information for this litigation;
(g) court personnel, court reporters, videographers, and mediators;
(h) with respect to a particular document, any person shown on the face of the document
(or who is otherwise established) to have been an author or recipient of the document or have
personal knowledge of the document's contents.

2. Confidential Outside Counsel Only
Protected Information designated CONFIDENTIAL OUTSIDE COUNSEL ONLY shall
be available only to the persons who are qualified for access to CONFIDENTIAL information
under sections B( I)(a),(b ),(c),(g), or (h).

Protected information may also be designated

CONFIDENTIAL OUTSIDE COUNSEL ONLY - SOURCE CODE or CONFIDENTIAL OUTSIDE COUNSEL ONLY - SUBJECT TO PROSECUTION BAR. Materials designated
CONFIDENTIAL OUTSIDE COUNSEL ONLY - SOURCE CODE and CONFIDENTIAL OUTSIDE COUNSEL ONLY -

SUBJECT TO PROSECUTION BAR are a type of

CONFIDENTIAL OUTSIDE COUNSEL ONLY material; however, mock jurors shall not have
access to CONFIDENTIAL OUTSIDE COUNSEL ONLY - SOURCE CODE materials.

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Exclusions.
Material and/or information contained therein is not Confidential or Confidential Outside
Counsel Only if it is disclosed in a publically available printed publication (e.g., advertising
materials), is otherwise known to the general public, was disclosed in a document submitted to
any governmental entity without a request for confidential treatment, was known to the recipient
without obligation of confidentiality before the producer disclosed it, or is or becomes known to
the recipient without obligation of confidentiality by means not constituting a breach of this
Order.

If the accuracy or truth of publicly available rumors or speculation may be confirmed or
denied only through the review of Protected Information, then the accuracy or truth of the
publicly available rumor or speculation shall not be considered to be in the public domain. For
example, unsubstantiated media speculations about a new product or service that are confirmed
to be accurate through access to Protected Information does not mean that the confirmation is
public information. Such confirmatory information is explicitly included in the definition of
"Protected Information" set forth above.

C. DESIGNATION OF PROTECTED INFORMATION
1. How to Designate
In order to invoke the protection provided by this Order the Producing Party shall
designate Protected Information as follows:
a. Mark documents or things containing the Protected Information with the level of
protection

(CONFIDENTIAL

or CONFIDENTIAL

OUTSIDE COUNSEL ONLY

or

CONFIDENTIAL OUTSIDE COUNSEL ONLY - SOURCE CODE or CONFIDENTIAL -

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OUTSIDE COUNSEL ONLY - SUBJECT TO PROSECUTION BAR) claimed at the time of
production, or, if not practicable to mark, otherwise notify the receiving party in writing.
b. State the level of protection on the record in a deposition. If no designation is stated
on the record, the deposition testimony shall be deemed as CONFIDENTIAL OUTSIDE
COUNSEL ONLY for ten days after the deposition, during which time the Producing Party may
designate a different level of protection in writing.

2. Inadvertent Failure to Designate
Inadvertent failure to designate Protected Information may be cured by the Producing
Party by promptly taking steps to designate the material upon discovery of the inadvertent
failure. Upon being notified of the inadvertent failure to designate, the Receiving Party shall
(l) treat the material as designated Protected Information pursuant to this Protective Order, and
(2) to the extent that the Protected Information had been disclosed to others, shall take reasonable
steps to recall any disseminated copies of the information previously disclosed and to prevent
further disclosure of the Protected Information. An inadvertent failure to designate Protected
Information is not a waiver.

D. ACCESS TO SOURCE CODE
Human readable computer program code files and associated comments and revision
histories, as well as documents containing portions of source code, may be designated by a
Producing Party as "CONFIDENTIAL OUTSIDE COUNSEL ONLY - SOURCE CODE."
Code files so designated, and authorized excerpts thereof, shall be made available only to
persons who are authorized under this Order to receive CONFIDENTIAL OUTSIDE COUNSEL
ONLY information or materials, and only under the following restrictions:

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I.

The code files shall be made available for inspection-upon request of a

Receiving Party at least seven business days in advance-on a secured, standalone computer
provided by the Producing Party during normal business hours, in a secured room without
Internet access or network access to other computers, at the offices of counsel for the Producing
Party. The computer shall be equipped with search and review tools as reasonably requested and
provided by the Receiving Party, and be connected to a printer.
2.

The Receiving Party shall not copy, remove, or otherwise transfer any portion of

the source code onto any recordable media or recordable device. The Producing Party may
visually monitor the activities of the Receiving Party's representatives during any source code
review, but only to ensure that there is no unauthorized recording, copying, or transmission of
the source code. All persons viewing Source Code shall sign on each day they view Source
Code a log that will include the names of persons who enter the secured room to view the Source
Code and when they enter and depart.
3.

The Receiving Party may print paper copies of limited portions of source code

that are reasonably necessary to attach to filings, pleadings, expert reports, or other papers, or for
use as an exhibit at deposition or trial, but shall not print paper copies for the purposes of
reviewing the source code other than electronically as set forth in paragraph D( l )-(2) in the first
instance. At the end of each reviewing day, the Receiving Party will provide all printed copies to
the Producing Party, which shall within two business days return three sets of production copies
of the printed source code on colored paper including Bates numbers and the label
CONFIDENTIAL OUTSIDE COUNSEL ONLY - SOURCE CODE. The Producing Party may
challenge the amount of source code requested in hard copy form pursuant to the dispute
resolution procedure and timeframes set forth in Paragraph F whereby the Producing Party is the

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"Challenging Party" and the Receiving Party is the "Designating Party" for purposes of dispute
resolution. For each printed portion of the Source Code, the Producing Party shall provide the
corresponding file path and shall associate that file path with the printed source code.
4.

The Receiving Party shall maintain all paper copies of any printed portions of the

source code in a secured, locked area. The Receiving Party may request additional paper copies
of selected portions of CONFIDENTIAL OUTSIDE COUNSEL ONLY - SOURCE CODE
information only when reasonably necessary to replace those copies used in depositions or court
filings and proceedings, such that the Receiving Party may maintain up to three paper copies of
any portion of the source code at any given time. No electronic copies shall be made.
5.

At the conclusion of this action (including any appeals) and unless the Court

otherwise orders, printed copies of source code shall be returned to the Producing Party or, at the
Producing Party's choosing, the Receiving Party shall certify that all printed copies of source
code have been destroyed.

E. CHALLENGES TO PROTECTED INFORMATION DESIGNATIONS
I.

The Receiving Party may object in writing to any designation of information as

Protected Information, thus becoming a "Challenging Party" under this Protective Order and
rendering the party that designated the Protected Information the "Designating Party." The
Challenging Party shall initiate the dispute resolution by providing written notice of each
designation it is challenging and describing the basis for each challenge. To avoid ambiguity as
to whether a challenge has been made, the written notice must recite that the challenge to
confidentiality is being made in accordance with this specific paragraph of the Protective Order.
The parties shall attempt to resolve each challenge in good faith and must begin the process by
conferring directly (in voice to voice dialogue; other forms of communication are not sufficient)
within 5 days of the date of service of notice. In conferring, the Challenging Party must explain
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the basis for its belief that the confidentiality designation was not proper and must give the
Designating Party an opportunity to review the designated material, to reconsider the
circumstances, and, if no change in designation is offered, to explain the basis for the chosen
designation. The Challenging Party may proceed to the next stage of the challenge process only
if it has engaged in this meet and confer process first or establishes that the Designating Party is
unwilling to participate in the meet and confer process in a timely manner.
2.

In the event of such an objection, the designation shall remain in effect until the

objection is resolved by negotiation or by the Court upon application of the Challenging Party.
In the event the matter is put before the Court by the Challenging Party, the Designating Party
shall have the burden of justifying the designation.

F. QUALIFICATION FOR RECEIPT OF PROTECTED INFORMATION
Before receiving any Protected Information any person entitled to receipt under Sections
B(l)(b) or B(l)(d)-(f) above shall qualify as follows:
I. Sign the undertaking attached hereto as Exhibit A.
2.

In the case of an employee of a Receiving Party, deliver a copy of the signed

undertaking to the Producing Party at least five (5) days before the proposed access is given.
3. In the case of an advisor or expert who is not a party employee ("Expert"), deliver a
copy of the signed undertaking to the Producing Party at least five (5) days before the proposed
access is given, together with a copy of the expert's curriculum vitae and the following
information: (1) the full name of the Expert and the city and state of his or her primary residence,
(2) the Expert's current employer(s), (3) the identification of each person or entity from whom
the Expert has received compensation or funding for work in his or her areas of expertise or to
whom the expert has provided professional services at any time during the preceding five years,

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(4) a list of all cases in connection with which the Expert has offered testimony (deposition or
trial or declaration) or submitted an expert report during the preceding five years and the party or
parties who retained the Expert, and (5) a list of any patents or patent applications in which the
Expert is identified as an inventor or applicant, is involved in prosecuting or maintaining, or in
which the Expert has any pecuniary interest. 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.
4. The Producing Party shall have the right to object in writing to the proposed access
prior to the expiration of the five (5) day waiting period. In the event of such an objection, no
access will be given until the objection is resolved by negotiation or by Court Order. In the
event the matter is put before the Court by the Receiving Party, the Producing Party shall have
the burden of justifying the objection.
G. ACCESS TO AND USE OF PROTECTED INFORMATION
I. Unless otherwise permitted by written consent of the Producing Party or an order of
the Court, Protected Information shall be used by the Receiving Party only for the conduct of this
litigation, and not for any other litigation or business purpose.

The Receiving Party shall

diligently maintain the confidentiality of the Protected Information in accordance with its
designation unless and until it becomes publicly available without violation of this Order,
pursuant to Section 8(3) above.
2.

Protected Information must be stored and maintained by a Receiving Party at a

location and in a secure manner that ensures that access is limited to the persons authorized
under this order.

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3. Except as required by the Federal Rules in connection with service of a pleading or
paper in this case, Plaintiff shall not disclose Protected Information of one Defendant to any
other Defendant. To the extent the Federal Rules would require service of a pleading or paper in
this case containing one Defendant's Protected Information on another Defendant, Plaintiff shall
serve that pleading or paper only on the Defendant whose Protected Information is included in
that document at the time of service. That Defendant must then redact any information to which
it believes another Defendant should not have access and serve the redacted document on the
other Defendant within three (3) business days of receipt.
4. Protected Information may be used at a deposition only to the extent that the witness
and his or her counsel would otherwise be entitled to receive the Protected Information, and any
person not entitled to such receipt shall be excluded from the deposition.
5. All transcripts, documents, things, or pleadings containing Protected Information shall
be filed under seal in a manner prescribed by the Court for such filings.

I.

PROSECUTION BAR

Documents that have been designated with the source-code designation pursuant to
paragraph D of this Protective order shall be treated as CONFIDENTIAL - OUTSIDE
COUNSEL ONLY - SUBJECT TO PROSECUTION BAR in accordance with this section. In
addition, the Producing Party may designate highly confidential technical documents otherwise
subject to designation under Section B(2) above as CONFIDENTIAL - OUTSIDE COUNSEL
ONLY - SUBJECT TO PROSECUTION BAR.
For the period ending two years after the final resolution by non-appealable judgment or
complete settlement of all claims against that Producing Party in the action, no natural person
who receives the Protected Information of any Producing Party that is designated

IO

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CONFIDENTIAL - OUTSIDE COUNSEL ONLY - SUBJECT TO PROSECUTION BAR may
participate directly or indirectly (e.g., by consulting or advising those directly involved) in the
prosecution of any patent application claiming priority to or otherwise related to the patents
asserted in this action, or any other patents or patent applications that relate to the subject matter
of the patents-in-suit or the subject matter of the information designated under this paragraph
before any foreign or domestic agency responsible for the issuance of patents, including the
United States Patent and Trademark Office.

For purposes of this paragraph, "prosecution"

includes directly or indirectly drafting, amending, advising, or otherwise affecting the scope of
patent claims.

Prosecution includes, for example, original prosecution, reissue, and

reexamination and other post grant proceedings.
Nothing in this provision shall preclude counsel of record for a party challenging a patent
before a domestic or foreign agency from participating in any way in a reexamination, post-grant
review, inter partes review, or other post grant proceeding.
This bar shall not preclude the communication to counsel in a proceeding in any patent
office of (a) non-confidential prior art to be provided to the PTO; (b) non-confidential court
filings or orders; and (c) non-confidential objective factual information about this Civil Action.

J. PRIVILEGE LOGS
The following documents need not be listed on a privilege log, and failure to do so shall
not constitute a waiver of any privilege or immunity: Privileged or work product documents
created after the commencement of this Action.

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K. INADVERTENT DISCLOSURE OR PRODUCTION
OF PRIVILEGED OR PROTECTED INFORMATION

I.

The inadvertent disclosure of information subject to any privilege or immunity

that would justify withholding the information shall not constitute a waiver of the privilege or
immunity if the Producing Party notifies the Receiving Party promptly upon becoming aware of
the inadvertent disclosure.
2.

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

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

3.

When a Producing Party gives notice to Receiving Parties that certain

inadvertently produced material is subject to a claim of privilege or other protection, the
obligations of the Receiving Parties are those set forth in Federal Rule of Civil Procedure
26(b)(5)(B).

L. A NON-PARTY'S PROTECTED INFORMATION
SOUGHT TO BE PRODUCED IN TIDS LITIGATION
1.

Nothing in these provisions should be construed as prohibiting a non-party from

seeking additional protections.
2.

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

non-party's confidential information in its possession, and the party is subject to an agreement
with the non-party not to produce the non-party's confidential information, then the party shall:

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a. promptly notify in writing the Requesting Party and the non-party that some or all
of the information requested is subject to a confidentiality agreement with a nonparty;
b. promptly provide the non-party with a copy of the Protective Order in this
litigation, the relevant discovery request(s), and a reasonably specific description
of the information requested; and
c. make the information requested available for inspection by the non-party.
3.

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

days of receiving the notice and accompanying information, the Receiving Party may produce
the non-party's confidential information responsive to the discovery request. If the non-party
timely seeks a protective order, the Producing Party shall not produce any information in its
possession or control that is subject to the confidentiality agreement with the non-party before a
determination by the Court.
M. MISCELLANEOUS
I.

Export Control: Disclosure of Protected Information shall be subject to all

applicable laws and regulations relating to the export of technical data contained in such
Protected Information, including the release of such technical data to foreign persons or nationals
in the United States or elsewhere. No Protected Information may leave the territorial boundaries
of the United States of America.

Without limitation, this prohibition extends to Protected

Information (including copies) in physical and electronic form.

The viewing of Protected

Information through electronic means outside the territorial limits of the United States of
America is similarly prohibited.

The restrictions contained within this paragraph may be

amended through the express written consent of the producing Party to the extent that such

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agreed to procedures conform with applicable export control laws and regulations. Nothing in
this paragraph is intended to remove any obligation that may otherwise exist to produce
documents currently located in a foreign country.
2.

Filing Protected Information. Without written permission from the Producing

Party or a court order secured after appropriate notice to all interested persons, a party may not
file in the public record in this action any Protected Information, but rather must seek to file
under seal any Protected Information in compliance with Local Civil Rule 5.
3.

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

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

N. MODIFICATION
I.

Any party may apply to the Court for modification of this Order.

2.

Any Producing Party may, without application to the Court, waive in writing, in

whole or in part, the protection provided by this Order to its Protected Information.

O. POST-LITIGATION PROVISIONS
I.

The provisions of this Order shall remain in place after the termination of this

litigation, and this Court will retain jurisdiction for enforcement of the Order and the resolution
of any dispute relating thereto.
2. Within 90 days after the final resolution of this litigation by settlement or a judgment
not subject to appeal, each Receiving Party shall return, or destroy and certify destruction to the
Producing Party, all documents and things received from the Producing Party containing

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Protected In formation or Protected In fo rmation. Notwithstanding the above, nothing in this
order shall require the destruction of copies of court filings and orders, correspondence, or
Furthermore, to the extent containing Protected

attorney work product, including e-mails.

Information, a Receiving Party may retain one archival copy subject to the provisions of this
order of trial, discovery and hearing transcripts and exhibits, written discovery responses and
exhibits, expert repo11s, and any contentions relating to infringement or invalidity. Nothing in
this order shall requ ire a Receiving Party to return or destroy information that is stored m a
backup or disaster recovery system that is not intended for day-to-day access by users.
P. RESPONSE TO COURT ORDER TO PRODUCE

If a court or other governmenta l body subpoenas or otherwise orders a Receiving Party to
produce documents or things embodying Protected ln fo nnation, the Receiving Party shall
immediately give notice in writing to the Producing Party or Parties. The Receiving Party shall
promptly notify in writing the party who caused the subpoena or order to issue in the other
litigation that some or all of the material covered by the subpoena or order is subject to th is
Protective Order. Such notification shall include a copy of this Protective Order.

If no

application to prevent compliance with the order is made to thi s Court within I 0 business days of
the notice, the Receiving Party may thereafter comply with the order. If application is made to
this Court within 10 business days, the Receiving Party shall await resolution of the matter by
this Court.

SIGNED AND ENTERED thi s

~0
day of _~~
1 -w----' 2013.

:2_

UNITED STATES D.JSTRlG'..f JUDGE
ftt~yf,.J..

ls/Thomas Rawles Jones, Jr.

15

THOMAS RAWLES JONES, JR.
U.S. MAGISTRATE JUDGE
EASTERN DISTRICT OF VIRGINIA

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EXHIBIT A
Agreement to be bound by Protective Order
I hereby acknowledge that I may receive Protected Information pursuant to my work in
connection with Civil Action No. 1:13-CV-158(TSEffRJ) titled Rembrandt Social Media, LP v.
Facebook, Inc. et al., pending in the United States District Court for Eastern District of Virginia

(the "Litigation").

I acknowledge receipt of a copy of the Agreed Protective Order in the

Litigation, and certify that I have read it and agree to comply with it. I agree to subject myself to
the jurisdiction of the United States District Court for Eastern District of Virginia for the purpose
of any proceedings relating to the Agreed Protective Order, and that I may be subject to
sanctions imposed by the Court, including an order of contempt, if I fail to comply with the
Agreed Protective Order.

Name {printed):_ _ _ _ _ _ _ __

Title:

--------~

Address:

-------------

Signature:----------Date:

----------

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