Peak Oyun Yazilim Ve Pazarlama As v. Hasbro, Inc. et al

Filing 37

STIPULATED PROTECTIVE ORDER, granting 36 . Signed by Magistrate Judge Susan van Keulen on 3/17/2017. (ofr, COURT STAFF) (Filed on 3/17/2017)

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1 2 3 4 5 6 7 8 9 10 11 12 13 JENNIFER L. KELLY (CSB No. 193416) jkelly@fenwick.com FENWICK & WEST LLP 555 California Street, 12th Floor San Francisco, CA 94104 Telephone: 415.875.2300 Facsimile: 415.281.1350 JEREMY S. GOLDMAN (CSB No. 306943) jgoldman@fkks.com FRANKFURT KURNIT KLEIN & SELZ P.C. 2029 Century Park East, Ste. 1060 Los Angeles, CA 90067 Telephone: 310.579.9611 Facsimile: 347.438.2156 ERIC BALL (CSB No. 241327) eball@fenwick.com ANGEL CHIANG (CSB No. 280546) achiang@fenwick.com KUNYU CHING (CSB No. 292616) kching@fenwick.com FENWICK & WEST LLP Silicon Valley Center 801 California Street Mountain View, CA 94041 Telephone: 650.988.8500 Facsimile: 650.938.5200 Attorneys for Defendants HASBRO, INC. and BACKFLIP STUDIOS, LLC Attorneys for Plaintiff PEAK OYUN YAZILIM VE PAZARLAMA AS d/b/a PEAK GAMES 14 UNITED STATES DISTRICT COURT 15 NORTHERN DISTRICT OF CALIFORNIA 16 SAN FRANCISCO DIVISION 17 18 19 PEAK OYUN YAZILIM VE PAZARLAMA AS, a Turkey corporation, d/b/a PEAK GAMES, Plaintiff, 20 Case No.: 5:16-cv-06083 LHK STIPULATED PROTECTIVE ORDER Judge: Hon. Lucy Koh v. 21 23 HASBRO, INC., a Rhode Island corporation, and BACKFLIP STUDIOS, LLC, a Delaware limited liability company, 24 Defendants. 22 25 26 27 28 1. PURPOSES AND LIMITATIONS Disclosure and discovery activity in this action are likely to involve production of confidential, proprietary, or private information for which special protection from public STIPULATED PROTECTIVE ORDER Case No.: 5:16-cv-06083 LHK 1 disclosure and from use for any purpose other than prosecuting this litigation may be warranted. 2 Accordingly, the Parties hereby stipulate to and petition the court to enter the following Stipulated 3 Protective Order. The Parties acknowledge that this Order does not confer blanket protections on 4 all disclosures or responses to discovery and that the protection it affords from public disclosure 5 and use extends only to the limited information or items that are entitled to confidential treatment 6 under the applicable legal principles. The Parties further acknowledge, as set forth in Section 7 15.3, below, that this Stipulated Protective Order does not entitle them to file confidential 8 information under seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and 9 the standards that will be applied when a Party seeks permission from the court to file material 10 under seal. 11 2. 12 13 DEFINITIONS 2.1 Challenging Party: a Party or Non-Party that challenges the designation of information or items under this Order. 14 2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is 15 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule 16 of Civil Procedure 26(c). 17 18 19 2.3 Counsel (without qualifier): Outside Counsel of Record (as well as their support 2.4 Designating Party: a Party or Non-Party that designates information or items that it staff). 20 produces in disclosures or in responses to discovery as “CONFIDENTIAL” or “HIGHLY 21 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE 22 CODE.” 23 2.5 Disclosure or Discovery Material: all items or information, regardless of the 24 medium or manner in which it is generated, stored, or maintained (including, among other things, 25 testimony, transcripts, and tangible things), that are produced or generated in disclosures or 26 responses to discovery in this matter. 27 2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to 28 STIPULATED PROTECTIVE ORDER 2 Case No.: 5:16-cv-06083 LHK 1 the litigation who (1) has been retained by a Party or its Counsel to serve as an expert witness or 2 as 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 4 or of a Party’s competitor. 5 2.7 “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. 9 2.8 “HIGHLY CONFIDENTIAL – SOURCE CODE” Information or Items: 10 extremely sensitive “Confidential Information or Items” representing computer code and 11 associated comments and revision histories, formulas, engineering specifications, or schematics 12 that define or otherwise describe in detail the algorithms or structure of software or hardware 13 designs, disclosure of which to another Party or Non-Party would create a substantial risk of 14 serious harm that could not be avoided by less restrictive means. 15 16 17 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 (and their support staff) who are not 18 employees of a Party to this action but are retained to represent or advise a Party to this action and 19 have appeared in this action on behalf of that Party or are affiliated with a law firm which has 20 appeared on behalf of that Party. 21 22 23 24 25 2.11 Party: any party to this action, including all of its officers, directors, employees, consultants, retained experts, and Outside Counsel of Record. 2.12 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this action. 2.13 Professional Vendors: persons or entities that provide litigation support services 26 (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and 27 organizing, storing, or retrieving data in any form or medium) and their employees and 28 subcontractors. STIPULATED PROTECTIVE ORDER 3 Case No.: 5:16-cv-06083 LHK 1 2.14 Protected Material: any Disclosure or Discovery Material that is designated as 2 “CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or as 3 “HIGHLY CONFIDENTIAL – SOURCE CODE.” 4 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material from a 5 Producing Party. 6 3. 7 SCOPE The protections conferred by this Stipulation and Order cover not only Protected Material 8 (as defined above), but also (1) any information copied or extracted from Protected Material; (2) 9 all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 10 conversations, or presentations by Parties or their Counsel that might reveal Protected Material. 11 However, the protections conferred by this Stipulation and Order do not cover the following 12 information: (a) any information that is in the public domain at the time of disclosure to a 13 Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as 14 a result of publication not involving a violation of this Order, including becoming part of the 15 public record through trial or otherwise; and (b) any information known to the Receiving Party 16 prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who 17 obtained the information lawfully and under no obligation of confidentiality to the Designating 18 Party. Any use of Protected Material at trial shall be governed by a separate agreement or order. 19 4. DURATION 20 Even after final disposition of this litigation, the confidentiality obligations imposed by 21 this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court 22 order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all 23 claims and defenses in this action, with or without prejudice; and (2) final judgment herein after 24 the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, 25 including the time limits for filing any motions or applications for extension of time pursuant to 26 applicable law. 27 5. 28 DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party STIPULATED PROTECTIVE ORDER 4 Case No.: 5:16-cv-06083 LHK 1 or Non-Party that designates information or items for protection under this Order must take care 2 to limit any such designation to specific material that qualifies under the appropriate standards. 3 To the extent it is practical to do so, the Designating Party must designate for protection only 4 those parts of material, documents, items, or oral or written communications that qualify – so that 5 other portions of the material, documents, items, or communications for which protection is not 6 warranted are not swept unjustifiably within the ambit of this Order. 7 Mass, indiscriminate, or routinized designations are prohibited. Designations that are 8 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 9 unnecessarily encumber or retard the case development process or to impose unnecessary 10 11 expenses and burdens on other Parties) expose the Designating Party to sanctions. If it comes to a Designating Party’s attention that information or items that it designated 12 for protection do not qualify for protection at all or do not qualify for the level of protection 13 initially asserted, that Designating Party must promptly notify all other Parties that it is 14 withdrawing the mistaken designation. 15 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order 16 (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, 17 Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so 18 designated before the material is disclosed or produced. 19 Designation in conformity with this Order requires: 20 (a) for information in documentary form (e.g., paper or electronic documents, but 21 excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing 22 Party affix the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ 23 EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” to each page that contains 24 protected material. If only a portion or portions of the material on a page qualifies for protection, 25 the Producing Party also must clearly identify the protected portion(s) (e.g., by making 26 appropriate markings in the margins) and must specify, for each portion, the level of protection 27 being asserted. 28 A Party or Non-Party that makes original documents or materials available for inspection STIPULATED PROTECTIVE ORDER 5 Case No.: 5:16-cv-06083 LHK 1 need not designate them for protection until after the inspecting Party has indicated which 2 material it would like copied and produced. During the inspection and before the designation, all 3 of the material made available for inspection shall be deemed “HIGHLY CONFIDENTIAL – 4 ATTORNEYS’ EYES ONLY.” After the inspecting Party has identified the documents it wants 5 copied and produced, the Producing Party must determine which documents, or portions thereof, 6 qualify for protection under this Order. Then, before producing the specified documents, the 7 Producing Party must affix the appropriate legend (“CONFIDENTIAL” or “HIGHLY 8 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE 9 CODE) to each page that contains Protected Material. If only a portion or portions of the material 10 on a page qualifies for protection, the Producing Party also must clearly identify the protected 11 portion(s) (e.g., by making appropriate markings in the margins) and must specify, for each 12 portion, the level of protection being asserted. 13 (b) for testimony given in deposition or in other pretrial or trial proceedings, that the 14 Designating Party identify on the record, before the close of the deposition, hearing, or other 15 proceeding, all protected testimony and specify the level of protection being asserted. When it is 16 impractical to identify separately each portion of testimony that is entitled to protection and it 17 appears that substantial portions of the testimony may qualify for protection, the Designating 18 Party may invoke on the record (before the deposition, hearing, or other proceeding is concluded) 19 a right to have up to 30 days to identify the specific portions of the testimony as to which 20 protection is sought and to specify the level of protection being asserted. Only those portions of 21 the testimony that are appropriately designated for protection within the 30 days shall be covered 22 by the provisions of this Stipulated Protective Order. Alternatively, a Designating Party may 23 specify, at the deposition or up to 30 days afterwards if that period is properly invoked, that the 24 entire transcript shall be treated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – 25 ATTORNEYS’ EYES ONLY.” 26 Parties shall give the other Parties notice if they reasonably expect a deposition, hearing or 27 other proceeding to include Protected Material so that the other Parties can ensure that only 28 authorized individuals and those who have signed the “Acknowledgment and Agreement to Be STIPULATED PROTECTIVE ORDER 6 Case No.: 5:16-cv-06083 LHK 1 Bound” (Exhibit A) are present at those proceedings. The use of a document as an exhibit at a 2 deposition shall not in any way affect its designation as “CONFIDENTIAL” or “HIGHLY 3 CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” 4 Transcripts containing Protected Material shall have an obvious legend on the title page 5 that the transcript contains Protected Material, and the title page shall be followed by a list of all 6 pages (including line numbers as appropriate) that have been designated as Protected Material and 7 the level of protection being asserted by the Designating Party. The Designating Party shall 8 inform the court reporter of these requirements. Any transcript that is prepared before the 9 expiration of a 30-day period for designation shall be treated during that period as if it had been 10 designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its entirety unless 11 otherwise agreed. After the expiration of that period, the transcript shall be treated only as 12 actually designated. 13 (c) for information produced in some form other than documentary and for any other 14 tangible items, that the Producing Party affix in a prominent place on the exterior of the container 15 or containers in which the information or item is stored the legend “CONFIDENTIAL” or 16 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – 17 SOURCE CODE.”. If only a portion or portions of the information or item warrant protection, the 18 Producing Party, to the extent practicable, shall identify the protected portion(s) and specify the 19 level of protection being asserted. 20 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 21 designate qualified information or items does not, standing alone, waive the Designating Party’s 22 right to secure protection under this Order for such material. Upon timely correction of a 23 designation, the Receiving Party must make reasonable efforts to assure that the material is 24 treated in accordance with the provisions of this Order. 25 6. 26 CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 27 confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality 28 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic STIPULATED PROTECTIVE ORDER 7 Case No.: 5:16-cv-06083 LHK 1 burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to 2 challenge a confidentiality designation by electing not to mount a challenge promptly after the 3 original designation is disclosed. 4 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution 5 process by providing written notice of each designation it is challenging and describing the basis 6 for each challenge. To avoid ambiguity as to whether a challenge has been made, the written 7 notice must recite that the challenge to confidentiality is being made in accordance with this 8 specific paragraph of the Protective Order. The Parties shall attempt to resolve each challenge in 9 good faith and must begin the process by conferring directly (in voice to voice dialogue; other 10 forms of communication are not sufficient) within 14 days of the date of service of notice. In 11 conferring, the Challenging Party must explain the basis for its belief that the confidentiality 12 designation was not proper and must give the Designating Party an opportunity to review the 13 designated material, to reconsider the circumstances, and, if no change in designation is offered, 14 to explain the basis for the chosen designation. A Challenging Party may proceed to the next 15 stage of the challenge process only if it has engaged in this meet and confer process first or 16 establishes that the Designating Party is unwilling to participate in the meet and confer process in 17 a timely manner. 18 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court 19 intervention, the Designating Party shall file and serve a motion to retain confidentiality under 20 Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) within 21 days 21 of the initial notice of challenge or within 14 days of the Parties agreeing that the meet and confer 22 process will not resolve their dispute, whichever is later. Each such motion must be accompanied 23 by a competent declaration affirming that the movant has complied with the meet and confer 24 requirements imposed in the preceding paragraph. Failure by the Designating Party to make such 25 a motion including the required declaration within 21 days (or 14 days, if applicable) shall 26 automatically waive the confidentiality designation for each challenged designation. In addition, 27 the Challenging Party may file a motion challenging a confidentiality designation at any time if 28 there is good cause for doing so, including a challenge to the designation of a deposition STIPULATED PROTECTIVE ORDER 8 Case No.: 5:16-cv-06083 LHK 1 transcript or any portions thereof. Any motion brought pursuant to this provision must be 2 accompanied by a competent declaration affirming that the movant has complied with the meet 3 and confer requirements imposed by the preceding paragraph. 4 The burden of persuasion in any such challenge proceeding shall be on the Designating 5 Party. Frivolous challenges and those made for an improper purpose (e.g., to harass or impose 6 unnecessary expenses and burdens on other Parties) may expose the Challenging Party to 7 sanctions. Unless the Designating Party has waived the confidentiality designation by failing to 8 file a motion to retain confidentiality as described above, all Parties shall continue to afford the 9 material in question the level of protection to which it is entitled under the Producing Party’s 10 designation until the court rules on the challenge. 11 7. 12 ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or 13 produced by another Party or by a Non-Party in connection with this case only for prosecuting, 14 defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to 15 the categories of persons and under the conditions described in this Order. When the litigation has 16 been terminated, a Receiving Party must comply with the provisions of section 16 below (FINAL 17 DISPOSITION). 18 Protected Material must be stored and maintained by a Receiving Party at a location and 19 in a secure manner that ensures that access is limited to the persons authorized under this Order. 20 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered 21 by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any 22 information or item designated “CONFIDENTIAL” only to: 23 (a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees 24 of said Outside Counsel of Record to whom it is reasonably necessary to disclose the information 25 for this litigation; 26 27 28 (b) the officers, directors, and employees of the Receiving Party to whom disclosure is reasonably necessary for this litigation; (c) the court and its personnel; STIPULATED PROTECTIVE ORDER 9 Case No.: 5:16-cv-06083 LHK 1 (d) court reporters and their staff, ADR professionals and their staff, professional jury or 2 trial consultants, mock jurors, and Professional Vendors to whom disclosure is reasonably 3 necessary for this litigation; 4 (e) Experts (as defined in this Order) of the Receiving Party to whom disclosure is 5 reasonably necessary for this litigation and who have signed the “Acknowledgment and 6 Agreement to Be Bound” (Exhibit A); 7 (f) during their depositions, witnesses in the action to whom disclosure is reasonably 8 necessary, unless otherwise agreed by the Designating Party or ordered by the court. Pages of 9 transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be 10 separately bound by the court reporter and may not be disclosed to anyone except as permitted 11 under this Stipulated Protective Order. 12 13 14 (g) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information. 7.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” and 15 “HIGHLY CONFIDENTIAL – SOURCE CODE” Information or Items. Unless otherwise 16 ordered by the court or permitted in writing by the Designating Party, a Receiving Party may 17 disclose any information or item designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ 18 EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” only to: 19 (a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees 20 of said Outside Counsel of Record to whom it is reasonably necessary to disclose the information 21 for this litigation; 22 23 (b) Experts of the Receiving Party to whom disclosure is reasonably necessary for this litigation and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 24 (c) the court and its personnel; 25 (d) court reporters and their staff, ADR professionals and their staff, professional jury or 26 trial consultants, and Professional Vendors to whom disclosure is reasonably necessary for this 27 litigation; and 28 (e) the author or recipient of a document containing the information or a custodian or STIPULATED PROTECTIVE ORDER 10 Case No.: 5:16-cv-06083 LHK 1 other person who otherwise possessed or knew the information. 2 8. 3 SOURCE CODE (a) To the extent production of source code becomes necessary in this case, a 4 Producing Party may designate source code as “HIGHLY CONFIDENTIAL - SOURCE CODE” 5 if it comprises or includes confidential, proprietary or trade secret source code. 6 (b) Protected Material designated as “HIGHLY CONFIDENTIAL – SOURCE 7 CODE” shall be subject to all of the protections afforded to “HIGHLY CONFIDENTIAL – 8 ATTORNEYS’ EYES ONLY” information, and may be disclosed only to the individuals to 9 whom “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information may be 10 11 disclosed, as set forth in Paragraphs 7.3. (c) Any source code produced in discovery shall be made available for inspection, in a 12 format allowing it to be reasonably reviewed and searched, during normal business hours or at 13 other mutually agreeable times, at an office of the Producing Party’s counsel or another mutually 14 agreed upon location. The source code shall be made available for inspection on a secured 15 computer in a secured room without Internet access or network access to other computers, and the 16 Receiving Party shall not copy, remove, or otherwise transfer any portion of the source code onto 17 any recordable media or recordable device. The Producing Party may visually monitor the 18 activities of the Receiving Party’s representatives during any source code review, but only to 19 ensure that there is no unauthorized recording, copying, or transmission of the source code. 20 (d) The Receiving Party may request paper copies of limited portions of source code 21 that are reasonably necessary for the preparation of court filings, pleadings, expert reports, or 22 other papers, or for deposition or trial, but shall not request paper copies for the purposes of 23 reviewing the source code other than electronically as set forth in paragraph (c) in the first 24 instance. The Producing Party shall provide all such source code in paper form including bates 25 numbers and the label “HIGHLY CONFIDENTIAL - SOURCE CODE.” The Producing Party 26 may challenge the amount of source code requested in hard copy form pursuant to the dispute 27 resolution procedure and timeframes set forth in Paragraph 6 whereby the Producing Party is the 28 “Challenging Party” and the Receiving Party is the “Designating Party” for purposes of dispute STIPULATED PROTECTIVE ORDER 11 Case No.: 5:16-cv-06083 LHK 1 resolution. 2 (e) The Receiving Party shall maintain a record of any individual who has inspected 3 any portion of the source code in electronic or paper form. The Receiving Party shall maintain all 4 paper copies of any printed portions of the source code in a secured, locked area. The Receiving 5 Party shall not create any electronic or other images of the paper copies and shall not convert any 6 of the information contained in the paper copies into any electronic format. The Receiving Party 7 shall only make additional paper copies if such additional copies are (1) necessary to prepare 8 court filings, pleadings, or other papers (including a testifying expert’s expert report), (2) 9 necessary for deposition, or (3) otherwise necessary for the preparation of its case. Any paper 10 copies used during a deposition shall be retrieved by the Producing Party at the end of each day 11 and must not be given to or left with a court reporter or any other individual. 12 9. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 disclosure of any information or items designated in this action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” that Party must: (a) promptly notify in writing the Designating Party. Such notification shall include a copy of the subpoena or court order; (b) 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 this Protective 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 Designating Party whose Protected Material may be affected. If the Designating Party timely seeks a protective order, the Party served with the subpoena or court order shall not produce any information designated in this action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” before a determination by the court from STIPULATED PROTECTIVE ORDER 12 Case No.: 5:16-cv-06083 LHK 1 which the subpoena issued, unless the Party has obtained the Designating Party’s permission. The 2 Designating Party shall bear the burden and expense of seeking protection in that court of its 3 confidential material – and nothing in these provisions should be construed as authorizing or 4 encouraging a Receiving Party in this action to disobey a lawful directive from another court. 5 10. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION (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” or “HIGHLY CONFIDENTIAL – SOURCE CODE.” 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. (b) 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: 1. 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; 2. promptly provide the Non-Party with a copy of the Stipulated Protective Order in this litigation, the relevant discovery request(s), and a reasonably specific description of the information requested; and 3. make the information requested available for inspection by the Non-Party. (c) 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 Receiving 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. Absent a court order to the contrary, the Non-Party shall bear the STIPULATED PROTECTIVE ORDER 13 Case No.: 5:16-cv-06083 LHK 1 burden and expense of seeking protection in this court of its Protected Material. 2 11. EXPERT COMMUNICATIONS 3 A Party’s Expert is not required to disclose or produce, and the Parties shall not conduct 4 discovery concerning or seek to introduce evidence of (1) communications between the Parties’ 5 Counsel and the Expert, or (2) drafts of Expert declarations or reports. 6 12. 7 UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 8 Material to any person or in any circumstance not authorized under this Stipulated Protective 9 Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the 10 unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the 11 Protected Material, (c) inform the person or persons to whom unauthorized disclosures were 12 made of all the terms of this Order, and (d) request such person or persons to execute the 13 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A. 14 13. 15 16 17 18 19 20 21 22 23 24 25 26 27 INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL 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), except that after being notified of an inadvertently produced material, a Party must promptly return or destroy the specified information and any copies it has and may not sequester, use, or disclose the information until the claim is resolved. This includes a restriction against presenting the information to the court for a determination of the claim. The Parties further agree that under FRE 502 if a Party inadvertently produces a document that is otherwise subject to a claim of privilege or other protection, the inadvertent production shall not constitute any waiver of privilege or protection. Finally, the Parties agree that neither Party must log or produce any privileged or work-product documents after the release of My Little Pony: Puzzle Party on October 13, 2016. 28 STIPULATED PROTECTIVE ORDER 14 Case No.: 5:16-cv-06083 LHK 1 14. PRODUCTION FORMAT The Parties all agree to produce Excel spreadsheets, PowerPoint presentations or similar 2 3 documents, and audio-visual files in native format, with all original metadata intact. All other 4 electronically stored information will be exchanged in either (a) native format or (b) single-page 5 image TIFF format, with OCR, and Concordance and Opticon load files. For files produced in 6 native format, the Parties agree to include slip sheets in their respective load files indicating that 7 the Bates number in question was produced in native format and providing information sufficient 8 to identify which native file is associated with that Bates number. To the extent reasonably 9 possible, the Parties agree not to degrade the searchability of documents as part of the document 10 production process. Notwithstanding the agreement to exchange in TIFF format, each Party 11 reserves the right, as to a particular electronic file, to a set of electronic files and/or to another 12 pertinent subset of discoverable information/data, to request that another Party produce that 13 information in native format with all original metadata intact. If a request to produce additional 14 metadata ensues and the producing Party objects to it, the Parties agree that any dispute will be 15 resolved through the Court’s discovery dispute process. 16 15. 17 18 19 MISCELLANEOUS 15.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek its modification by the court in the future. 15.2 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 15.3 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 STIPULATED PROTECTIVE ORDER 15 Case No.: 5:16-cv-06083 LHK 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 5 Receiving Party may file the Protected Material in the public record pursuant to Civil Local Rule 6 79-5(e)(2) unless otherwise instructed by the court. 7 8 15.4 Use of a Party’s Own Protected Material. Nothing in this Stipulation and Protective Order restricts in any way a Party’s use or disclosure of its own Protected Material. 9 15.5 No Presumption as to Confidentiality. The fact that information is marked with a 10 confidentiality designation under this Protective Order shall not be deemed to be determinative of 11 what a trier of fact may determine to be confidential or proprietary or a trade secret. The fact that 12 any information is disclosed, used, or produced in any court proceeding in this action with a 13 confidentiality designation shall not be offered in any action or proceeding before any court, 14 agency, or tribunal as evidence of or concerning whether or not such information is admissible, 15 confidential, or proprietary. 16 15.6 No Modification of Existing Rights. This Protective Order shall not abrogate or 17 diminish any contractual, statutory, or other legal obligation or right of any Party or person with 18 respect to any Protected Material. 19 16. 20 FINAL DISPOSITION Within 60 days after the final disposition of this action, as defined in paragraph 4, 21 each Receiving Party must return all Protected Material to the Producing Party or destroy such 22 material. As used in this subdivision, “all Protected Material” includes all copies, abstracts, 23 compilations, summaries, and any other format reproducing or capturing any of the Protected 24 Material. Whether the Protected Material is returned or destroyed, the Receiving Party must 25 submit a written certification to the Producing Party (and, if not the same person or entity, to the 26 Designating Party) by the 60-day deadline that (1) identifies (by category, where appropriate) all 27 the Protected Material that was returned or destroyed and (2) affirms that the Receiving Party has 28 not retained any copies, abstracts, compilations, summaries or any other format reproducing or STIPULATED PROTECTIVE ORDER 16 Case No.: 5:16-cv-06083 LHK 1 capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled to 2 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, 3 legal memoranda, correspondence, deposition and trial exhibits, Expert reports, attorney work 4 product, and consultant and Expert work product, even if such materials contain Protected 5 Material. Any such archival copies that contain or constitute Protected Material remain subject to 6 this Protective Order as set forth in Section 4 (DURATION). In addition, this provision does not 7 require the Receiving Party to search through or delete automatically generated computer backup 8 files that are created for disaster recovery purposes (e.g., computer backup tapes), if such files are 9 not readily accessible. 10 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 11 12 13 DATED: March 17, 2017 _/s/ Eric Ball __________________ Attorneys for Plaintiff DATED: March 17, 2017 _/s/ Jeremy S. Goldman___________________ Attorneys for Defendant 14 15 16 17 18 PURSUANT TO STIPULATION, IT IS SO ORDERED. 19 20 DATED: _____________ 3/17/2017 _____________________________________ United States Magistrate Judge 21 22 23 24 25 26 27 28 STIPULATED PROTECTIVE ORDER 17 Case No.: 5:16-cv-06083 LHK 1 ATTESTATION PURSUANT TO GENERAL ORDER 45 2 Pursuant to General Order 45, I hereby attest that concurrence in the filing of this 3 document has been obtained from the signatory indicated by a “conformed” signature (/s/) within 4 this e-filed document. 5 I declare under penalty of perjury that the foregoing is true and correct. 6 Executed this 17th day of March, 2017. 7 /s/ Eric Ball ERIC BALL 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STIPULATED PROTECTIVE ORDER 18 Case No.: 5:16-cv-06083 LHK 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _____________________________ [print or type full name], of _________________ [print or 4 type full address], declare under penalty of perjury that I have read in its entirety and understand the 5 Stipulated Protective Order that was issued by the United States District Court for the Northern District of 6 California on [date] in the case of ___________ [insert formal name of the case and the number and 7 initials assigned to it by the court]. I agree to comply with and to be bound by all the terms of this 8 Stipulated Protective Order and I understand and acknowledge that failure to so comply could expose me 9 to sanctions and punishment in the nature of contempt. I solemnly promise that I will not disclose in any 10 manner any information or item that is subject to this Stipulated Protective Order to any person or entity 11 except in strict compliance with the provisions of this Order. 12 I further agree to submit to the jurisdiction of the United States District Court for the Northern 13 District of California for the purpose of enforcing the terms of this Stipulated Protective Order, even if 14 such enforcement proceedings occur after termination of this action. 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: _________________________________disclose 21 City and State where sworn and signed: _________________________________ 22 Printed name: ______________________________ [printed name] 23 24 Signature: __________________________________ [signature] 25 26 27 28 STIPULATED PROTECTIVE ORDER 19 Case No.: 5:16-cv-06083 LHK

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