Suomen Colorize Oy v. Dish Network L.L.C. et al

Filing 33

STIPULATED PROTECTIVE ORDER signed by Magistrate Judge Craig B. Shaffer on 12/20/11. (cbssec)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
MAGISTRATE JUDGE Craig B. Shaffer

Civil Action No. 11-cv-01815-WJM-CBS
SUOMEN COLORIZE OY,
Plaintiff,
v.
DISH NETWORK L.L.C,
ECHOSTAR SATELLITE, L.L.C.,
DISH NETWORK CORPORATION,
ECHOSTAR CORPORATION, and
ECHOSTAR TECHNOLOGIES, L.L.C.,
Defendants.

STIPULATED PROTECTIVE ORDER

1.

This Stipulated Protective Order is applicable to Plaintiff Suomen Colorize Oy

(“Plaintiff”), to Defendants Dish Network LLC, EchoStar Satellite, LLC, Dish Network
Corporation, EchoStar Corporation and EchoStar Technologies LLC (collectively, “the
Defendants”) (collectively “the Parties”), and to any other person who utilizes “Material” (as
hereinafter defined) that is covered by this Stipulated Protective Order. In addition, this
Stipulated Protective Order becomes operable once it has been signed by counsel for Plaintiff
and the Defendants. This Stipulated Protective Order will apply during and after the course of the
above-captioned litigation and any appeal, and will also apply during and after the course of any
mediation or arbitration and through the exchange of informal discovery. As used herein, the
term “Court” shall be understood to mean the District Court for the District of Colorado, and any

OHS WEST:261356048.4

mediator, arbitrator, or other third party neutral that the Parties consent to appear before in an
attempt to resolve the dispute between the Parties. It is expressly agreed between the Parties that
this Stipulated Protective Order will not, in any manner, be disclosed to the jury in this or any
related matter. It is further ordered and agreed that this Stipulated Protective Order will not be
used, in any manner or form, direct or indirect, as evidence in any trial or any hearing, or referred
to in any trial or any hearing on the merits of this or any related case, save and except a hearing
which is solely and exclusively for the purpose of enforcing any provision of this Stipulated
Protective Order.
2.

A Party may designate any type of material, including, but not limited to, any

document, data or thing produced, deposition testimony, or interrogatory answer produced,
given, or served pursuant to discovery requests in this lawsuit (collectively, the “Material”) as
“Confidential” or as “Highly Confidential - Attorneys’ Eyes Only.” “Confidential” Material shall
only include information that is non-public and contains confidential or sensitive technical,
business, commercial, or personal information. “Highly Confidential - Attorneys’ Eyes Only”
Material shall only include information that is non-public and competitively sensitive to the
Producing Party or competitively useful to the Receiving Party, such as pricing information;
research, development, or technical information; marketing information; manufacturing and costrelated information; customer lists; product specifications; methods of manufacture; business
plans; financial and accounting information; or licensing or contractual information. All
designated “Confidential” and/or “Highly Confidential - Attorneys’ Eyes Only” Material and/or
any information contained in or derived from any of the foregoing Material shall be subject to
the provisions of this Stipulated Protective Order until further order of the Court. Nothing in this
Stipulated Protective Order shall permit one Party to designate Materials produced by the other
Party as “Confidential” or as “Highly Confidential - Attorneys’ Eyes Only,” or otherwise subject
those Materials to the provisions of this Stipulated Protective Order, except in the case where

-2OHS WEST:261356048.4

such Material was originally the property of said Party; was disclosed in breach of a duty of
confidentiality; and despite any such breach is still entitled to be treated as “Highly Confidential
- Attorneys’ Eyes Only” and/or “Confidential” as described herein. Nothing contained herein
shall impose any restrictions on the use (e.g., patent prosecution, reexamination request, etc.) or
disclosure by a Party of Material designated as “Confidential” or “Highly Confidential Attorneys’ Eyes Only,” obtained lawfully by such Party independently of any proceedings in this
action, or which: (a) was, is, or becomes public knowledge, not in violation of this Stipulated
Protective Order; (b) was obtained from sources which are public; (c) is rightfully received by
such Party from a third party which has authority to provide such information and Material
without restriction as to such disclosure; (d) was communicated to a third party without
restriction as to disclosure; or (e) the receiving party can establish that the information was in its
rightful and lawful possession at the time of disclosure or was developed independently by the
Receiving Party without the use of the “Confidential” or “Highly Confidential - Attorneys’ Eyes
Only” Material.
3.

The Material shall be designated as “Confidential” or as “Highly Confidential -

Attorneys’ Eyes Only,” as applicable, by stamping the legend “Confidential” or “Highly
Confidential - Attorneys’ Eyes Only,” as applicable, on each page of the Material or, in the case
of Material that is produced natively, by including “Conf” or “AEO”, as applicable, in each file
name of the Material. Any Party may designate a deposition or portion thereof as “Confidential”
or “Highly Confidential - Attorneys’ Eyes Only” Material within 30 days of receipt of the
transcript and so informing all other Parties to this lawsuit in writing of such designation.
Alternatively, a Party may orally designate testimony or exhibits as “Confidential” or “Highly
Confidential - Attorneys’ Eyes Only” Material during the course of a deposition, in which case
the court reporter shall transcribe the pages and place the exhibits so designated in a separate
volume or on a separate CD or DVD marked “CONFIDENTIAL” or “HIGHLY

-3OHS WEST:261356048.4

CONFIDENTIAL - ATTORNEYS’ EYES ONLY,” as applicable. Any portion of a deposition
so designated, or in a separately bound volume or on a CD or DVD, shall not be filed with the
Court, if applicable, except in accordance with paragraph 13 of this Stipulated Protective Order.
All deposition transcripts which are not previously designated as “Confidential” or “Highly
Confidential - Attorneys’ Eyes Only” during the course of the deposition shall be treated as
“Highly Confidential - Attorneys’ Eyes Only” Material for the 30-day period beginning with the
receipt of the transcript by counsel.
4.

No “Confidential” Material subject to this Stipulated Protective Order or extracts

or summaries therefrom shall be given or shown to any person except the following “authorized
persons”:
(a)

Attorneys for any Party engaged in this lawsuit and the employees of
such attorneys;

(b)

Employees of a corporate Party actively engaged in assisting that Party’s
attorneys in the conduct of this lawsuit to the extent reasonably necessary
to enable the attorneys for the Party to render professional services in this
lawsuit;

(c)

Persons not employees of any party to this lawsuit who are expressly
retained to assist such Party’s counsel in the preparation of this lawsuit for
trial including, but not limited to, consulting and testifying experts,
independent auditors, accountants, statisticians, economists, and other
experts, and the employees of such persons (“Outside Experts”), but only
after such Outside Expert has signed a statement in the form attached
hereto as Exhibit A, and subject to the provisions of paragraph 6;

(d)

Independent litigation support services, including but not limited to
document reproduction services, computer imaging services, and

-4OHS WEST:261356048.4

demonstrative exhibit services, but only after such service provider has
signed a statement in the form attached hereto as Exhibit A;
(e)

The Court, other court officials (including court or deposition reporters
and videographers) and the trier of fact;

(f)

Qualified court reporters, court interpreters, translators taking testimony
in the above-captioned proceeding, and their necessary stenographic,
video graphic and clerical personnel thereof;

(g)

Any mediator or arbitrator agreed upon by the Parties and such
mediator’s/arbitrator’s employees and staff;

(h)

Persons who are shown on the face of the document to have been an
author, source, or recipient of the “Confidential” Material;

(i)

Persons, who through testimony or through corroborating documents,
have been demonstrated to have received or authored the “Confidential”
Material; and

(j)

Any other person as to whom the Parties agree in writing.

No authorized person allowed to view properly designated “Confidential” Material
provided by the other Party shall use any “Confidential” Material of the other Party for any
purpose except as needed solely in connection with or to assist in the prosecution or defense of
the claims in this lawsuit.
5.

No “Highly Confidential - Attorneys’ Eyes Only” Material subject to this

Stipulated Protective Order or extracts or summaries therefrom shall be given or shown to
any person except the following “authorized persons” under the conditions described below:
(a)

Any outside attorney for any firm of record engaged in this lawsuit and
the employees of such attorney(s);

-5OHS WEST:261356048.4

(b)

Any in-house counsel of a Party actively engaged in assisting that
Party’s outside attorneys in the conduct of this lawsuit to the extent
reasonably necessary to enable the outside attorneys for the Party to render
professional services in this lawsuit;

(c)

Persons not employees of any Party to this lawsuit who are expressly
retained to assist such Party’s counsel in the preparation of this lawsuit for
trial including, but not limited to, consulting and testifying experts,
independent auditors, accountants, statisticians, economists, and other
experts, and the employees of such persons (“Outside Experts”), but only
after such Outside Expert has signed a statement in the form attached
hereto as Exhibit A, and subject to the provisions of paragraph 6

(d)

Independent litigation support services, including but not limited to
document reproduction services, computer imaging services, and
demonstrative exhibit services, but only after such service provider has
signed a statement in the form attached hereto as Exhibit A;

(e)

The Court, other court officials (including court or deposition reporters
and videographers) and the trier of fact;

(f)

Qualified court reporters, court interpreters, translators taking testimony
in the above-captioned proceeding, and their necessary stenographic,
video graphic and clerical personnel thereof;

(g)

Any mediator or arbitrator agreed upon by the Parties and such
mediator’s employees and staff;

(h)

Persons who are shown on the face of the document to have been an
author, source, or recipient of the “Highly Confidential - Attorneys’ Eyes
Only” Material;

-6OHS WEST:261356048.4

(i)

Persons, who through testimony or through corroborating documents,
have been demonstrated to have received or authored the “Highly
Confidential - Attorneys’ Eyes Only” Material; and

(k)

Any other person as to whom the Parties agree in writing.

No authorized person allowed to view “Highly Confidential - Attorneys’ Eyes Only”
Material of the other side shall use any “Highly Confidential - Attorneys’ Eyes Only” Material of
the other side for any purpose except as needed solely in connection with or to assist in the
prosecution or defense of the claims in this lawsuit.
6.

In the event that no objection is made, a party may begin to disclose Confidential

or Highly Confidential – Attorneys’ Eyes Only Material to an authorized person under
paragraphs 4.c. and 5.c., above, seven (7) days after serving:
(a)

a signed copy of Exhibit A including the name, address and employer of
the authorized person, which shall be deemed Confidential Material
under this protective order;

(b)

a curriculum vitae of the proposed Outside Expert, including the Outside
Expert’s present business address(es), which shall be deemed Highly
Confidential – Attorneys’ Eyes Only Material without being subject to
challenge;

(c)

an identification of any past or present employment or consulting
relationship with any Party, any related company or any company whose
business relates or related to satellite or cable television transmission
and an identification of the subject matter of any work performed in the
course of such relationship, which shall be deemed Highly Confidential
– Attorneys’ Eyes Only Material without being subject to challenge, and

-7OHS WEST:261356048.4

(d)

a description of the Outside Expert’s employment during the past four
calendar years, including the name and address of each person or entity
who employed or used the services of the expert or consultant and an
identification of the subject matter of any work performed in the course
of such employment or consulting, which shall be deemed Highly
Confidential – Attorneys’ Eyes Only Material without being subject to
challenge;

on the producing party’s counsel, and producing party may use the information provided under
(a) through (d) of this section solely for raising and sustaining an objection to the proposed
disclosure and for no other use, unless the expert is later designated as a testifying expert and
may object to the proposed disclosure only for good cause stating with particularity the reasons
for the objection served on all of the parties, and the Parties reserve the right to object to the
disclosure or transmittal of Highly Confidential – Attorneys’ Eyes Only Material outside of the
U.S. only for good cause. If the parties are unable to reach agreement, after an objection is
raised, then they shall arrange a telephone hearing with Magistrate Judge Shaffer regarding the
issue, but only after the parties comply with D.C.COLO.LCivR 7.1A. If an objection is made,
the Receiving Party may not begin to disclose Material to any such Outside Expert unless and
until the Receiving Party and the objecting party resolve their dispute as memorialized in writing
or the Court denies the objecting party’s motion.
7.

Any such challenge to the disclosure of Material to a person identified pursuant to

paragraphs 4.c. or 5.c. may not be made or renewed absent a showing of good cause.
8.

Service of the disclosures required by paragraph 6 for consulting experts shall not

be considered as a waiver of any privilege including, without limitation, the Attorney-Client or
Attorney Work Product privilege.

-8OHS WEST:261356048.4

9.

If counsel wishes to disclose “Confidential” Material to any person not

designated in paragraph 4 above, or if counsel wishes to disclose “Highly Confidential Attorneys’ Eyes Only” Material to any person not designated in paragraph 5 above, counsel must
proceed in the following manner: the names of the persons to whom “Confidential” Material
or “Highly Confidential - Attorneys’ Eyes Only” Material, as applicable, are to be
disclosed and a description of the Material to be disclosed to such person shall be provided in
writing to counsel for the Producing Party seven (7) business days in advance of disclosure to
afford counsel an opportunity to object to such disclosure. If no objection is made within the
seven (7) day period, disclosure to such named persons may be made after the expiration of
such seven (7) day period. If an objection is made within the seven (7) day period, such
Material shall not be disclosed pending a decision by the Court, and if the parties are unable to
reach agreement, after an objection is raised, then they shall arrange a telephone hearing with
Magistrate Judge Shaffer regarding the issue, but only after the parties comply with
D.C.COLO.LCivR 7.1A. Any person who becomes authorized to receive “Confidential”
Material or “Highly Confidential - Attorneys’ Eyes Only” Material pursuant to this paragraph
(whether such authorization arises from the lack of an objection and lack of a motion for
protective order or from the Court’s ruling on a motion for protective order) shall, prior to
the receipt of such Material, execute a statement in the form attached hereto as Exhibit A. All
persons to whom disclosures are permitted and made hereunder shall comply with the terms of
this Stipulated Protective Order.
10.

If any Party believes in good faith that any Material which has been designated as

“Confidential” or “Highly Confidential - Attorneys’ Eyes Only,” as applicable, is not properly
subject to the designated level of protection afforded by this Stipulated Protective Order, that
Party (“Objecting Party”) may provide the Producing Party with written notice (“Notice”) that
provides a description of the Material that the Objecting Party believes should not be subject to

-9OHS WEST:261356048.4

the constraints of this Stipulated Protective Order and the reasons why the Material at issue
should not be subject to the provisions of this Stipulated Protective Order. If the parties are
unable to reach agreement, after Notice is given, then they shall arrange a telephone hearing with
Magistrate Judge Shaffer regarding the issue, but only after the parties comply with
D.C.COLO.LCivR 7.1A.
11.

Notwithstanding the foregoing, nothing in this paragraph or in this Protective

Order shall be deemed to limit or otherwise restrict or impair in any manner any Party’s use or
disclosure of its own information, in whatever form.
12.

Before “Confidential” Material or “Highly Confidential - Attorneys’ Eyes Only”

Material, as applicable, is disclosed to a witness in a deposition, mediation, or hearing the
witness must be authorized under paragraph 4 to see such “Confidential” Material or must be
authorized under paragraph 5 to see such “Highly Confidential - Attorneys’ Eyes Only” Material,
as applicable. The Party making such disclosure shall inform the witness, on the record, that the
use of such Material is subject to the terms of this Stipulated Protective Order. If any other
person present at the deposition, mediation, or hearing is not encompassed within the categories
of persons defined in paragraph 4 of this Stipulated Protective Order, that person shall leave the
deposition while any “Confidential” Material is being disclosed during the deposition. If any
other person present at the deposition is not encompassed within the categories of persons
defined in paragraph 5 of this Stipulated Protective Order, that person shall leave the deposition
while any “Highly Confidential - Attorneys’ Eyes Only” Material is being disclosed during the
deposition.
13.

Disclosure of Material to an outside expert under Sections 4.c. and 5.c. shall not

constitute a designation of the person as an expert whose opinions may be presented at trial.
14.

No “Confidential” or “Highly Confidential - Attorneys’ Eyes Only” Material

including Electronically Stored Information (“ESI”), as that term is used in the Parties’ ESI

- 10 OHS WEST:261356048.4

Protocol Order, that the producing party asserts is attorney-client privileged or work product
protected shall be filed in the public record of this lawsuit. Before any information and/or
materials produced in discovery, answers to interrogatories, responses to requests for admission,
deposition transcripts, or other documents which are designated as “Confidential” and/or “Highly
Confidential - Attorneys’ Eyes Only” information are filed with the Court for any purpose, the
Party seeking to file such information and/or material shall seek the permission of the Court to
file said material under seal and shall follow the requirements of D.C.COLO. LCivR 7.2 and the
most recent version of the District of Colorado ECF Procedures. “Confidential” and/or “Highly
Confidential - Attorneys’ Eyes Only” Material is not to be shown to anyone other than to those
permitted in paragraphs 4 & 5 respectively, unless Court Order or Stipulation signed by counsel
for the producing Party provides otherwise. Such pleadings or other filed papers accepted by the
Court shall be kept under seal by the Clerk of this Court until further order of the Court. Where
possible, only the “Confidential” and/or “Highly Confidential - Attorneys’ Eyes Only” portions
of filings with the Court shall be filed under seal.
15.

In the event that any Party or any other individual described in paragraphs 4 or 5

above is served with a subpoena or other judicial process demanding the production or disclosure
of any Material designated “Confidential” or “Highly Confidential - Attorneys’ Eyes Only,” such
Party or individual shall: (a) provide counsel for the Party that produced the “Confidential”
and/or “Attorney’s Eyes Only” Material with a copy of such subpoena or other judicial process
within 10 business days following receipt thereof and (b) initially object thereto to the extent
permitted by law, citing this Stipulated Protective Order. Nothing herein shall be construed as
requiring such Party or individual to further challenge or appeal any order requiring production
of this “Confidential” and/or “Highly Confidential - Attorneys’ Eyes Only” Material.

- 11 OHS WEST:261356048.4

16.

The Parties reserve their rights to agree on procedures for handling and

introducing into evidence at the time of trial or arbitration Materials deemed “Confidential” or
“Highly Confidential - Attorneys’ Eyes Only.”
17.

This Stipulated Protective Order shall not be deemed a waiver of:

a.

Any Party’s right to object to any discovery request on any ground;

b.

Any Party’s right to seek an order compelling discovery with respect to any
discovery request;

c.

Any Party’s right in any proceeding in this lawsuit to object to the admission of
evidence on any ground.

The provisions of this Stipulated Protective Order shall continue in effect with respect to
any “Confidential” Material and “Highly Confidential - Attorneys’ Eyes Only” Material until
expressly released by the Party furnishing such Material, and such effectiveness shall survive the
final determination of this action. Unless otherwise agreed by the Party producing such Material,
within 60 calendar days of the final determination of this action, each Party and any person under
paragraphs 4.c. and 5.c. above shall return to the Producing Party or destroy all “Confidential”
Material and “Highly Confidential - Attorneys’ Eyes Only” Material in its possession, custody or
control, and all copies, derivations and summaries thereof. For purposes of this Stipulated
Protective Order, the “final determination of this action” shall be deemed to be the later of (i) full
settlement of all claims, final judgment or the completion and exhaustion of all appeals,
rehearings, remands, trials and reviews, if any, of that lawsuit, or (ii) the expiration of all time
limits under applicable law for the filing of or application for all appeals, rehearings, remands,
trials or reviews of that action, including the time limits for the filing of any motions or
applications for extension of time pursuant to applicable law. Counsel for any Party receiving
things designated as “Confidential” Material or “Highly Confidential - Attorneys’ Eyes Only”
Material shall make written certification of compliance with this provision regarding return or

- 12 OHS WEST:261356048.4

destruction, and shall deliver the same to counsel for the Producing Party within 90 calendar
days after the final determination of this action.
18.

Counsel for the Parties to whom “Confidential” Material and “Highly

Confidential - Attorneys’ Eyes Only” Material has been furnished shall be responsible for
restricting disclosure in accordance with the provisions of this Stipulated Protective Order and
for securing execution of and retaining the statement attached hereto as Exhibit A when required
under the provisions of this Stipulated Protective Order. Counsel may dispose of such statements
after the final determination of this action.
19.

If “Confidential” or “Highly Confidential - Attorneys’ Eyes Only” Material

produced in accordance with this Stipulated Protective Order is inadvertently (or otherwise)
disclosed to any person other than in a manner authorized by this Stipulated Protective Order, the
Party responsible for the disclosure shall immediately bring all pertinent facts related to such
disclosure to the attention of all counsel of record. In addition, the Party responsible for the
disclosure shall, without prejudice to other rights and remedies of the Party that produced the
Material, make every possible effort to prevent any further disclosure by it or by the person(s)
who received such Material.
20.

Pursuant to the agreement of the Parties under Fed. R. Evid. 502(e) and by Order

of this Court under Fed. R. Evid. 502(d), no disclosure, production, or exchange of documents or
information in this case shall constitute a waiver of any applicable attorney-client privilege or of
any applicable work product protection in this or any other federal or state proceeding. This
Order applies to any Documents or ESI disclosed, exchanged, produced, or discussed – whether
intentionally or inadvertently – among the Parties, their counsel and/or any agents (such as
vendors and experts) in the course of this litigation (collectively, “Produced Documents”).
21.

This Order applies regardless of whether the Documents or ESI describe or relate

to actions taken in this litigation, or in prior or separate litigations.

- 13 OHS WEST:261356048.4

22.

Upon learning of an inadvertent production, the Producing Party shall promptly

give all counsel of record Notice of the inadvertent production. The Notice shall identify the
document, the portions of the document that were inadvertently produced, and the first date the
document was produced. If the Party that produced a document claims that only a portion of the
document was inadvertently produced, the Party shall also provide a new copy of the document
with the allegedly privileged portions redacted.
23.

Upon receiving Notice of an inadvertent production or upon determining that a

Produced Document it received is known to be privileged in whole or in part, the Receiving
Party must promptly return, sequester or destroy the Produced Document and any copies and
shall destroy any notes that reproduce, copy or otherwise disclose the substance of the privileged
information. The Receiving Party may not use or disclose the privileged information until the
claim is resolved. If the Receiving Party disclosed the information before being notified, it must
take reasonable steps to retrieve and prevent further use or distribution of such information until
the claim is resolved.
24.

A Party receiving documents produced by another Party is under a good faith

obligation to promptly alert the producing Party if a document appears to be privileged on its
face or in light of facts known to the Receiving Party.
25.

To the extent that any Party obtains any privileged information, documents, or

communications through inadvertent disclosure, such information, documents and
communications shall not be filed or presented for admission into evidence or sought in
discovery by that Party in any action.
26.

If the Receiving Party challenges a claim that a Produced Document is properly

privileged, the Receiving Party may in connection with a good faith challenge, make reference to
the contents of the document in any paper submitted to the Court, so long as such filing is made

- 14 OHS WEST:261356048.4

under seal. If requested by the receiving Party, the producing Party shall provide such
documents to the Court for in-camera review.
27.

If the Court sustains the claim that a Produced Document is privileged, the

Receiving Party shall, within five (5) days of the Court’s order, destroy any notes relating to the
privileged Produced Document and advise the Producing Party in writing of the destruction.
28.

Nothing in this Order shall be construed to require the production of any

Document or ESI that a Party contends is protected from disclosure by the attorney-client
privilege and/or the work product doctrine.
29.

Any Notice required under this Stipulated Protective Order must be in writing and

must be served on all counsel unless it is an oral Notice delivered at a deposition. If the Notice is
delivered orally at a deposition, the Notifying Party must follow up with a written Notice within
three (3) days. All requests and notifications must be specific enough to identify and locate the
privileged information.
30.

The inadvertent failure to designate material as “Confidential” or “Highly

Confidential - Attorneys’ Eyes Only” does not, standing alone, waive the producing party’s right
to secure protection under this Stipulated Protective Order for such Material. If Material is
appropriately designated as “Confidential” or “Highly Confidential - Attorneys’ Eyes Only” after
the Material is initially produced, the Party receiving such information, on subsequent
notification of the new designation, must make reasonable efforts to ensure that the Material is
treated in accordance with the provisions of this Stipulated Protective Order. The Party receiving
such information, however, is not responsible for harm, if any, caused by the dissemination or
use of the Material before it is marked as “Confidential” or “Highly Confidential - Attorneys’
Eyes Only.” The Producing Party shall bear the responsibility for replacing a copy of the
“Confidential” or “Highly Confidential - Attorneys’ Eyes Only” Material with an appropriately
designated copy. Counsel for the Party receiving Notice of newly designated documents,

- 15 OHS WEST:261356048.4

testimony or other information, shall take reasonable steps to comply with such new
designation(s), including reasonable steps to retrieve any documents previously distributed
inconsistently with such new designations.
31.

This Stipulated Protective Order shall apply to the Parties to this proceeding and

also to any other person producing or disclosing “Confidential” or “Highly Confidential Attorneys’ Eyes Only” Material in this proceeding, who agrees or is ordered to be bound by this
Stipulated Protective Order. If, in the course of this action, Material is sought from a non-party
which would require such non-party to disclose and/or produce “Confidential” or “Highly
Confidential - Attorneys’ Eyes Only” Material, such non-party may obtain the protections of this
Stipulated Protective Order by agreeing in writing to produce such information pursuant to this
Stipulated Protective Order and to be bound by it. No further order or agreement shall be
necessary to extend the protections of this Stipulated Protective Order to non-parties.
32.

Unless otherwise agreed to in writing between the Producing Party and the

Receiving Party, any individual (including, but not limited to, experts, consultants, or attorneys
of the Receiving Party) who personally receives any material designated “Highly Confidential Attorneys’ Eyes Only” shall not participate in the preparation or prosecution of any patent
application or participate in the drafting of patent claims for the Receiving Party having claims
materially related to the subject matter of the information designated by a Producing Party as
“Highly Confidential - Attorneys’ Eyes Only” from the time of receipt of such material through
and including one (1) year following the first to occur of (i) the complete resolution of this case
as to the Producing Party through entry of a final judgment or order for which appeal is not taken
or has been exhausted or (ii) the complete settlement of all claims against the Producing Party in
this action, provided, however, that provisions of this Paragraph shall not apply to any domestic,
foreign or international patent application that:

- 16 OHS WEST:261356048.4

(a)

Was filed prior to the Receiving Party’s receipt of documents designated
“Highly Confidential - Attorneys’ Eyes Only”; or

(b)

Is filed after the Receiving Party’s receipt of documents designated
“Highly Confidential - Attorneys’ Eyes Only” and:
(1)

claims priority under 35 U.S.C. §120 as a continuation application
or divisional application, but not as a continuation-in-part
application to an application filed is filed by the Receiving Party
prior to the receipt of documents designated “Highly Confidential Attorneys’ Eyes Only” or

(2)

claims priority under 35 U.S.C. §119 to a patent application filed
by the Receiving Party prior to the receipt of documents designated
“Highly Confidential - Attorneys’ Eyes Only.”

Unless otherwise agreed to in writing between the Producing Party and the Receiving
Party, no individual who previously participated in the preparation or prosecution of any patent
application or in the drafting of patent claims for the Producing Party may serve as a consulting
or testifying expert for the Receiving Party.

33.

The termination of this action shall not relieve counsel or other persons obligated

hereunder from their responsibility to maintain the confidentiality of “Confidential” or “Highly
Confidential - Attorneys’ Eyes Only” Material pursuant to this Stipulated Protective Order, and
the Court, if applicable, shall retain continuing jurisdiction to enforce the terms of this Stipulated
Protective Order.
34.

Notwithstanding the foregoing, nothing in this Stipulated Protective Order shall

bar or otherwise restrict any attorney herein from rendering advice to his/her client, and in the

- 17 OHS WEST:261356048.4

course thereof, referring to or relying upon the attorney’s examination of “Highly Confidential Attorneys’ Eyes Only” Material, provided, however, that in rendering such advice and in
otherwise communicating with his/her client, the attorney shall not disclose or summarize the
contents or the source of any such Material, unless his/her client is an authorized person, as
provided by paragraph 5.
35.

Nothing herein shall preclude the Parties in this lawsuit from filing any

subsequent proceeding involving the Parties and/or requesting any discovery related thereto.
36.

The Parties reserve the right to amend or modify this Stipulated Protective Order

upon agreement of the Parties and for good cause shown.
DATED at Denver, Colorado, this 20th day of December, 2011December, 2011.
BY THE COURT:

s/Craig B. Shaffer
Craig B. Shaffer
United States Magistrate Judge

- 18 OHS WEST:261356048.4