AMERICAN SOCIETY FOR TESTING AND MATERIALS et al v. PUBLIC.RESOURCE.ORG, INC.

Filing 31

MOTION for Order of Protection by AMERICAN SOCIETY FOR TESTING AND MATERIALS, AMERICAN SOCIETY OF HEATING, REFRIGERATING, AND AIR-CONDITIONING ENGINEERS, INC., NATIONAL FIRE PROTECTION ASSOCIATION, INC. (Attachments: #1 Exhibit A - Proposed Order, #2 Exhibit B - Declaration of Jordana Rubel, #3 Exhibit B - Declaration Exh. 1, #4 Exhibit B - Declaration Exh. 2, #5 Exhibit B - Declaration Exh. 3, #6 Exhibit B - Declaration Exh. 4, #7 Exhibit B - Declaration Exh. 5, #8 Exhibit B - Declaration Exh. 6, #9 Exhibit B - Declaration Exh. 7, #10 Exhibit B - Declaration Exh. 8, #11 Exhibit B - Declaration Exh. 9, #12 Exhibit B - Declaration Exh. 10, #13 Exhibit B - Declaration Exh. 11, #14 Exhibit B - Declaration Exh. 12, #15 Exhibit B - Declaration Exh. 13, #16 Exhibit B - Declaration Exh. 14, #17 Exhibit B - Declaration Exh. 15, #18 Exhibit B - Declaration Exh. 16, #19 Exhibit B - Declaration Exh. 17, #20 Exhibit B - Declaration Exh. 18, #21 Exhibit B - Declaration Exh. 19, #22 Exhibit B - Declaration Exh. 20, #23 Exhibit B - Declaration Exh. 21, #24 Exhibit B - Declaration Exh. 22, #25 Exhibit B - Declaration Exh. 23, #26 Exhibit B - Declaration Exh. 24, #27 Exhibit C)(Fee, J.)

Exhibit C

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Joint Stipulation Exhibit A

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1 Lynell D. Davis, Esq., SBN 271152
[e-mail]
2 Perfect 10, Inc.
11803 Norfield Court
3 Los Angeles, CA 90077
P 310.476.0794 | F 310.476.8138
4
Eric J. Benink, Esq., SBN 187434
5 [e-mail]
Krause Kalfayan Benink & Slavens, LLP
6 550 West C Street, Suite 530
San Diego, CA 92101
7 P 619.232.0331 | F 619.232.4019
8
Attorneys for Plaintiff and Counter-defendant
9 Perfect 10, Inc.
10
UNITED STATES DISTRICT COURT

11

CENTRAL DISTRICT OF CALIFORNIA

12

13 PERFECT 10, INC., a California
corporation,
14
Plaintiff,
15
vs.
16
GIGANEWS, INC., a Texas
17 corporation; LIVEWIRE SERVICES,
INC., a Nevada corporation; and DOES
18 1 through 100, inclusive,
Defendants.

19

20 GIGANEWS, INC., a Texas
21 corporation; LIVEWIRE SERVICES,
INC., a Nevada corporation; and DOES
22 1 through 100, inclusive,
23
24

CASE NO. 2:11-CV-07098-ABC-SH
DISCOVERY MATTER
Before Hon. Stephen J. Hillman
[PROPOSED] PROTECTIVE
ORDER

Discovery Cut-off: June 30, 2014
Pretrial Conference: January 19, 2015
Trial Date: January 27, 2015

Counter-claimants,
vs.

25 PERFECT 10, INC., a California
corporation,
26
Counter-defendant.
27
28
[PROPOSED] PROTECTIVE ORDER

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1
2
3

PROTECTIVE ORDER
For good cause the Court HEREBY ORDERS as follows pursuant to Rule

4 26(c) of the Federal Rules of Civil Procedure:
5

1.

This Protective Order (“Order”) shall apply to and govern all

6 depositions, documents produced in response to requests for production of
7 documents, answers to interrogatories, responses to requests for admission, and all
8 other discovery pursuant to the Federal Rules of Civil Procedure or furnished
9 informally by agreement between the parties, as well as testimony adduced at trial
10 and other information hereafter furnished, directly or indirectly, by or on behalf of
11 any party or nonparty in connection with this action which that party or nonparty in
12 good faith believes comprise or reflect proprietary information used by it in, or
13 pertaining to, its business, which is not generally known and which the party would
14 normally not reveal to third parties or would cause third parties to maintain in
15 confidence. This includes, without limitation, trade secrets, financial data, contracts
16 and agreements, current and future business plans, and marketing documents.1 The
17 term “document” as used in this Order shall have the broadest meaning permissible
18 under the Federal Rules of Civil Procedure and shall include, without limitation, all
19 “writings,” “recordings” and “photographs” as defined in rule 1001 of the Federal
20 Rules of Evidence, and any information stored in or through any computer system or
21 other electronic or optical data storage device.
22

2.

Material designated as “Confidential” or “Highly Confidential”

23 pursuant to this Order (“Confidential or Highly Confidential Material”) shall be used
24 by any recipients solely for the purpose of conducting this litigation, Perfect 10, Inc.
25
26

1

This Protective Order does not apply to hearings before the Magistrate Judge
27 or hearings or trial before the District Court. The parties, any party in interest,
and/or the witnesses, can move the Court to seal any court proceeding for reasons
28 consistent with this Protective Order.
1
PROTECTIVE ORDER

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1 v Giganews, Inc., CV-11-7098-ABC, and not for any other purpose whatsoever, and
2 such information shall not be disclosed to anyone except as provided herein. No
3 expert or consultant shall review or gain access to Confidential or Highly
4 Confidential Material unless he or she has executed the Notification of Protective
5 Order and Undertaking (attached as Exhibit A). Receiving parties, experts, and
6 consultants must store and maintain Confidential or Highly Confidential Material at
7 a location and in a secure manner that ensures that access is limited to the persons
8 authorized under this Order. The recipient of any material designated under this
9 Order shall use its best efforts, but at no time less than reasonable efforts under the
10 circumstances, to maintain the confidentiality of such information.
11
12

CONFIDENTIAL DESIGNATION OF MATERIAL
3.

Any information or materials produced by any party or nonparty as part

13 of discovery in this action may be designated “Confidential” by such party or
14 nonparty pursuant to Paragraph 4 of this Order.
15

4.

The designation of information or material as “Confidential” for

16 purposes of this Order shall be made in the following manner by the party or
17 nonparty seeking protection:
18

(a)

In the case of documents, exhibits, briefs, memoranda,

19 interrogatory responses, responses to requests for admission, or other materials
20 (apart from depositions or other pretrial or trial testimony): by affixing a plainly
21 visible confidentiality designation legend to: (i) the cover page of such document
22 saying either “Confidential” or “This Document Contains Material Designated as
23 Confidential Pursuant to the Protective Order Entered in this Case”; and (ii) each
24 page containing any confidential information or material; or (iii) physically on the
25 outside of any media for storing electronic documents, at the time such documents
26 are produced or such information is disclosed, or as soon thereafter as the party or
27 nonparty seeking protection becomes aware of the confidential nature of the
28 information or material disclosed and sought to be protected hereunder.
2
PROTECTIVE ORDER

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1

(b)

In the case of depositions or other pretrial or trial testimony: (i)

2 by a statement on the record, by counsel, during such deposition or other pretrial or
3 trial proceeding that the entire transcript or a portion thereof shall be designated
4 hereunder; or (ii) by written notice of such designation sent by counsel to all parties
5 within ten (10) days after the delivery to counsel of the transcript of the deposition.
6 At or before a deposition, the deponent or his counsel, or any other counsel of
7 record, acting in good faith, may invoke the provisions of this Order in a timely
8 manner, giving adequate warning to counsel for the party or nonparty that testimony
9 about to be given is deemed protected under this Order. The parties may modify this
10 procedure for any particular deposition or proceeding through agreement on the
11 record at such deposition or proceeding or otherwise by written stipulation, without
12 approval of the Court. If any document or information designated under this Order
13 is used during the course of a deposition, that portion of the deposition record
14 reflecting such confidential information shall be sealed and stamped accordingly,
15 and access thereto shall be limited pursuant to the other terms of this Order.
16

(c)

A party or nonparty furnishing documents and things to another

17 party shall have the option to require that all or batches of documents and things be
18 treated as confidential during inspection and to make its designations of particular
19 documents and things at the time copies of documents and things are produced or
20 furnished.
21

5.

Information or material designated as “Confidential” under this Order,

22 or copies or extracts thereof, may be disclosed, described, characterized, or
23 otherwise communicated or made available in whole or in part only to the following
24 persons:
25

(a)

Outside counsel of record in this litigation and staff and

26 supporting personnel of such attorneys, such as paralegals, secretaries, stenographic
27 and clerical employees and contractors; and outside copying, imaging and
28 presentation services (if used), who are working on this litigation under the direction
3
PROTECTIVE ORDER

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1 of such attorneys and to whom it is necessary that the materials be disclosed for the
2 purposes of this litigation.
3

(b)

In-house counsel for the parties herein who are necessary for the

4 furtherance of this litigation and in-house paralegal;
5

(c)

One officer of each of the parties;

6

(d)

Subject to Paragraph 6 and 8 herein, persons who are expressly

7 retained or sought to be retained by a party as consultants or testifying experts, such
8 as accountants, statisticians, economists, industry or technical experts; provided that
9 the disclosure of “Confidential” material to any persons under this subparagraph
10 shall only be to the extent necessary to perform their work on this litigation.
11

(e)

Subject to Paragraph 8 herein, any other persons who are

12 designated to receive material designated “Confidential” by order of this Court after
13 notice to the parties, or by written stipulation of the parties.
14

(f)

Subject to Paragraph 7 and Paragraph 8 herein, any person who

15 gives testimony in deposition or trial in this action.
16

(g)

The Court and Court personnel.

17

(h)

Subject to Paragraph 8, court reporters, interpreters and

18 videographers employed in connection with this action.
19

(i)

The parties retain the right to apply to the Court for an order

20 restricting certain individuals from access to certain information. To accomplish
21 this, counsel of a party wishing to restrict access to information shall produce the
22 information (i.e. document) to all counsel for which there is no objection, with a
23 request that the information not be disseminated to other individuals involved in this
24 litigation pending further order of the Court. The moving party shall, thereafter,
25 within seven (7) days, file the information under seal with the Magistrate Judge and
26 identify the person (by name and title) who the moving party objects to seeing the
27 information and why the moving party believes the information should not be
28 received by this person(s). If the Court is inclined to grant the order, it will notify
4
PROTECTIVE ORDER

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1 the aggrieved party and invite briefing and/or oral argument before issuing an order.
2

6.

For the purposes of this Order, a consultant shall be restricted to a

3 person who is retained or employed as a bona fide consultant or expert for purposes
4 of this litigation, whether full or part time, by or at the direction of counsel for a
5 party, and who is not retained by, employed by, or otherwise affiliated with any
6 party to this action. The name, business address, curriculum vitae (“CV”) and
7 affiliation of each such consultant or testifying expert must be disclosed to the
8 producing party at least five (5) court days (the “Objection Period”) prior to such
9 person’s review of material designated under this Order. The CV shall contain a list
10 of all present employers/clients as well as all past employers/clients for the 36
11 months preceding the date of employment in this case. During the Objection Period,
12 counsel for the designating party shall have the opportunity to oppose the proposed
13 disclosure. Any party opposing disclosure shall within such Objection Period
14 provide the other party with a written objection, setting forth in reasonable detail the
15 specific grounds for such opposition. If no written objection is received by 5:00
16 p.m., Pacific Standard Time, on the fifth day following the date of disclosure of the
17 identity of the proposed consultant or testifying expert, then the party seeking to
18 disclose may do so and failure to object shall constitute waiver of the specific
19 objection. However, after the Objection Period has expired without objection, a
20 party may still move the Magistrate Judge to allow it to object to an expert if it can
21 show: (a) there is new, material information relating to the expert, which was not
22 available to the moving party within the Objection Period; and (b) had the moving
23 party been aware of the information at the time, the moving party would have
24 objected to the expert. In the event that an objection is received, the objecting party
25 shall, within two (2) court days send to the other party by email or facsimile or next
26 business day delivery its portion of a joint stipulation, modeled on the procedure
27 used by this District, to be furnished the Court in connection with any motion
28 regarding the objection. Within three (3) court days of receipt of such portion of the
5
PROTECTIVE ORDER

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1 joint stipulation, the party seeking to disclose shall sent its portion of a joint
2 stipulation to the objecting party by email or facsimile or next business day delivery.
3 Within two (2) court days of receipt of both portions of the joint stipulation, the
4 objecting party shall file the joint stipulation, with the Court and both parties shall
5 seek a hearing at the Court’s earliest convenience. In the event such resolution by
6 the Court is necessary, the material at issue shall not be disclosed to the consultant or
7 testifying expert pending resolution of the issue by the Court.
8

7.

Each person set forth in Paragraph 5 to be examined as a witness, may

9 be so examined at trial or during a deposition concerning any information or
10 material designated under this Order, which that person had lawfully received or
11 authored prior to and apart from this action. During examination, any such witness
12 may be shown information or material designated under this Order by a party which
13 appears on its face or from other documents or testimony to have been received or
14 authored by that witness from, or communicated to that witness by, that same party
15 provided that the examining party makes a reasonable effort to obtain the
16 compliance of the witness with Paragraph 8.
17

8.

Each person set forth in Paragraph 5 who is not (i) outside counsel to a

18 party to this litigation, or staff directly employed by such outside counsel; or (ii) the
19 Court or Court personnel to whom material designated under this Order is to be
20 disclosed, shall, prior to receiving such material, be furnished with a copy of this
21 Order, a copy of the Court’s Notification of Protective Order and Undertaking,
22 which the person shall read and sign (Attached as Exhibit A). Counsel for the party
23 seeking to disclose material designated under this Order to any such person pursuant
24 to this paragraph shall be responsible for permanently retaining the executed
25 originals of such Notifications.
26

9.

All Confidential or Highly Confidential Material shall be securely

27 maintained in a manner intended to preserve confidentiality. Access to such material
28 shall be permitted only to those designated persons set forth in Paragraph 5 above as
6
PROTECTIVE ORDER

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1 persons properly having access thereto. The recipient of any material designated
2 under this Order shall use its best efforts, but at no time less than reasonable efforts
3 under the circumstances, to maintain the confidentiality of such information.
4

10.

Nothing contained in this Order shall affect the right of any party to

5 make any objection, claim any privilege, or otherwise contest any request for
6 production of documents, interrogatory, request for admission, subpoena, or
7 question at a deposition or to seek further relief or protective order form the Court as
8 permitted by the Federal Rules of Civil Procedure. Nothing in this Order shall
9 constitute an admission or waiver of any claim or defense by any party.
10

11.

In the event that counsel for any party determines to file or submit to

11 this Court any information or material designated Confidential pursuant to this Order
12 (“Confidential Information”), or any papers containing or making reference to such
13 information (the “Filing Party”), those materials shall be filed under seal, in sealed
14 envelopes on which shall be endorsed the caption of this action and a statement
15 substantially in the following form:
16

CONFIDENTIAL

17

This envelope contains documents that are subject to an
order governing discovery and the use of confidential
discovery material entered by the Court in this action. The
envelope shall not be opened or the contents thereof
displayed or revealed except by Order of the Court.
Violation hereof may be regarded as contempt of the Court.

18
19
20
21

22 Subject to the Court’s convenience and needs, documents filed under seal shall be
23 kept under seal by the Clerk until further Order of the Court.
24

12.

Any documents and information produced by nonparties, pursuant to

25 subpoena or otherwise may be designated pursuant to the terms of this Order by any
26 party or nonparty.
27

13.

A party shall not be obligated to challenge the propriety of material

28 designated under this Order at the time the designation is made and failure to do so
7
PROTECTIVE ORDER

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1 shall not preclude a subsequent challenge thereto. In the event that any party to this
2 litigation disagrees at any state of these proceedings with such designation, such
3 party shall provide to the designating person or entity a letter detailing its objection
4 to the designation. The designating person or entity shall respond by letter within
5 three (3) court days to such letter. If not resolved, the objecting party may file a
6 motion objecting to the designation. In any such motion, the burden of proving that
7 information has been properly designated under this Order is on the person or entity
8 making such designation.
9
10

HIGHLY CONFIDENTIAL DESIGNATION OF MATERIALS
14.

The parties may further designate certain material or testimony of a

11 highly confidential and/or proprietary nature as “Highly Confidential,” in the
12 manner for confidential designation set forth in Paragraph 4 herein. The “Highly
13 Confidential” designation may be challenged in the manner set forth in Paragraph 13
14 herein. Materials designated “Highly Confidential” (“Highly Confidential
15 Material”) shall be subject to the following protections, which are in addition to
16 those protections applicable to documents designated “Confidential” under this
17 Order. Highly Confidential Material may be accessed, copied, or held by only (i) all
18 counsel of record and necessary support staff working under the lawyers’
19 supervision; (ii) outside consultants and experts who have signed the attached
20 Notification of Protective Order and Undertaking and who qualify for access to the
21 materials in a manner set forth in Paragraph 6 herein; and (iii) one officer of each of
22 the parties who shall also sign the attached Notification of Protective Order and
23 Undertaking, but shall not be disclosed to any other officer, director or employee of
24 a party, unless otherwise agreed or ordered. Designation of material as Highly
25 Confidential shall be severely restricted only to those materials for which there is a
26 legitimate reason to restrict access. The designating party shall have the burden of
27 establishing that there is a legitimate reason for designating materials as Highly
28 Confidential.
8
PROTECTIVE ORDER

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1

15.

The parties may also designate certain electronic data as “Highly

2 Confidential Electronic Data: in the manner for confidential designation set forth in
3 Paragraph 4 herein, in which case the following protections shall apply, which are in
4 addition to the protections set forth for Confidential and Highly Confidential
5 Material above. Each of Fenwick & West, LLP; and Krause, Krause, Kalfayan,
6 Benink & Slavins, LLP or Perfect 10, Inc., shall designate one of its attorneys to
7 function as the Custodian of any Highly Confidential Electronic Data produced to
8 the firm under this Order. Each Custodian shall execute a statement to be provided
9 to opposing counsel upon execution, confirming that he or shell will maintain any
10 Highly Confidential Electronic Data produced to his or her firm in compliance with
11 all the terms of this Order.
12

16.

Except as hereinafter provided, the copies of Highly Confidential

13 Electronic Data will not be duplicated or furnished to others. The Custodians will
14 ensure that Highly Confidential Electronic Data will be protected from
15 dissemination, including by the following means:
16

(a)

At each location, any Highly Confidential Electronic Data will be

17 kept in a secure location when not being actively accessed.
18

(b)

At each location, counsel for the receiving parties and consultants

19 and experts who have signed the Notification of Protective Order will maintain a log
20 of those counsel of record, support personnel working under their direct supervision,
21 one officer of the party, and experts or consultants who have accessed Highly
22 Confidential Electronic Data. The log entries will include the date and time of any
23 such access. Before gaining access for the first time to Highly Confidential
24 Electronic Data, such person otherwise qualifying under Paragraph 14 will review
25 this Order and attest to having read and understood it, which also will be recorded on
26 the log. In the event of a dispute involving any alleged violation of this Order,
27 counsel may obtain immediate copies of the logs from each location by written
28 notice to the opposing Custodian.
9
PROTECTIVE ORDER

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1

(c)

Except as needed for use in depositions, court filings under seal,

2 or trial, no copies of Highly Confidential Electronic Data, or work product
3 containing portions of such data, shall be taken from the offices of counsel of record
4 or consultants and experts who have signed the Notification of Protective Order and
5 Undertaking, and no computer that contains any of the Highly Confidential
6 Electronic Data or portions of such data shall be connected to a computer network of
7 any sort while it contains the Highly Confidential Electronic Data or portions of
8 such data.
9

(d)

In the event that a Custodian becomes aware of any breach of the

10 provisions of this Order, he or she shall promptly alert opposing counsel of any such
11 breach.
12

17.

Other than for the purposes of this Action, subject to the restrictions of

13 this Order, those permitted access to Highly Confidential Material or Highly
14 Confidential Electronic Data under this Order shall not disclose contents of such
15 material to any other person at any time and shall never use any information gained
16 from access to or review of such materials for any purpose or reasons other than for
17 the purposes of this action.
18

18.

Upon the conclusion of the Action, the Highly Confidential Material or

19 Highly Confidential Electronic Data shall be either returned or disposed of as set
20 forth in Paragraph 27 herein and counsel of record shall gather all such material and
21 destroy and certify as destroyed such materials, except that one archival copy of
22 each party’s Highly Confidential Material or Highly Confidential Electronic Data
23 may be securely retained by counsel maintaining such material.
24
25

OTHER PROVISIONS
19.

Nothing in this Order shall preclude any party to the lawsuit or its

26 counsel: (a) from showing a document designated under this Order to an individual
27 who either prepared or reviewed the document prior to the filing of this action; or (b)
28 from disclosing or using, in any manner or for any purpose, any information or
10
PROTECTIVE ORDER

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1 documents from the party’s own files which the party itself has designated under this
2 Order.
3

20.

Nothing in this Order shall prevent disclosure beyond the terms of this

4 Order if the party designating material consents in writing to such disclosure, or if a
5 court orders such disclosure. A party requested to disclose material designated
6 under this Order to a nonparty pursuant to a validly served subpoena civil
7 investigative demand, discovery procedure permitted under the Federal Rules of
8 Civil Procedure or other formal discovery request shall object to its production to the
9 extent permitted by applicable law and notify the requesting nonparty of the
10 existence of this Order and that the material requested by the nonparty has been
11 designated under this Order and shall further give notice of such request, by email or
12 facsimile and next business day delivery, upon the party which designated the
13 material as soon as is reasonably possible, but in all instances sufficiently prior to
14 the date on which such confidential material is to be produced to the nonparty. Once
15 such notice is given, the designating party shall take all steps it believes are
16 necessary to protect the Confidential materials and the non-designating party is not
17 required to take any further action.
18

21.

If a party inadvertently fails to designate material and/or information

19 when producing or otherwise disclosing such material and/or information, it shall
20 not be deemed a wavier in whole or in party of a party’s claim of confidentiality,
21 either as to the specific information disclosed or as to any other information relating
22 thereto or on the same or related subject matter. As soon as the receiving party has
23 knowledge of the inadvertent production, the information must be treated as if it had
24 been designated under this Protective Order, and the receiving party must endeavor
25 in good faith to obtain all copies of the document which it distributed or disclosed to
26 persons not authorized to access such information by Paragraphs 5 or 14 above, as
27 well as any copies made by such persons. The costs of doing so shall be paid by the
28 designating party.
11
PROTECTIVE ORDER

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1

22.

All counsel for the parties who have access to information or material

2 designated under this Order acknowledge that they are bound by this Order and
3 submit to the jurisdiction of this court for purposes of enforcing this Order.
4

23.

Entering into, agreeing to, and/or producing or receiving information or

5 material designated under this Order, or otherwise complying with the terms of this
6 Order shall not:
7

(a)

operate as an admission by any party that any particular

8 information or material designated under this Order contains or reflects trade secrets,
9 proprietary or commercially sensitive information or any other type of confidential
10 information;
11

(b)

operate as an admission by any party that the restrictions and

12 procedures set forth herein constitute or do not constitute adequate protection for any
13 particular information designated under this Order;
14

(c)

prejudice in any way the rights of any party to object to the

15 production of documents they consider not subject to discovery;
16

(d)

prejudice in any way the rights of any party to object to the

17 authenticity or admissibility into evidence of any document, testimony or other
18 evidence subject to this Order;
19

(e)

prejudice in any way the rights of any party to seek a

20 determination by the court whether any information or material should be subject to
21 the terms of this Order.
22

(f)

prejudice in any way the rights of any party to petition the Court

23 for a further protective order relating to any purportedly confidential information;
24

(g)

prevent the parties to this Order from agreeing in writing or on

25 the record during a deposition or hearing in this action to alter or waive the
26 provisions or protections provided for herein with respect to any particular
27 information or material with written or on the record consent of the party disclosing
28 such information.
12
PROTECTIVE ORDER

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1

24.

This Order shall not be construed to apply to any information that: (a) is

2 available to the public other than though a breach of this Order or other duty of
3 confidentiality; (b) a receiving party can demonstrate was already known to the party
4 at the time of disclosure and was not subject to conditions or confidentiality; or (c) a
5 receiving party can demonstrate was developed by that party independently or any
6 disclosure by a designating party or nonparty.
7

25.

In the event that information in the possession or control of a person or

8 entity involves the confidentiality rights of a nonparty or its disclosure would violate
9 a protective order issued in another action, the party with possession or control of
10 the information will promptly attempt to obtain the consent of the nonparty to
11 disclose the information under this Order. If the consent of the nonparty is refused
12 or otherwise cannot be obtained, the party will promptly thereafter notify the party
13 seeking discovery by the written response due date for such discovery of: (a) the
14 existence and description (to the extent disclosable) of the information without
15 producing such information; and (b) the identity of the nonparty (provided, however,
16 that such disclosure of the identity of the nonparty does not violate any
17 confidentiality obligations). The party seeking discovery may then make further
18 application to the nonparty or seek an order to compel discovery.
19

26.

Within sixty (60) days after the final termination of litigation between

20 the parties (including appeals), all material designated under this Order and all
21 copies thereof (including summaries and excerpts) shall be either returned to the
22 party that produced it or destroyed and certification of destruction supplied to the
23 producing party; provided, however, that for each party, counsel who is entitled
24 access to such designated material pursuant to this Order may retain one complete
25 and unredacted set of its work product that contains designated material as well as
26 pleadings and papers filed with the Court or served on the other party solely for
27 reference in the event of, and only in the event of, further proceedings or litigation
28 between the parties, a dispute over such counsel’s performance, or a dispute over the
13
PROTECTIVE ORDER

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1 use or dissemination of material designated under this Order. Such retained copy of
2 pleadings and papers shall be maintained in a file accessible only by properly
3 authorized counsel under the provisions of, and bound by, this Order. This Order
4 shall survive the final termination of this litigation with respect to any such retained
5 confidential material and the Court shall retain jurisdiction to resolve any dispute
6 concerning the use of information disclosed hereunder.
7
8

SCOPE
27.

The protections conferred by this Order cover not only the materials

9 designated “Confidential” and/or “Highly Confidential” (as defined above), but also
10 (1) any information copied or extracted from such material; (2) all copies, excerpts,
11 summaries, or compilations of “Confidential” and/or “Highly Confidential”
12 material; and (3) any testimony, conversations, or presentations by Parties or their
13 Counsel that might reveal “Confidential” and/or “Highly Confidential” material.
14 However, the protections conferred by this Order do not cover the following
15 information: (a) any information that is in the public domain at the time of disclosure
16 to a receiving party or becomes part of the public domain after its disclosure to a
17 receiving party as a result of publication not involving a violation of this Order,
18 including becoming part of the public record through trial or otherwise; and (b) any
19 information known to the receiving party prior to the disclosure or obtained by the
20 receiving party after the disclosure from a source who obtained the information
21 lawfully and under no obligation of confidentiality to the designating party. Any use
22 of “Confidential” and/or “Highly Confidential” material at trial shall be governed by
23 a separate agreement or order.
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DURATION
28.

Even after final disposition of this litigation, the confidentiality

26 obligations imposed by this Order shall remain in effect until a designating party
27 agrees otherwise in writing or a court order otherwise directs. Final disposition shall
28 be deemed to be the later of (1) dismissal of all claims and defenses in this action,
14
PROTECTIVE ORDER

Case 2:11-cv-07098-ABC-SH Document 158-1 Filed 12/13/13 Page 17 of 18 Page ID
#:8285

1 with prejudice; and (2) final judgment herein after the completion and exhaustion of
2 all appeals, rehearings, remands, trials, or reviews of this action, including the time
3 limits for filing any motions or applications for extension of time pursuant to
4 applicable law.
5 DATED: December 10, 2013
6

PERFECT 10, INC.

7

By
Lynell D. Davis
Attorney for Plaintiff P10, Inc.

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9
10 IT IS SO ORDERED.
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14

DATED: __________________
HONORABLE STEPHEN J. HILLMAN
United States Magistrate Judge

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15
PROTECTIVE ORDER

Case 2:11-cv-07098-ABC-SH Document 158-1 Filed 12/13/13 Page 18 of 18 Page ID
#:8286

1

EXHIBIT A: ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

2

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

3 __________________________________ [print or type full address], declare under
4 penalty of perjury that I have read in its entirety and understand the Stipulated
5 Protective Order that was issued by the United States District Court for the Central
6 District of California on ___________ [date] in the case of Perfect 10, Inc. v.
7 Giganews, Inc., Case No. 2:1- CV-07098-ABC-SH. I agree to comply with and to
8 be bound by all the terms of this Stipulated Protective Order and I understand and
9 acknowledge that failure to so comply could expose me to sanctions and punishment
10 in the nature of contempt. I solemnly promise that I will not disclose in any manner
11 any information or item that is subject to this Stipulated Protective Order to any
12 person or entity except in strict compliance with the provisions of this Order.
13

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

14 for the Central District of California for the purpose of enforcing the terms of this
15 Stipulated Protective Order, even if such enforcement proceedings occur after
16 termination of this action.
17

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

18 _______________________________________ [print or type full address and telephone
19 number] as my California agent for service of process in connection with this action
20 or any proceedings related to enforcement of this Stipulated Protective Order.
21 Date:
22

City and State where sworn and signed

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24 Printed name: ______________________________
Print name here

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26 Signature: __________________________________
Sign here
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28
Protective Order Exhibit A: Acknowledgement and Agreement To Be Bound