Disney Enterprises, Inc. et al v. Hotfile Corp. et al

Filing 370

NOTICE by Hotfile Corp., Anton Titov of Filing the PUBLICLY FILED REDACTED Version of Defendants' Objections to the Magistrate Judge's Report and Recommendation Regarding Plaintiff Warner's Motion to "Use" Titov Exhibit 27 in its Entirety at Trial or on Summary Judgment (Attachments: # 1 Exhibit 1, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G)(Munn, Janet)

EXHIBITD

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

Case No. 1:1l-cv-20427-JORDAN
DISNEY ENTERPRISES, INC.,
TWENTIETH CENTURY FOX FILM CORPORATION,
UNIVERSAL CITY STUDIOS PRODUCTIONS LLLP,
COLUMBIA PICTURES INDUSTRIES, INC., and
WARNBR BROS. ENTERTAINMENT INC.,
Plalntifft,
VS.

HOTFILE CORP., ANTON TlTOV, and
DOES 1·10.
Defendants.

---------------------------------,
STIPULATED PROTECTIVE ORDER

WHEREAS the parties believe that entry of a protective order pursuant to Rule
26(c) of the Federal Rules of Civil Procedure is necessary to protect such trade secrets
and other confidential research, development, technical, or commercial information that
may be produced or provided by the parties or non·parties, and the parties have stipulated
to the following proposed protective order;
WHEREAS the Court finds that good cause exists for the entry of this Protective
Order in this action pursuant to Rule 26(c) of the Federal Rules ofCivll Procedure in
order to protect such trade secrets and other confidential research, development, or
commeroial information;
Good caUSe appearing, and in conformance with the parties' agreement, IT IS
HEREBY ORDERED that this Protective Order pursuant to Rule 26(c) oftbe Federal
Rules of Civil Procedure be, and is hereby, entered.

Case 1: 11-cv-20427-AJ Document 68

I.

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This Protective Order shall be applicable to and govern all depositions,

documents produced in response to requests for production of documents, answers to
interrogatories, responses to requests for admission, and all other discovery taken
pursuant to the Federal Rules of Civil Procedure, as well as other information hereafter
furnished, directly or indirectly, by or on behalf of any party or non-party in connection
with this action (collectively, "Discovery Materials"). Discovery Materials that are
designated Confidential or Highly Confidential as provided herein shall be used by any
authorized recipients solely for the purposes of conducting this litigation and not for any
other purpose whatsoever, and such information shall not be disclosed to anyone except
as provided herein. I
2.

A producing party, 2 or a party who is the original source of document or

information produced, may designate as Confidential any Discovery Materials produced
or otherwise furnished in discovery in this case that that the party believes in good faith
to contain trade secret or other confidential strategic, research, development, or
commercial information, that is not generally known and that the party would normally
not reveal to third parties or would cause third parties to maintain in confidence,
inciuding without limitation financial data, contracts and agreements, business and
strategic plans, and marketing documents.
3.

Discovery Materials designated as Confidential under this Protective

Order, or copies or extracts therefrom and compilations thereof, may be disclosed,

I This Protective Order does not apply to hearings or trial before the Court. The parties,
any party in interest, and/or the witnesses, can move the Court to seal any court
roceeding for reasons consistent with this Protective Order.
The term "producing party" refers to a party to this case, or to a non-party person or
entity, that produces Discovery Materials in this case.
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described, characterized, or otherwise communicated or made available in whole or in
part only to the following persons:
(a)

the Court and its employees, personnel, or other agents;

(b)

outside counsel of record in tbis case (including in-house counsel

for the Motion Picture Association of America, Inc. who have appeared as outside
counsel of record for plaintiffs), and associated attorneys, staff and supporting personnel
of such attorneys, such as paralegals, secretaries, litigation assistants, clerical employees
and contractors, technical staff, and copying and electronic discovery vendors who are
working at the direction of attorneys with respect to this litigation;
(c)

any certified shorthand or court reporters retained to report a

deponent's testimony taken in this case;
(d)

experts or consultants retained by counsel in connection with this

litigation, who are not employed by any party, and any clerical, administrative or support
staff (including staff such as research assistants, analysts, and technical staft) for such
experts or consu hants, provided that the procedures set forth in paragraphs 9 and 10 this
Order have been followed;
(e)

deposition or trial witnesses who are employed by the party that

produced the Discovery Materials, or who lawfuUy and apart from this action received or
authored the information or material to be shown to such witnesses (whether during
examination or preparation);
(t)

any person whom the parties agree, in advance and in writing, may

receive such protected information, provided such person has executed the Notification of
Protective Order attached hereto as Exhibit A; and
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(g)

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any individual who is a party or employee of any corporate party

or one of its affiliates, as reasonably necessary for purposes of this litigation, for use only
in connection with this litigation, but limited to no more than five (5) such individuals per
corporate party (including affiliates), with respect to each of whom the procedures set
forth in paragraphs 9 and 10 this Order have been followed. A party's request to disclose
Confidential information to more than five such individuals, if reasonably necessary for
the purposes of the litigation, shall not be unreasonably refused.
4.

Documents or other material that a non-party designates as Confidential

shall be restricted to the persons listed in ,~ 3(a) - (e) and ~ 3(g). Such material may also
be shared with any person whom the producing non-party agrees in advance and in
writing may receive such material.
5.

Any Discovery Materials produced or otherwise furnished in discovery in

this case that meet the requirements for designation of Confidential material under
paragraph 2, and that the producing party reasonably believes is so highly competitively
sensitive that it is entitled to extraordinary protections, may be designated Highly
Confidential. Such material may be designated Highly Confidential by the producing
party or a party who is the original source of the document or Information.
6.

Discovery Materials designated as Highly Confidential under this

Protective Order, or copies or extracts therefrom and compilations thereof, may be
disclosed only to the persons set forth in " 3(a) - (1), supra. Outside counsel of record
may also furnish, to in-house counsel identified in , 3(g), summaries and draft briefs and
other pleadings describing such Highly Confidential material at a high level without
revealing specific highly competitively sensitive information (e.g., specific contract
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terms, financial Information, business plans, technical specifications). Additionally,
Highly Confidential material may also be shared with any person whom the producing
non-party agrees in advance and in writing may receive such protected information.
7.

The designation of Discovery Materials for purposes of this Protective

Order shall be made in the following manner by the party 01' non-party seeking
protection:
(a)

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

interrogatory responses, responses to requests for admission, or other material (apart from
depositions or other pretriallestimony): by affixing a plainly visible confidentiality
designation legend ("CONFIDENTIAL" or "HIGHLY CONFIDENTIAL," as
appropriate): (i) on each page of any document containing any confidential information
or material, or, in the case of pleadings filed with the Court, on the cover page of the
pleading; or (il) physically on the outside of any media for storing electronic documents
(e.g., CD-ROM, DVD-ROM, hard disk drive, flash drive, or other medium), at the time

such documents are produced or such information is disclosed, or as soon thereafter as
the party or non-party seeking protection becomes aware of the confidential nature ofthe
information or material disclosed and sought to be protected hereunder. The term
"document," as used in this Protective Order, shall have the broadest meaning
permissible under the Federal Rules ofCivi] Procedure and shall include, without
limitation. ali "writings," "recordings" and "photographs" as defined in Rule 1001 of the
Federal Rules of Evidence, and any information stored in or through any computer
system or other electronic or optical data storage device.

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(b)

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In the case of depositions or other pretrial testimony: (I) by a

statement on the record by counsel. acting in good faith, during such deposition or other
pretrial proceeding. that the transcript or portions thereof shall be designated either
"Confidential" or "Highly Confidential" hereunder; or (Ii) by written notice of such
designation sent by counsel to all parties within ten (10) days after the e-mailing or
otherwise transmitting to counsel of the transcript of the deposition. The parties will
endeavor to have all completed transcripts sent via e-mail. as well as next business day
delivery.
(c)

Whether or not so designated on the record at deposition or other

pretrial proceeding. the parties shall treat all deposition and other pretrial testimony as
"Confidential" under this Protective Order until the expiration often (10) days after the emailing or otherwise transmitting to counsel of the transcript oftlle deposition. Unless
specific designations ofportions ofa transcript have been made on the record during the
proceeding, or in writing within ten (10) days after the e-mailing or otherwise
transmitting to counsel of the transcript of the deposition. any confidentiality is waived
after the expiration of the to-day period unless otherwise stipulated or ordered. The
parties may modify this procedure for any particular deposition or proceeding through
agreement on the record at such deposition or proceeding or otherwise by written
stipulation. without approval of the Court.
(d)

A party or non-party furnishing documents and things to another

party shall have the option to require that all or batches of documents and things be
treated as confidential during inspection and to make its designations of particular

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documents and things at the time copies of documents and things are produced or
furnished.
8.

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

certain Individuals, other than experts or consultants, from access to certain Discovery
Materials. Any counsel for a party wishing to restrict access to information in this
manner shall produce the Discovery Materials with a request that the information not be
disseminated to the individual(s) to whom the party objects pending further order of the
Court. Alternatively, in the event that the objecting party learns of the Individual or the
basis for objection subsequent to producing the Discovery Materials, counsel for such
party will request that the individual(s) to whom the party objects be restricted from
further access to such information pending further order of the Court. lfthe receiving
party disagrees with the restriction, the party wishing to restrict access shall, thereafter,
within five court days, move the court for a protective order restricting dissemination to
the person to whom the moving party objects to seeing the information. The receiving
party will in good faith comply with any request under this paragraph to restrict access
for five court days following such request and, In the event the objecting party moves for
a protective order, pending further order from the Court. A party seeking to restrict
disclosure of materials to an expert of consu Itant must follow the provisions of paragraph

9.
9.

(a)

For the purposes ofthis Protective Order, a consultant or expert

shall be restricted to a person who is retained or employed as a bona fide consultant or
expert for purposes of this litigation, whether full or part time, by or at the direction of
counsel of record for a party. The name, business address, curricu ium vitae ("CV") and
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affiliation of each such consultant or expert must be disclosed to the producing party at
least five (5) court days prior to such person's review of material designated under this
Order. The CV shall contain a list of all present employerslclients as well as all past
employers/clients for the 36 months preceding the date of employment in this case.
(b)

Additionally, any party seeking to disclose Discovery Materials to

any individual under paragraph 3(g) must disclose the name, affiliation, and job
description of the individual. In-house counsel identified under paragraph 3(g) need
only, for purposes of disclosing their '~ob description," identiJY that they arc employed as
in-house counsel for a party.
(c)

During the five-court day period following disclosure under

paragraphs 9(a), counsel for the opposing party shall have the opportunity to oppose the
proposed disclosure to any individual. Any party opposing such disclosure shall within
such five-court day period provide the other party via electronic mail with a written
objection, setting forth in reasonable detail the specific grounds for such opposition. The
party seeking to disclose shall respond by electronic mail, and the parties will endeavor to
meet and confer as soon as reasonably practicable regarding the dispute but not later than
three (3) court days after the e-mail response is sent. [fthe parties cannot agree on
disclosure, the objecting party shall, within five (5) court days after the e-mail response is
sent, file a motion for appropriate relief, or, if a discovery calendar is available, contact
the Court and place the matter on the next available discovery calendar following the
conference, otherwise the objectlon is deemed withdrawn. [n the event a party objects to
disclosure and files a motion or contacts the Court and such resolution by the Court is

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necessary, no additional confidential material shall be disclosed to that individual
pending resolution of the issue by the Court.
(d)

If no written objection is received by 5:00 p.m., Eastern time, on

the fifth court day following the date of disclosure under paragraph 9(a), then the party
seeking to disclose may do so. Failure to object shall constitute waiver of any objection
under this paragraph, subject to the following exception. After the five-court day period
has expired without objection, a party may move the Court to allow it to object to a
consultant or expert if it can show: (a) there is new, material information relating to the
consultant or expert that was not available to the moving party within the five-court day
objection period; and (b) had the moving party been aware oHhe information at the time,
the movIng party would have objected to the consultant or expert. In such a case, the
objecting party shall, within ten (10) court days of coming into possession of such new,
material information relating to the consultant, or expert, send to the other party by
electronic mail its written objection, setting forth in reasonable detail in its position
regarding; (a) the specific grounds for such opposition, (b) the material information
relating to the consultant or expert that was not available to the moving party within the
five-court day objection period, and (c) the moving party's support for its contention that
had it been aware ofthe information during the five-court day objection period, it would
have objected to the consultant or expert. Within five (5) court days of receipt of such
objection, the party seeking to disclose shall send its response by electronic mail, and the
parties shall endeavor to meet and confer as soon as reasonably practicable regarding the
dispute but not later than four (4) court days after the e-mail response is sent. [fthe
parties cannot agree on disclosure at the conference, the objecting party shall file a
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motion for appropriate relief, or, if a discovery calendar is available, contact the Court
and place the matter on the next available discovery calendar following the conference or
the objection will be deemed withdrawn.
10.

Any person set forth in Paragraph 3 who is not (i) a party to this litigation,

counsel of record (including in-house counsel of the MPAA who have appeared as
outside counsel of record for plaintiffs), or associated attorneys, staff and supporting
personnel of such counsel of record; or (ii) the Court or Court personnel to whom
material designated under this Protective Order is to be disclosed, shall. prior to receiving
such material, be furnished with a copy of this Protective Order, and a copy of the
Notification of Protective Order (attached as Exhibit A). The person shall not be
authorized to access protected materials until the person reads, and has signed, the
Notification of Protective Order. Counsel for the party seeking to disclose material
designated under this Protective Order to any such person pursuant to this paragraph shall
be responsible for retaining the executed originals of all such Notifications until sixty
(60) days after the termination of this litigation. Copies of any such Notification shall be
retained and provided to counsel for the other parties or affected non-parties upon
request.
I 1.

Any third party may obtain protection of this Protective Order by

complying with Paragraphs 2 through 7 of this Protective Order regarding designating
materials as Confidential or Highly Confidential. A party making a discovery request to
a non-party in this action shall notify the third party that the protections of the Protective
Order are available to such third party.

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While the patties disagree regarding whether source code will be produced

in this case or whether source code is necessarily entitled to greater protection than
Highly Confidential material, to the extent production of source code is made, it will be
prodl.lccd and managed in the following manner. Any documents, things or Information
produced or otherwise furnished by any of the parties in discovery that are designated
"Confidential" or "Highly Confidential" and contain a party's somce code may be
designated "RESTRICTED CONFIDENTIAL-SOURCE CODE" (a "Source Code
Document").
(a) Source Code Documents will be produced to designated outside counsel for the
requesting party ("Source Code Custodian") on a portable hard disk drive
("HOD"). Any supplemental production ofa Source Code Document shall be
made consistent with the means for production provided herein, or by a means
agreed to by the parties, at the option of the producing party. No party can
request that more than three (3) duplicate HODs be produced to the Source Code
Custodian.
(b) At the producing party's option, the HDD may be encrypted prior to production,
using TrueCrypt or other commonly used encryption software for whole drive
encryption. Information necessary to gain access to an encrypted HOD shall be
provided by counsel for the producing party to the Source Code Custodian by
reasonable means meeting the security interests of the producing party;
(c) Access to information deSignated RESTRICTED CONFIDENTIAL-SOURCE
CODE shall be limited to Source Code Custodians and experts retained or used by
counsel of record for any party to assist such counsel with respect to this
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litigation, provided such experts are disclosed pursuant to the procedures in
paragraphs 9 and 10.
(d) Source Code Documents shall be viewed only on computers located at the
following locations: (i) within secure, locked areas within the confines of a United
States office ofthe individuals identified in Paragraph 12(c); (ii) the sites where
any depositions relating to the source code are taken for the dates associated with
the taking of the deposition; (iii) the Court; or (iv) any intermediate location
where an individual identified In Paragraph 12(c) transports the HOD (e.g., a
hotel prior to a deposition), provided that the Source Code Custodian and expert
take all necessary precautions to protect the confidentiality of the HOD or other
materials containing Source Code while the materials are in such intermediate
locations. HODs will be disconnected from a computer and stored securely when
not in use.
(e) The Source Code Custodian shall maintain a Source Code Log containing the
following information: (I) a record of the date that a paper copy was made of any
portion of source code; (2) the identity of each person granted access to the source
code in either paper or electronic form; and (3) each date when electronic access
was granted. For purposes of part (1) of the preceding sentence, the specific
portion of source code of which a paper copy was made need not be logged, but
any such paper copy will be retained by the Source Code Custodian. Defendants
will not request the log without a reasonable and good faith basis for believing its
production is relevant to suspected security breaches regarding source code. The
parties do not necessarily agree that the log should be produced, and should
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defendants make such a request for production, the parties will meet and conter
regarding such request and bring it to the Court's attention as appropriate.
(f) Electronic copies of Source Code Documents shall only be made within the

confines ofthe HOD. However a Source Code Custodian or expert may include
excerpts of source code of length no more than necessary for purposes of the
litigation in a pleading, exhibit, expert report, discovery document, email
communication, memorandum, deposition transcript, other Court document, or
any drafts of these documents ("Restricted Confidential Documents"). Source
Code Custodians and the persons described in paragraphs 3(a)-(d), shall be
permitted to store and access Restricted Confidential Documents on a computer
and on a computer network that limits access to only necessary viewers; Source
Code Custodians and the persons described in paragraph 3(a)-(d), may also send
Restricted Confidential Documents to authorized persons via electronic mall. An
individual described in paragraph 3(e) may be shown any excerpts of source code
only to the extent that that individuallawful\y and apart from this action received
or authored the source code. Nothing in the foregoing shall prevent Source Code
Custodians Dr experts from describing the functionality of the source code at a
high level, or referring to variable, function or file names, to in-house counsel of
the parties, Dr in publicly filed pleadings or expert reports.
(g) To the extent portions of source code are quoted in a Restricted Confidential
Document, those pages or exhibits containing quoted Source Code will be
separately bound, stamped and treated as RESTRICTED CONFlDENTIALSOURCE CODE. When any Restricted Confidential Document is filed with the
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Court, the separately bound portion stamped and treated as RESTRICTED
CONFIDENTIAL-SOURCE CODE shall be filed under seal. When hard copies
of any Restricted Confidential Document are retained in the offices afthe Source
Code CustOdian, the Source Code Custodian shall keep the separately bound
portions stamped and treated as RESTRICTED CONFIDENTIAL-SOURCE
CODE in a secure, locked area ofthe office of the Source Code Custodian or
destroy them in a manner that ensures they cannot be salvaged, such as crossshred shredding or incineration;
(h) Each Restricted Confidential Document or draft thereof containing Source Code
stored on a computer or computer network shall be individually passwordprotected so as to limit access to unauthorized persons;
(i) Any and all printouts or photocopies of the portions of Restricted Confidential
Documents that contain source code shall be marked "RESTRICTED
CONFIDENTIAL-SOURCE CODE." Should such printouts or photocopies be
transferred back to electronic media, such media shall continue to be labeled
"RESTRICTED CONFIDENTIAL-SOURCE CODE" and shall continue to be
treated as such.
U) If the Source Code Custodian or a party's expert, described in paragraph 12(0),

makes printouts or photocopies of portions of Source Code, the Source Code
Custodian shall keep the printouts or photocopies in a secured locked area of the
office of the Source Code Custodian or destroy them in a manner that ensures
they cannot be salvaged, such as cross-shred shredding or incineration.

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The parties will meet and confer as to the scope of redactions of

personally IdentifYing information, including user identifYing information, in response to
particular discovery requests. Parties may presumptively redact credit card numbers,
social security numbers, and bank account numbers. The parties reserve the right to seek
to have redacted information produced in unredacted form at a later time. For database
records that are produced and redacted, without conceding that any particular redactions
are or are not appropriate, any redactions should be done in a way that preserves the
ability to identifY the geographic location of the user (such as by providing city and state
information or sufficient unredacted IP address information), and that allows for a unique
individual user's activities to be identified even when examining different sets of data
(such as by providing a unique user number).
14.

Nothing in this Protective Order shall preclude any party to this litigation

or its counsel from: (a) showing a document designated under this Protective Order to an
individual who either prepared or reviewed the document prior to the filing of this action
under circumstances that do not constitute a violation of the Protective Order; or (b)
disclosing or using, in any manner or for any purpose, any information or documents
from the party's own flies which the party ltselfhas designated under this Protective
Order.
15.

Nothing contained in this Protective Order shall affect the right of any

party to make any objection, claim any privilege, or otherwise contest any request for
production of documents, interrogatory, request for admission, subpoena, or question at a
deposition or to seek further relief or protective order from the Court as permitted by the

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Federal Rules of Civil Procedure. Nothing in this Protective Order shall constitute an
admission or waiver of any claim or defense by any party.
16.

In the event that any Discovery Materials designated under this Protective

Order is used, described, characterized, excerpted or referenced in, or attached to, any
. Court proceeding or submission in connection with this litigation: (0 it shall not lose its
confidential status through such usc; (ii) the parties shall take all steps reasonably
required to protect its confidentiality during such proceeding; and (iii) the filing party
shall seek to file such material under seal pursuant to Local Rule 5.4, except that upon the
default of the filing party to so request, any party may do so. Envelopes used to seal such
material shall carry the notation: "SUBJECT TO PROTECTIVE ORDER - FILED
UNDER SEAL" and shall comp Iy with all requirements ofthe Court for filing material
under seal. Envelopes so marked shall be delivered sealed to the Clerk of the COUlt and
the contents thereof shaH not be made available for public inspection. Counsel for the
designating party shall have the opportunity to oppose any request for public inspection.
If a pleading contains information designated Confidential or Highly Confidential by
another party, the designating party will be deemed to have consented to a motion to tile
the pleading under seal. Where possible, only confidential pOltions of filings with the
Court shall be filed under seal. The parties shall cooperate in good faith in an effort to
ascertain whether the confidentiality designations of materials filed with the Court can be
waived. As soon as practicable after filing material under seal, but in no event later than
ten (10) court days, the filing party shall file with the Court, for its public file, a copy of
the filed materials with the material designated under this Protective Order redacted.

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

Materials designated under this Protective Order at the time the designation is made, and
failure to do so shall not preclude a subsequent challenge thereto. In the event that any
party to this litigation disagrees at any state of these proceedings with such designation,
such party shall provide to the designating person or entity a notification by electronic
mali, detailing its objection to the designation. The designating person or entity shall
respond by electronic mail, within three (3) court days, and the parties will meet and
confer regarding the dispute no later than four (4) court days after the e-mail response is
sent. If the parties cannot agree on disclosure at the conference, the objecting party shall
file a motion for appropriate relief, or, if a discovery calendar is available, contact the
Court and place the matter on the next available discovery calendar following the
conference, otherwise the objection Is deemed withdrawn. The burden of proving that
Information has been properly designated under this Protective Order is on the person or
entity making such designation.
18.

If a party inadvertently fails to designate Discovery Materials, it shall not

be deemed a waiver in whole or in part of a party's claim of confidentiality, either as to
the specific information disclosed or as to any other information relating thereto or on the
same or related subject matter. As soon as the receiving party is notified in writing of the
inadvertent production, the information must be treated as if it had been timely
designated under this Protective Order, and the receiving party must endeavor in good
faith to obtain all copies of the document which it distributed or disclosed to persons not
authorized to access such information by Paragraph 4 and 6 above, as well as any copies
made by such persons.
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Nothing in this Protective Order shall prevent disclosure beyond the terms

of this Protective Order iflhe party designating material consents in writing to such
disclosure, or if a court orders such disclosure, A party requested to disclose material
designated under this Protective Order to a non-party pursuant to a validly served
subpoena, civil investigative demand, discovery procedure permitted under the Federal
Rules of Civil Procedure, or other formal discovery request shall object to its production
to the extent permItted by applicable law and notifY the requesting nOll-party ofthe
existence of this Protective Order and that the material requested by the non-party has
been designated under this Protective Order, and shall further give notice of such request,
by electronic mail, and by next business day delivery, upon the party that designated the
material as soon as is reasonably possible, but in all instances no later than three (3) days
prior to the date on which such confidential material is to be produced to the non-party,
20,

Inadvertent production of any document produced in response to

discovery requests in this action by any party or non-party, that a party or non-party later
claims should have been withheld on grounds ofa privilege, including the attorney-client
privilege or work product doctrine (referred to hereinafter as an "Inadvertently Produced
Privileged Document") will not be deemed to waive any privilege or work product
protection, A party or non-party may request the return of any document that it
inadvertently produced by identifying the Inadvertently Produced Privileged Document
and stating the basis for withholding such document from production, If a party or nonparty requests the return, pursuant to this paragraph, of such an Inadvertently Produced
Privileged Document then in the custody of one or more parties, the possessing parties
shall within five (5) court days destroy or return to the requesting party or non-party the
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Inadvertently Produced Privileged Document and all copies thereof and shall make
reasonable efforts to expunge from any other document or material information solely
derived from the Inadvertently Produced Privileged Document, consistent with Fed. R.
Clv. P. 26(b)(5)(B). However, the possessing parties may retain information sufficient to
identify the Inadvertently Produced Privileged Document (e.g., bates number, author(s),
reclpient(s). date) for purposes ofa motion to compel production of the document. A
party may move the Court for an order compelling production of the document, and may
present the document to the Court under seal within five (5) court days of receiving a
request to return the document, but said party may not assert as a ground for the entering
of such an order the fact or circumstances of the inadvertent production. Nothing in this
Order, shall preclude a party from arguing that the production of the allegedly
inadvertently produced document was not inadvertent or that conduct since production of
the allegedly inadvertently produced document constitutes a waiver.
21.

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

material designated under this Protective Order, or otherwise complying with the terms of
this Protective Order shall not;
(a)

operate as an admission by any party that any particular

information or material designated under this Protective Order contains or reflects trade
secrets, proprietary or commercially sensitive information, or any other type of
confidential information;
(b)

operate as an admission by any party that the restrictions and

procedures set forth herein constitute or do not constitute adequate protection for any
particular information designated under this Protective Order;
19

. Case 1:11-cv-20427-AJ Document 68

(c)

Entered on FLSD Docket 0511912011

Page 20 of 23

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

production of documents they consider not subject to discovery;
(d)

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

for a further protective order relating to any purportedly confidential information;
(e)

prevent the parties to tbis Protective Order from agreeing in

writing or on the record during a deposition or hearing in this action to alter or waive the
provisions or protections provided for herein with respect to any particular information or
material with written or on the record consent of the party disclosing such information.
22.

This Protective Order shall not be construed to apply to any information

that: (a) is available to the pUblic other than through a breach of this Protective Order or
other dUly of confidentiality; (b) a receiving party can demonstrate was already known to
the party at the time of disclosure and was not subject to conditions of confidentiality; or
(c) a receiving party can demonstrate was developed by that party independently of any
disclosure by a designating party or non-party.
23.

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

entity involves the confidentiality rights ofa non-party or its disclosure would violate a
protective order issued in another action, the party with possession or control of the
information will promptly attempt to obtain the consent ofthe non-party to disclose the
information under this Protective Order. If the consent of the non-party is refused or
otherwise cannot be obtained, the party will promptly thereafter notifY the party seeking
discovery of: (a) the existence and description (to the extent disclosable) of the
information without producing such information and; (b) the identity of the non-party
(provided, however, that such disclosure oftlle identity of the non-party does not violate
20

. Case 1:11-cv-20427-AJ Document 68

Entered on FLSD Docket 05/19/2011

Page 21 of 23

any confidentiality obligations). The party seeking discovery may then make further
application to the non-party or seek an order compelling discovery.
24.

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

parties, all material designated under this Protective Order and all copies thereof
(including summaries and excerpts) shall be either returned to the party that produced it
or destroyed and a certification of destruction supplied to the producIng party; provided,
however, that for each party, counsel who is entitled access to such designated material
under Paragraph 3 may retain complete and unredacted copies of its work product that
contains designated material as well as pleadings and papers filed with the Court or
served on the other party. Reference to desIgnated materials (Including such materials in
work product or pleadings) shall be made solely in the event of, and only in the event of,
further proceedings or litigation between the parties, a dispute over such counsel's
performance or a dispute over the use or dissemination of material designated under this
Protective Order. Such retained copies of pleadings and papers shall be maintained in a
file accessible only by properly authorized counsel under the provisions of, and bound
by, this Protective Order. This Protective Order shall survive the final termination of this
litigation with respect to any such retained confidential material. The Court is
specifically exempted from any return, destruction, or other requirements contemplated
by this provision.
25.

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

designated under this Protective Order aCknowledge they are bound by this Protective
Order and submit to the juriSdiction of the Court for purposes of enforcing this Protective
Order.
21

Case 1:11-cv-20427 -AJ Document 68

Entered on FLSD Docket 05/19/2011

Page 22 of 23

SO STIPULATED:
Dated: May 12,2011

By: _J.!lsi!...f _ _ _ __

JENNER & BLOCK LLP
Steven B. Fabrizio (Pro Hac Vice)
Duane C. Pozza (Pro Hac Vice)
Luke C. Platzer (Pro Hac Vice)
1099 New York Ave., N.W.
Suite 900
Washington, DC 2000 I
Phone: [phone]
Fax: [phone]
MOTION PICTURE
ASSOCIATION
OF AMERICA, INC.
Karen R. Thorland (Pro Hac Vice)
15301 Ventura Blvd.
Building E
Sherman Oaks, CA 91403
Phone: [phone]
Fax: [phone]
Dated: May 12,2011

GRAY-ROBINSON, P.A.
Karen L. Stetson, Fla. Bar No.
742937
1221 Brickell Avenue
Suite 1600
Miami, FL 33131
Phone: [phone]
Fax: [phone]
Allorneysfor Plainl!IJs
By: __

~m~/

_________

JanetT. Munn, Fla. BarNo. 501281
RASCO KLOCK
283 Catalonia Avenue, Suite 200
Coral Gables, FI 33134
Telephone: [phone]
Telecopy: 305.476.7102
Roderick M. Thompson (admitted pro hac
vice)
Andrew Leibnitz (admitted pro hac Vice)
Deepak Gupta (admitted pro hac vice)
Janel Thamkul (admitted pro hac vice)
FARELLA BRAUN + MARTEL LLP
235 Montgomery st.
San Francisco, CA 94104
Telephone: [phone]
Telecopy: 415.954.4480
Attorneysfor Defendants
22

. Case 1:11-cv-20427 -AJ Document 68

Entered on FLSD Docket 05/19/2011

IT IS SO ORDERED.
Dated: ~-l1. 2011
UNITED

23

a~
STA~STRICT JUDOE

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