Dunstan et al v. comScore, Inc.

Filing 72

STIPULATED Protective Order Regarding Confidentiality of Discovery Materials. Signed by the Honorable Young B. Kim on 1/20/2012. (aac, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MIKE HARRIS and JEFF DUNSTAN,
individually and on behalf of a class of
similarly situated individuals
Plaintiffs,
v.
COMSCORE, INC.,
a Delaware Corporation,
Defendant.

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Case No. 11 CV 5807

Magistrate Judge Young B. Kim

January 20, 2012

STIPULATED PROTECTIVE ORDER REGARDING
CONFIDENTIALITY OF DISCOVERY MATERIALS
Whereas, the Parties having stipulated that certain discovery material be treated as
confidential, and having shown good cause, IT IS HEREBY ORDERED:
Proceedings and Information Governed
1. This Order and any amendments or modifications hereto (“Protective Order”) shall
govern any document, information (including electronically stored information), or other
thing furnished by any Party, to any other Party, and includes non-parties who receive a
subpoena and who produce discovery responses or testimony in connection with this action.
The information protected includes, but is not limited to, answers to interrogatories, answers
to requests for admission, responses to requests for production of documents, deposition
transcripts and videotapes, deposition exhibits, compiled or un-compiled source code, and
other records or writings or things produced, given, or filed in this action that are designated
by a Party as “Confidential,” “CONFIDENTIAL–ATTORNEYS’ Eyes Only,” or “Highly

Confidential–Source Code,” in accordance with the terms of this Protective Order, as well
as any copies, excerpts, abstracts, analyses, summaries, descriptions, or other forms of
recorded information containing, reflecting, or disclosing such information (“Discovery
Materials”). Plaintiffs and Defendant, as well as their officers, directors, employees, agents,
and legal counsel, are referred to as the “Parties” for the purposes of this Protective Order.
Plaintiffs’ source code reviewing expert, The Sylint Group, Inc., is referred to as “The Sylint
Group,” a copy of its curriculum vitae is attached hereto as Exhibit B, and signed
Acknowledgment and Agreement to be Bound is attached hereto as Exhibit C.
Designation and Maintenance of Discovery Materials as Confidential
2. For purposes of this Protective Order: (a) the “Confidential” designation may be
used when Discovery Materials contain or constitute sensitive personal information; trade
secrets; commercial research, development, or information; pricing and financial
information, contractual obligations/agreements, lists or names of vendors and business plans
or other information required by law or agreement to be kept confidential; (b) the
“CONFIDENTIAL–ATTORNEYS’ Eyes Only” designation may be used when Discovery
Materials contain or constitute information the producing Party deems especially sensitive;
and (c) the “Highly Confidential–Source Code” designation may be used when Discovery
Materials contain or constitute highly confidential source code.
3. Discovery Materials produced or disclosed during the course of this litigation
within the scope of paragraph 2 may be designated by the producing Party as containing

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confidential information by placing on each page and each thing, in a manner that will not
interfere

with

its

legibility,

the

legend:

“CONFIDENTIAL,”

“CONFIDENTIAL–ATTORNEYS’ EYES ONLY,” or “Highly Confidential–Source Code.”
In certain circumstances involving print outs of source code, more fully described in
Paragraph 20 of this Protective Order, the Receiving Party shall designate, by placing on each
page and each thing, in a manner that will not interfere with its legibility, the legend: “Highly
Confidential–Source Code.”
4. Except for documents produced for inspection, designation of confidential
Discovery M aterials shall be made before, or at the time of, production or disclosure.
In the event that documents are produced for inspection, such documents may be produced for
inspection before being marked “CONFIDENTIAL,” “CONFIDENTIAL–ATTORNEYS’
EYES ONLY,” or “Highly Confidential–Source Code.” Once specific documents have been
designated for copying, any documents containing confidential information will then be marked
“CONFIDENTIAL,” “CONFIDENTIAL–ATTORNEYS’ EYES ONLY,” or “Highly
Confidential–Source Code” after copying but before delivery to the Party who inspected and
designated the documents (due to its differing production protocol, source code may be subject
to different requirements, as described in Paragraphs 14-24 of this Protective Order). There
will be no waiver of confidentiality by the inspection of confidential documents before they are
copied and marked “CONFIDENTIAL,” “CONFIDENTIAL–ATTORNEYS’ EYES ONLY,”
or “Highly Confidential–Source Code,” pursuant to this procedure.

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5.

A Party may designate information disclosed at a deposition as

“CONFIDENTIAL,” “CONFIDENTIAL–ATTORNEYS’ EYES ONLY,” or “Highly
Confidential–Source Code” by requesting the reporter to so designate the transcript or any
portion thereof at the time of the deposition. If no such designation is made at the time of
the deposition, any Party may thereafter designate the deposition or portions thereof as
“CONFIDENTIAL,” “CONFIDENTIAL–ATTORNEYS’ EYES ONLY,” or “Highly
Confidential–Source Code” as long as such designation is made in writing and presented to
the other Parties and to the court reporter within a reasonable time. Each Party and the court
reporter shall attach a copy of any final and timely written designation notice to the transcript
and each copy thereof in its possession, custody, or control, and the portions designated in
such notice shall thereafter be treated in accordance with this Protective Order. Any
testimony that describes a document that has been designated as “CONFIDENTIAL,”
“CONFIDENTIAL–ATTORNEYS’ EYES ONLY,” or “Highly Confidential–Source Code”
shall also be deemed to be designated as such.
Inadvertent Failure to Designate
6. The inadvertent failure to designate Discovery Materials as “CONFIDENTIAL,”
“CONFIDENTIAL–ATTORNEYS’ EYES ONLY,” or “Highly Confidential–Source
Code” will not be deemed to waive a later claim as to their confidential nature, or to stop the
producing Party from so designating such Discovery Materials at a later date in writing and
with particularity. Notwithstanding anything herein to the contrary, any Discovery Materials

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received by a Party that have not been designated as confidential shall not be considered
confidential until such time as the receiving Party receives notice in writing from the
producing Party within a reasonable time of the change in the designation.
Disclosure and Use of Confidential Discovery Materials
7. All Discovery Materials produced in this litigation may only be used for purposes
of this lawsuit and not used for any other purpose. Discovery Materials designated as
“CONFIDENTIAL,” “CONFIDENTIAL–ATTORNEYS’ EYES ONLY,” or “Highly
Confidential–Source Code” may only be shown to others as set forth in this Protective Order.
8. The Parties shall not disclose or permit the disclosure of any Discovery Materials
designated as “CONFIDENTIAL” under this Protective Order to any other person or entity,
except that disclosure may be made in the following circumstances:
a. Disclosure may be made to court reporters engaged for depositions and those
persons, if any, specifically engaged for the limited purpose of making photocopies. Before
disclosure to any such court reporter or person engaged in making photocopies, such person must
agree to be bound by the terms of this Protective Order.
b. Disclosure may be made to in-house and outside counsel and employees of
counsel to whom disclosure is reasonably necessary for this litigation.
c. Disclosure may be made to the named Plaintiffs.
d. Disclosure may be made to consultants, investigators, or experts (collectively,
“experts”) employed by the Parties to assist in the preparation and trial of the lawsuit.

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Before disclosure to any expert, the expert must be informed of and agree in writing to be
subject to the provisions of this Protective Order requiring that the Discovery Materials received
be held in confidence, and must execute the “Acknowledgment and Agreement to be Bound,”
attached hereto as Exhibit A.
e. The author or recipient of Discovery Materials or a custodian or other person who
possessed or had knowledge of the Discovery Materials.
f. During depositions, witnesses in the action when disclosure is reasonably necessary
and who have signed the “Acknowledgment and Agreement to be Bound,” unless otherwise
agreed by the designating Party or ordered by the Court.
9. The Parties shall not disclose or permit the disclosure of any Discovery Materials
designated as “CONFIDENTIAL–ATTORNEYS’ EYES ONLY” under this Protective Order
to any other person or entity, except that disclosures may be made in the following
circumstances:
a. Disclosure may be made to in-house and outside counsel and employees of counsel
to whom disclosure is reasonably necessary for this litigation.
b. Disclosure may be made to court reporters engaged for depositions and those
persons, if any, specifically engaged for the limited purpose of making photocopies. Before
disclosure to any such court reporter or person engaged in making photocopies, such person must
agree to be bound by the terms of this Protective Order.

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c. Disclosure may be made to consultants, investigators, or experts (collectively,
“experts”) employed by the Parties to assist in the preparation and trial of the lawsuit.
Before disclosure to any expert other than The Sylint Group, the identity of the expert and
the expert’s curriculum vitae must be disclosed in writing to the producing Party. The
producing Party shall have nine (9) calendar days from the receipt of the foregoing disclosure
to object to the expert being shown “CONFIDENTIAL–ATTORNEYS’ EYES ONLY”
materials. The Parties agree to meet and confer as to whether and what materials may be
shown to the expert. If the Parties cannot reach agreement on the materials to be shown to
the expert, or the expert’s identity itself, either Party may bring the issue to the Court for
resolution and “CONFIDENTIAL–ATTORNEYS’ EYES ONLY” materials may not be
disclosed to the expert unless and until the issue is resolved and disclosure is permitted by
the Court. Prior to any disclosure, the expert must also be informed of and agree in writing
to be subject to the provisions of this Protective Order requiring that the Discovery Materials be
held in confidence, and must execute the “Acknowledgment and Agreement to be Bound,”
attached hereto as Exhibit A.
10. The Parties shall not disclose or permit the disclosure of any Discovery Materials
designated as “Highly Confidential–Source Code,” except as provided in Paragraphs 14-24
of this Protective Order.
11. Except as provided in Paragraphs 8 -10 and 14-24 of this Protective Order, the
Parties shall keep all Discovery Materials designated

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as “CONFIDENTIAL,”

“CONFIDENTIAL- ATTORNEYS’ EYES ONLY,” or “Highly Confidential–Source Code”
that are received under this Protective Order secure within their exclusive possession and
shall take reasonable efforts to place such Discovery Materials in a secure area and
appropriately identified so as to allow access to such information only to such persons and
under such terms as is permitted under this Protective Order.
12.

All copies, duplicates, pleadings, extracts, summaries, or descriptions of

Discovery Materials designated as confidential under this Protective Order, or any portion
thereof, shall be immediately affixed with the legend “CONFIDENTIAL,” “CONFIDENTIALATTORNEYS’ EYES ONLY,” or “Highly Confidential–Source Code,” if that legend does
not already appear.
13. Confidential Discovery Materials may be disclosed to a person, not already
allowed access to such information under this Protective Order, if: (a) the Discovery
Materials were written or were previously received by the person; (b) the Discovery
Materials were written or received by a director, officer, employee or agent of the entity for
which the person is testifying as a Rule 30(b)(6) designee; or (c) counsel for the Party
designating the Discovery Materials agrees in writing or otherwise on the record that the
materials may be disclosed to the person. Disclosure of Discovery Materials pursuant to this
paragraph shall not constitute a waiver of the confidential status of the materials so disclosed.
Source Code

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14. “HIGHLY CONFIDENTIAL SOURCE CODE” may only be disclosed in strict
accordance with the procedures outlined in this Section.
15. Discovery Material designated “HIGHLY CONFIDENTIAL–SOURCE CODE”
shall be subject to all of the protections afforded to “CONFIDENTIAL–ATTORNEYS’
EYES ONLY” information, in addition to the protections specifically applicable to
“HIGHLY CONFIDENTIAL–SOURCE CODE.”

Access to information designated

“HIGHLY CONFIDENTIAL–SOURCE CODE” shall be limited to counsel of record for
Plaintiffs, their designated expert The Sylint Group, or other experts subject to the
restrictions set forth in Paragraph 9 of this Protective Order, which will be held to the same
standards set forth herein.
16. Defendant shall produce “HIGHLY CONFIDENTIAL SOURCE CODE” in
searchable electronic form on two (2) separate DVDs.

The parties do not currently

contemplate production of compiled, executable code and will confer further on the issue as
necessary. In order to verify that the “HIGHLY CONFIDENTIAL SOURCE CODE” has
not later been altered, Defendant may generate hash value(s) for any soft copies of Source
Code produced to Plaintiffs’ counsel or The Sylint Group. Should Defendant choose to
generate hash values for Source Code (or any portion thereof) produced to Plaintiffs’ counsel
or The Sylint Group, Defendant shall contemporaneously provide a copy of such hash
value(s) to the same.

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17. Counsel of record for Plaintiffs may not relinquish or transfer possession or
control of Defendant’s “HIGHLY CONFIDENTIAL SOURCE CODE” except that it may
deliver one of the duplicate copies of such source code supplied by Defendant to The Sylint
Group, which shall first execute the “Acknowledgment and Agreement to be Bound,”
attached as Exhibit A hereto.
18.

One copy of the DVD produced by Defendant of the “HIGHLY

CONFIDENTIAL SOURCE CODE” shall be maintained and kept at a secure location at the
law offices of Plaintiffs’ counsel and one copy of the DVD produced by Defendant shall be
maintained and kept at The Sylint Group on a stand-alone computer (“Source Code
Computer”) that is not connected to a network or the Internet and is protected by a
confidential password. Such “HIGHLY CONFIDENTIAL SOURCE CODE” will be
reviewed only on the Source Code Computer. Plaintiffs’ counsel and The Sylint Group shall
maintain the Source Code Computer in a locked and secured room. If Plaintiffs believe that
connectivity to a network or to the Internet is needed to test the functionality of some aspect
of the source code, the parties shall meet and confer on the issue.
19. Counsel shall maintain a record of those individuals accessing “HIGHLY
CONFIDENTIAL SOURCE CODE.” The Receiving Party shall maintain a log of all
persons who view the Source Code on the Source Code Computer (“Source Code Computer
Log”). The Source Code Computer Log shall contain: (a) the identity of each person granted
access to the Source Code Computer; and (b) each date when such access was granted.

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20.

The Receiving Party may print out limited portions of “HIGHLY

CONFIDENTIAL SOURCE CODE” that are reasonably necessary for use as an exhibit at
deposition, to prepare an expert report, for use as an exhibit to a filing with the Court, or for
use as an exhibit at trial. Any printouts made from the “HIGHLY CONFIDENTIAL
SOURCE CODE” shall include the “HIGHLY CONFIDENTIAL–SOURCE CODE” label
on each page. Bates numbers shall be assigned to each page, and a copy of each such page
shall be provided to the Producing Party within seven (7) calendar days. The Receiving Party
is permitted to make such copies as are necessary for reasonable consultation between
Plaintiffs’ counsel and The Sylint Group, for use as an exhibit at deposition, to prepare an
expert report, for use as an exhibit to a filing with the Court, or for use as an exhibit at trial.
The Receiving Party shall avoid such use except as necessary to meet its burden of proof, and
shall take all reasonable steps necessary to restrict the dissemination of any copies. Any
copies used during a deposition shall be retrieved by the Receiving Party at the end of each
day and must not be given to or left with a court reporter or any other individual.
21. The Receiving Party shall maintain a log of all persons who viewed the printed
Source Code or any copies thereof (“Source Code Printout Log”). The Source Code Printout
Log shall contain: (a) the identity of each person granted access to the Source Code Printout;
(b) each date when such access was granted; and (c) the Bates numbers of any printouts made
pursuant to Paragraph 20 of this Protective Order.

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22. The Receiving Party’s Counsel or The Sylint Group shall maintain possession of
any printed pages of Source Code at their offices and must keep these pages securely stored
in a locked container or office. Access to the printed pages of Source Code shall at all times
be limited to the Plaintiffs’ Counsel or The Sylint Group.
23. No print-out copy of the “HIGHLY CONFIDENTIAL SOURCE CODE” shall
be transported off the premises of Plaintiffs’ counsel or of The Sylint Group, except as
necessary for use at a deposition or other court proceeding.
24. The Receiving Party shall not have the right to make electronic copies of, or
otherwise transfer onto any recordable media or recordable device, materials designated as
“HIGHLY CONFIDENTIAL SOURCE CODE,” nor to otherwise transmit electronic copies
of such material.
Challenging Designations
25. A receiving Party may, in good faith, challenge a producing Party’s designation
at any time. The burden of proving confidentiality remains with the Party asserting such
confidentiality.
26. Any receiving Party disagreeing with a designation shall request in writing that
the producing Party change the designation.

That writing shall provide sufficient

identification so that the producing Party can identify the Discovery Materials whose
designation is being challenged. If the Discovery Materials being challenged are documents
having identification numbers, the documents shall be identified by those numbers.

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27. A Party that elects to initiate a challenge to a designating Party’s confidentiality
designation must do so in good faith and must begin the process by conferring directly (in
voice-to-voice dialogue; other forms of communication are not sufficient) with counsel for
the designating Party within seven (7) calendar days of a discovery dispute arising. In
conferring, the challenging Party must explain the basis for its belief that the confidentiality
designation was not proper and must give the designating Party an opportunity to review the
designated Discovery Materials, to reconsider the circumstances, and, if no change in
designation is offered, to explain the basis for the chosen designation. A challenging Party
may proceed to the next stage of the challenge process only if it has engaged in this meetand-confer process first.
28. If the Parties are unable to reach agreement, the receiving Party may thereafter
seek a Court Order to alter the confidential status of the designated Discovery Materials.
Said motion should identify the materials that are the subject of the challenge and set forth
in detail the basis for the challenge. Each such motion must be accompanied by a competent
declaration that affirms that the movant has complied with the meet-and-confer requirements
imposed in the preceding paragraph and that sets forth with specificity the justification for
the confidentiality designation that was given by the designating Party in the meet-and-confer
dialogue. Nothing in this Protective Order permits or authorizes a party to file confidential
material with the Court, sealed or otherwise, and the Parties acknowledge that any

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submission of confidential material under seal must first be addressed to the Court in
compliance with the applicable law and rules.
29. Until the Court rules on the challenge, all Parties shall continue to afford the
Discovery Materials in question the level of protection to which it is entitled under the
designating Party’s designation. The Parties are encouraged to bring any unresolved disputes
to the Court’s attention as they arise.
Non-Party Discovery Materials
30. The existence of this Protective Order shall be disclosed to any person producing
documents, tangible things, or testimony in this action who may reasonably be expected to
desire confidential treatment for such Discovery Materials. Any such person may designate
Discovery Materials confidential pursuant to this Protective Order.
Disclosure of Privileged Discovery Materials
31. Pursuant to Federal Rule of Evidence 502(d), the production of any Discovery
Materials that would be protected from disclosure pursuant to the attorney-client privilege,
the work product doctrine, state or federal law, rule, or regulation, confidentiality
requirements, agreement of the Parties, or any other applicable privilege or doctrine, will not
constitute a waiver of the applicable privilege, agreement, or doctrine.
32. If any such Discovery Materials are inadvertently produced, the recipient of the
Discovery Materials agrees that, upon discovery or notification of such a disclosure, it will:
(a) promptly return the Discovery Materials and all copies of the Discovery Materials in its

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possession in physical form; (b) permanently delete any electronic versions of the Discovery
Materials from any data source, or any database it maintains; (c) retrieve all paper copies of
the Discovery Materials provided to any third parties, including experts; (d) retrieve from
third parties all electronic copies contained on physical storage media where practicable, or
if not, direct that any such electronic versions be permanently deleted; (e) destroy any notes
that reveal the substance of the protected information; and (f) make no use of the information
contained in the Discovery Materials.
33. Within a reasonable time, but in no event later than twenty-one (21) calendar days
after the discovery of the inadvertent disclosure, the Producing Party will provide a log that
describes the basis for the claim that the Discovery Materials are privileged or otherwise
protected from disclosure. The Party returning such Discovery Materials shall have the right
to apply for an order that such Discovery Materials are not protected from disclosure by any
privilege, law, or doctrine.

The person returning such Discovery Materials may not,

however, assert as a ground for such motion the fact or circumstances of the inadvertent
production or reveal the protected contents of the materials.
34. The Party to whom any inadvertently produced Discovery Materials were returned
shall retain the returned materials until the end of the case, including any appeals. If the
substance of the protected Discovery Materials is discussed in a deposition or pleading before
discovery or notification of the inadvertent disclosure, the Parties agree that such testimony
or discussion will be stricken and may not be used for any purpose.

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35. Pursuant to Federal Rule of Evidence 502(d), this Court declares that, if a
disclosing Party inadvertently produces or discloses Discovery Materials in connection with
this adversary action that are privileged or otherwise protected from disclosure, such
inadvertent production or disclosure shall not constitute or be deemed a waiver or forfeiture
of any claim of privilege or protection that the disclosing Party would be entitled to assert
with respect to the disclosed Discovery Materials in this Court or in any other Federal or
State court proceeding. Instead, any such Discovery Materials and their subject matter shall
be treated as if there had been no disclosure.
Statement Pursuant to the Court’s Standing Order Regarding Confidential
Information
36. Counsel for the Parties are ordered to retain copies of all documents containing
confidential information which are provided in discovery under the protective order. This
Protective Order does not authorize either party to seal Court filings or Court proceedings.
The Court will make a good cause determination for filing under seal if and when the parties
seek to file ”Confidential,” “CONFIDENTIAL–ATTORNEYS’ Eyes Only,” and/or “Highly
Confidential–Source Code” information under seal.
Conclusion of Litigation
37. Within sixty (60) calendar days after final judgment in this action, including the
exhaustion of all appeals, or within sixty (60) calendar days after dismissal pursuant to a
settlement agreement, all Discovery Materials not received in evidence—whether treated
as confidential under this Protective Order or not—shall be destroyed or returned to the
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originating Party. The Clerk of the Court may return to counsel for the Parties, or destroy,
any sealed material at the end of the litigation, including any appeals. Notwithstanding this
provision, counsel are entitled to retain an archival copy of all pleadings, motion papers,
transcripts, legal memoranda, correspondence or attorney work product, even if such
materials contain protected material. Any such archival copies that contain or constitute
protected material remain subject to this Protective Order.
No Prejudice
38. Producing or receiving confidential information, or otherwise complying with the
terms of this Protective Order, shall not: (a) operate as an admission by any Party that any
particular confidential information contains or reflects trade secrets or any other type of
confidential or proprietary information; (b) prejudice the rights of a Party to object to the
production of information or material that the Party does not consider to be within the scope
of discovery; (c) prejudice the rights of a Party to seek a determination by the Court that
particular materials be produced; (d) prejudice the rights of a Party to apply to the Court for
further protective orders; or (e) prevent the Parties from agreeing in writing to alter or waive
the provisions or protections provided for herein with respect to any particular information
or material.
Other Proceedings
39. If a receiving Party is served with a subpoena or an order issued in other litigation
that would compel disclosure of any Discovery Materials, the receiving Party must so notify

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the designating Party in writing (by email, if possible, as well as by overnight courier)
immediately and in no event more than three (3) court days after receiving the subpoena or
order. Such notification must include a copy of the subpoena or court order. The receiving
Party also must immediately inform, in writing, the Party who caused the subpoena or order
to issue in the other litigation that the material covered by the subpoena or order is the subject
of this Protective Order. In addition, the receiving Party must deliver a copy of this
Protective Order promptly to the Party in the other action that caused the subpoena or order
to issue.
40. The purpose of imposing these duties is to alert the interested Parties to the
existence of this Protective Order and to afford the designating Party an opportunity to try
to protect its confidentiality interests in the court from which the subpoena or order issued.
The designating Party shall bear its own fees and the expenses of seeking protection in that
court of its Discovery Materials, and nothing in these provisions should be construed as
authorizing or encouraging a receiving Party in this action to disobey a lawful directive from
another court.
ENTER:

_________________________________
Young B. Kim
United States Magistrate Judge

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