TimesLines, Inc v. Facebook, Inc.

Filing 44

MOTION by Plaintiff TimesLines, Inc for protective order (Attachments: # 1 Exhibit s A - B)(Hultquist, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
TIMELINES, INC.,
Plaintiff-Counterdefendant,
v.
FACEBOOK, INC.,
Defendant-Counterplaintiff.

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Civil Action No. 11-cv-06867
Judge John W. Darrah

Jury Trial Demanded

PROTECTIVE ORDER
In accordance with the agreement of the parties and pursuant to Federal Rule of Civil Procedure
26(c), the Court enters the following Agreed Protective Order (“Protective Order” or “Order”) to
govern discovery in this case between Plaintiff Timelines, Inc. (“Plaintiff” or “Timelines”) and
Defendant Facebook, Inc. (“Defendant” or “Facebook”). Plaintiff and Defendant are collectively
referred to as the “Parties.”

It is, therefore, ORDERED, ADJUDGED and DECREED as

follows:
1.

Covered Parties. This Protective Order is applicable to the Parties, any additional parties

joined in this action, and any third-parties required to respond to discovery in this matter, for the
sole purpose of facilitating discovery in the above-styled and numbered cause. It is ordered that
this Protective Order will not be used, in any manner or form, as direct or indirect evidence in
any trial or any hearing, or referred to in any trial or any hearing on the merits of this case,
except a hearing that involves issues related to the enforcement of any provision of this
Protective Order.
2.

Use of Information. All Confidential Information produced or exchanged in the course of

this litigation shall be used solely for the purpose of preparation and trial of this litigation and for
no other purpose whatsoever, and shall not be disclosed to any person except in accordance with
the terms hereof.

3.

Designation of Information. A Party may designate any documents, testimony and other

information furnished or disclosed to any other Party or its counsel during discovery or trial as
“Confidential” or “Confidential—Attorney’s Eyes Only” in the manner set forth in this
Protective Order. In designating information as “Confidential” or “Confidential—Attorney’s
Eyes Only,” a Party will make such designation only as to that information that it in good faith
believes contains confidential information. Information or material that is available to the public
shall not be classified. Nothing in this Protective Order shall permit one Party to designate
documents produced by any other Party as “Confidential” or “Confidential—Attorney’s Eyes
Only,” or otherwise subject those documents to the provisions of this Protective Order, as long as
the document is a document originally of the other Party, or a summary thereof.
4.

“Confidential” Designation. A Party may designate as “Confidential” any document or

any portion of a document and any other thing, material, testimony, or other information that it
reasonably and in good faith believes contains or reflects proprietary or confidential information
that it desires not to be made public.
5.

“Confidential—Attorney’s Eyes Only” Designation.

A Party may designate as

“Confidential—Attorney’s Eyes Only” any document or portion of a document and any other
thing, material, testimony, or other information that it reasonably and in good faith believes is of
such a personally, commercially or competitively sensitive nature that disclosure to persons other
than those specified herein in Paragraph 12 could reasonably be expected to result in injury to
that Party. “Confidential—Attorney’s Eyes Only” information shall include without limitation
information that is not known or available to the public and that constitutes, contains, or reflects
trade secrets; proprietary business information, methods or processes; financial data, reports or
analysis; pricing or cost information; sales and marketing information, analysis, or planning;
customer or candidate information; and other confidential information that is competitively
sensitive.

The Parties expressly recognize that designation of material as “Confidential—

Attorney’s Eyes Only” is solely for the purpose of facilitating discovery and that the receiving

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Party’s failure to object to such designation shall in no way constitute an admission by the
receiving Party that such material constitutes trade secret information under applicable law and
shall in no way operate as a waiver of the receiving Party’s right to challenge the assertion of
such status at a later time.
6.

Time Period for Protection.

Except as otherwise provided below, any information,

document, data, thing, deposition testimony, or discovery response produced, given, or served
pursuant to discovery requests in this litigation and designated by the producing Party as
“Confidential” or “Confidential—Attorney’s Eyes Only” (collectively, the “Material”), or any
information contained in or derived from any of the foregoing Material, shall be subject to the
provisions of this Protective Order until further order of the Court or, absent further order of the
Court, shall be treated pursuant to Paragraph 21 below.
7.

Document Production and Exhibits. Material shall be designated as “Confidential” or

“Confidential—Attorney’s Eyes Only” by including a legend/marking of “Confidential” or
“Confidential—Attorney’s Eyes Only” on each page thereof as to which confidentiality is
claimed. All copies of Material stamped “Confidential” or “Confidential—Attorney’s Eyes
Only” shall also be designated “Confidential” or “Confidential—Attorney’s Eyes Only.” With
respect to any Material designated as “Confidential” or “Confidential—Attorney’s Eyes Only”
that is not produced in paper form (such as data storage devices, diskettes, magnetic media, and
other Material not produced in paper form) and that is not susceptible to the imprinting of a
stamp signifying its confidential nature, the producing Party shall, to the extent practicable,
produce such Material with a cover labeled “Confidential” or “Confidential—Attorney’s Eyes
Only” and shall inform all counsel in writing of the “Confidential” or “Confidential—Attorney’s
Eyes Only” designation of such Material at the time such Material is produced.
8.

Filing of Confidential Documents Generated during Suit. In the event that a Party wishes

to use any “Confidential” or “Confidential—Attorney’s Eyes Only” information in any
affidavits, briefs, memoranda of law, or other papers filed in Court in this litigation, the Party

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shall file such Material as a “Restricted Document” in accordance with Local Rule 26.2, without
the need of further Court order. The Clerk shall thereafter maintain these materials under seal
unless and until the Court expressly orders that they be opened to public inspection.
9.

Depositions. Any Party may designate a deposition or portion thereof as “Confidential”

or “Confidential—Attorney’s Eyes Only” Material by denominating by page and line those
portions of the deposition which are to be considered “Confidential” or “Confidential—
Attorney’s Eyes Only” within seven (7) days of receiving the transcript and so informing all
other Parties of such designation. Until the expiration of the seven (7) day period, the entirety of
the deposition shall be treated as though it was marked “Confidential-Attorney’s Eyes Only.”
Additionally, a Party may orally designate testimony as “Confidential” or “Confidential—
Attorney’s Eyes Only” Material during the course of a deposition, in which case the court
reporter shall transcribe the pages so designated in a separate volume marked
“CONFIDENTIAL” or “CONFIDENTIAL—ATTORNEY’S EYES ONLY.” Any portion of a
deposition so designated, or separately bound volume, shall not be filed with the Court, except in
accordance with Paragraph 8 of this Agreed Protective Order. Notwithstanding the above,
absent agreement of the Parties to the contrary, persons attending depositions must leave the
room before any discussion of any “Confidential” and/or “Confidential—Attorney’s Eyes Only”
Material that the person is not entitled to review under the provisions of this Protective Order.
10.

Restrictions on Use of Confidential Material. Except as agreed by the designating Party

or its counsel or as otherwise provided herein, information designated as “Confidential” or
“Confidential—Attorney’s Eyes Only”:
a.

shall be maintained in confidence by counsel to whom it is furnished;

b.

may be disclosed by such outside counsel only to authorized persons entitled to access

thereto under Paragraphs 11 and 12 below;

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c.

may be used by such outside counsel and the authorized person(s) to whom it is disclosed

only for the purposes of this litigation and for no other purpose; and
d.

may be copied only as reasonably necessary for this litigation, with each such copy

subject to the same protection as the original item.
11.

Authorized Users of Confidential Material.

Except as agreed by the designating Party

or its counsel or as otherwise provided herein, no “Confidential” Material subject to this
Protective Order or extracts or summaries therefrom shall be given or shown to any person
except the following:
a.

Attorneys for any Party engaged in the litigation of this action and the regular employees

of such attorneys to whom it is necessary that the material be shown for purposes of litigation.
b.

Any employees of a Party actively engaged in assisting that Party’s attorneys in the

conduct of this litigation to the extent reasonably necessary to enable the attorneys for that Party
to render professional services in the litigation, who are first informed of and agree to be bound
by the terms of this Agreed Protective Order.
c.

Persons not employees of any Party who are expressly retained to assist such Party’s

counsel (“Retaining Counsel”) in the preparation of this action for trial as either consulting or
testifying experts, and the employees of such persons (“Outside Experts”), after such Outside
Expert has signed and delivered to Retaining Counsel a statement in the form annexed hereto as
Exhibit “A.”
d.

Any person who is shown on the face of the “Confidential” Material to have authored or

received it, and who has signed and delivered to counsel a statement in the form annexed hereto
as Exhibit “A.”
e.

The Court, other court officials (including court reporters) and the trier of fact, pursuant

to the terms of this Protective Order.

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f.

Any other person who subsequently is designated either by (i) written agreement of all

the Parties after a request by one of them or (ii) by order of the Court upon motion by a Party,
after notice to all the Parties, after such person has signed and delivered to counsel a statement in
the form annexed hereto as Exhibit “A.”
g.

To the extent witnesses are examined in connection with “Confidential” Materials, and

are not covered by subparts “a”, “b”, “c”, “d” or “f” above, they and their counsel shall be
informed by the examining attorney of the applicable provisions of this Order and shall first sign
and deliver a statement in the form annexed hereto as Exhibit “A.” Such witnesses shall not be
permitted to retain the “Confidential” Material, or any copy thereof following the examination.
No person allowed to view “Confidential” Material shall use any “Confidential” Material for any
purpose except as needed solely in connection with or to assist in the prosecution or defense of
the claims between the Parties, and each person shall make best efforts necessary to protect the
confidentiality of the Material. Nothing in this Protective Order is intended to prevent a Party or
its employees from reviewing the Party’s own “Confidential” Material.
12.

Authorized Users of “Confidential—Attorney’s Eyes Only” Material. Except as agreed

by the designating Party or its counsel, or as otherwise provided herein, no “Confidential—
Attorney’s Eyes Only” Material subject to this Protective Order or extracts or summaries
therefrom shall be given or shown to any person except the following:
a.

Attorneys for any Party engaged in the litigation of this action and the regular employees

of such attorneys to whom it is necessary that the material be shown for purposes of litigation.
b.

Outside Experts, after any such Outside Expert has signed and delivered to Retaining

Counsel a statement in the form annexed hereto as Exhibit “A.”
c.

Any person who is shown on the face of the “Confidential—Attorney’s Eyes Only”

Material to have authored or received it, and who has first signed and delivered to counsel a
statement in the form annexed hereto as Exhibit “A.”

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d.

The Court, other court officials (including court reporters) and the trier of fact, pursuant

to the terms of this Order.
e.

Any other person who subsequently is designated either by (i) written agreement of all

the Parties after a request by one of them or (ii) by order of the Court upon motion by a Party,
after notice to all the Parties, after such person has signed and delivered to counsel a statement in
the form annexed hereto as Exhibit “A.”
No person allowed to view “Confidential—Attorney’s Eyes Only” Material shall use any
“Confidential—Attorney’s Eyes Only” Material for any purpose except as needed solely in
connection with or to assist in the prosecution or defense of the claims between the Parties, and
each person shall make best efforts necessary to protect the confidentiality of the Material.
Nothing in this Protective Order is intended to prevent a Party or its employees from reviewing
the Party’s own “Confidential—Attorney’s Eyes Only” Material.
13.

Challenging Designation.

If any Party believes that any Material that has been

designated as “Confidential” or “Confidential—Attorney’s Eyes Only” is not properly subject to
the confidentiality provisions of this Protective Order, that Party may so notify the producing
Party in writing and provide a description of the Material that the objecting Party believes should
be freed from the constraints of this Order, and serve copies of such notice to lead counsel for all
other Parties herein. If the Party that produced such designated Material does not agree to redesignate the Material in response to the objection, and the Parties cannot resolve the challenge
through a meet and confer process to be conducted within five (5) business days from receipt of
notice of the challenge, the Party producing such designated Material must then file a motion for
protective order within five (5) business days from the meet and confer, and shall bear the
burden of justifying confidential treatment of the disputed Material under applicable law. If such
a motion is timely filed, the protection afforded by the Protective Order shall continue until the
Court makes a decision on the motion. If no motion is made within the five-day period, the
protection afforded “Confidential” or “Confidential—Attorney’s Eyes Only” Material by this

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Protective Order shall terminate as to the Material described in the objecting Party’s notice given
pursuant to this Paragraph.
14.

Use of Confidential Material at Trial or Hearing (“Trial”). If this matter proceeds to

Trial, the Parties are to meet and confer regarding whether any exhibits intended to be offered
into evidence are designated as “Confidential” or “Confidential—Attorney’s Eyes Only” and, if
so, to confer regarding how such documents should be treated for trial. If the Parties cannot
reach agreement, then they shall approach the Court regarding the appropriate treatment of such
documents including, but not limited to, continued treatment of the documents as “Confidential”
or “Confidential—Attorneys Eyes Only” and exclusion of witnesses and other persons from the
courtroom during the presentation of such evidence.
15.

No Waiver. This Protective Order shall not be deemed a waiver of:

a.

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

b.

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

request;
c.

Any Party’s right in any proceeding herein to object to the admission of any evidence on

any ground;
d.

Any Party’s right to use its own documents and its own “Confidential” or

“Confidential—Attorney’s Eyes Only” material outside of this litigation or to withdraw such
designation in its sole and complete discretion;
e.

Any Party’s right to object to the admissibility of any document or other tangible thing

produced pursuant to a request for production on grounds of relevancy, materiality, privilege, or
other valid ground of objection.
f.

The status of any material as a trade secret.

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16.

Inadvertent Disclosure.

(a)

The inadvertent or unintentional production or other disclosure of documents containing

confidential, secret, attorney-client privileged or attorney work product information without
being designated as “Confidential” or “Confidential—Attorney’s Eyes Only” at the time of the
production or disclosure shall not be deemed a waiver in whole or in part of a Party’s claim of
confidentiality, secrecy or privilege, either as to the specific information or as to any other
information relating thereto or on the same or related subject matter.

Any inadvertent

designation or disclosure shall be corrected as soon as reasonably possible after the designating
Party becomes aware of the error.
(b)

If a Party produces Material without intending to waive a claim of privilege, it shall,

within five (5) business days of discovering such inadvertent disclosure, notify the opposing
Party of its claim of privilege. After being notified, the opposing Party shall promptly return or
destroy the specified Material and any copies thereof pursuant to the terms of this provision,
promptly providing confirmation of such destruction to the notifying Party. If a Party receives
information from an opposing Party that it believes to be privileged, it shall, within five (5)
business days of discovering such inadvertent disclosure, notify the opposing Party of its
inadvertent production. If the opposing Party then confirms that the information is privileged,
the notifying Party shall promptly return or destroy the specified Material and any copies thereof,
promptly providing confirmation of such destruction.
17.

Responsibility of Counsel.

Counsel for the Parties to whom “Confidential” or

“Confidential—Attorney’s Eyes Only” Material has been furnished shall be responsible for
restricting disclosure in accordance with the provisions of this Protective Order and for securing
execution of and retaining the statement attached hereto as Exhibit “A” as and when required
under the provisions of this Protective Order.
18.

Unauthorized Disclosure of Protected Material. If a Party learns that, by inadvertence or

otherwise, it has disclosed “Confidential” or “Confidential-Attorney’s Eyes Only” Material

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designated by the opposing Party to any person or in any circumstance not authorized under this
Protective Order, the Party must immediately (a) notify in writing the opposing Party of the
unauthorized disclosure, including identification of each item of Material so disclosed, (b) use its
best efforts to retrieve all copies of the Material so disclosed, (c) inform the person(s) to whom
unauthorized disclosures were made of all the terms of this Order, and (d) request such person(s)
execute the statement attached hereto as Exhibit “A.”
19.

Modification of Order. This Order may be modified or amended by order of the Court

upon good cause shown following advance notice of at least five (5) business days to the
opposing Party prior to the filing of any motion seeking such modification or amendment.
20.

Third-Party Material. The protections afforded by this Protective Order shall extend to

Material produced by third parties in this action, whether by subpoena or otherwise. To the
extent that the Parties produce documents received from third parties that have been designated
by third parties as “Confidential” or “Confidential—Attorney’s Eyes Only,” such documents
shall be treated as “Confidential” or “Confidential—Attorney’s Eyes Only” in accordance with
the terms of this Order and any deposition testimony concerning the contents of such documents
shall likewise be treated as “Confidential”or “Confidential—Attorney’s Eyes Only” in
accordance with the terms of this Order.
21.

Conclusion of Suit. The provisions of this Protective Order shall continue in effect with

respect to any “Confidential” or “Confidential—Attorney’s Eyes Only” Material until expressly
released by the Party furnishing such Material, and such effectiveness shall survive the final
determination of this action. For purposes of this Protective Order, the “final determination of
this action” shall be deemed to be the later of (i) full settlement of all claims; (ii) final judgment
herein after the completion and exhaustion of all appeals, rehearing, remands, trials and reviews,
if any, of this action; or (iii) the expiration of all time limits under governing law for the filing of
or application for all appeals, rehearings, remands, trials or reviews of this action, including the

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time limits for the filing of any motions or applications for extension of time pursuant to
applicable law.
IT IS SO ORDERED this ____ day of ___________________, 2012.
BY THE COURT

Honorable John W. Darrah
United States District Court Judge

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EXHIBIT A TO AGREED PROTECTIVE ORDER
1.

I am familiar with and agree to be bound by the terms of the Agreed Protective Order in

the litigation styled: Timelines, Inc. v. Facebook, Inc., Case No. 11-cv-06867, in the United
States District Court for the Northern District of Illinois. I understand and acknowledge that
failure to comply with all the terms of the Agreed Protective Order could expose me to sanctions
and punishment in the nature of contempt.
2.

I will only make such copies of or notes concerning documents designated “Confidential”

or “Confidential—Attorney’s Eyes Only” as are necessary to enable me to render the assistance
required in connection with this litigation, and, all such notes and copies shall be preserved in a
separate file maintained as confidential and marked for disposal or destruction upon completion
of this litigation. Upon the final determination of this action, I shall promptly destroy all
“Confidential” or “Confidential—Attorney’s Eyes Only” materials provided to me as well as any
notes or derivations thereof.
3.

I will not intentionally reveal the contents of “Confidential” or “Confidential—Attorney’s

Eyes Only” Material to any unauthorized person.
4.

I will not intentionally use “Confidential” or “Confidential—Attorney’s Eyes Only”

Material for any purpose other than the prosecution or defense of claims in this action.
5.

I agree to be subject to the jurisdiction of the United States District Court for the

Northern District of Illinois for purposes of enforcing the Agreed Protective Order.
DATED this _____ day of _________________, 2012.

By: __________________________________
Name: ___________________________
(print name)
Address: _______________________________