TimesLines, Inc v. Facebook, Inc.

Filing 55

ENTER PROTECTIVE Order Signed by the Honorable John W. Darrah on 4/24/2012: Mailed notice (jmp, )

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 “Highly Confidential – Outside Counsel Only” in the manner set forth in this
Protective Order.

In designating information as “Confidential” or “Highly Confidential –

Outside Counsel 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.
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.

“Highly Confidential – Outside Counsel Only” Designation. A Party may designate as

“Highly Confidential – Outside Counsel 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. “Highly Confidential – Outside Counsel 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 “Highly
Confidential – Outside Counsel Only” is solely for the purpose of facilitating discovery and that
the receiving 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

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“Confidential” or “Highly Confidential – Outside Counsel 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 22 below.
7.

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

“Highly Confidential – Outside Counsel Only” by including a legend/marking of
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL ONLY” on each
page thereof as to which confidentiality is claimed.

All copies of Material stamped

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL ONLY” shall also
be designated respectively as “Confidential” or “Highly Confidential – Outside Counsel Only.”
With respect to any Material designated as “Confidential” or “Highly Confidential – Outside
Counsel 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 “HIGHLY
CONFIDENTIAL – OUTSIDE COUNSEL ONLY” and shall inform all counsel in writing of
the “Confidential” or “Highly Confidential – Outside Counsel 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 “Highly Confidential – Outside Counsel Only” information
in any affidavits, briefs, memoranda of law, or other papers filed in Court in this litigation, the
Party shall file such Material under seal 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 “Highly Confidential – Outside Counsel Only” Material by denominating by page and line

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those portions of the deposition which are to be considered “Confidential” or “Highly
Confidential – Outside Counsel Only” within fourteen (14) days of receiving the final transcript
and so informing all other Parties of such designation. Until the expiration of the fourteen (14)
day period, the entirety of the deposition shall be treated as though it was marked “Highly
Confidential – Outside Counsel Only.” Additionally, a Party may orally designate testimony as
“Confidential” or “Highly Confidential – Outside Counsel 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 “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL
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 “Highly
Confidential – Outside Counsel 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
“Highly Confidential – Outside Counsel 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;
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.

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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. Outside Counsel for the Parties in 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 litigation support personnel retained by Outside Counsel to assist in the
preparation and/or litigation of this action, including contract attorneys or outside copying
service vendors or electronic document management vendors;
c. Any employees of a Party actively engaged in assisting with 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;
d. 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 (“Outside Experts”), and the employees of such persons whose duties and
responsibilities require access to such materials, after such Outside Expert has signed and
delivered to Retaining Counsel a statement in the form annexed hereto as Exhibit “A” and
provided that the procedure set forth in Paragraph 13 is followed;
e. Any person who is shown on the face of the “Confidential” Material to have authored or
received it, or who has been alleged to have received or reviewed such material, and who has
signed and delivered to counsel a statement in the form annexed hereto as Exhibit “A.”
f. The Court and its official personnel (including but not limited to court reporters and
deposition stenographers and videographers) and the trier of fact, pursuant to the terms of this
Protective Order;

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g. Any other person who is subsequently 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;” and
h. To the extent witnesses are examined in connection with “Confidential” Materials, and
are not covered by subparts “a”, “b”, “c”, “d,” “e”, or “g” 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 “Highly Confidential – Outside Counsel Only” Material. Except as

agreed by the designating Party or its counsel, or as otherwise provided herein, no “Highly
Confidential – Outside Counsel Only” Material subject to this Protective Order or extracts or
summaries therefrom shall be given or shown to any person except the following:
a. Outside Counsel for the Parties in 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 litigation support personnel retained by Outside Counsel to assist in the
preparation and/or litigation of this action, including contract attorneys or outside copying
service vendors or electronic document management vendors;
c. Outside Experts and the employees of such persons whose duties and responsibilities
require access to such materials, after any such Outside Expert has signed and delivered to

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Retaining Counsel a statement in the form annexed hereto as Exhibit “A” and provided that the
procedure set forth in Paragraph 13 is followed;
d. Any person who is shown on the face of the “Highly Confidential – Outside Counsel
Only” Material to have authored or received it, or who has been alleged to have received or
reviewed such material, and who has first signed and delivered to counsel a statement in the
form annexed hereto as Exhibit “A;”
e. The Court and its official personnel (including but not limited to court reporters and
deposition stenographers and videographers) and the trier of fact, pursuant to the terms of this
Order; and
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.”
No person allowed to view “Highly Confidential – Outside Counsel Only” Material shall
use any “Highly Confidential – Outside Counsel 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 “Highly Confidential – Outside Counsel Only” Material.
13.

Notification of Expert Disclosure. At least fourteen (14) days before the first disclosure

of “Highly Confidential – Outside Counsel Only” Material to an Outside Expert pursuant to
Paragraph 12(c) of this order, the Party proposing to make the disclosure must serve the
producing party with a written identification of the Outside Expert, a copy of the executed form
annexed hereto as Exhibit A, and his or her curriculum vitae. If the producing party has good
cause to object to the disclosure (which does not include challenging the qualifications of the

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Outside Expert), it must serve the Party proposing to make the disclosure with a written
objection within seven (7) days after service of the identification. Unless the parties resolve the
dispute within seven (7) days after service of the objection, the producing party must move the
Court promptly for a ruling on the issue. The “Highly Confidential – Outside Counsel Only”
Material may not be disclosed to the Outside Expert without the Court’s approval.
14.

Challenging Designation.

If any Party believes that any Material that has been

designated as “Confidential” or “Highly Confidential – Outside Counsel Only” is not properly
subject to the confidentiality provisions of this Protective Order, that Party may so notify the
producing Party or non-Party in writing and identify the specific 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 or non-Party that produced such

designated Material does not agree to de-designate the Material in response to the objection, and
the challenge cannot be resolved through a meet and confer process to be conducted within five
(5) business days from receipt of notice of the challenge, the dispute shall be resolved in
accordance with Local Rule 37.2. The designated material shall continue to be treated in
accordance with the original designation until the issue is resolved by Order of this Court or by
agreement of the Parties or the Party and non-Party. In addition to service on the opposing Party,
a copy of any such motion pursuant to Local Rule 37 shall be served on any non-Party who is the
producing entity with respect to the materials at issue and such non-Party producing entity shall
have standing to oppose such motion before the Court.
15.

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 “Highly Confidential – Outside Counsel 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

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“Confidential” or “Highly Confidential – Outside Counsel Only” and exclusion of witnesses and
other persons from the courtroom during the presentation of such evidence.
16.

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 “Highly
Confidential – Outside Counsel 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.
17.

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 “Highly Confidential – Outside Counsel 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.

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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.
18.

Responsibility of Counsel. Counsel for the Parties to whom “Confidential” or “Highly

Confidential – Outside Counsel 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.
19.

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

otherwise, it has disclosed “Confidential” or “Highly Confidential – Outside Counsel Only”
Material 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.”
20.

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.

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21.

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 “Highly Confidential – Outside Counsel Only,” such
documents shall be treated as “Confidential” or “Highly Confidential – Outside Counsel 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 “Highly Confidential – Outside
Counsel Only” in accordance with the terms of this Order.
22.

Protected Material Subpoenaed or Ordered Produced in Other Litigation. If a Party is

served with a subpoena or a court order issued in other litigation that compels disclosure of any
information or items designated in this action as “Confidential” or “Highly Confidential –
Outside Counsel Only” that Party must:
a. promptly notify in writing the designating Party and provide a copy of the subpoena or
court order;
b. promptly notify in writing the party who caused the subpoena or order to issue in the
other litigation that some or all of the material covered by the subpoena or order is subject to this
Protective Order, and provide a copy of this Protective Order; and
c. cooperate with respect to all reasonable procedures sought to be pursued by the
designating Party whose “Confidential” or “Highly Confidential – Outside Counsel Only”
Material may be affected.
If the designating Party timely seeks a protective order, the Party served with the
subpoena shall not produce any information designated in this action as “Confidential” or
“Highly Confidential – Outside Counsel Only” before a determination by the court from which
the subpoena or order issued, unless the Party has obtained the designating Party’s permission.

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The designating Party shall bear the burden and expense of seeking protection in that court of its
confidential material.
23.

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

respect to any “Confidential” or “Highly Confidential – Outside Counsel 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 time limits for the filing of any motions or applications for extension of
time pursuant to applicable law.
Except for materials covered by this Protective Order that are on file or otherwise in
possession of the Court, within thirty (30) days after the final determination of this action as
defined above, unless otherwise agreed to in writing by counsel for the producing Party,
“Confidential” or “Highly Confidential – Outside Counsel Only” Material and all copies of same
shall be returned to the Party or non-Party that designated such documents or shall be destroyed
from all reasonably accessible locations. All counsel of record shall make written certification
of compliance herewith, and shall deliver the same to counsel for the Party or non-Party who
produced the documents not more than forty-five (45) days after final determination of this
action. Notwithstanding this provision, counsel are entitled to retain archival copies of all
pleadings, discovery, motion papers, transcripts, exhibits, legal memoranda, correspondence, and
attorney and consultant work product, even if such materials contain material protected by this
Order. Any such archival copies that contain or constitute protected Material remain subject to
this Protective Order and shall be maintained in a safe and secure manner.

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IT IS SO ORDERED this 24th day of April, 2012.
BY THE COURT

Honorable John W. Darrah
United States District Court Judge

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EXHIBIT A

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

)
)
)
)
)
)
)
)
)

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

Jury Trial Demanded

UNDERTAKING OF [Insert Name]
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 “Highly Confidential – Outside Counsel 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 “Highly Confidential – Outside Counsel Only” materials provided
to me as well as any notes or derivations thereof.
3.

I will not intentionally reveal the contents of “Confidential” or “Highly Confidential –

Outside Counsel Only” Material to any unauthorized person.
4.

I will not intentionally use “Confidential” or “Highly Confidential – Outside Counsel

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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: _______________________________

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