Gordon v. DreamWorks Animation SKG, Inc. et al

Filing 26

Joint MOTION for Protective Order by DreamWorks Animation LLC, DreamWorks Animation SKG, Inc., Jayme Gordon, Paramount Pictures Corporation. (Attachments: # 1 Exhibit A - Proposed Order)(Brown, Thomas)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JAYME GORDON,
Plaintiff,
v.

C.A. No. 1:11-cv-10255-JLT

DREAMWORKS ANIMATION SKG, INC.,
DREAMWORKS ANIMATION LLC, and
PARAMOUNT PICTURES, CORP.,
Defendants.
PROTECTIVE ORDER
This protective order (“Protective Order”) is issued to expedite the flow of discovery
materials, to facilitate the prompt resolution of disputes over confidentiality of discovery
materials, to adequately protect information the parties are entitled to keep confidential, to ensure
that only materials the parties are entitled to keep confidential are subject to such treatment, and
to ensure that the parties are permitted reasonably necessary uses of such materials in preparation
for and in the conduct of trial, pursuant to Fed. R. Civ. P. 26(c) and any other applicable rule of
this Court. Unless modified, superseded or terminated pursuant to the terms contained in this
Order, this Protective Order shall remain in effect through the conclusion of this litigation and
thereafter as set forth below.
In support of this Protective Order, the Court finds that:
1.

Documents or information containing confidential business or commercial

information or trade secrets within the meaning of Rule 26(c) (“Confidential Information”) is
likely to be disclosed or produced during the course of discovery in this litigation;

2.

The parties to this litigation may assert that public dissemination and disclosure of

Confidential Information could injure or damage the party or a non-party disclosing or producing
the Confidential Information and/or could place that party at a competitive disadvantage;
3.

Counsel for the party or parties receiving Confidential Information are presently

without sufficient information to accept the representation(s) made by the party or parties or nonparties producing Confidential Information as to the confidential, proprietary, and/or trade secret
nature of such Confidential Information; and
4.

To protect the respective interests of the parties and to facilitate the progress of

disclosure and discovery in this case, the following Protective Order should issue.
IT IS THEREFORE ORDERED THAT:
1.

This Protective Order shall apply to all information, documents and things subject

to discovery in this Action produced either by a party or a non-party in discovery in this Action
(“Action” shall include without limitation this litigation and any adjunct subpoena proceedings
incident hereto before any tribunal) including, without limitation, testimony adduced at
deposition upon oral examination or upon written questions, answers to interrogatories,
documents and things produced, information obtained from inspection of premises or things, and
answers to requests for admission, or information disclosed pursuant to subpoena under Fed. R.
Civ. P. 45 (“Discovery Material”).
2.

Discovery Material containing Confidential Information is referred to as

“Confidential Material.” The following is not Confidential Material: (i) material which, on its
face, shows or which, through other evidence, the receiving party can show has been published
to the general public; (ii) information that the receiving party can show was lawfully in the
receiving party's possession prior to being designated as Confidential Material in this litigation

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and that the receiving party is not otherwise obligated to treat as confidential; (iii) information
that the receiving party can show was obtained (without any benefit or use of Confidential
Material) from a third party having the right to disclose such information to the receiving party
without restriction or obligation of confidentiality; and (iv) information which, after its
disclosure to a receiving party, is published to the general public by a party having the right to
publish such information.
3.

In determining the scope of information that a party or non-party may designate

as its Confidential Material, each party acknowledges the importance of client access to
information necessary to client decision-making in the prosecution or defense of litigation, and
therefore agrees that designations of information as Confidential Material and responses to
requests to permit further disclosure of Confidential Material shall be made in good faith and not
(1) to impose burden or delay on an opposing party or (2) for tactical or other advantage in
litigation.
4.

The producing party shall label or mark each document and thing that it deems to

constitute Confidential Materials with the following designation: “CONFIDENTIAL.”
5.

The parties may designate as “HIGHLY CONFIDENTIAL – ATTORNEYS’

EYES ONLY” those Confidential Materials that contain information that is especially sensitive
and could cause significant competitive harm if disclosed to an unauthorized person falling into
one of the following categories: (1) financial information; and (2) non-public artwork, story
ideas, scripts, and analogous materials. This designation shall be made in good faith. The
parties shall label or mark each such document or thing with the following phrase, or with a
substantially similar phrase: “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”
Materials so designated is referred to herein as Highly Confidential Materials.

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6.

The labeling or marking of a document or tangible thing with the designation

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” shall be
made when a copy of the document or thing is provided to the receiving party by placing the
required legend on the face of each such document or thing. In the case of documents
containing Confidential Information, such legend shall be placed on every page of such
document (except in the case of electronic documents produced in native format). Any such
designation that is inadvertently omitted or mis-designated may be corrected if the producing
party (a) notifies the receiving party of the inadvertent omission, and (b) re-produces properly
designated documents and things. The receiving party shall thereafter treat the materials as
Confidential Materials or Highly Confidential Materials as appropriate, and such material shall
be subject to this Protective Order as if it had been initially so designated. If, prior to receiving
such notice, the receiving party has disseminated the Confidential or Highly Confidential
Material to individuals not authorized to receive it hereunder, it shall make a reasonable effort to
retrieve the Confidential or Highly Confidential Material or to otherwise assure that the
recipient(s) properly mark the Confidential or Highly Confidential Material and maintain the
confidentiality of the Confidential or Highly Confidential Material, but shall have no other
responsibility or obligation with respect to the information disseminated.
7.

In the case of deposition upon oral examination or written questions, such

testimony shall be deemed to constitute Confidential Materials until the expiration of thirty
calendar days after the deponent’s receipt of the deposition transcript, unless otherwise
designated at the time of the deposition or during the thirty day period. Pages or entire
transcripts of testimony given at a deposition or hearing may be designated as containing
Confidential Materials or Highly Confidential Materials by an appropriate statement either at the

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time of the giving of such testimony or by written notification within thirty calendar days after
the deponent’s receipt of the deposition transcript. If the testimony is not designated at the time
of the deposition or during the thirty day period after receipt of the deposition transcript, the
automatic designation will expire at the end of the thirty day period.
8.

In the case of written discovery responses and the information contained therein,

the responses may be designated as containing Confidential Materials or Highly Confidential
Materials by means of a statement at the conclusion of each response that contains such
information specifying the level of designation of the Confidential Information and by placing a
legend of the front page of such discovery responses stating: “CONTAINS CONFIDENTIAL
INFORMATION” or “CONTAINS HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY
INFORMATION,” or a substantially similar designation. Any such designation that is
inadvertently omitted or mis-designated may be corrected by written notification to counsel for
the receiving party, and the receiving party shall thereafter mark and treat the materials as
containing Confidential Materials or Highly Confidential Materials as appropriate, and such
material shall be subject to this Protective Order as if it had been initially so designated. If, prior
to receiving such notice, the receiving party has disseminated the Confidential Materials or
Highly Confidential Materials to individuals not authorized to receive it hereunder, it shall make
a reasonable effort to retrieve the Confidential or Highly Confidential Materials or to otherwise
assure that the recipient(s) properly mark and maintain the confidentiality of the materials, but
shall have no other responsibility or obligation with respect to the information disseminated.
9.

In the case of Confidential Information not reduced to documentary or tangible

form or which cannot be conveniently designated as set forth above, such information may be

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designated as Confidential Material or Highly Confidential Material by informing the receiving
party of the designation in writing at the time of transfer of such information.
10.

Highly Confidential Materials and any information contained therein shall be

disclosed only to the following persons:
a.

Outside counsel of record in this Action for the receiving party, and in-

house counsel employed by the Defendants who have responsibility for this litigation, all of
whom shall be bound by this Protective Order;
b.

Employees and agents of such counsel including paralegals, litigation

support services, secretarial and clerical staff, all of whom shall be bound by this Protective
Order;
c.

The following categories of persons, provided that such persons have no

involvement in addressing any matter regarding the substantive issues in the case, and provided
that these persons execute appropriate agreements ensuring the confidentiality of the materials:
outside copying or scanning vendors; independent legal translators retained to translate in
connection with this Action; independent stenographic reporters and videographers retained to
record and transcribe testimony in connection with this Action; graphics, translation, or design
services retained by counsel of record for purposes of preparing demonstrative or other exhibits
for deposition, trial, or other court proceedings in this Action; and jury or trial consulting
services, including mock jurors;
d.

The Court, its personnel and stenographic reporters;

e.

Any person who authored, previously received, or was shown the

materials and, subject to timely objection including objection that such person is not internally

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authorized to receive such information, any person currently employed by the designating party;
and
f.

Any independent experts or consultants, and employees and assistants

under the control of such expert or consultant, who (1) are engaged in connection with this
Action, and (2) are not regularly employed by or associated with a party hereto, other than by the
designating party, provided however that disclosure to such persons shall be made only on the
conditions set forth in paragraph 12 below.
11.

Confidential Materials and any information contained therein may be disclosed to

the persons designated in paragraph 10 above and additionally may be disclosed to the parties
and their officers, directors, managing agents, and employees, so long as such individuals are
actively involved in the prosecution or defense of this litigation, and so long as such individuals
agree to be bound by the provisions of this Protective Order.
12.

A party desiring to disclose Confidential or Highly Confidential Materials to

experts or consultants specified in paragraph 10(f) above shall first obtain a signed undertaking,
as provided in Exhibit A attached hereto, from each such expert or consultant, and such party or
its counsel shall retain in his/her files the original of each such signed undertaking.
13.

The restrictions on the use of Confidential and Highly Confidential Materials

established by this Protective Order are applicable only to the use of information received by a
party from another party or from a non-party. A party is free to use its own information as it
pleases.
14.

Any party or non-party may seek permission to file Confidential Materials or

Highly Confidential Materials with the Court under seal by following the procedure set out in

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L.R. 7.2. No Confidential Materials or Highly Confidential Materials shall be publicly filed with
the Court absent agreement of the producing party or Order of the Court.
15.

The acceptance by a party of documents designated as Confidential Materials or

Highly Confidential Materials shall not constitute an agreement, admission or concession, or
permit an inference, that the material(s) are in fact properly the subject for protection under Fed.
R. Civ. P.26 (c), or some other basis. Documents designated as Confidential Materials or Highly
Confidential Materials shall be treated in accordance with the provisions of this Protective Order,
except that any party may at any time seek an Order from the Court determining that specified
information or categories of information are not properly designated as Confidential Materials or
Highly Confidential Materials, provided that prior to making such a motion the parties shall meet
and confer in good faith to resolve any differences over the designation. In response to the filing
of such a motion, the party or non-party asserting confidentiality shall have the burden of
proving that the Confidential or Highly Confidential Materials in question are protectable under
Fed. R. Civ. P. 26(c) or otherwise. A party shall not be obligated to challenge the propriety of a
designation of Confidential or Highly Confidential Materials at the time made, and failure to do
so shall not preclude subsequent challenge. Should any party or non-party seek an Order from
the Court to determine whether specified information or categories of information are not
properly designated the claimed designation shall remain operative and respected by all the
parties and non-parties pending the Court’s ruling.
16.

Nothing in this Protective Order shall require disclosure of material that a party or

non-party contends is protected from disclosure by the attorney-client privilege, the attorney
work-product immunity, or any other applicable privilege. This shall not preclude any party
from moving the Court for an Order directing the disclosure of such material.

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17.

Production or disclosure of documents or information subject to the attorney-

client privilege, work product immunity, or any other applicable privilege shall not constitute a
waiver of, nor a prejudice to, any claim that such or related material is privileged or protected by
the work product immunity or any other applicable privilege. A producing party may notify the
receiving party in writing that produced documents or information are subject to the attorneyclient privilege, work product immunity, or any other applicable privilege. Within five (5)
calendar days of this notice, the receiving party shall return or destroy all such documents or
information and all copies thereof, including those that have been shared with experts,
consultants, and vendors, and confirm in writing that all such documents or information have
been returned or destroyed. No use shall be made of such documents or information during
depositions, through motion practice, or at trial. In the case of such returned production, the
producing party shall provide a privilege log identifying such documents or information within
ten (10) calendar days of its original notice to the receiving party. The receiving party may move
the Court for an Order compelling production of any such documents or information in
accordance with the Federal Rules of Civil Procedure. The motion shall be filed under seal and
shall not assert as a ground for production the fact of the earlier production, nor shall the motion
disclose or otherwise use the content of the previously produced and returned documents or
information in any way (beyond any information appearing on the above-referenced privilege
log).
18.

In the event of any accidental or inadvertent disclosure of Confidential or Highly

Confidential Material other than in a manner authorized by this Protective Order, counsel for the
party responsible for the disclosure shall immediately notify counsel for the producing party of
all the pertinent facts, and make every effort to prevent further unauthorized disclosure including

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retrieving all copies of the Confidential or Highly Confidential Material from the recipient(s)
thereof and securing the agreement of the recipients not to further disseminate the Confidential
or Highly Confidential Material in any form. Compliance with the foregoing shall not prevent a
party or non-party from seeking further relief from the Court.
19.

The recipient of any Confidential or Highly Confidential Material shall maintain

such information in a secure and safe place.
20.

Each recipient of any Confidential or Highly Confidential Material shall be

subject to the jurisdiction of this Court for purposes of the implementation and enforcement of
this Protective Order.
21.

This Protective Order shall not prevent the parties from applying to the Court for

relief therefrom or modification thereto, or from applying to the Court for further or additional
relief by way of protective orders or otherwise, or from agreeing between themselves to
modifications of this Protective Order.
22.

Confidential and Highly Confidential Materials shall be used solely for the

purposes of this Action and shall not be used for any other purpose except as expressly provided
herein or by further Order of the Court.
23.

In the event that any discovery calls for the production of information that a party

or non-party reasonably believes would breach an express or implied agreement with any third
party to maintain such information in confidence, the party or non-party requested to produce the
information shall, within seven calendar days of receipt of the discovery request, give written
notice to the third party that its information is subject to discovery in this action, and shall
provide the third party with a copy of this Stipulated Protective Order. The third party shall have
twenty-one calendar days from receipt of the written notice to seek relief from the Court, if the

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third party so desires. If the twenty-one calendar days elapse without the third party seeking
relief from the Court, the requested information must immediately be produced in accordance
with the terms of this Stipulated Protective Order.
24.

In the event that a party or non-party desires to provide access to or disseminate

Confidential or Highly Confidential Materials to any person not entitled to access under this
Protective Order, it may move the Court for an order that such person be given access thereto if
the parties cannot, after negotiating in good faith, agree to such additional access or
dissemination.
25.

Within sixty calendar days after the final conclusion of this Action (“Termination

of Action”), including any appeals, all Confidential or Highly Confidential Materials produced
by any party or non-party, and all copies of such information, shall be returned to the producing
party, or counsel of record shall certify in writing that such material has been destroyed. Outside
counsel of record may retain a copy of all correspondence, pleadings, motion papers, discovery
responses, deposition and trial transcripts, legal memoranda, work product, and emails together
with any attachments, provided that such retained material shall continue to be subject to the
remaining provisions of this Protective Order.
26.

This Protective Order shall survive the final termination of this Action with

respect to any retained Confidential and Highly Confidential Materials.
27.

Nothing in this Protective Order shall prevent or otherwise restrict counsel from

rendering advice to their clients and, in the course thereof, relying generally on Confidential or
Highly Confidential Material; provided, however, that in rendering such advice counsel shall not
disclose, reveal or describe any such materials except insofar as allowed (if allowed at all) under
the terms of this Order. In addition, regardless of any designation pursuant to this Protective

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Order, if a document or testimony makes reference to the actual or alleged conduct or statements
of a person who is a potential witness, counsel may discuss such conduct or statements with such
witness without revealing any portion of the document or testimony other than that which
specifically refers to such conduct or statement, and such discussion shall not constitute
disclosure in violation of this Protective Order.
28.

No copy of any transcript of any deposition which is designated, in part or in

whole, as including Confidential or Highly Confidential Material shall be furnished by the court
reporter to any person other than to counsel of record and counsel for a non-party, if the
furnished transcript is of the non-party’s own deposition.
29.

The terms of this Protective Order may be applied to the Confidential and Highly

Confidential Materials of a non-party, as long as that non-party agrees in writing to be bound by
the terms of this Protective Order.
30.

By affixing their signatures below, the parties agree to abide by the terms of this

Stipulation until this Protective Order or a further protective order is entered by the Court. Upon
the signing of this Order by the District Court Judge, this Protective Order shall be effective as
against all party signatories hereto as of the date of such signature of that party or party's
representative, thereby rendering this Protective Order effective nunc pro tunc to the date of such
party’s signature.

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Respectfully Submitted,
JAYME GORDON,

DREAMWORKS ANIMATION SKG, INC.,
DREAMWORKS ANIMATION LLC, and
PARAMOUNT PICTURES, CORP.

By his Attorneys,

By their Attorneys,

/s/ Thomas A. Brown
Gregory A. Madera, BBO #313,020
Thomas A. Brown, BBO #657,715
Maureen M. Brenner, BBO #679,573
FISH & RICHARDSON P.C.
One Marina Park Drive
Boston, MA 02210-1878
[phone]
[e-mail]; [e-mail];
[e-mail]

/s/ Julia Huston
John A. Shope, BBO #562,056
Julia Huston, BBO #562,160
David A. Kluft, BBO #658,970
FOLEY HOAG LLP
Seaport West
155 Seaport Boulevard
Boston, MA 02210-2600
[phone]
[e-mail];
[e-mail];
[e-mail]

Mark A. Fischer, BBO #167,100
DUANE MORRIS LLP
470 Atlantic Avenue, Suite 500
Boston, MA 02210-2243
[phone]
[e-mail]

Jonathan Zavin, pro hac vice
LOEB & LOEB LLP
345 Park Avenue
New York, NY 10154
[phone]
[e-mail]

Juanita R. Brooks, pro hac vice
FISH & RICHARDSON P.C.
12390 El Camino Real
San Diego, CA 92130
[phone]; [e-mail]

David Grossman, pro hac vice
LOEB & LOVE LLP
10100 Santa Monica Blvd., Suite 2200
Los Angeles, CA 90067
[phone]
[e-mail]

Michael J. Kane, pro hac vice
Joel D. Leviton, pro hac vice
FISH & RICHARDSON P.C.
3200 RBC Plaza
60 South Sixth Street
Minneapolis, MN 55402
[phone]
[e-mail]; [e-mail]
Kristen McCallion, pro hac vice
FISH & RICHARDSON P.C.
601 Lexington Avenue, 52nd Floor
New York, NY 10022
[phone]; [e-mail]

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SO ORDERED:
JOSEPH L. TAURO
UNITED STATES DISTRICT JUDGE

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EXHIBIT A
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JAYME GORDON,
Plaintiff,
v.

C.A. No. 1:11-cv-10255-JLT

DREAMWORKS ANIMATION SKG, INC.,
DREAMWORKS ANIMATION LLC, and
PARAMOUNT PICTURES, CORP.,
Defendants.

UNDERTAKING CONCERNING RECEIPT OF CONFIDENTIAL MATERIALS
SUBJECT TO PROTECTIVE ORDER

I, _________________________________ declare that:
1.

My present residential address is
.

2.

My present employer is ______________________ and the address of my present

employer is

.

3.

My present occupation or job description is

4.

I have received and carefully read the Protective Order in this Action dated

__________________, and understand its provisions. As a condition precedent to receiving any
Confidential and/or Highly Confidential Materials subject to the Protective Order, I agree to
subject myself to the personal jurisdiction of this Court with respect to the enforcement of the
provisions of the attached Protective Order. I understand that I am obligated, under Order of the

.

Court, to hold in confidence and not to disclose the contents of any document marked or later
designated pursuant to the Protective Order as Confidential or Highly Confidential Material to
anyone other than those persons authorized under the Protective Order to review such
information. I further understand that I am not to disclose to persons other than those authorized
persons any words, substances, summaries, abstracts or indices of Confidential or Highly
Confidential Materials or transcripts disclosed to me. In addition to the foregoing, I understand
that I must abide by all of the provisions of the Protective Order.
6.

At the termination of this Action or at any time requested by counsel of record in

this Action, I will return to counsel of record in this Action all documents and other materials,
including notes, computer data, summaries, abstracts, or any other materials including or
reflecting Confidential or Highly Confidential Materials which have come into my possession,
and will return all documents or things I have prepared relating to or reflecting such information.
7.

I understand that if I violate the provisions of this Protective Order, I will be in

violation of a Court Order and subject to sanctions or other remedies that may be imposed by the
Court and potentially liable in a civil Action for damages by the disclosing party.
8.

I declare under penalty of perjury of the laws of the United States that the

foregoing is true and correct.

Executed on:

Name:

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