International IP Holdings, LLC et al v. Green Planet, Inc.

Filing 37

STIPULATED CONFIDENTIALTY PROTECTIVE ORDER Signed by District Judge Robert H. Cleland. (LWag)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

INTERNATIONAL IP HOLDINGS,
LLC, a Michigan limited liability
company and INNOVATION
VENTURES, LLC, a Michigan limited
liability company,

Case No. 2:13-cv-13988-RHC-PJK
Hon. Robert H. Cleland
Magistrate Paul J. Komives

Plaintiffs,
v.
GREEN PLANET, INC.,
a California Corporation,

STIPULATED
CONFIDENTIALITY
PROTECTIVE ORDER

Defendant. 

/

IT IS HEREBY STIPULATED AND AGREED by and between
Plaintiffs, on the one hand, and Defendant, on the other hand, that the parties hereto
seek certain documents and/or information that a party may claim contains and/or
constitutes proprietary and/or confidential business information, information subject
to a legally protected right or right of privacy, financial and/or personal information,
or other confidential information, but otherwise may be relevant or reasonably
calculated to lead to the discovery of admissible evidence and therefore a protective
order is appropriate, and that the following Protective Order be entered pursuant to
MCR 2.302(c), subject to the approval of the Court.

IT IS HEREBY AGREED AND ORDERED THAT:
1.  

"Confidential" Information.

A party ("party") may designate as "Confidential" those materials, whether
in written, oral, electronic, graphic, audiovisual, or any other form, that the
designating party believes, in good faith, contain information that is (a) the
designating party's confidential, sensitive, or competitive information, or
potentially invasive of the designating party's privacy interests, (b) not generally
known, and (c) not made available to the public or third parties or, if disclosed to
third parties, would require such third parties to maintain the information in
confidence.
2.  

Effect of Order and Designation of "Confidential."

The entry of this Order does not constitute an admission, agreement, finding or
ruling that any information designated as Confidential is subject to discovery or is
admissible as evidence in this case. Nothing in this Order shall diminish, eliminate,
or otherwise affect any claim or position that any party may assert, or has asserted, in
this case.

Further, nothing in this Order shall modify, diminish, eliminate or

otherwise affect any previous orders entered by the Court. The designation as
Confidential, and/or the failure of any party to challenge such a designation by
another party, shall have no meaning or effect whatsoever with respect to the
substantive issues in this litigation, or with respect to the claims or defenses of any
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party, and shall not be construed as an admission or agreement that any specific
information is or is not confidential and/or proprietary and/or does or does not
constitute a party’s confidential and/or legally protectable information.
3.  

Scope of Order.
a. 

Information to be covered by this Stipulated Protective Order

shall include information designated as Confidential, as defined above, that has
been or is set forth, revealed, or provided: (a) in response to any discovery
requests; (b) in any documents, things, or premises made available for inspection
or produced to the discovering party in response to any discovery requests or in
response to any subpoena; (c) during depositions upon oral or written examination;
(d) in connection with any other discovery taken in this action, whether pursuant to
the Michigan Court Rules, informally, or by agreement; (e) in, or accompanying
correspondence to the receiving party; (f) in submissions to, or before the Court,
including testimony, briefs, exhibits, and declarations; (g) in response to any Order
of the Court; and (h) in any documents, data, files, e-mails or other information of
Plaintiffs that was received or obtained by Defendant. The parties have agreed that
proceedings and discovery to date shall also be governed by this Stipulated
Protective Order, and therefore the parties have fourteen (14) days from its entry in
which to designate such materials in accordance with this Stipulated Protective
Order.
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b.

Information to be covered by this Stipulated Protective Order

also shall include privileged information, as discussed below.
4.  

Disclosure and Use of Confidential Information.

Subject to Section 15, information designated as Confidential shall be
disclosed only to the following persons and used only for the litigation of this
action:
a.  

outside counsel retained by the respective parties to this

b.  

in house counsel and their respective secretarial, clerical and

litigation;

paralegal personnel, but only after compliance with the provisions of Section 6
below;
c.  

party representatives and their respective secretarial, clerical

and paralegal personnel, but only after compliance with the provisions of Section 6
below;
d.  

employees of outside counsel and outside copy services,

couriers, etc.;
e.  

outside experts, consultants, or investigators (collectively,

referred to hereinafter as "experts") who are engaged for the purpose of this action
by the party in possession of such information and their support personnel, but
only after compliance with the provisions of Section 6 below;
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f.  

any persons identified on the face of such document as authors

or recipients;
g. 

the Court, Court personnel, the jury, and court reporters; and

h.

stenographic reporter taking testimony in connection with the

litigation.
5.

Highly Confidential – For Attorneys’ Eyes Only – A producing

person may designate materials and/or information as “Highly Confidential – For
Attorneys’ Eyes Only” if that producing person believes in good faith the material
or information contains extremely sensitive confidential information, including but
not limited to commercial information; pricing, cost, or marketing information
relating to the producing person or the producing person’s commercial products or
planned commercial products; or technical and research information or product
formula information that is extremely sensitive. None of the materials, nor any
copies or extracts of any materials designated as Highly Confidential – For
Attorneys’ Eyes Only may be provided or sent (whether electronically or
otherwise) to a party but shall be provided to the parties’ counsel of record only.
6.

Handling of Confidential Materials.

Any person in possession of materials designated as Confidential or Highly
Confidential shall exercise reasonable and appropriate care with regard to the
storage, custody, or use of such materials to ensure that their confidential nature is
maintained.
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7. 

Undertaking.
a. 

A party desiring to disclose information designated as

Confidential to a person under Section 4(b), (c) or (e) herein, shall first have such
person sign an undertaking in the form attached as Exhibit A, a copy of which shall
be provided to all parties prior to any disclosure of such information to a designee.
In addition to the foregoing, if a party wishes to disclose information designated as
Confidential to any expert or consultant under Section 4(e), such party shall first
give written notice to the party whose information it desires to disclose, who shall
have ten (10) business days after such notice is received to object in writing. The
notice

also

shall

include

a

current

curriculum

vitae

showing

employment/consulting history, publications, and prior testimony.  
Any objection under this section shall be made in good faith and on
reasonable grounds. Should the parties be unable to resolve the objection, the
objecting party may raise this matter with the Court and request an Order restricting
such individual's access to the objecting party's Confidential designated
information. Failure to object within ten (10) business days of receiving notice, or
failure to raise this matter with the Court within twenty (20) business days after it is
determined that the objection cannot be resolved shall be deemed approval, and
such person shall thereafter be qualified to have access to the objecting party's

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Confidential designated information pursuant to the terms and conditions of this
Order.
b.  

The proposing party shall not disclose the objecting party’s

information designated as Confidential to the proposed expert or consultant during
the period for objection, nor during the pendency of any request made to the Court
in accordance with this section. No party shall use its right to object to a proposed
designee to interfere with the ability of  the other party to reasonably prepare for
trial, and consent to the disclosure of information shall not unreasonably be
withheld.
c.  

The administrative and clerical staff of an outside consultant or

expert under Section 4(e) shall be deemed to have signed the undertaking in the
form of Exhibit A when the outside expert or consultant supervising such
individuals has executed the undertaking.
8.  

Marking of Confidential Information.

Confidential materials shall be marked “Confidential – Subject to
Protective Order” on each page of each document so designated.
Highly Confidential materials shall be marked “Highly Confidential –
Attorneys’ Eyes Only Subject to Protective Order” on each page of each
document so designated.

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9.  

No Marking at Inspection.

When files and records are produced for inspection, no marking need be
made in advance of the inspection. For purposes of  the initial inspection, all
documents in any produced files shall be considered marked as Confidential.
Thereafter, upon selection of specified documents for copying by the inspecting
party, the producing party shall mark the copies of such documents with the
appropriate confidentiality marking at the time that the copies are produced to the
inspecting party.
10.   Deposition, Trial, or Other Testimony.
If information to be treated in confidence is contained in deposition, trial, or
other testimony, the transcript or portions therein may be designated as
Confidential or Highly Confidential by so notifying the other parties on the
record, at the time of the testimony, or by notifying the other parties in writing,
within twenty-one (21) days of receipt of the final transcript of the specific pages
and lines of the transcript to be deemed Confidential or Highly Confidential.
Such written notification shall specify the designation by page and line number.
All depositions, regardless of whether a designation of confidentiality was made on
the record, shall be treated as Confidential until twenty-one (21) days after a final
transcript of the deposition is received. After such twenty-one (21) day period has
expired and in the absence of any written  notice deeming specific portions
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Confidential or Highly Confidential, the transcript of testimony shall be treated
as designated on the record at the time of testimony, or if no designations were
made then the transcript of testimony shall be treated as a public document. Unless
otherwise agreed to by the parties in writing or on the record, no individual not
qualified hereunder to receive certain information shall be in attendance at that
portion of a deposition during which such information is being testified to or
produced by another party. If a party wishes to use information designated as
Confidential or Highly Confidential in a Motion, during a hearing or trial, such
information shall be submitted under seal as set forth in Section 10, below. The
Court may then view and consider the information for the Motion and hearing on
the Motion.
11.   Sealing Procedures.
If a document containing information designated as Confidential or Highly
Confidential is filed with the Court, it shall be filed under seal in a sealed
envelope with one of the following notations:
FILED UNDER SEAL
CONTAINS CONFIDENTIAL INFORMATION
SUBJECT TO PROTECTIVE ORDER
12.   Inadvertent or Unintentional
Information by Producing Party.

Disclosure

of

Confidential

The inadvertent or unintentional disclosure by the producing party of
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information designated as Confidential or Highly Confidential, either by way of
document production or deposition testimony, regardless of whether the
information was so designated at the time of disclosure, shall not be deemed a
waiver in whole or in part of a claim of confidentiality, either as to the specific
information disclosed or as to any other information relating thereto on the same or
related subject matter so long as such inadvertent or unintentional disclosure was
not the result of  recklessness or gross negligence on the part of the disclosing
party.

Any such inadvertently or unintentionally disclosed information not

designated as Confidential or Highly Confidential pursuant to Section 2 or 5,
respectively, shall be so designated, by giving written notice to all parties, as soon
as reasonably possible after the producing party becomes aware of the inadvertent
or unintentional disclosure. Within fourteen (14) days of such notice and receipt of
substitute copies bearing the appropriate confidentiality legend, the receiving party
shall return said documents and things and not retain copies thereof, destroy said
documents and things, or raise this matter with the Court and request an Order
permitting the receiving party to retain the originally disclosed information.
Unless the receiving party is opposing the return or destruction of such
information, the receiving party also shall use good faith efforts to arrange for the
return or destruction of said documents and things from parties and individuals to
whom it may have distributed the documents or things but who were not
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authorized to receive information designated as Confidential or Highly
Confidential under this protective order. If the receiving party opposes the return
or destruction of such information, it shall, after receiving notice from the
producing party, nonetheless cease any further distribution of such information to
unauthorized parties or individuals, pending resolution of the issue by the Court.
Upon the re-designation of information under this section, whether by agreement
of the parties or by Court order, said information shall thereafter be treated as
designated by the producing party.
13.   Inadvertent or Unintentional
Information by Receiving Party.

Disclosure

of

Confidential

Should any information already designated Confidential or Highly
Confidential be disclosed inadvertently or unintentionally by the other, nondesignating party to any person not authorized to receive such information under
this Stipulated Protective Order, such other, non-designating party shall use its best
efforts to bind such person to the terms of this Order; and such other, nondesignating party shall: (a) promptly inform such person of all the provisions of
this Order; (b) immediately identify such person and the information disclosed to
the party that designated the information as Confidential or Highly Confidential;
(c) request such person to sign an undertaking in the form attached as Exhibit A;
and (d) retrieve all copies of documents containing the inadvertently disclosed
information. Should said unauthorized person refuse to keep such information
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confidential and/or refuse to sign and abide by an undertaking in the form attached
as Exhibit A, either party may immediately seek a Court Order requiring the
unauthorized person to execute and abide by the undertaking in the form attached
as Exhibit A. The executed undertaking shall be provided promptly to the party
that designated the document or information as Confidential or Highly
Confidential.
14.   Inadvertent or
Information.

Unintentional

Disclosure

of

Privileged

In the event that a producing party inadvertently or unintentionally produces
a document that otherwise is not discoverable for reasons of the attorney-client
privilege, work product immunity, or other privilege, doctrine, or immunity, such
party shall promptly give written notice to the requesting party upon discovering
such inadvertent disclosure.

Immediately upon receiving such notice, outside

counsel for the receiving party shall sequester all identified information, including
any and all copies, in its offices until the matter is resolved either by agreement of
the parties or by Court order. If the parties are unable to reach a satisfactory
agreement as to the return, destruction, or use of such documents within fourteen
(14) days of such notice, the producing party may, within fourteen (14) days
thereafter, request that the Court resolve the matter and order appropriate relief.
The period of time that elapses while a party follows the procedures set forth in
this section for resolving any inadvertent disclosure dispute shall not be considered
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as a factor in deciding whether a party's delay in attending to the inadvertent
disclosure was reasonable under the circumstances.
Nothing herein shall preclude the receiving party from challenging the
privilege or immunity claimed by the disclosing party regarding the inadvertently
produced document or information, and the receiving party may use the
inadvertently produced document or information that is claimed to be privileged or
work product in a submission under seal to the Court when challenging the
privilege or immunity claimed by the disclosing party.
15.   Challenges to Designation.
A party shall not be obligated to challenge the propriety of a confidentiality
designation at the time made, and a failure to do so shall not preclude a subsequent
challenge thereto. A party may apply to the Court for an order that information
labeled Confidential or Highly Confidential should not be designated as such.
Prior to so applying, the party seeking to challenge the designation of information
shall seek the designating party's agreement. If the parties cannot agree on the
appropriate classification of the information in question, the party seeking
declassification may request the Court for such declassification.
16.   Third Party Subpoenas or Demands.
If any non-designating party (a) is subpoenaed in another action, (b) is
served with a demand in another action to which it is a party, or (c) is served with
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any other legal process by one not a party to this action, seeking information which
was produced or designated as Confidential or Highly Confidential, the nondesignating party shall transmit a copy of such subpoena, demand, or legal process,
by hand or facsimile transmission, within three (3) business days of receipt of such
subpoena, demand or legal process, to those who designated the material and shall
reasonably cooperate with the designating party in preparing timely objections to
its production. Should the person seeking access to the Confidential or Highly
Confidential information take action against the non-designating party or anyone
else covered by this Order to enforce such a subpoena, demand or other legal
process, the non-designating party shall respond by setting forth the existence of
this Order. Nothing herein shall be construed as requiring the non-designating
party or anyone else covered by this Order to challenge or appeal any order
requiring production of Confidential or Highly Confidential information covered
by this Order, or to subject itself to any penalties for noncompliance with any legal
process or order, or to seek any relief from this Court.
17.   Use of Independently Obtained, Unrestricted, Public, and/or
Produced Information.
This Stipulated Protective Order shall not apply to information which (a) is
or becomes publicly available through no breach of the provisions of this
Stipulated Protective Order or other obligation not to disclose, or to keep such
information confidential, (b) is independently developed or known by the non14

designating party without access to the Confidential or Highly Confidential
information disclosed hereunder, or (c) is disclosed to the non-designating party by
a third party without restriction as to disclosure, provided such third party has the
right to make the unrestricted disclosure to the non-designating party.
18.   Return or Destruction Upon Termination of Action.
Upon termination of this action, all copies of documents containing
Confidential or Highly Confidential information shall be returned to the
designating party or destroyed, except that outside counsel may retain one archival
copy of all attorney work product, correspondence, deposition transcripts and
exhibits, papers filed with the Court and exhibits, and discovery responses, but not
document production, exchanged by the parties.

All parties shall certify

compliance with this paragraph in writing within ninety (90) days of termination of
this action.
19.   Survival of Litigation.
This Stipulated Protective Order shall survive the termination of this
litigation. The Court shall retain jurisdiction, even after termination of this lawsuit,
to enforce this Protective Order and to make such amendments and modifications
to this Order, including dissolution, as may be appropriate.
20.   Modifications to Protective Order.

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Any party may, on motion or other request to the Court and for good cause
shown, seek a modification or dissolution of this Stipulated Protective Order and,
by its agreement to this Stipulated Protective Order, no party shall be deemed to
have waived the right to modifications or dissolution later sought by such party.
IT IS SO ORDERED.
s/Robert H. Cleland 

UNITED STATES DISTRICT JUDGE
Dated: April 29, 2014

STIPULATED AS TO FORM AND CONTENT:
Darin J. Lebeau (P54875)
Jessica G. Kingston (P74417)
OAKLAND LAW GROUP, PLLC
38955 Hills Tech Drive
Farmington Hills, MI 48331
Telephone: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiff

George T. Schooff (P45596)
BEJIN, VANOPHEM & BIENEMAN,
PLC
300 River Place, Suite 1650
Detroit, MI 48207
Telephone: [phone]
[e-mail]
Attorneys for Defendant

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

INTERNATIONAL IP HOLDINGS,
LLC, a Michigan limited liability
company and INNOVATION
VENTURES, LLC, a Michigan limited
liability company,
Case No. 2:13-cv-13988-RHC-PJK
Hon. Robert H. Cleland
Magistrate Paul J. Komives

Plaintiffs,
v.
GREEN PLANET, INC.,
a California Corporation,
Defendant. 

/

RECEIPT OF CONFIDENTIAL INFORMATION
I, ______________________________________________, declare that my
address

is

___________________________.

____________________________.

My

My

current

current

employer

occupation

is
is

_____________________________________.
I have received a copy of the Stipulated Protective Order in the abovecaptioned action.

I have carefully read and understand the provisions of the

Stipulated Protective Order.

I will comply with all of the provisions of the

Stipulated Protective Order. I will hold in confidence, will not disclose to anyone

not qualified under the Stipulated Protective Order, and will use only for purposes
of this action any information marked CONFIDENTIAL that is disclosed to me.
Promptly upon termination of this action, I will return or destroy all
materials containing information marked CONFIDENTIAL that came into my
possession, and all documents and things that I have prepared relating thereto, to
the outside attorneys for the party by whom I am employed or retained.
I hereby declare under penalty of perjury that the foregoing is true and
correct.

Dated:

2