Zen Design Group, Limited v. Scholastic, Inc.

Filing 17

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

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN

ZEN DESIGN GROUP LIMITED
a Michigan corporation,
Case No. 2:16-cv-12936-RHC-EAS
Hon. Robert H. Cleland
Magistrate Judge Elizabeth A. Stafford

Plaintiff,
v.
SCHOLASTIC, INC.
a New York corporation

Jury Trial Demanded
Defendant.

JOINT PROPOSED PROTECTIVE ORDER
Pursuant to Federal Rule of Civil Procedure 26(c), the Court hereby enters
the following protective order:
1.

Confidential Information – Any document or thing that a party

reasonably and in good faith believes to contain confidential information that is not
publicly available (such as research and development, commercial, or other
sensitive information) may be produced by that party with the clear and obvious
designation “CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER.”
2.

Non-Disclosure of Confidential Information – Any document or

thing designated as “CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER”
may only be used to prosecute or defend this action and shall not be disclosed to
(or the content discussed with) anyone other than the following persons:

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a.

The named parties in this case, their attorneys, and their support
staff (e.g., copying and document management personnel).

b.

Independent experts or consultants engaged by a party’s
attorneys to assist in the preparation and trial of this case who
agree to abide by the terms of this Protective Order by signing
Exhibit A and who are approved by the producing party
pursuant to paragraph 5 below.

c.

Deposition witnesses whose testimony is being taken with
respect to the document or thing, or about the subject matter of
the document or thing, who agree to abide by the terms of this
Protective Order.

d.
3.

This Court and its staff members.

Highly Confidential Information – Attorney’s Eyes Only – Any

document or thing that a party in good faith believes to contain highly confidential
information that is not publicly available (such as a trade secret, or highly
confidential research and development, commercial, or other sensitive information)
may be produced by that party with the clear and obvious designation “HIGHLY
CONFIDENTIAL – ATTORNEY’S EYES ONLY.”
4.

Non-Disclosure of Highly Confidential Information – Any

document or thing designated “HIGHLY CONFIDENTIAL – ATTORNEY’S

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EYES ONLY” may only be used to prosecute or defend this action and shall not be
disclosed to (nor the content discussed with) anyone other than the following
persons:
a.

Outside attorneys of record in this lawsuit and their support
staff (e.g., copying and document management personnel) who
are not involved in patent prosecution for the receiving party in
the same technology area.

b.

No more than two In-House Counsel: (1) who have no
involvement in competitive decision-making and/or the
prosecution of patents, (2) to whom disclosure is reasonably
necessary for this litigation, and (3) who have signed Exhibit A
to the protective order, which has been provided to the
opposing party prior to disclosure).

c.

Independent experts or consultants engaged by a party’s
attorneys to assist in the preparation and trial of this case who
agree to abide by the terms of this Protective Order by signing
Exhibit A and who are approved by the producing party
pursuant to paragraph 5 below.

d.

Deposition witnesses whose testimony is being taken with
respect to the document or thing, or about the subject matter of

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the document or thing, who agree to abide by the terms of this
Protective Order.
e.
5.

This Court and its staff members.

Disclosure to Experts and Consultants – Before any documents,

testimony, or other information designated as “CONFIDENTIAL – SUBJECT TO
PROTECTIVE ORDER” or “HIGHLY CONFIDENTIAL – ATTORNEY’S EYES
ONLY” are disclosed to an independent expert or consultant, the receiving party
shall give the producing party ten (10) days written notice of the proposed expert,
along with the proposed expert’s CV and past five years of deposition or trial
testimony. If the producing party objects to the expert, no designated material or
information of the producing party shall be disclosed to the expert or consultant
until the issue is resolved by the Court.
6.

Deposition Testimony – Any portions of requested testimony, a

transcript and/or a brief may be designated as “CONFIDENTIAL – SUBJECT TO
PROTECTIVE ORDER” or “HIGHLY CONFIDENTIAL – ATTORNEY’S EYES
ONLY” if the party or attorney making the designation reasonably and in good
faith believes it will reveal a trade secret or other confidential research and
development, commercial, or sensitive information. This designation may be made
at the deposition or at any time prior to the deponent certifying the deposition
transcript.

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7.

Motion Practice – All documents, testimony, and information

designated as “CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER” or
“HIGHLY CONFIDENTIAL – ATTORNEY’S EYES ONLY” that are submitted
to the Court Clerk as part of a motion or other paper shall be filed pursuant to
Local Rule 5.3. A redacted copy of the motion or paper may be filed with the
Court Clerk through the Court’s electronic filing system and an unredacted copy of
the motion or paper may be filed under seal.
An unsealed or unredacted copy of the confidential document, testimony, or
information may be used for the judge’s courtesy copy of the motion, but each
page containing confidential information shall be marked in such a way that it
clearly notifies the Court that the page contains confidential information that was
filed pursuant to Local Rule 5.3. The Judge’s courtesy copy of the motion shall be
sent directly to the Judge’s chambers and not filed with the Court Clerk.
8.

Discovery from Third Parties – This Protective Order shall apply to

discovery sought from persons or companies who are not parties to this lawsuit.
Third

parties

may

designate

information

produced

under

either

the

“CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER” or “HIGHLY
CONFIDENTIAL – ATTORNEY’S EYES ONLY” designation.
9.

Challenging “Confidential” or “Highly Confidential” Designation

– Any party that wishes to challenge the designation of any document, thing, or

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testimony as confidential or highly confidential under Federal Rule of Civil
Procedure 26(c) may do so at any time by way of motion to this Court. The
designating party shall have the burden of justifying its designation. Before filing
any such motion, however, the parties shall first attempt to resolve their
disagreement without Court intervention.
10.

Trial Testimony – This Protective Order shall not govern

proceedings at trial.
11.

Termination of Lawsuit – All documents and things designated as

“CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER” or “HIGHLY
CONFIDENTIAL – ATTORNEY’S EYES ONLY,” and all copies thereof, shall
either be returned to the party that produced them upon the final disposition of this
action or they may be destroyed with permission of the party that produced them.
This provision shall not apply to documents and things the Court determines are
not confidential. Outside litigation counsel for each party may keep a copy of all
pleadings and other documents filed with the Court for their files.
12.

Inadvertent Production of Privileged Material –If documents,

information or other material subject to a claim of attorney-client privilege, work
product doctrine, or other privilege, doctrine, or immunity is inadvertently or
unintentionally produced, such production shall in no way prejudice or otherwise
constitute a waiver of, or estoppel as to, any such privilege, doctrine, or immunity.

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Any Party that inadvertently or unintentionally produces documents, information
or other material it reasonably believes are protected under the attorney-client
privilege, work product doctrine, or other privilege, doctrine, or immunity may
obtain the return of such documents, information or other material by promptly
notifying the recipient(s) and providing a privilege log for the inadvertently or
unintentionally produced documents, information or other material. The
recipient(s) shall gather and return all copies of such documents (electronic and
hard copy and any notes related thereto), information or other material to the
producing Party within ten (10) days, except for any pages containing privileged or
otherwise protected markings by the recipient(s), which pages shall instead be
destroyed and certified as such to the producing Party.

If a Party receives

documents, information, or other material that it reasonably believes is subject to a
claim of attorney-client privilege, work product doctrine, or other privilege,
doctrine, or immunity, such Party shall promptly notify the producing Party of
such production. At such time, it shall be the producing Party’s obligation to
confirm the privileged nature of the documents and follow the procedures set forth
above.

However, the disclosure of any particular material shall cease to be

“inadvertent” if the receiving party notifies the producing party of the disclosure in
writing (by Bates number or other specific identification) and the producing party
does not request the return of the privileged matter within 20 days.

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SO ORDERED

Dated: November 17, 2016

S/Robert H. Cleland
Honorable Robert H. Cleland
United States District Court Judge

Approved as to form:
BROOKS KUSHMAN P.C.

DUANE MORRIS LLP

By: /s/ Thomas W. Cunningham
Mark A. Cantor (P32661)
Thomas W. Cunningham (P57899)
1000 Town Center
Twenty-Second Floor
Southfield, Michigan 48075
Tel: [phone]
Fax: [phone]
E-mail: [e-mail]
[e-mail]

By: /s/ John R. Gibson with Consent
John R. Gibson (GA Bar 454507)
1075 Peachtree Street NE
Suite 2000
Atlanta, GA 30309
Tel: [phone]
Fax: [phone]
Email: [e-mail]
Attorneys for Defendant

Attorneys for Plaintiff

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN

ZEN DESIGN GROUP LIMITED
a Michigan corporation,
Case No. 2:16-cv-12936-RHC-EAS
Hon. Robert H. Cleland
Magistrate Judge Elizabeth A. Stafford

Plaintiff,
v.
SCHOLASTIC, INC.
a New York corporation

Jury Trial Demanded
Defendant.

EXHIBIT A – AGREEMENT TO BE BOUND BY PROTECTIVE ORDER
I, __________________________, declare as follows:
1.

I have read the Protective Order in the above captioned case.

2.

I promise that I will only use the documents and things designated as
“CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER” or
“HIGHLY CONFIDENTIAL – ATTORNEY’S EYES ONLY” that are
given to me for purposes of this lawsuit.

3.

I promise that I will not disclose or discuss information that I learn from
documents and things designated as “CONFIDENTIAL – SUBJECT TO
PROTECTIVE

ORDER”

or

“HIGHLY

CONFIDENTIAL

–

ATTORNEY’S EYES ONLY” with anyone other than the persons
described in the Protective Order.

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4.

I acknowledge that, by signing this agreement, I am subjecting myself to
the jurisdiction of the United States District Court for the Eastern District
of Michigan with respect to enforcement of this Protective Order.

5.

I understand that any disclosure or use of documents or things designated
as “CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER” or
“HIGHLY CONFIDENTIAL – ATTORNEY’S EYES ONLY,” or
information learned from the documents or things, in any manner
contrary to the provisions of the Protective Order may subject me to
sanctions for contempt of court.

Date: ___________

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_____________________________
[Signature]

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