Righthaven LLC v. DiBiase

Filing 41

STIPULATION [Proposed] Stipulated Protective Order by Counter Claimant Thomas A. DiBiase, Defendant Thomas A. DiBiase. (Volkmer, Bart)

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COLLEEN BAL (pro hac vice)
[e-mail]
BART E. VOLKMER (pro hac vice)
[e-mail]
WILSON SONSINI GOODRICH & ROSATI
650 Page Mill Road
Palo Alto, Ca 94304-1050
Telephone: [phone]
Facsimile: [phone]
KURT OPSAHL (pro hac vice)
[e-mail]
CORYNNE MCSHERRY (pro hac vice)
[e-mail]
ELECTRONIC FRONTIER FOUNDATION
454 Shotwell Street
San Francisco, Ca 94110
Telephone: [phone]
Facsimile: [phone]

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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RIGHTHAVEN LLC, a Nevada limitedliability company,

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Plaintiff,
v.
THOMAS A. DIBIASE, an individual,
Defendant.

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Attorneys for Righthaven LLC

Attorneys For Defendant & Counterclaimant
THOMAS A. DIBIASE

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ANNE E. PIERONI, ESQ.
NEVADA BAR NO. 9650
[e-mail]
Staff Counsel at Righthaven LLC
RIGHTHAVEN LLC
9960 West Cheyenne Ave., Suite 210
Las Vegas, Nevada 89129-7701
[phone]

CHAD BOWERS
[e-mail]
CHAD A. BOWERS, LTD
Nevada State Bar No. 7283
3202 West Charleston Boulevard
Las Vegas, Nevada 89102
Telephone: [phone]

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SHAWN A. MANGANO, ESQ.
Nevada Bar No. 6730
[e-mail]
SHAWN A. MANGANO, LTD.
9960 West Cheyenne Ave., Suite 170
LAS VEGAS, Nevada 89129-7701
[phone] – telephone
[phone] – facsimile

And Related Counterclaim

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CASE NO.: 2:10-cv-01343-RLH-PAL
[PROPOSED] STIPULATED
PROTECTIVE ORDER

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Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, Plaintiff/Counter-

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defendant, Righthaven LLC (“Righthaven”), and Defendant and Counterclaimant, Thomas A.

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DiBiase (“Mr. DiBiase”) (collectively the “Parties”) by and through their respective counsel, do

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HEREBY STIPULATE AND AGREE as follows:

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A Party or any Non-Party disclosing or producing information, documents, or things in

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this matter (“Producing Party”) may designate such information, documents, or things as

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follows:

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1.

Any document, information, or thing may be designated Confidential if the

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Producing Party determines in good faith that the material (regardless of how it is generated,

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stored, or maintained) qualifies for protection under Federal Rule of Civil Procedure 26(c).

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2.

A Producing Party may designate any document or other tangible information or

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thing as Confidential by stamping some conspicuous place thereof with the legend

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“Confidential.” In the case of a document, the Producing Party must mark each page that

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contains protected material. In the case of other tangible items, a Producing Party may mark any

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appropriate location of the container. For example, in the case of a DVD, a Producing Party may

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so mark the DVD cover. However, the Producing Party shall take care to designate only those

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portions of a tangible item that are protected.

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3.

Each Party or Non-Party that designates information or items for protection under

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this Order must take care to limit any such designation to specific material that qualifies under

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the appropriate standards. To the extent it is practical to do so, the Producing Party must

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designate for protection only those parts of material, documents, items, or oral or written

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communications that qualify – so that other portions of the material, documents, items, or

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communications for which protection is not warranted are not swept unjustifiably within the

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ambit of this Order. Mass, indiscriminate, or routinized designations are prohibited.

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Designations that are shown to be clearly unjustified or that have been made for an improper

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purpose (e.g., to unnecessarily encumber or retard the case development process or to impose

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unnecessary expenses and burdens on other parties) expose the Producing Party to sanctions. If

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it comes to a Producing Party’s attention that information or items that it designated for
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protection do not qualify for protection at all or do not qualify for the level of protection initially

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asserted, that Producing Party must promptly notify all other parties that it is withdrawing the

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mistaken designation.

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4.

A Party or Non-Party may designate documents, information, or things disclosed

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at a deposition as Confidential on the record during the deposition or by notifying all Parties,

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through each Party’s counsel, in writing of the specific item so designated, within ten (10)

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business days of being notified by the deposition officer that the transcript is available under

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Rule 30(e)(1), of the specific exhibits or lines and pages of the deposition that are Confidential.

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a.

If a Producing Party designates such materials as Confidential on the record, the

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Producing Party shall request that the court reporter indicate on the cover page of

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the transcript that the transcript included Confidential information, list the pages

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and line numbers and/or exhibits of the transcript on or in which such information

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is contained, and bind the transcript in separate portions containing Confidential

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and non-Confidential material. Further, during the period in which such

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Confidential information is discussed during the deposition, any person present

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during the deposition (other than the court reporter) who is not authorized to review

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such information under this Order shall be excluded from that portion of the

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deposition.

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b.

If during a deposition a party designates any testimony or exhibit Confidential, the

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deposition transcript and the exhibits thereto shall be presumed Confidential in

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their entirety until ten (10) business days after the deposition officer notifies the

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witness that the transcript is available under Rule 30(e)(1). If, after the deposition

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is taken, the Producing Party designates any portion of the deposition transcript or

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specific exhibits as Confidential by giving written notice as described above, the

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parties shall honor that designation. At the expiration of the ten (10) day period,

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the transcript and exhibits shall automatically revert to non-Confidential status,

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except those portions that have been designated on the record in or in writing as

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Confidential.
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5.

The documents, information and things designated and produced as Confidential

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pursuant to this Protective Order shall be used solely for the purposes of this action. Documents,

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information, and things designated as Confidential shall only be disclosed to individuals

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authorized by this Order to view such material.

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6.

If timely corrected, an inadvertent failure to designate qualified information or

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items does not, standing alone, waive the Producing Party’s right to secure protection under this

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Order for such material. Upon timely correction of a designation, the Receiving Party must make

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reasonable efforts to assure that the material is treated in accordance with the provisions of this

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Order.

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7.

All documents, information, or things designated as Confidential shall be made

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available only to the following and only to the extent reasonably necessary for conducting or

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assisting in this case:

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a. the Parties and their employees who have read a copy of this Order and executed
the undertaking in the form annexed hereto;
b. the Parties’ outside counsel of record in this case, the partners, associates, and
employees of such counsel, and their authorized secretarial and paralegal staffs;
c. persons retained by any Party (or by its attorneys of record) for the purpose of

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assisting in this case as consultants or experts who have read a copy of this Order

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and executed the undertaking in the form annexed hereto;

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d. employees of outside copying, printing, binding, or computer hosting services

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operating under terms that prohibit them from disclosing or using client

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information;

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e. deposition witnesses, but only for the purposes of this litigation and only (i) at

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deposition and only to the extent reasonably necessary and (ii) to prepare a witness

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for deposition and only to the extent reasonably necessary and only when, in good

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faith, counsel for the witness believes that there is a reasonable likelihood that the

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witness will be shown the discovery material(s) designated “CONFIDENTIAL” at

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deposition. Deposition witnesses shall not be entitled to retain copies of such
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discovery material(s) and shall have read a copy of this Order and executed the

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undertaking in the form annexed hereto.

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f. the Court and court personnel, deposition officers, court reporters, and

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videographers used in connection with this case; and

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g. such other persons as the Parties may agree or may be ordered by the Court.

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8.

Where an expert or consultant is reasonably expected to testify during the trial of

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this matter, counsel for the Party obtaining the expert’s or consultant’s undertaking shall retain the

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original and forward a copy to the opposing Party’s counsel within five (5) business days of its

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execution. Where the expert or consultant will not testify during the trial of this matter, counsel

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obtaining the undertaking shall retain the original and no copy need be given to anyone else.

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9.

No documents, information, or things designated as Confidential shall be filed

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with the Court (except as provided in Nev. LR 10-5), including that contained in pleadings,

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motions, briefs, declarations, or exhibits, except in sealed envelopes. Such sealed envelopes shall

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bear the caption of the case and shall recite a concise, non-disclosing inventory of their contents

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for docketing purposes. In the case of materials or information designated Confidential, such

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sealed envelopes shall prominently bear the legend: CONTAINS CONFIDENTIAL

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INFORMATION SUBJECT TO PROTECTIVE ORDER, TO BE OPENED ONLY BY OR AS

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DIRECTED BY THE COURT. To the extent possible, only those portions of a filing with the

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Court that contain material designated as Confidential shall be filed under seal. To the extent that

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no Confidential information is disclosed, the Parties may refer to, and quote from, documents

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designated as Confidential in pleadings, motions, briefs, affidavits, or exhibits filed with the

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Court, without the need to file such pleadings, motions, briefs, affidavits, or exhibits under seal.

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10.

Nothing in this Order shall preclude any party to the proceeding or their attorneys

a.

showing materials designated as Confidential to an individual who either prepared

from:

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or reviewed the document prior to the filing of this action, or is shown by the

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document to have received the document;

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b.

or things from the party’s own files that the party itself designated as Confidential;

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disclosing or using, in any manner or for any purpose, any information, documents,

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disclosing or using, in any manner or for any purpose, any information, documents,

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or things obtained from a source other than discovery or to which a party has a

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right of access independent of discovery;

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d.

disclosing or using in any manner or for any purpose, any information, document,

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or thing that is at the time of production or disclosure, or subsequently becomes,

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through no wrongful act or failure to act on the part of the receiving party,

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generally available to the public through publication or otherwise, or is already

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rightfully in the possession of the receiving party at the time of production; or

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e.

disclosing or using, in any manner or for any purpose, any information, documents,

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or thing at the trial of this matter. However, if a party intends to use or offer into

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evidence at such trial any materials designated as Confidential, that party shall,

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unless otherwise ordered by the Court, so inform the producing party in a

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reasonable time in advance in order that the producing party may take such steps

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reasonably necessary to preserve the confidentiality of such information or

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documents.

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11.

If either party is served with a subpoena or similar process, from any person

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whatsoever, directing that party to produce any Confidential materials, counsel for that party

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shall within five (5) business days give counsel for the Producing Party written notice of the fact

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of such service and not produce or otherwise disclose any Confidential materials pursuant to the

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subpoena unless the party serving the subpoena agrees to be bound by the terms of this Order by

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executing the undertaking in the form annexed hereto or, in the event the party serving the

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subpoena refuses to be bound by the terms of this Order, counsel shall immediately notify the

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Producing Party so that they may seek a protective order or otherwise act to protect the

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confidentiality of the designated materials. No disclosure or production of materials designated as

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Confidential shall be produced prior to adjudication of the Producing Party’s formal motion for a

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protective order or other efforts to protect the confidentiality of the designated materials at issue.
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12.

Within sixty (60) days of the conclusion of this action, including any appeals, all

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originals and reproductions of any materials designated as Confidential shall be returned to the

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Producing Party or destroyed. However, counsel for the parties may retain one complete set of

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pleadings and motion papers filed with the Court, and one complete copy of deposition testimony

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given in this action. Counsel for the receiving party shall provide written verification to the

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Producing Party that all copies of such materials produced to the receiving party have been

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returned or destroyed, other than as indicated in this paragraph. Materials designated as

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Confidential that are in the custody of the Court are exempted from the terms of this paragraph.

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13.

The terms of this Order shall remain in effect after the action and any related

appeals are concluded.
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This Stipulated Protective Order shall not preclude any Party from (i) applying to

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the Court for an order permitting the disclosure or use of information or discovery material

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otherwise prohibited by this Order; or (ii) applying for an order modifying this Order for good

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cause shown.

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15.

No Party shall be obligated to challenge the propriety of any confidentiality

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designation, and failure to do so shall not preclude a subsequent attack on the propriety of such

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designation.

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16.

If the Parties disagree as to whether designated material should be protected as

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Confidential they are obligated to meet and confer in good faith regarding the designated

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material. If the Parties cannot resolve a challenge without court intervention, either party may

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move the Court for appropriate relief. All materials designated as Confidential shall retain such

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designation until the Court adjudicates a motion brought under this section.

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IT IS SO STIPULATED AND AGREED.

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DATED: March 29, 2011

DATED: March 29, 2011

WILSON SONSINI GOODRICH & ROSATI

SHAWN A. MANGANO, LTD.

By:

By:

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/s/ Bart E. Volkmer
Colleen Bal, Esq.
Bart E. Volkmer, Esq.
650 Page Mill Road
Palo Alto, California 94304-1050
CHAD A. BOWERS, LTD.
Chad A. Bowers, Esq.
3202 West Charleston Boulevard
Las Vegas, Nevada 89102

/s/ Shawn A. Mangano
Shawn A. Mangano, Esq.
9960 West Cheyenne Avenue
Suite 170
Las Vegas, Nevada 89129
Attorney for Plaintiff and CounterDefendant Righthaven LLC

THE ELECTRONIC FRONTIER
FOUNDATION
Kurt Opsahl, Esq.
Corynne McSherry, Esq.
454 Shotwell Street
San Francisco, California 94110
Attorneys for Defendant and
Counterclaimant Thomas A. DiBiase

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IT IS SO ORDERED:

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__________________________________
UNITED STATES DISTRICT JUDGE

DATED:

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PROTECTIVE ORDER UNDERTAKING
I, ____________________________ (name), of _______________________

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_____________________________________________(employer and business address), am about to

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receive information, documents, or things designated as Confidential under the Stipulated Protective

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Order dated _______________, 2011, entered by the United States District Court, District of Nevada, in

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the case of Righthaven v. DiBiase, Case No. 2:10-cv-01343-RLH-PAL (the “Protective Order”).

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I hereby represent and certify that I have been given a copy of and read the Protective Order and

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that I understand its terms and conditions. I hereby further certify that I am one of the persons allowed

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under paragraph 7 of the Protective Order to receive access to information, documents, or things

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designated Confidential. I also agree to be bound by the terms and conditions of the Protective Order,

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specifically including the requirement that information, documents, and things I may receive that are

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designated Confidential as well as all copies, notes, summaries, and other records made regarding such

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information, documents, and things, shall be disclosed to no one other than persons specifically allowed

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by paragraph 7 of the Protective Order to have such information. I further agree that I will only use this

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material in and for the purposes of this action.

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I further understand that violation of the Protective Order may be punishable by contempt of

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court, and I consent and submit to the jurisdiction of the United States District Court, District of Nevada,

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with respect to the enforcement of any terms and conditions of the Protective Order.

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_____________
Date

____________________________________________
Signature

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CERTIFICATION

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I, Bart E. Volkmer, am the ECF User whose identification and password are being used

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to file the [Proposed] Stipulated Protective Order. In compliance with the Electronic Filing

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Procedures, I hereby attest that Shawn A. Mangano has concurred in this filing.

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DATED: March 29, 2011

WILSON SONSINI GOODRICH & ROSATI
Professional Corporation

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By:

/s/ Bart E. Volkmer
Bart E. Volkmer

Attorneys for Defendant/Counterclaimant

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CERTIFICATE OF SERVICE
I hereby certify that on the 29th day of March 2011, I caused a copy of the foregoing
[Proposed] Stipulated Protective Order to be served using the Court’s CM/ECF system.

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/s/ Deborah Grubbs

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