CBS Broadcasting Inc. et al v. Filmon.Com, Inc.

Filing 35

STIPULATED PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material... (Signed by Judge Naomi Reice Buchwald on 6/3/11) (cd)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
CBS BROADCASTING INC.,
NBC STUDIOS LLC,
UNIVERSAL NETWORK. TELEVISION, LLC,
NBC SUBSIDIARY (KNBC-TV) LLC,
TWENTlETH CENTURY FOX FILM CORPORATION,
FOX TELEVISION STATIONS, INC.,
ABC HOLDING COMPANY INC., and
DISNEY ENTERPRISES, INC.,
Plaintiffs,- - -- ­

Civil Action No. ] :IO-cv-7532
(NRB)

~P88E6]STIPULATED

PROTECTIVE ORDER
-againstFILMON.COM, INC.,
Defendant.

The parties respectfully believe that disclosure and discovery activity in this action are
likely to involve production of confidential, proprietary, or private infonnation for which special
protection from public disclosure and from use for any purpose other than prosecuting this
litigation would be warranted. Such infonnation likely will include, among other things,
sensitive agreements, purchase orders, invoices, financial statements, -design materials, and
customer information. Such sensitive information and data could be used by actual or potential
competitors to gain an improper and unlawful competitive advantage in the marketplace, and
therefore the parties believe that this Protective Order is necessary to prevent such harm to the
parties.
IT IS HEREBY STIPULATED and agreed by and between counsel for the parties that
the terms and conditions of this Stipulated Protective Order be entered pursuant to Fed. R. Civ.
P. 26 (c) as follows:
1.

'This StipUlated Protective Order shall be applicable to and govern all sensitive

information disclosed by or on behalf of any party, including, by way of example, deposjtions,

documents and materials produced in response to requests for production of documents, answers
to interrogatories, responses to requests for admissions and all other discovery furnished, directly
or indirectly, by or on behalf of any party or non-party in connection with this action pursuant to
the Federal Rules of Civil Procedure, as well as aU documents produced by either party in
response to informal discovery requests, and computerized records, which the disclosing party
designates as "Confidential" or "Restricted
2.

Attorneys' Eyes Only."

A party shan make such a designation of "Confidential" or "Restricted

Attorneys' Eyes Only" only for sensitive infonnation which the party in good faith believes may
contain trade secrets or other confidential, competitive or proprietary business information used
by it in, or pertaining to, its business, which the party takes appropriate efforts to keep
confidential or which the party is otherwise required to keep confidential by agreement or law
("Confidential Records"). For a designation of Confidential Records as "Restricted - Attorneys'
Eyes Only," the party must additionally believe in good faith that the Confidential Records must
be subject to the restricted disclosure provided for below. The parties and all persons that obtain
access to "Confidential" and "Restricted - Attorneys' Eyes Only" material may use such
material solely for the purpose ofprosecuting, defending, appealing, or attempting to settle this
litigation. For the avoidance of doubt, the parties and persons with access to "Confidential" and
"Restricted - Attorneys' Eyes Only" material may not use any of such material for any business,
commerciaJ, or competitive purpose, or during the course of any other case, litigation, or
proceeding, whether or not factually related to thls action, and must restrict their use ofsuch
material so as to maintain its confidentiality in accordance with the terms hereof.

3.

ConfidentiaJ Records designated as "Confidential" may be disclosed only to the

following persons:

2

Il.

the attorneys working on this action on behalfof any party, including in·

house attorneys;
b.

any paralegal assistants, stenographic and clerical employees working

under the direct supervision of such attorneys;
c.

any parties to this action who are individuals, and the employees. directors

or officers of parties to this action who are corporations or partnerships, to the extent
necessary to further the interest of the parties in this litigation;
d.

any person not employed by a pm1y who is expressly retained or sought to

be retained by any attorney described in paragraph 3 (a) to assist in preparation of this
action for trial, with disclosure only to the extent necessary to perfonn such work;
e.

any witness who authored or received the Confidential Records prior to

their production to the receiving party, provided that the witness will not be permitted to
retain the Confidential Records unless the witness is otherwise authorized to do so; and

f.

the Court and its authorized staff and any Magistrate Judge or Special

Master appointed by the Court and hislher staff, and any other person who the Court has
appointed or the parties have agreed will serve as mediator in this action, provided that
the mediator shall destroy all documents, things or infonnation marked "Confidential" or
"Restricted - Attorneys' Eyes Only" within ten (10) days after the conclusion ofsuch
. person's involvement in the mediation and shall not use such information for any purpose
other than in connection with the mediation.
4.

Confidential Records designated as "Restricted - Attorneys' Eyes Only" may be

disclosed only to the following persons:
a.

the attorneys working on this action on behalf of any p~rty, including in­

house attorneys;
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b.

any paralegal assistants, stenographic and clerical employees working

under the direct supervision of sucb attorneys, with disclosure only to the extent
necessary to perfonn their work in connection with this matter;
c.

any person not employed by a party who is expressly retained or sought to

be retained by any attorney described in paragraph 4 (a) to assist in preparation of this
action for trial. with disclosure only to the extent necessary to perfonn such work;
d.

any witness who authored or received the Restricted - Attorneys' Eyes

Only Records prior to their production to the receiving party. provided that the witness
will not be pennitted to retain the Confidential Records unless the witness is otherwise
authorized to do so; and
e.

the Court and its authorized staff and any Magistrate Judge or Special

Master appointed by the Court and hi.slher staff, and any other person appointed by the
Court or whom the parties have agreed will serve as mediator in this action, provided that
the mediator shaH destroy all documents, things or information marked "Confidential'" or
"Restricted - Attorneys' Eyes Only" within ten (10) days after the conclusion of such
person's involvement in the mediation and shall not use such information for any purpose
other than in cOlUlection with the mediation.
5. a.

Before any ofthe persons described in paragraphs 3 (d) and 4 (c) shall

have access to Confidential or Restricted - Attorneys' Eyes Only material, he or she must certifY
that he or she has been made aware ofthe provisjons ofthis Order and has manifested his or her

assent to be bound thereby by signing a copy of the annexed "Acknowledgement," and the
signed Acknowledgement must be served upon the opposing parties, along with a current resume
or curriculum vitae reasonably identifying the person, each individual or company for which the
person has done work in the past five years or with which the person has an agreement to do
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work in the future, and his or her relationship, if any, to any party, competitor, or other client.
The party that produced the Confidential or Restricted - Attorneys' Eyes Only material shall
then have five business days to serve a written objection to access by such person. Any written
objection shall state with specificity the reason(s) for such objection. If sucb objection is made,
there shaH be no disclosure to such person except by agreement ofthe parties or by order ofthe
Court, and counsel for the parties shall meet and confer in an effort to reach an agreement.
Failing that and for good cause shown, the party opposing disclosure may file a motion, within
five (5) days after the meet and confer, seeking preclusion ofthe disclosure. On any such
motion, the party that designated the Confidential or Restricted - Attorneys' Eyes Only material
shall bear the burden of showing why disclosme to the person should be precluded.
b.

The"other persons described in paragraphs 3 and 4 shall have access to the

Confidential and Restricted - Attorneys' Eyes Only material pursuant to the terms of this Order
without signing a copy of the annexed" Acknowledgement." A list shall be maintained by
counsel for the parties hereto of the names of all persons to whom the content of any Restricted­
Attorneys' Eyes Only material is disclosed, or to whom the infonnation contained therein is
disclosed, and such list shall be availabJe for inspection by the Court and opposing counsel upon
good cause shown. At the time of the termination oftbis lawsuit by settlement,judgment or
otherwise, the parties hereto shall provide other counsel with a copy of the pertinent
aforementioned lists upon request. The persons receiving Confidential or Restricted ­
Attorneys' Eyes Only material are enjoined from discJosing it to any other person, except in
confonnance with this Order.
S.

Each individual who receives any Confidential or Restricted - Attorneys' Eyes

Only material hereby agrees to subject hlmself1herselfto the jurisdiction of this Court for the

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purpose of any proceedings relating to the perfonnance under, compliance with or violation of
this Order.
6.

The recipient of any Confidential or Restricted - Attorneys' Eyes Only material

that is provided under this Order shall maintain such Records in a secure and safe area and shall
exercise the same standard of due and proper care with respect to the storage, custody, use andlor
dissemination ofsuch Records as is exercised by the recipient with respect to his or her own
proprietary information.
7.

Parties shall designate Confidential or Restricted - Attorneys' Eyes Only material

as follows:
a.

In the case of Confidential Records produced pursuant to Rules 26 and 34

of the Federal Rules of Civil Procedure, interrogatory answers, responses to requests for
admissions, and the infonnation contained therein, designation shall be made by pJacing
the following legend on every page prior to production: "Confidential" or "Restricted­
Attorneys' Eyes Only." In the event that a party inadvertently fails to stamp or otherwise
designate a Confidential Record as Confidential Of Restricted-Attorneys' Eyes Only at
the time of its production, it may do so by stamping or otherwise designating the Record
and giving written notice to all Parties or their counsel of the new designation as being
either Confidential or Restricted - Attorneys' Eyes Only at any time after discovery of
such error. All persons who are in possession of such after-production designated or re­
designated materials and who are not within a category ofpersons who may possess such
materials pursuant to Paragraphs 4 and 6 hereof shaH promptly retwn an known copies of
any such documents to the producing party or to a person who is within a category of
persons who may possess such materials. Such after-production designated or re­
designated materials shall be treated pursuant to the provisions of this Order.
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b.

In the case of depositions, designation of the portion of the transcript

(including exhibits) which contains Confidential or Restricted - Attorneys' Eyes Only
material shaH be made by a statement to such effect on the record in the course ofthe
deposition or, upon review of such transcript by counsel for the party to whose
Confidential or Restricted - Attorneys' Eyes Only material the deponent has had access,
which said counsel shall designate withln fourteen (14) days after counsel's receipt of the
transcript. Counsel shan list on a separate piece ofpaper the numbers of the pages of the
transcript containing Confidential or Restricted - Attorneys' Eyes Only material,
inserting the list at the end of the transcript. and mailing copies ofthe list to counsel for
all parties so that it may be affixed to the face of the transcript and 'each copy thereof.
Pending such designation by counsel, the entire deposition transcript, including exhibits,
shaH be deemed Confidential Or Restricted - Attorneys' Eyes Only; if no designation is
made within fourteen (14) days after receipt of the transcript, the transcript shall be
considered not to contain any Confidential or Restricted c.

A~omeys'

Eyes Only material.

Transcripts of depositions win not be filed with the Court unless it is

necessary to do so for purposes of trial, motions for summary judgment. or other matters.
If a deposition transcript is filed and if it contains Confidential or Restricted - Attorneys'
Eyes Only material, the transcript shan bear the appropriate legend on the caption page.
8.

A party shall not be obligated to challenge the propriety of a Confidential or

Restricted - Attorneys' Eyes Only designation at the time made, and failure to do so shall not
preclude a subsequen1 challenge thereto. In the event that any party to this litigation disagrees at
any stage ofthese proceedings with such desigru:rtion, such party shall provide to the producing
party written notice of its disagreement with the designation. Consistent with Local Rule 37.2,
the parties shall first confer in good faith in an effort to dispose of such dispute. If the dispute

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any person or party not authorized under this Order. then the receiving party shall (a) advise the
affected adverse party promptly. and in no event more than three (3) business days after
discovery of the disclosure, that there has been such unauthorized disclosure; and (b) use its best
efforts to obtain the return ofany such Confidential Records and to bind such person to the tenus
ofthis Order.
13.

Nothing in this Stipulation and Protective Order shall require disclosure of

information that counsel contends is protected from disclosure by" the attorney-client privilege or
the attorney work-product immunity.
14.

If information subject to a claim of attorney-client privilege or work product

immunity is inadvertently or unintentionally produced, such production shall in no way prejudice
or otherwise constitute a waiver of, or estoppel as to, any claim ofprivilege or work-product
immunity for such information. Ifa party has inadvertently or unintentionally produced
information subject to a claim of immunity or privilege, the information for which a claim of
inadvertent or unintentional production is made shall be returned tothe producing party within
three (3) days ofthe producing party's request. Moreover, any notes or summaries referring or
relating to any such inadvertently or unintentionally produced information shall be destroyed. In
the event that any such information is contained in a produced document, all copies of that
document, and any notes or summaries relating thereto that may have been made, shall be
destroyed to the extent practicable. Nothing herein shall prevent the party returning such
information from moving the Court for an Order compelling production of such information, but
the unintentional or inadvertent production ofthat information shall not be a basis for such a
motion.
15.

Within sixty (60) days ofthe termination oflitigation between the parties, all

Confidential and Restricted - Attorneys' Eyes Only material, and all known copies thereof,
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except such copies which have been filed with the Court, utilized in accordance with this Order,
or which are and will continue to be maintained in a secure place pursuant to the continuing
obHgations of this Order, shall be returned to the party which produced it or shall be destroyed.
16.

Except as specifically provided herein, the tenns, conditions and limitations of

this Order shall survive the tennination of this action at the option of the designating party.
17.

The parties agree that they shall be bOWld and will conduct discovery in

accordanCe with this proposed Stipulated Protective Order Wltil it or another form of Protective
Order has been entered by the Court in this case.
18.

This Order is without prejudice to the right ofany party to seek relief from the

Court, upon good cause shown, from any of the provisions contained in paragraphs 1 through 18,
inclusive hereof.

19.

If a party is served with a subpoena or an order issued in other litigation that

would compel disclosure of any Confidential Records designated in this action as "Confidential"
or "Restricted - Attorneys' Eyes Only," that party must so notifY the party
that produced the Confidential Records immediately in writing and in no event more than three
business days after receiving the subpoena or order. Such notification must include a copy of the
subpoena or order. The party served with the subpoena or order must also immediately inform in
writing the person that caused the subpoena or order to issue in the other litigation that some or
all of the materia! covered by the subpoena or order is the subject of this Protective Order. In

addition, the party served with the subpoena or order must deliver a copy of this Protective Order
promptly to the person in the other litigation that caused the subpoena or order to issue. The
purpose of imposing these duties is to alert the interested parties to the existence of this
Protective Order and to afford the party in this case that produced the Confidential Records an
opportunity to try to protect its confidentiality interests in the court from which the subpoena or
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._----

_. __..

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order issued. The latter party shall bear the burdens and the ex.penses of seeking protection in
that court of its confidential material, and nothing in these provisions should be construed as
authorizing or encouraging a party in this action to disobey a lawful drrective from another court.

f.i~#~~"""" ~-an
h
D~

:

June 1

,2011

-+---+--

eter L. Zimroth
Arnold & Porter LLP
399 Park Avenue
New York. NY 10022
[phone]
[e-mail]
Attorneys for Plainliffs

Hadrian R. Katz
C. Scott Morrow
Arnold &. Porter LL
555 Twelfth Street, N.W.
Washington, DC 20004
[phone]
Attorneys for Plainljffs

u erfield

Jr.
Christopher J. Marino
Cowan. DeBaets, Abrahams &'.Sheppard LLP
41 Madison Avenue
New York, New York 10010
[phone]
Attorneysfor Defendant FilmOn.com, Inc.

SO ORDERED.
Dated:

/~~~c-d _-, 2011
_

L·2u~~:~
Naomi Reice Buchwald

United States District Judge

11

EXlUBIT A

ACKNOWLEDGMENT AND REPRESENTATION OF

PERSONS HAVING ACCESS TO CLASSIFIED INFORMATION

I hereby agree to abide by the tenns of the Stipulated Protective Order (the "Protective
Order") entered in the action captioned CBS Broadcasting, Inc., et aZ. v. Filmon.com,

Jnc~

Civil

Action No. IO-Cv-7532 (NRB), pending in the United States District Court for the Southern
District of New York (the "Action'" in order to gain. access to non-public, confidential
infonnation and information otherwise protected by the Protective Order. Accordingly, I further
represent to the United States District Court for the Southern District ofNew York the following:

1.
I have read the Protective Order and I understand its provisions and terms.
I understand that I have the right to consult an attorney regarding the meaning of any provision
of the Protective Order or this Acknowledgment and Representation. Any questions I had
regarding the Protective Order or this Acknowledgment and Representation have been answered
by counsel.
2.

My current address and telephone number is:

3.

My current job title and employer are:

4.

My current employer's address is:

5.
I shall use information I learn as a result of having access to RestrictedAttorneys' Eyes Only material protected under the Protective Order soJely for purposes of the
Action and for no other purposes, and shall not disclose Confidential or Restricted Attorney's
Eyes Only Discovery materia] except as authorized by the Protective Order.
6.
I further understand that any unauthorized use or disclosure by me of such
"Confidential" or "Restricted - Attorneys' Eyes Only" material or information will be treated as
a breach of the Stipulated Protective Order for which I may be Hable and which may be
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punishable as a contempt of Court.
7.
I shall return to counsel who provided them to me all materials containing
material protected under this Protective Order within the earlier of 10 days of my termination of
participation in the Lawsuit or 60 days of my receipt ofnotice oftermination of the Action.
8.
I declare under penalty of perjury under the laws of the United States of
America that the foregoing statements and representations are true and correct.

Executed this ___ day of_____, 201

at _ _ _ _ _ _ _ _,

By:

Type or Print Name

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