J.T. Colby & Company, Inc. et al v. Apple, Inc.

Filing 25

PROTECTIVE ORDER REGARDING THE DISCLOSURE AND USE OF DISCOVERY MATERIALS...regarding procedures to be followed that shall govern the handling of confidential material... Counsel for Plaintiff may make specific applications for Mr. Colby to have access to particular materials that he is otherwise unable to see. The Court will then review the materials, compare them to the proffered reason for review, and rule. (Signed by Judge Katherine B. Forrest on 3/9/2012) (ft)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
J.T. COLBY & COMPANY, INC. D/B/A
BRICK TOWER PRESS, J. BOYLSTON &
COMPANY, PUBLISHERS LLC AND
IPICTUREBOOKS LLC,

Case No. 11-CIV-4060 (KBF)

Plaintiffs,
ECF Case

v.
l1SDCSDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:

APPLE INC.,
Defendant

DATEF-IL-E~a;-'~~~rll

~~

~ROTECTIVE ORDER

REGARDING THE DISCLOSURE AND USE OF DISCOVERY MATERIALS
Plaintiffs J.T. Colby & Company, Inc. d/b/a Brick Tower Press, 1. Boylston &
Company, Publishers LLC and ipicturebooks LLC ("Plaintiffs',) and Defendant Apple Inc.
("Defendant") anticipate that documents, testimony, or infonnation containing or reflecting
confidential, proprietary, trade secret, and/or commercially sensitive infonnation are likely to be
disclosed or produced during the course of discovery, initial disclosures, and supplemental
disclosures in this case and request that the Court enter this Order setting forth the conditions for
treating, obtaining, and using such infonnation.
Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, the Court finds
good cause for the following Agreed Protective Order Regarding the Disclosure and Use of
Discovery Materials ("Order" or "Protective Order").

AGREED PROTECTIVE ORDER-PAGE 1

1.

PURPOSES AND LIMITATIONS
(a)

Protected Material designated under the terms of this Protective Order

shall be used by a Receiving Party solely for this case, and shall not be used directly or indirectly
for any other purpose whatsoever.

(b)

The Parties acknowledge that this Order does not confer blanket

protections on all disclosures during discovery, or in the course of making initial or supplemental
disclosures under Rule 26(a) of the Federal Rules of Civil Procedure. Designations under this
Order shall be made with care and shall not be made absent a good faith belief that the
designated material satisfies the criteria set forth below. Ifit comes to a Producing Party's
attention that designated material does not qualify for protection at all, or does not qualify for the
level of protection initially asserted, the Producing Party must promptly notify all other Parties
that it is withdrawing or changing the designation.

2.

DEFINITIONS
(a)

"Discovery Material" means all items or information, including from any

non-party, regardless of the medium or manner generated, stored, or maintained (including,
among other things, testimony, transcripts, or tangible things) that are produced, disclosed, or
generated in connection with discovery or Rule 26(a) disclosures in this case.

(b)

"Outside Counsel" means (i) outside counsel who appear on the pleadings

as counsel for a Party and (ii) partners, associates, and staff of such counsel to whom it is
reasonably necessary to disclose the information for this litigation.
(c)

"Party" means any'party to this case, including all of its officers, directors,

employees, consultants, retained experts, and outside counsel and their support staffs.

AGREED PROTECTIVE ORDER - PAGE 2

,

(d)

I

"Producing Party" means any Party or non-party that discloses or produces

any Discovery Material in this case.
(e)

"Protected Material" means any Discovery Material that is designated as

"CONFIDENTIAL" or "CONFIDENTIAL -- ATTORNEYS' EYES ONLY," as provided for in
this Order. Protected Material shall not include: (i) advertising materials that have been actually
published or publicly disseminated; and (ii) materials that show on their face they have been
disseminated to the public.
(f)

"Receiving Party" means any Party who receives Discovery Material from

a Producing Party.

3.

COMPUTATION OF TIME
The computation of any period of time prescribed or allowed by this Order shall

be governed by the provisions for computing time set forth in Federal Rule of Civil Procedure 6.

4.

SCOPE
(a)

The protections conferred by this Order cover not only Discovery Material

governed by this Order as addressed herein, but also any information copied or extracted
therefrom, as well as all copies, excerpts, summaries, or compilations thereof, plus testimony,
conversations, or presentations by Parties or their counsel in court or in other settings that might
reveal Protected Material.

(b)

Nothing in this Protective Order shall prevent or restrict a Producing

Party's own disclosure or use of its own Protected Material for any purpose, and nothing in this
Order shall preclude any Producing Party from showing its Protected Material to an individual
who prepared the Protected Material.

AGREED PROTECTIVE ORDER - PAGE 3

(c)

Nothing in this Order shall be construed to prejudice any Party's right to

use any Protected Material in court or in any court filing with the consent of the Producing Party,
by order ofthe Court, or as provided in Paragraph 13(b).
(d)

This Order is without prejudice to the right of any Party to seek further or

additional protection of any Discovery Material or to modify this Order in any way, including,
without limitation, an order that certain matter not be produced at all.

5.

DURATION
Even after the termination of this case, the confidentiality obligations imposed by

this Order shall remain in effect until a Producing Party agrees otherwise in writing or a court
order otherwise directs.

6.

ACCESS TO AND USE OF PROTECTED MATERIAL
(a)

Basic Principles. All Protected Material shall be used solely for this case

or any related appellate proceeding, and not for any other purpose whatsoever, including without
limitation any other litigation, trademark prosecutions or inter partes proceedings in the United
States Patent and Trademark Office or the Trademark Trial and Appeal Board, or any business or
competitive purpose or function. Protected Material shall not be distributed, disclosed or made
available to anyone except as expressly provided in this Order.
(b)

Secure Storage. Protected Material must be stored and maintained by a

Receiving Party at a location and in a secure manner that ensures that access is limited to the
persons authorized under this Order.
(c)

Legal Advice Based on Protected Material. Nothing in this Protective

Order shall be construed to prevent counsel from advising their clients with respect to this case

AGREED PROTECTIVE ORDER - PAGE 4

based in whole or in part upon Protected Materials, provided counsel does not disclose the
Protected Material itself except as provided in this Order.
(d)

Limitations. Nothing in this Order shall restrict in any way a Producing

Party's use or disclosure of its own Protected Material. Nothing in this Order shall restrict in any
way the use or disclosure of Discovery Material by a Receiving Party: (i) that is or has become
publicly known through no fault of the Receiving Party; (ii) that is lawfully acquired by or
known to the Receiving Party independent ofthe Producing Party; (iii) previously produced,
disclosed and/or provided by the Producing Party to the Receiving Party or a non-party without
an obligation of confidentiality and not by inadvertence or mistake; (iv) with the consent of the
Producing Party; or (v) pursuant to order of the Court.

7.

DESIGNATING PROTECTED MATERIAL
(a)

Available Designations. Any Producing Party may designate Discovery

Material with any ofthe following designations, provided that it meets the requirements for such
designations as provided for herein: "CONFIDENTIAL" or "CONFIDENTIAL -­
ATTORNEYS' EYES ONLY."

(b)

Written Discovery and Documents and Tangible Things. Written

discovery, documents (which include "electronically stored information," as that phrase is used
in Federal Rule of Civil Procedure 34), and tangible things that meet the requirements for the
confidentiality designations listed in Paragraph 7(a) may be so designated by placing the
appropriate designation on every page of the written material prior to production. For digital
files being produced, the Producing Party may mark each viewable page or image with the
appropriate designation, and mark the medium, container, file name and/or communication in
which the digital files were contained. In the event that original documents are produced for

AGREED PROTECTIVE ORDER - PAGE 5

inspection, the original documents shall be presumed "CONFIDENTIAL -- ATTORNEYS'
EYES ONLY" during the inspection and re-designated, as appropriate during the copying
process.
(c)

Depositions and Testimony. Parties or testifying persons or entities may

designate depositions and other testimony with the appropriate designation by indicating on the
record at the time the testimony is given or by sending written notice of how portions of the
transcript of the testimony is designated within seven (7) days of receipt of the transcript of the
testimony. If no indication on the record is made, all information disclosed during a deposition
shall be deemed "CONFIDENTIAL - ATTORNEYS' EYES ONLY" until the time within
which it may be appropriately designated as provided for herein has passed. If the transcript of
the testimony is not designated within seven (7) days of receipt of the transcript of the testimony,
it will be deemed non-confidential. Any Protected Material that is used in the taking of a
deposition shall remain subject to the provisions ofthis Protective Order, along with the
transcript pages of the deposition testimony dealing with such Protected Material. In such cases
the court reporter shall be informed of this Protective Order and shall be required to operate in a
manner consistent with this Protective Order. In the event the deposition is recorded by video,
all copies of the video files shall be marked to indicate that the contents are subject to this
Protective Order, substantially along the lines of "This video contains confidential testimony
used in this case and is not to be viewed or the contents thereof to be displayed or revealed
except pursuant to the terms of the operative Protective Order in this matter or pursuant to
written stipulation of the parties." Counsel for any Producing Party shall have the right to
exclude from oral depositions, other than the deponent, deponent's counsel, the reporter and
videographer (if any), any person who is not authorized by this Protective Order to receive or

AGREED PROTECTIVE ORDER - PAGE 6

access Protected Material based on the designation of such Protected Material. Such right of
exclusion shall be applicable only during periods of examination or testimony regarding such
Protected MateriaL

8.

DISCOVERY MATERIAL DESIGNATED AS "CONFIDENTIAL"
(a)

A Producing Party may designate Discovery Material as

"CONFIDENTIAL" ifit contains or reflects confidential, proprietary, and/or commercially
sensitive infonnation.
(b)

Unless otherwise ordered by the Court, Discovery Material designated as

"CONFIDENTIAL" may be disclosed only to the following:
(i)

The Receiving Party's Outside Counsel, such counsel's immediate

paralegals and staff, and any copying or clerical litigation support services working at the
direction of such counsel, paralegals, and staff;
(ii)

Not more than three (3) representatives of the Receiving Party who

are officers or employees of the Receiving Party, who may be, but need not be, in-house counsel
for the Receiving Party, as well as their immediate paralegals and staff, to whom disclosure is
reasonably necessary for this case, provided that each such person has agreed to be bound by the
provisions of the Protective Order by signing a copy of Exhibit A.
(iii)

Any outside expert or consultant retained by the Receiving Party to

assist in this action, provided that disclosure is only to the extent necessary to perfonn such work
and provided that: such expert or consultant has agreed to be bound by the provisions of the
Protective Order by signing a copy of Exhibit A and (a) such expert or consultant is not a current
officer, director, employee or business consultant (i.e., consultants retained solely for litigation,
if any, are excluded from this prohibition) of a competitor of the Producing Party, nor anticipated

AGREED PROTECTIVE ORDER - PAGE 7

at the time of retention to become an officer, director, employee or consultant of a competitor of
the Producing Party; or (b) if such expert or consultant is a current officer, director, employee or
consultant of a competitor of the Producing Party, or is anticipated at the time of retention to
become an officer, director, employee or consultant of a competitor of the Producing Party, no
unresolved objections to such disclosure exist after proper notice has been given to all Parties as
set forth in Paragraph 10 below. In no event shall any such expert or consultant be a current
officer, director, employee or business consultant of a Party. Such expert or consultant,
however, may be a consultant or expert retained in other litigation matters;
(iv)

Court reporters, stenographers and videographers retained to

record testimony taken in this action;
(v)

The Court, jury, and court personnel;

(vi)

Graphics, translation, design, and/or trial consulting personnel,

having first agreed to be bound by the provisions of the Protective Order by signing a copy of
Exhibit A;
(vii)

Mock jurors who have signed an undertaking or agreement

agreeing not to publicly disclose Protected Material and to keep any information concerning
Protected Material confidential;
(viii)

Any mediator who is assigned to hear this matter, and his or her

staff, subject to their agreement to maintain confidentiality to the same degree as required by this
Protective Order; and
(ix)

Any other person with the prior written consent of the Producing

Party.

AGREED PROTECTIVE ORDER - PAGE 8

I

9.

I

DISCOVERY MATERIAL DESIGNATED AS "CONFIDENTIAL -­

ATTORNEYS' EYES ONLY"
(a)

A Producing Party may designate Discovery Material as

"CONFIDENTIAL -- ATTORNEYS' EYES ONLY" if it contains or reflects information that is
extremely confidential and/or sensitive in nature and the Producing Party reasonably believes
that the disclosure of such Discovery Material is likely to cause economic harm or significant
competitive disadvantage to the Producing Party. The Parties agree that the "CONFIDENTIAL ­
-- ATTORNEYS' EYES ONLY" designation will be limited to documents or testimony
containing the following: technological information that constitutes a trade secret, engineering
documents, product development information, future marketing plans, future business plans and
financial data. Nothing herein, however, will prevent Outside Counsel for a Receiving Party
from advising such Party generally about financial issues. The Parties further agree that if a
Receiving Party has a good faith belief that it needs greater access to particular Discovery
Material that has been designated "CONFIDENTIAL - ATTORNEYS' EYES ONLY" than is
provided herein, Outside Counsel for such Receiving Party shall particularly identify the
documents or information to which the Receiving Party wishes to have access. Outside Counsel
for the Parties shall attempt in good faith to determine if another form of access is agreeable to
the Parties, such as permitting the Receiving Party to have access to the Discovery Material at
the Receiving Party's Outside Counsel's office on a no copies made, no notes taken, basis.

(b)

Unless otherwise ordered by the Court, Discovery Material designated as

"CONFIDENTIAL -- ATTORNEYS' EYES ONLY" may be disclosed only to:
(i)

The Receiving Party's Outside Counsel, provided that such

Outside Counsel is not involved in competitive decision-making, as defined by

AGREED PROTECTIVE ORDER - PAGE 9

u.s. Steel v.

,

I

United States, 730 F.2d 1465, 1468 n.3 (Fed. Cir. 1984), on behalfofa Party or a competitor ofa

Party, and such Outside Counsel's immediate paralegals and staff, and any copying or clerical
litigation support services working at the direction of such counsel, paralegals, and staff;
(ii)

Any outside expert or consultant retained by the Receiving Party to

assist in this action, provided that disclosure is only to the extent necessary to perform such
work; and provided that: (a) such expert or consultant has agreed to be bound by the provisions
of the Protective Order by signing a copy of Exhibit A; (b) such expert or consultant is not
involved in competitive decision-making, as defined by Us. Steel v. United States, 730 F.2d
1465, 1468 n.3 (Fed. Cir. 1984), on behalf of a Party or a competitor of a Party; (c) such expert
or consultant is not a current officer, director, employee, or business consultant (i.e., consultants
retained solely for litigation, if any, are excluded from this prohibition) of a competitor of the
Producing Party, nor anticipated at the time of retention to become an officer, director,
employee, or consultant of a competitor of the Producing Party, or (d) if such expert or
consultant is a current officer, director, employee or consultant of a competitor of the Producing
Party, or is anticipated at the time of retention to become an officer, director, employee or
consultant of a competitor of the Producing Party, no unresolved objections to such disclosure
exist after proper notice has been given to all Parties as set forth in Paragraph 10 below. In no
event shall any such expert or consultant be a current officer, director, employee or business
consultant of a Party. Such expert or consultant, however, may be a consultant or expert retained
in other litigation matters;
(iii)

Court reporters, stenographers and videographers retained to

record testimony taken in this action;
(iv)

The Court, jury, and court personnel;

AGREED PROTECTIVE ORDER - PAGE 10

(v)

Graphics, translation, design, and/or trial consulting personnel,

having first agreed to be bound by the provisions of the Protective Order by signing a copy of
Exhibit A;
(vi)

Any mediator who is assigned to hear this matter, and his or her

staff, subject to their agreement to maintain confidentiality to the same degree as required by this
Protective Order; and
(vii)

Any other person with the prior written consent ofthe Producing

Party.
(c)

In addition, a Party may disclose arguments and materials derived from

Discovery Material designated as " CONFIDENTIAL -- ATTORNEYS' EYES ONLY" to mock
jurors who have signed an undertaking or agreement agreeing not to publicly disclose Protected
Material and to keep any information concerning Protected Material confidential. A Party may
not disclose to mockjurors any original, as-produced materials or information (including, for
example, documents, deposition testimony, or interrogatory responses) produced by another
Party designated as "CONFIDENTIAL -- A TIORNEYS' EYES ONLY."

10.

NOTICE OF DISCLOSURE
(a)

Prior to disclosing any Protected Material to any person described in

Paragraphs 8(b ) (iii) or 9(b )(ii) (referenced below as "Person"), the Party seeking to disclose such
information shall provide the Producing Party with written notice that includes: (i) the present
employer of the Person; (ii) an identification of all of the Person's past and current employment
and consulting relationships, including direct relationships and relationships through entities
owned or controlled by the Person; and (iii) a description of the scope and subject matter of the
Person's assistance in this matter. Said written notice shall include an identification of any

AGREED PROTECTIVE ORDER - PAGE 11

individual or entity with or for whom the person is employed or to whom the person provides
consulting services relating to the design, development, operation, or patenting of Defendant's
(1) iBooks, iBookstore and/or iTunes applications and/or (2) devices on which such applications

are used, including, without limitation, the iPad, iPod touch and iPhone devices, or relating to the
acquisition of intellectual property assets relating to the foregoing. During the pendency of and
for a period of two (2) years after the final resolution of this action, including all appeals, the
Party seeking to disclose Protected Material shall immediately provide written notice of any
change with respect to the Person's involvement in the design, development, operation or
patenting of Defendant's (1) iBooks, iBookstore and/or iTunes applications and/or (2) devices on
which such applications are used, including, without limitation, the iPad, iPod touch and iPhone
devices, or the acquisition of intellectual property assets relating to the foregoing.
(b)

Within seven (7) days of receipt of the disclosure of the Person, the

Producing Party or Parties may object in writing to the Person for good cause. In the absence of
an objection at the end of the seven (7) day period, the Person shall be deemed approved under
this Protective Order. There shall be no disclosure of Protected Material to the Person prior to
expiration of this seven (7) day period. If the Producing Party objects to disclosure to the Person
within such seven (7) day period, the Parties shall meet and confer via telephone or in person
within seven (7) days following the objection and attempt in good faith to resolve the dispute on
an infonnal basis. If the dispute is not resolved, the Party objecting to the disclosure will have
seven (7) days from the date of the meet and confer to seek relief from the Court. If relief is not
sought from the Court within that time, the objection shall be deemed withdrawn. If relief is
sought, designated materials shall not be disclosed to the Person in question until the Court
resolves the objection.

AGREED PROTECTIVE ORDER - PAGE 12

(c)

For purposes of this section, "good cause" shall include an objectively

reasonable concern that the Person will, advertently or inadvertently, use or disclose Discovery
Materials in a way or ways that are inconsistent with the provisions contained in this Order.
(d)

Prior to receiving any Protected Material under this Order, the Person

must execute a copy of the "Agreement to Be Bound by Protective Order" (Exhibit A hereto) and
serve it on all Parties.
(e)

An initial failure to object to a Person under this Paragraph 10 shall not

preclude the nonobjecting Party from later objecting to continued access by that Person for good
cause. If an objection is made, the Parties shall meet and confer via telephone or in person
within seven (7) days following the objection and attempt in good faith to resolve the dispute
informally. If the dispute is not resolved, the Party objecting to the disclosure will have seven
(7) days from the date of the meet and confer to seek relief from the Court. The designated
Person may continue to have access to information that was provided to such Person prior to the
date of the objection.

If a later objection is made, no further Protected Material shall be

disclosed to the Person until the Court resolves the matter or the Producing Party withdraws its
objection. Notwithstanding the foregoing, if the Producing Party fails to move for a protective
order within seven (7) business days after the meet and confer, further Protected Material may
thereafter be provided to the Person.

11.

CHALLENGING DESIGNATIONS OF PROTECTED MATERIAL
(a)

A Party shall not be obligated to challenge the propriety of any

designation of Discovery Material under this Order at the time the designation is made, and a
failure to do so shall not preclude a subsequent challenge thereto.

AGREED PROn:CTlVE ORDER PAGE 13

(b)

Any challenge to a designation of Discovery Material under this Order

shall be written, shall be served on Outside Counsel for the Producing Party, shall particularly
identify the documents or infonnation that the Receiving Party contends should be differently
designated, and shall state the grounds for the objection. Thereafter, further protection of such
material shall be resolved in accordance with the following procedures:
(i)

The objecting Party shall have the burden of conferring either in

person, in writing, or by telephone with the Producing Party claiming protection (as well as any
other interested party) in a good faith effort to resolve the dispute. The Producing Party shall
have the burden ofjustifying the disputed designation;
(ii)

Failing agreement, the Receiving Party may bring a motion to the

Court for a ruling that the Discovery Material in question is not entitled to the status and
protection of the Producing Party's designation. The Parties' entry into this Order shall not
preclude or prejudice either Party from arguing for or against any designation, establish any
presumption that a particular designation is valid, or alter the burden of proof that would
otherwise apply in a dispute over discovery or disclosure of infonnation;

(iii)

Notwithstanding any challenge to a designation, the Discovery

Material in question shall continue to be treated as designated under this Order until one of the
following occurs: (a) the Party who designated the Discovery Material in question withdraws
such designation in writing; or (b) the Court rules that the Discovery Material in question is not
entitled to the designation.

12.

SUBPOENAS OR COURT ORDERS
(a)

If at any time Protected Material is subpoenaed by any court, arbitral,

administrative, or legislative body, the Party to whom the subpoena or other request is directed

AGREED PROTEcrIVE ORDER-PAGE 14

i

J

shall immediately give prompt written notice thereofto every Party who has produced such
Discovery Material and to its counsel and shall provide each such Party with an opportunity to
move for a protective order regarding the production of Protected Materials implicated by the
sUbpoena.

13.

FILING PROTECTED MATERIAL
(a)

Absent written permission from the Producing Party or a court Order

secured after appropriate notice to all interested persons, a Receiving Party may not file or
disclose in the public record any Protected Material.
(b)

Any Party is authorized to file under seal with the Court any brief,

document or materials that are designated as Protected Material under this Order, provided that
such Party files a motion to file documents under seal, as required by Section 6 of the United
States District Court, Southern District of New York, Electronic Case Filing Rules &
Instructions, April 4, 2011 Edition.

14.

INADVERTENT DISCLOSURE OF PRIVILEGED MATERIAL

The inadvertent production by a Party of Discovery Material subject to the attorney-client
privilege, work-product protection, or any other applicable privilege or protection shall be
governed by Rule 26(b)(5)(B) of the Federal Rules of Civil Procedure.

15.

INADVERTENT FAILURE TO DESIGNATE PROPERLY
(a)

The inadvertent failure by a Producing Party to designate Discovery

Material as Protected Material with one ofthe designations provided for under this Order shall
not waive any such designation provided that the Producing Party notifies all Receiving Parties
that such Discovery Material is protected under one ofthe categories ofthis Order within
fourteen (14) days ofthe Producing Party learning of the inadvertent failure to designate. The

AGREED PROTECTIVE ORDER - PAGE 15

i

,

Producing Party shall reproduce the Protected Material with the correct confidentiality
designation within seven (7) days upon its notification to the Receiving Parties. Upon receiving
the Protected Material with the correct confidentiality designation, the Receiving Parties shall
return or securely destroy, at the Producing Party's option, all Discovery Material that was not
designated properly.
(b)

A Receiving Party shall not be in breach of this Order for any use of such

Discovery Material before the Receiving Party receives the Protected Material with the correct
confidentiality designation, unless an objectively reasonable person would have realized that the
Discovery Material should have been appropriately designated with a confidentiality designation
under this Order. Once a Receiving Party has received notification of the correct confidentiality
designation for the Protected Material with the correct confidentiality designation, the Receiving
Party shall treat such Discovery Material (subject to the exception in Paragraph 14(c) below) at
the appropriately designated level pursuant to the terms ofthis Order.
(c)

Notwithstanding the above, a subsequent designation of

"CONFIDENTIAL" or" CONFIDENTIAL -- ATTORNEYS' EYES ONLY" shall apply on a
going forward basis and shall not disqualify anyone who reviewed "CONFIDENTIAL" or
"CONFIDENTIAL -- ATTORNEYS' EYES ONLY" materials while the materials were not
marked" CONFIDENTIAL -- ATTORNEYS' EYES ONLY" from engaging in the activities set
forth in Paragraph 6(b).

16.

INADVERTENT DISCLOSURE NOT AUTHORIZED BY ORDER
(a)

In the event of a disclosure of any Discovery Material pursuant to this

Order to any person or persons not authorized to receive such disclosure under this Protective
Order, the Party responsible for having made such disclosure, and each Party with knowledge

AGREED PROTECTIVE ORDER - PAGE 16

thereof. shall immediately notify counsel for the Producing Party whose Discovery Material has
been disclosed and provide to such counsel all known relevant information concerning the nature
and circumstances of the disclosure. The responsible disclosing Party shall also promptly take
all reasonable measures to retrieve the improperly disclosed Discovery Material and to ensure
that no further or greater unauthorized disclosure and/or use thereof is made
(b)

Unauthorized or inadvertent disclosure does not change the status of

Discovery Material or waive the right to hold the disclosed document or information as
Protected.

17.

FINAL DISPOSITION
(a)

Not later than ninety (90) days after the Final Disposition of this case.

each Party shall return all Discovery Material of a Producing Party to the respective Outside
Counsel of the Producing Party or destroy such Material. at the option of the Producing Party.
For purposes of this Order, "Final Disposition" occurs after an order. mandate. or dismissal
finally terminating the above-captioned action with prejudice, including all appeals.
(b)

All Parties that have received any such Discovery Material shall certify in

writing that all such materials have been returned to the respective Outside Counsel of the
Producing Party or destroyed. Notwithstanding the provisions for return of Discovery Material,
Outside Counsel may retain one set of pleadings, correspondence and attorney and consultant
work product (but not document productions) for archival purposes.

18.

MISCELLANEOUS
(a)

Right to Further Relief. Nothing in this Order abridges the right of any

person to seek its modification by the Court in the future. By stipUlating to this Order, the

AGREED PROTECTIVE ORDER - PAGE 17

Parties do not waive the right to argue that certain material may require additional or different
confidentiality protections than those set forth herein.
(b)

Termination of Matter and Retention of Jurisdiction. The Parties agree

that the terms of this Protective Order shall survive and remain in effect after the Final
Determination of the above-captioned matter. The CButt sb.all fewftjmisdiction afte:t Finai

9010"";_ of~" n _ Ie _ _ ........ """ lii.p>Ites arising oat of ~ris Ptatt:cti•• 9ftIer.
(c)

Successors. This Order shall be binding upon the Parties hereto, their

attorneys, and their successors, executors, personal representatives, administrators, heirs, legal
representatives, assigns, subsidiaries, divisions, employees, agents, retained consultants and
experts, and any persons or organizations over which they have direct control.
(d)

Right to Assert Other Objections. By stipulating to the entry of this

Protective Order, no Party waives any right it otherwise would have to object to disclosing or
producing any information or item. Similarly, no Party waives any right to object on any ground
to use in evidence of any of the material covered by this Protective Order. This Order shall not
constitute a waiver of the right of any Party to claim in this action or otherwise that any
Discovery Material, or any portion thereof, is privileged or otherwise non-discoverable, or is not
admissible in evidence in this action or any other proceeding.
(e)

Burdens of Proof. Notwithstanding anything to the contrary above,

nothing in this Protective Order shall be construed to change the burdens of proof or legal
standards applicable in disputes regarding whether particular Discovery Material is confidential,
which level of confidentiality is appropriate, whether disclosure should be restricted, and if so,
what restrictions should apply.

AGREED PROTECTIVE ORDER - PAGE 18

~

[

(f)

I

Modification by Court. This Order is subject to further court order based

upon public policy or other considerations, and the Court may modify this Order sua sponte in
the interests ofjustice. The United States District Court for the Southern District ofNew York is
responsible for the interpretation and enforcement of this Order. All disputes concerning
Protected Material, however designated, produced under the protection of this Order shall be
resolved by the United States District Court for the Southern District of New York.
(g)

Discovery Rules Remain Unchanged. Nothing herein shall alter or change

in any way the discovery provisions of the Federal Rules of Civil Procedure, the Local Rules for
the United States District Court for the Southern District ofNew York, or the Court's own
Orders. Identification of any individual pursuant to this Protective Order does not make that
individual available for deposition or any other form of discovery outside of the restrictions and
procedures of the Federal Rules of Civil Procedure, the Local Rules for the United States District
Court for the Southern District of New York, or the Court's own Orders.
SO ORDERED.

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AGREED PROTECTIVE ORDER - PAGE 19

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EXHIBIT A

I, _________________, acknowledge and declare that I have
received a copy of the Protective Order ("Order") in J.T. Colby & Company, Inc. d/b/a Brick
Tower Press, J. Boylston & Company, Publishers LLC and ipicturebooks LLC v. Apple Inc.,
United States District Court, Southern District of New York, Case No. II-CIV·4060 (KBF).
Having read and understood the terms of the Order, I agree to be bound by the terms of the Order
and consent to the jurisdiction of said Court for the purpose of any proceeding to enforce the
terms of the Order.

Name of individual:

----------------------------------------------------------------

Present occupation/job description: ___________________________

NameofCompanyorFirm: _______________________________________________
Ad&ess: ______________________________________________________________________

Dated: ____________________________

[Signature]

200302043.1

A-I