MRI Software LLC v. Entrata Inc.

Filing 12

STIPULATED PROTECTIVE ORDER. Signed by Magistrate Judge Chelsey M. Vascura on 10/2/2017. (kdp)

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

IN RE NON-PARTY SUBPOENA
FOR PRODUCTION
MRI SOFTWARE LLC
Movant.
ENTRATA, INC.,
Plaintiff,
v.
YARDI SYSTEMS, INC.,
Defendant.

) Misc. Case No. 2:17-mc-50
)
)
)
)
)
)
)
)
)
)
) District of Utah,
) Civil Action No. 2:15-DV-00102-CW-PMW
)
)
)

STIPULATED PROTECTIVE ORDER

WHEREAS, Entrata Inc. (“Entrata”) has served a subpoena on MRI Software LLC
(“MRI”) related to Civil Action No. 2:15-DV-00102-CW-PMW (the “Underlying Action”).
WHEREAS, the parties to the Underlying Action are Entrata and Yardi Systems, Inc.
(“Yardi”).
WHEREAS, MRI is not a party to the Underlying Action.
WHEREAS, without waiving its objections, MRI has agreed to provide documents in
response to the subpoena served on it by Entrata (the “Subpoena”) in connection with the
Underlying Action subject to certain conditions.
WHEREAS, MRI, Yardi and Entrata wish to have ordered the provisions set forth herein;

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NOW, THEREFORE, it is hereby ORDERED that the following provisions shall govern
the conduct of discovery among MRI, Entrata, and Yardi in connection with the Subpoena:
1.

DEFINITIONS
1.1.

“CONFIDENTIAL” Information or Items: means any trade secret or other
confidential research, development, or commercial information or tangible things
that qualify for protection under Federal Rules of Civil Procedure 26(c) or 45(d).

1.2.

Counsel (without qualifier): Outside Counsel of Record and In-House Counsel (as
detailed below).

1.3.

Disclosure or Discovery Material: All items or information, regardless of the
medium or manner in which it is generated, stored, or maintained (including,
among other things, testimony, transcripts, and tangible things), that are produced
or generated in response to or in connection with the Subpoena. Such items or
information are governed by this Stipulated Protective Order.

1.4.

Expert: a person with specialized knowledge or experience in a matter pertinent to
the a claim or defense in the Underlying Action, that (a) has been retained by
Entrata or Yardi or their Counsel to serve as an expert witness or as a consultant
in the Underlying Action, (b) is not a past or current employee of Entrata, Yardi,
MRI or RealPage, Inc. (“RealPage”) or a competitor of Entrata, Yardi, MRI, or
RealPage, and (c) at the time of retention, is not anticipated to become an
employee of Entrata, Yardi, RealPage or a competitor of Entrata, Yardi, RealPage
or MRI.

1.5.

“HIGHLY CONFIDENTIAL–ATTORNEYS’ EYES ONLY” Information or
Items: sensitive “Confidential Information or Items” produced by MRI.

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1.6.

HIGHLY CONFIDENTIAL INFORMATION–OUTSIDE COUNSEL ONLY”
INFORMATION OR ITEMS: sensitive “Confidential Information or Items,”
produced by MRI, which would create a substantial risk of harm if shared with InHouse Counsel for Yardi or Entrata.

1.7.

In-House Counsel: In-House counsel is limited to the following designated inhouse counsel for Entrata: Jared Hunsaker, Jamis Gardner, and Melinda Hicken.
In-House Counsel also includes for Entrata Melinda Hicken, an in-house
paralegal responsible for the Underlying Action. In-House Counsel also includes
the following designated in-house counsel for Yardi: Arnold Brier, Brady
Bustany, and Danielle Parrington. In-House Counsel does not include any other
in-house lawyers, their employees, or any staff or contractors acting on their
behalf.

1.8.

Outside Counsel of Record: attorneys who are not employees of Entrata or Yardi
but are retained to represent or advise Entrata or Yardi in the Underlying Action
and have appeared in the Underlying Action on behalf of Entrata or Yardi. To
qualify as Outside Counsel of Record, an attorney must from the date of the
Protective Order through one (1) year after the termination of the Underlying
Litigation, have no responsibility or involvement in providing business advice to
Entrata, Yardi, or RealPage concerning MRI or the subject of Information or
Items provided by MRI.

1.9.

Professional Vendors: persons or entities that professionally provide litigation
support services (e.g., photocopying, videotaping, translating, preparing exhibits
or demonstrations, and organizing, storing, or retrieving data in any form or

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medium) and their employees and subcontractors and who have been formally
engaged to provide such services in connection with the Underlying Action. No
individual employed or contracted with a Professional Vendor shall have access
to Protected Material if such individual (a) has been an employee of Entrata or
Yardi, or a competitor of Entrata, Yardi, MRI, or RealPage at any time during the
12 months preceding the disclosure, or (b) is a current employee of Entrata or
Yardi, or a competitor of Entrata, Yardi, MRI, or RealPage.
1.10.

Protected Material: any Disclosure or Discovery Material that is designated by
MRI as “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL–ATTORNEYS’
EYES ONLY,” or as “HIGHLY CONFIDENTIAL INFORMATION– OUTSIDE
COUNSEL ONLY.”

2.

SCOPE
The protections conferred by this Order cover not only Protected Material (as defined

above), but also (a) any information copied or extracted from Protected Material; (b) all copies,
excerpts, summaries, or compilations of Protected Material; and (c) any testimony,
conversations, or presentations by Entrata or Yardi or Counsel for either that might reveal
Protected Material. However, the protections conferred by this Order do not cover the following
information: (d) any information that is in the public domain at the time of disclosure to Entrata
and Yardi or becomes part of the public domain after its disclosure to Entrata and Yardi as a
result of publication not involving a violation of this Order, including becoming part of the
public record through trial or otherwise; and (e) any information known to Entrata or Yardi
through proper and lawful means, under no obligation of confidentiality, prior to the disclosure
or obtained by Entrata or Yardi through proper and lawful means, under no obligation of

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confidentiality, after the disclosure from a source who obtained the information lawfully and
under no obligation of confidentiality to MRI.
3.

DURATION
Even after final disposition of the litigation of the Underlying Action, the confidentiality

obligations imposed by this Order shall remain in effect until MRI agrees otherwise in writing or
an order of this Court otherwise directs. Final disposition shall be deemed to be the later of (1)
dismissal of all claims and defenses in the Underlying Action, with or without prejudice; and (2)
final judgment herein after the completion and exhaustion of all appeals, rehearings, remands,
trials, or reviews of the Underlying Action, including the time limits for filing any motions or
applications for extension of time pursuant to applicable law.
4.

DESIGNATING PROTECTED MATERIAL
MRI will use its reasonable best efforts to limit any designation of Protected Materials to

specific material that qualifies under the appropriate standards. MRI shall designate Information
or Items by affixing the legend ‘CONFIDENTIAL,’ ‘HIGHLY CONFIDENTIAL–
ATTORNEYS’ EYES ONLY’ or ‘HIGHLY CONFIDENTIAL INFORMATION–OUTSIDE
COUNSEL ONLY’ to each page of any document produced in TIFF, PDF, or other image
format; for any documents produced in native file format or another format for which a
confidentiality legend cannot be affixed in a page-by-page manner, MRI shall include the legend
‘CONFIDENTIAL,’ ‘HIGHLY CONFIDENTIAL–ATTORNEYS’ EYES ONLY’ or ‘HIGHLY
CONFIDENTIAL INFORMATION–OUTSIDE COUNSEL ONLY’ in the electronic file name
of each such document. An inadvertent failure to designate qualified Information or Items does
not, standing alone, waive the confidentiality of that material or MRI’s right to secure protection
under this Order for such material. Upon correction of a designation, Entrata and Yardi must

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5

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

No Party will be responsible to another Party for disclosure of Confidential

Information under this Order if the Confidential Information in question is not labeled or
otherwise designated in accordance with this Order. All copies, electronic images, duplicates,
extracts, summaries or descriptions (hereinafter referred to collectively as to “copies”) of
documents designated as CONFIDENTIAL,” “HIGHLY CONFIDENTIAL–ATTORNEYS’
EYES ONLY” or “HIGHLY CONFIDENTIAL INFORMATION–OUTSIDE COUNSEL
ONLY” made by Entrata or Yardi under this Order, or any individual portion of such a
document, shall be affixed with the appropriate designation if the word does not already appear
on the copy.
5.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
5.1.

Timing of Challenges. Entrata or Yardi may challenge a designation of

confidentiality by MRI at any time.
5.2.

Meet and Confer. Entrata or Yardi shall initiate the dispute resolution process by

providing written notice to MRI of each designation it is challenging and describing the basis for
each challenge. To avoid ambiguity as to whether a challenge has been made, the written notice
must recite that the challenge to confidentiality is being made in accordance with this specific
paragraph of this Order. Entrata or Yardi and MRI shall attempt to resolve each challenge in
good faith and must begin the process by conferring directly (in voice to voice dialogue; other
forms of communication are not sufficient) within 14 days of the date of service of notice. In
conferring, Entrata or Yardi must explain the basis for its belief that the confidentiality
designation was not proper and must give MRI an opportunity to review the designated material,
to reconsider the circumstances, and, if no change in designation is offered, to explain the basis

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for the chosen designation. Entrata or Yardi may proceed to the next stage of the challenge
process only if it has engaged in this meet and confer process first or establishes that MRI is
unwilling to participate in the meet and confer process in a timely manner.
5.3.

Judicial Intervention. If Entrata or Yardi and MRI cannot resolve a challenge

without court intervention, Entrata or Yardi, as the party challenging the designation, shall file
and serve a motion to challenge the designation in this Court. Each such motion shall be served
on all parties to the Underlying Action, and MRI, and must be accompanied by a competent
declaration affirming that the movant has complied with the meet and confer requirements
imposed in the preceding paragraph. The parties disagree as to who bears the burden on such
motion, and neither party waives any rights as to the foregoing. Frivolous challenges and those
made for an improper purpose (e.g., to harass or impose unnecessary expenses and burdens on
other parties) may expose Entrata or Yardi to sanctions. The parties shall continue to afford the
material in question the level of protection to which it is entitled under MRI’s designation until
the Court rules on the challenge.
6.

ACCESS TO AND USE OF PROTECTED MATERIAL
6.1.

Basic Principles. Entrata and Yardi may use Protected Material that is disclosed

or produced by MRI only for prosecuting, defending, or attempting to settle the Underlying
Action. Protected Material may be disclosed only to the categories of persons and under the
conditions described in this Order. When the litigation of the Underlying Action has been
terminated, Entrata and Yardi must comply with the provisions of section 12 below (“FINAL
DISPOSITION”).
Protected Material must be stored and maintained by Entrata and Yardi at a location and
in a secure manner that ensures that access is limited to the persons authorized under this Order.

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As to all computers on which Protected Materials are stored, Entrata and Yardi shall implement
and maintain such administrative, physical, and technical safeguards as are necessary to and that
reasonably and appropriately protect the confidentiality of the Protected Materials, including but
not limited to firewalls, passwords, and other access-control mechanisms.
Nothing in this Order will bar Counsel for Entrata or Yardi from rendering advice to their
respective clients with respect to the Underlying Action, but only the Underlying Action, and, in
the

course

thereof,

relying

upon

any

Confidential

Information

designated

as

“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL INFORMATION–OUTSIDE COUNSEL
ONLY” or “HIGHLY CONFIDENTIAL–ATTORNEYS’ EYES ONLY,” provided that no
Protected Materials, or Information or Items contained therein, is disclosed to those not
authorized by this Order to receive it.
6.2.

Disclosure of “CONFIDENTIAL” Information or Items.

Unless otherwise

ordered by the Court or permitted in writing by MRI, Entrata and Yardi may disclose any
information or item designated “CONFIDENTIAL” only to:
(a)

Entrata’s or Yardi’s Outside Counsel of Record in the Underlying Action, as well

as employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose
the information for the litigation of the Underlying Action;
(b)

the officers, directors, and employees (including In-House Counsel) of Entrata or

Yardi to whom disclosure is reasonably necessary for the Underlying Action and who have
signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(c)

Experts (as defined in this Order) of Entrata or Yardi in the Underlying Action to

whom disclosure is reasonably necessary for the litigation of the Underlying Action and who
have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

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8

(d)

the Court and its personnel;

(e)

court reporters and their staff, Professional Vendors, and professional jury or trial

consultants (but excluding mock jurors) to whom disclosure is reasonably necessary for the
litigation of the Underlying Action and who have signed the “Acknowledgment and Agreement
to Be Bound” (Exhibit A);
(f)

during their depositions, witnesses in the Underlying Action to whom disclosure

is reasonably necessary and who have signed the “Acknowledgment and Agreement to Be
Bound” (Exhibit A), unless otherwise agreed by MRI or ordered by this Court. Pages of
transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be
separately bound by the court reporter and may not be disclosed to anyone except as permitted
under this Stipulated Protective Order.
6.3.

Disclosure of “HIGHLY CONFIDENTIAL–ATTORNEYS’ EYES

ONLY”

Information or Items. Unless otherwise ordered by the Court or permitted in writing by MRI,
Entrata

and

Yardi

may disclose

any information

or

item

designated

“HIGHLY

CONFIDENTIAL–ATTORNEYS’ EYES ONLY” only to:
(a)

Entrata’s or Yardi’s Outside Counsel of Record in the Underlying Action, as well

as employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose
the information for the litigation of the Underlying Action;
(b)

Experts of Entrata or Yardi in the Underlying Action (1) to whom disclosure is

reasonably necessary for the Underlying Action, (2) who have signed the “Acknowledgment and
Agreement to Be Bound” (Exhibit A), and (3) as to whom the procedures set forth in paragraph
6.5, below, have been followed;
(c)

the Court and its personnel;

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9

(d)

court reporters and their staff, Professional Vendors and professional jury or trial

consultants (but excluding mock jurors) to whom disclosure is reasonably necessary for the
litigation of the Underlying Action and who have signed the “Acknowledgment and Agreement
to Be Bound” (Exhibit A); and
(e)

Entrata’s or Yardi’s In-House Counsel, as defined in paragraph 1.7, who have

signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A).
6.4. “HIGHLY CONFIDENTIAL INFORMATION - OUTSIDE COUNSEL ONLY”
Information or Items.
(a)

Disclosure of “HIGHLY CONFIDENTIAL INFORMATION - OUTSIDE

COUNSEL ONLY” Information or Items.

Information and Documents designated by MRI as

“HIGHLY CONFIDENTIAL– OUTSIDE COUNSEL ONLY” shall be accessed and viewed
only by i) Outside Counsel of Record who have executed the Agreement to be Bound (Exhibit
A); ii) employees of said Outside Counsel of Record to whom it is reasonably necessary to
disclose the information for the litigation of the Underlying Action and who have executed the
Agreement to be Bound; and iii) Experts (1) to whom disclosure is reasonably necessary for the
Underlying Action, (2) who have signed the Agreement to Be Bound, and (3) as to whom the
procedures set forth in paragraph 6.5, of the Protective Order, have been followed. No prints or
copies of any HIGHLY CONFIDENTIAL– OUTSIDE COUNSEL ONLY materials shall be
made unless reasonably necessary for purposes of the Underlying Action. If MRI produces
materials via a platform that provides for printing with watermarks, Entrata and Yardi shall not
remove such watermarks. If any HIGHLY CONFIDENTIAL– OUTSIDE COUNSEL ONLY
materials are copied, the Outside Counsel or Expert making the print or copy shall maintain a
signed log for each print or copy made containing the following information: name of person

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10

making the copy; date and time of copy made; which number copy it is; and how the copy will
be maintained and stored. These requirements apply to both digital and physical copies of the
materials. Copies of such logs shall be provided at MRI’s request to MRI’s outside counsel who
have appeared in this action.
6.5.

Procedures for Approving or Objecting to Disclosure of “HIGHLY CONFIDENTIAL–

ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL INFORMATION–OUTSIDE
COUNSEL ONLY” Information or Items to Experts.
(a)

Unless otherwise ordered by the Court or agreed to in writing by MRI, if Entrata

or Yardi seeks to disclose to an Expert (as defined in this Order) any information or item that has
been designated “HIGHLY CONFIDENTIAL–ATTORNEYS’ EYES ONLY” or “HIGHLY
CONFIDENTIAL INFORMATION–OUTSIDE COUNSEL ONLY” it first must make a written
request to MRI that (1) identifies the general categories of “HIGHLY CONFIDENTIAL–
ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL INFORMATION –OUTSIDE
COUNSEL ONLY” information that Entrata or Yardi seeks permission to disclose to the Expert,
(2) sets forth the full name of the Expert and the city and state of his or her primary residence,
(3) attaches a copy of the Expert’s current resume, (4) identifies the Expert’s current
employer(s), (5) identifies each person or entity from whom the Expert has received
compensation or funding for work in his or her areas of expertise or to whom the expert has
provided professional services, including in connection with a litigation, at any time during the
preceding five years,1and (6) identifies (by name and number of the case, filing date, and
location of court) any litigation in connection with which the Expert has offered expert

1

If the Expert believes any of this information is subject to a confidentiality obligation to a non-party, then the
Expert should provide whatever information the Expert believes can be disclosed without violating any
confidentiality agreements, and Entrata or Yardi shall be available to meet and confer with MRI regarding any such
engagement.

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11

testimony, including through a declaration, report, or testimony at a deposition or trial, during the
preceding five years.
(b)

Subject to the restrictions set forth in this Order, if Entrata or Yardi makes a

request and provides the information specified in the preceding respective paragraphs, it may
disclose the subject Protected Material to the identified Expert unless, within 14 days of MRI’s
receipt of the request, Entrata or Yardi receives a written objection from MRI, which such
disclosure may be made no earlier than the date of MRI’s consent to such disclosure or the
expiration of 14 days from MRI’s receipt of the request without MRI having made a written
objection to the disclosure. Any such objection must set forth in detail the grounds on which it is
based. The approval of disclosure to Experts must not be unreasonably withheld.
(c)

Upon receipt of written notification that MRI is withholding permission for

Entrata or Yardi to disclose the Protected Information to the identified Expert, Entrata or Yardi
must meet and confer with MRI (through direct voice to voice dialogue) to try to resolve the
matter by agreement within seven days of the written objection. If no agreement is reached,
Entrata or Yardi may file an expedited motion seeking permission from this Court to do so. Any
such motion must describe the circumstances with specificity, set forth in detail the reasons why
the disclosure to the Expert is reasonably necessary, assess the risk of harm that the disclosure
would entail, and suggest any additional means that could be used to reduce that risk. In addition,
any such motion must be served on all parties to the Underlying Litigation and must be
accompanied by a competent declaration describing MRI’s and Entrata’s or Yardi’s efforts to
resolve the matter by agreement (i.e., the extent and the content of the meet and confer
discussions) and setting forth the reasons advanced by MRI for its refusal to approve the
disclosure. In any such proceeding, Entrata or Yardi shall bear the burden of proving that the

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12

need to disclose the Protected Material to its Expert outweighs risk of harm that the disclosure
would entail (under the safeguards proposed).
(d)

Experts shall be allowed to disclose material that is designated “HIGHLY

CONFIDENTIAL–ATTORNEYS’

EYES

ONLY”

or

“HIGHLY

CONFIDENTIAL

INFORMATION–OUTSIDE COUNSEL ONLY” to subcontractors, assistants, or employees
provided that the subcontractors, assistants, or employees (1) have been retained by the Expert to
assist the Expert in completing his work for the Underlying Action, (2) are not past or current
employees of Entrata or Yardi or a competitor of Entrata, Yardi, or MRI and (3) at the time of
retention, are not anticipated to become an employee of Entrata or Yardi or a competitor of
Entrata, Yardi, or MRI, and (4) have signed the Agreement to be Bound. The subcontractors,
assistants, or employees must comply with all the same requirements and procedures as the
Experts. Any Expert, or subcontractor, assistant, or employee of an Expert, who receives access
to Protected Material shall not, from the date of receipt through one (1) year after the termination
of the Underlying Action, have any responsibility or involvement in providing business advice to
Entrata, Yardi or a competitor of Entrata, Yardi or MRI.
6.6

Procedures for Use of Protected Materials in Pretrial or Trial Proceedings.

To facilitate

a public trial while permitting the protection of confidential information as allowed under the
Federal Rules of Civil Procedure, before using or showing any Protected Material at trial or any
pretrial proceeding, the party wishing to use such Protected Material must provide MRI
reasonable notice of its intention to do so. If Entrata, Yardi, and MRI are unable to agree
concerning whether such information may be used or the conditions under which such
information may be used, then before using any such information, Entrata or Yardi must obtain
an order from this Court permitting it to do so and stating the restrictions, if any, applicable to

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13

such use. The request for ruling should be made by motion, and MRI will be permitted a
response to any such motion. Notice of any such motion shall be given to all parties in the
Underlying Action, who shall also be permitted a response to the motion.
6.7

Procedures for Use of Protected Materials in Depositions. Entrata or Yardi shall give

MRI seven days’ notice (“Deposition Notice”) if it expects a deposition to include Protected
Material so that MRI can ensure that only authorized individuals who have signed the
“Acknowledgment and Agreement to Be Bound” (Exhibit A) are present at those proceedings
and that procedures sufficient to protect its Protected Material are enacted. Except as necessary
to enforce its rights reflected in the next sentence, MRI shall not disclose the substance or fact of
such notice from Entrata or Yardi to any third party. MRI will be permitted to seek an expedited
order from this Court regarding the use of its Protected Material; any such filings, hearings,
conferences, or correspondence with this Court shall be under seal. The use of a document as an
exhibit at a deposition shall not in any way affect its designation as “CONFIDENTIAL”
“HIGHLY CONFIDENTIAL INFORMATION–OUTSIDE COUNSEL ONLY” or “HIGHLY
CONFIDENTIAL–ATTORNEYS’ EYES ONLY.”
Transcripts containing Protected Material shall have an obvious legend on the title page
that the transcript contains Protected Material, and the title page shall be followed by a list of all
pages (including line numbers as appropriate) that have been designated as Protected Material
and the level of protection being asserted by MRI. Entrata and Yardi shall each be responsible to
ensure that the court reporter or deposition officer is informed of these requirements. MRI shall
be provided a copy of any transcript that contains Protected Material and has the right up to 21
days from its receipt of the final transcript to identify the specific portions of the testimony as to
which protection is sought and specify the level of protection being asserted. MRI may specify

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14

up to 21 days from MRI’s receipt of the final transcript that the entire transcript shall be treated
as “CONFIDENTIAL” or “CONFIDENTIAL–ATTORNEY’S EYES ONLY” or “HIGHLY
CONFIDENTIAL INFORMATION–OUTSIDE COUNSEL ONLY,” where such designation is
appropriate based on the contents of the transcript. Any transcript that is prepared before the
expiration of the 21-day period for designation shall be treated during that period as if it had
been designated “HIGHLY CONFIDENTIAL INFORMATION–OUTSIDE COUNSEL ONLY”
in its entirety unless otherwise agreed. After the expiration of that period, the transcript shall be
treated only as actually designated.
6.8

Filing Protected Material. Entrata and Yardi shall not file in the public record in the

Underlying Action or any other action any Protected Material, or any document that results in the
public disclosure of Protected Material. If Entrata or Yardi wishes to file or otherwise submit
any document containing Protected Material to the court in the Underlying Action, it shall first
obtain leave of the court in the Underlying Action to file such document(s) under seal. .
6.9

Expert Reports. To the extent reasonably necessary to prosecute or defend the Underlying

Action, Experts for Entrata or Yardi may include excerpts of Protected Materials in an expert
report provided that the excerpts are appropriately marked under this Order and restricted to
those who are entitled to have access to them as specified herein. An expert report that contains
“HIGHLY CONFIDENTIAL INFORMATION–OUTSIDE COUNSEL” information shall be
subject to the additional protections for such materials, including without limitations, the
protections set forth in paragraph 6.4(a).
7.

PROSECUTION BAR
Absent written consent from MRI, any individual who receives access to “HIGHLY

CONFIDENTIAL–ATTORNEYS’

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EYES

ONLY”

15

or

“HIGHLY

CONFIDENTIAL

INFORMATION–OUTSIDE COUNSEL” information shall not (1) be involved as an attorney in
the prosecution of patents or patent applications relating to property management databases,
software or algorithms; or (2) be involved in any capacity (as an attorney, expert, consultant,
inventor, or otherwise) in the prosecution of patents or patent applications that relate to any of
the technology produced or at issue in this case. For purposes of this paragraph, “prosecution”
includes directly or indirectly drafting, amending, advising, or otherwise affecting the scope or
maintenance of patent claims. To avoid any doubt, “prosecution” as used in this paragraph does
not include representing a party challenging a patent before a domestic or foreign agency
(including, but not limited to, a reissue protest, ex parte reexamination or inter parte
reexamination). This Prosecution Bar shall begin when access to “HIGHLY CONFIDENTIAL–
ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL INFORMATION–OUTSIDE
COUNSEL” information is first received by the affected individual and shall end two (2) years
after final termination of the Underlying Action.
8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER
LITIGATION
If Entrata or Yardi is served with a subpoena or a court order issued in other litigation

(i.e., other than the Underlying Litigation) that compels disclosure of any information or items
designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL INFORMATION–
OUTSIDE COUNSEL ONLY” or “HIGHLY CONFIDENTIAL–ATTORNEYS’ EYES
ONLY,” then the party so served must:
(a)

promptly notify MRI in writing. Such notification shall include a copy of the

subpoena or court order;

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16

(b)

promptly notify in writing the non-party that caused the subpoena or order to

issue in the other litigation that some or all of the material covered by the subpoena or order is
subject to this Order. Such notification shall include a copy of this Order; and
(c)

cooperate with respect to all reasonable procedures sought to be pursued by MRI.

If MRI timely seeks a protective order, then neither Entrata nor Yardi shall produce any
information designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL–ATTORNEYS’
EYES ONLY” or “HIGHLY CONFIDENTIAL INFORMATION–OUTSIDE COUNSEL
ONLY” before a determination by the Court from which the subpoena or order issued, unless
Entrata or Yardi has obtained MRI’s permission.

Nothing in these provisions should be

construed as authorizing or encouraging Entrata or Yardi to disobey a lawful directive from
another court.
9.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If Entrata or Yardi learns that, by inadvertence or otherwise, it has disclosed Protected

Material to any person or in any circumstance not authorized under this Order, then it must
immediately (a) notify MRI in writing of the unauthorized disclosures, (b) use its best efforts to
retrieve all unauthorized copies of the Protected Material, (c) inform the person or persons to
whom unauthorized disclosures were made of all the terms of this Order, and (d) request such
person or persons to execute the “Acknowledgment and Agreement to Be Bound” that is
attached hereto as Exhibit A.
10.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED
MATERIAL
Inadvertent or unintentional production of any document or thing subject to attorney-

client privilege or work-product immunity shall not constitute a waiver of the attorney-client
privilege or work-product immunity, if any, as they apply to those documents specifically or to

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the subject matter of those documents generally. If MRI produces documents or things that it
believes should have been withheld as privileged or work-product, MRI shall provide a written
request for the return of those documents or things within a reasonable time after determining
that the documents should not have been produced. MRI must disclose the basis for the assertion
of privilege by listing the requested documents on a privilege log within ten (10) business days
of providing the request for the return of the documents. Upon receipt of such written request,
Entrata and Yardi must not use or disclose such documents or things or the information
contained in them, and Entrata and Yardi shall promptly gather the original and all copies of
such documents and things, take reasonable steps to retrieve the information if Entrata or Yardi
disclosed it before receiving the request, and shall promptly return (if a true original) or destroy
the document and all such copies to MRI. Entrata and Yardi shall confirm the return or
destruction of all such information in writing within ten (10) business days of receiving the
request by MRI. Entrata or Yardi may challenge the privileged nature of the recalled documents
by filing a motion with the Court and requesting an in camera review of the documents or things
in question, but under no circumstances may Entrata or Yardi use the document or its contents in
challenging an assertion of privilege or work product protection, and under no circumstances
may Entrata or Yardi assert as a ground for compelling production the fact or circumstance that
the material has already been produced or disclosed.
11.

MISCELLANEOUS
11.1.

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

entity to seek its modification by this Court in the future.
11.2.

Right to Assert Other Objections. By stipulating to the entry of this Order, neither

Entrata, Yardi, nor MRI waives any right it otherwise would have to object to disclosing or

{04499672.DOCX;7 }

18

producing any information or item on any ground not addressed in this Order. Further, by
stipulating to the entry of this Order, MRI: (i) is not agreeing that this Order is adequate to
protect MRI’s trade secrets or confidential information; (ii) is not waiving any protections that it
is entitled to receive under Rule 45; (iii) is not agreeing that Entrata or Yardi is entitled to receive
production from MRI and is not consenting to any production of any material at all to Entrata or
Yardi; (iv) is not waiving its right to object to any order requiring MRI to produce documents or
information to Entrata or Yardi, or to appeal or seek other review, such as through a petition for
writ of mandamus, of any such order; and (v) and is not waiving its right to seek reasonable
compensation or damages for any injury that may accrue to MRI as a consequence of any
production that it may be required to make to Entrata or Yardi. Additionally, neither Entrata,
Yardi, nor MRI waives any right to object on any ground to use in evidence of any of the
material covered by this Order.
11.3.

MRI shall have the option to deliver to Outside Counsel Protected Materials on

portable media (e.g., thumb drives or disks) or other means that is encrypted and password
protected, or via a review platform with adequate security protocols and features to protect such
materials.

Entrata and Yardi shall not circumvent any security features of such media or

platform. Yardi and Entrata shall not object to the redaction of any portions of documents by
MRI, so long as MRI provides a general statement of the reason(s) for such redaction that does
not disclose the substance of the redacted material (e.g., irrelevant, non-responsive, subject to
third party confidentiality obligations, privileged or immune). To the extent required by Federal
Rule of Civil Procedure 26(b)(5), MRI shall provide a privilege log for such redactions.
11.4.

Where this Order requires notice to MRI, such notice shall be provided in writing

to all counsel of record for MRI in this action, with a copy to: [e-mail] .

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12.

FINAL DISPOSITION
Within 60 days after the final disposition of the Underlying Action, as defined in

paragraph 3 above, Entrata and Yardi must either return all Protected Material to MRI or destroy
such material. As used in this paragraph, “all Protected Material” includes all copies, abstracts,
compilations, summaries, and any other format reproducing or capturing any of the Protected
Material. Whether the Protected Material is returned or destroyed, Entrata and Yardi must each
submit a written certification to MRI by the 60-day deadline that (1) identifies (by category,
where appropriate) all the Protected Material that was returned or destroyed and (2) affirms that
it has not retained any copies, abstracts, compilations, summaries or any other format
reproducing or capturing any of the Protected Material. Notwithstanding this provision, Outside
Counsel of Record are entitled to retain an archival copy of all pleadings, motion papers, trial,
deposition, and hearing transcripts, legal memoranda, correspondence, deposition and trial
exhibits, expert reports, attorney work product, and consultant and expert work product, even if
such materials contain Protected Material. Any such archival copies that contain or constitute
Protected Material remain subject to this Protective Order as set forth in Section 3. Counsel shall
maintain the originals of the Agreements to be Bound for a period of 1 year after final
disposition of the Underlying Action. Copies of executed Agreements to be Bound shall be
provided to MRI upon request.
13.

PERSONS BOUND. This Order shall take effect when entered and shall be binding upon

all parties to the Underlying Action, all counsel of record in the Underlying Action and their law
firms, and persons made subject to this Order by its terms. Undersigned counsel for Yardi and
Entrata shall have responsibility for providing notice of this Order to Entrata and Yardi, Experts,
Professional Vendors, other counsel in the Underlying Action and their respective law firms.

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20

APPROVED:

/s/ Chelsey M. Vascura ___________
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE

/David Cross/__________________________
On behalf of Entrata

/Matthew Richards/_______________________
On behalf of Yardi

/Georgia Yanchar/_________________________
On behalf of MRI

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21

Exhibit A
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO

IN RE NON-PARTY SUBPOENA
FOR PRODUCTION
MRI, INC.
Movant.
ENTRATA, INC.,
Plaintiff,
v.
YARDI SYSTEMS, INC.,
Defendant.

) Misc. Case No. 2:17-mc-50
)
)
)
)
)
)
)
)
)
) District of Utah,
) Civil Action No. 2:15-DV-00102-CW-PMW
)
)
)

AGREEMENT TO BE BOUND BY PROTECTIVE ORDER

I,

_________________________,

[print

or

type

full

name],

of

__________________________ [print or type full address], declare under penalty of perjury
under the laws of the United States that I have read in its entirety and understand the Stipulated
Protective Order (“Order”) approved by MRI, Entrata, and Yardi, and issued by the United
States District Court for the Southern District of Ohio on ____, 2017 in the above-captioned
action (Misc. Case No: 2:17-mc-00050). I agree to comply with and to be bound by all the terms
of the Order, and I understand and acknowledge that failure to so comply could expose me to

{04499672.DOCX;7 }

22

sanctions and punishment in the nature of contempt. I solemnly warrant, represent, and promise
that I will not disclose in any manner any information or item that is subject to the Order to any
person or entity except in strict compliance with the provisions of the Order.
I further agree to submit to the jurisdiction of the United States District Court for the
Southern District of Ohio for the purpose of enforcing the terms of this Order, even if such
enforcement proceedings occur after termination of the Action.

Dated:
City and State where sworn and signed:
Printed name:
Signature:

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23