Lufthansa Technik AG v. Astronics Advanced Electronic Systems Corp.

Filing 168

SECOND AMENDED PROTECTIVE ORDER re 166 Unopposed MOTION to Amend Protective Order. Signed by Judge Ricardo S Martinez. (PM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON

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Lufthansa Technik AG,

)
) No. 2:14-cv-01821-RSM
Plaintiff,
)
) SECOND AMENDED PROTECTIVE
v.
) ORDER
)
Astronics Advanced Electronic Systems Corp., )
)
Defendant.
)
)
1.

PURPOSES AND LIMITATIONS

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Discovery in this action is likely to involve production of confidential, proprietary, or

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private information for which special protection may be warranted. Accordingly, the parties

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hereby stipulate to and petition the court to enter the following Stipulated Protective Order. The

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parties acknowledge that this agreement is consistent with LCR 26(c). It does not confer blanket

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protection on all disclosures or responses to discovery, the protection it affords from public

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disclosure and use extends only to the limited information or items that are entitled to confidential

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treatment under the applicable legal principles, and it does not presumptively entitle parties to file

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confidential information under seal.

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2.

“CONFIDENTIAL MATERIAL” AND “ATTORNEY’S EYES ONLY MATERIAL”

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“Confidential Material” shall include those documents and tangible things that contain

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business information that is not publicly known, the disclosure of which could cause the producing

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party to be commercially disadvantaged or prejudiced. “Attorney’s Eyes Only Material” shall

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include highly sensitive business information, including trade secrets and other technical,

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commercial, financial, personal and business information, the disclosure of which could result in

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harm that may be significant to the producing party’s business and its competitive position, and

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for which there exists a good-faith claim of protection from disclosure. Confidential Material and

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Attorney’s Eyes Only Material shall be collectively referred to as “Protected Material.”

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3.

SCOPE

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The protections conferred by this agreement cover not only Confidential Material and

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Attorney’s Eyes Only Material (as defined above) obtained by the parties from one another, and

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from third parties or non-parties, but also (1) any information copied or extracted from Protected

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Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any

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testimony, conversations, or presentations by parties or their counsel that might reveal Protected

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Material. However, the protections conferred by this agreement do not cover information that is

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in the public domain or becomes part of the public domain through trial or otherwise.

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4.

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ACCESS TO AND USE OF CONFIDENTIAL MATERIAL
4.1

Basic Principles. A receiving party may use Protected Material that is disclosed or

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produced by another party or by a non-party in connection with this case only for prosecuting,

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defending, or attempting to settle (1) this litigation, (2) the infringement litigation currently

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pending in Germany, Civil Law Proceeding No. 7O 289/10, pending before the Mannheim

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Regional Court, and any appeals there from, as well as potential enforcement proceedings

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including but not limited to proceedings requesting court fines or requesting affirmations in lieu

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of oath and proceedings concerning the amount of damages to be paid as well as any other

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proceedings and procedural remedies relating to the rights of Lufthansa arising out of the German

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part of European Patent No. EP 881 145 with regard to products manufactured and/or sold by AES

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(the “German Proceedings”), and (3) contemplated proceedings relating to the rights of Lufthansa

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arising out of any parts or foreign counterparts of European Patent No. EP 881 145 being

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considered for filing in France, Spain, the United Kingdom and/or Japan (the “Contemplated

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Proceedings”). Protected Material may be disclosed only to the categories of persons and under

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the conditions described in this agreement. Protected Material must be stored and maintained by a

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receiving party at a location and in a secure manner that ensures that access to the Protected

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Material is limited to the persons authorized under this agreement.

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Notwithstanding the foregoing or any other provisions of this Second Amended Protective

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Order, including without limitation Paragraphs 4.1, 4.2, 4.3, and 11, Protected Material disclosed,

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produced, or filed by or on behalf of KID-Systeme GmbH (“KID”) in connection with this

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litigation: (a) shall be used only for purposes of this litigation and for no other purpose; (b) shall

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not be disclosed or used for any purpose in any other litigation or proceeding, including without

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limitation the German Proceedings and the Contemplated Proceedings; and (c) shall not be

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disclosed to any other court, tribunal, counsel, or person in connection with any other litigation or

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proceeding, including the German Proceedings or the Contemplated Proceedings, unless KID

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agrees in advance to such disclosure or use.

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4.2

Disclosure of Confidential Material. Unless otherwise ordered by the court or

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permitted in writing by the designating party, a receiving party may disclose any Confidential

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Material only to:

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(a)

the receiving party’s counsel of record in this action, counsel in the

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German Proceedings, or counsel involved in the Contemplated Proceedings who have signed the

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“Acknowledgment and Agreement to Be Bound” (Exhibit A), as well as employees of such

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counsel to whom it is reasonably necessary to disclose the information for this litigation;

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(b)

the officers, directors, and employees (including in house counsel) of the

receiving party to whom disclosure is reasonably necessary for this litigation;
(c)

experts and consultants to whom disclosure is reasonably necessary for

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this litigation and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit

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A), subject to the provisions of Paragraph 10, below;

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(d)

the court, court personnel, and court reporters and their staff;

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(e)

courts in the German Proceedings or Contemplated Proceedings, subject to

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the provisions of Paragraph 11, below;
(f)

copy or imaging services retained by counsel to assist in the duplication of

Confidential Material, provided that counsel for the party retaining the copy or imaging service

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instructs the service not to disclose any Confidential Material to third parties and to immediately

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return all originals and copies of any Confidential Material;

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(g)

during their depositions, witnesses in the action to whom disclosure is

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reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound”

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(Exhibit A), unless otherwise agreed by the designating party or ordered by the court. Pages of

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transcribed deposition testimony or exhibits to depositions that reveal Confidential Material must

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be separately bound by the court reporter and may not be disclosed to anyone except as permitted

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under this agreement; or

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(h)

the author or recipient of a document containing the information or a

custodian or other person who otherwise possessed or knew the information.
4.3

Disclosure of Attorney’s Eyes Only Material. Unless otherwise ordered by the

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court or permitted in writing by the designating party, a receiving party may not disclose any

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Attorney’s Eyes Only Material to anyone but:

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(a)

the receiving party’s counsel of record in this action, counsel in the

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German Proceedings, or counsel involved in the Contemplated Proceedings who have signed the

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“Acknowledgment and Agreement to Be Bound” (Exhibit A), as well as employees of such

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counsel to whom it is reasonably necessary to disclose the information for this litigation;

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(b)

one in-house counsel of the receiving party—Dr. Nikolaus Henrich for

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Lufthansa Technik AG (“Lufthansa”), and Ed Sterner for Astronics Advanced Electronic

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Systems (“AES”)—provided that each individual shall have signed the “Acknowledgment and

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Agreement to Be Bound” (Exhibit A);

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(c)

experts and consultants to whom disclosure is reasonably necessary for

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this litigation and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit

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A), subject to the provisions of Paragraph 10, below;

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(d)

the court, court personnel, and court reporters and their staff;

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(e)

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courts in the German Proceedings or Contemplated Proceedings, subject to

the provisions of Paragraph 11, below;

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(f)

copy or imaging services retained by counsel to assist in the duplication of

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Attorney’s Eyes Only Material, provided that counsel for the party retaining the copy or imaging

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service instructs the service not to disclose any Attorney’s Eyes Only Material to third parties

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and to immediately return all originals and copies of any Attorney’s Eyes Only Material;

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(g)

during their depositions, witnesses in the action to whom disclosure is

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reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound”

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(Exhibit A), unless otherwise agreed by the designating party or ordered by the court. Pages of

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transcribed deposition testimony or exhibits to depositions that reveal Attorney’s Eyes Only

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Material must be separately bound by the court reporter and may not be disclosed to anyone

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except as permitted under this agreement; or

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(h)

the author or recipient of a document containing the information or a

custodian or other person who otherwise possessed or knew the information.

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4.4

Filing Protected Material.

Before filing Protected Material or discussing or

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referencing such material in court filings, the filing party shall confer with the designating party

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to determine whether the designating party will remove the material’s designation, whether the

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material can be redacted, or whether a motion to seal or stipulation and proposed order is

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warranted. Local Civil Rule 5(g) sets forth the procedures that must be followed and the standards

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that will be applied when a party seeks permission from the court to file material under seal.

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5.

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DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection. Each party

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or non-party that designates information or items for protection under this agreement must take

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care to limit any such designation to specific material that qualifies under the appropriate

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standards. The designating party must designate for protection only those parts of material,

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documents, items, or oral or written communications that qualify, so that other portions of the

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material, documents, items, or communications for which protection is not warranted are not swept

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unjustifiably within the ambit of this agreement.

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Mass, indiscriminate, or routinized designations are prohibited. Designations that are

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shown to be clearly unjustified or that have been made for an improper purpose (e.g., to

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unnecessarily encumber or delay the case development process or to impose unnecessary expenses

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and burdens on other parties) expose the designating party to sanctions.

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If it comes to a designating party’s attention that information or items that it designated for

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protection do not qualify for protection, the designating party must promptly notify all other parties

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that it is withdrawing the mistaken designation.

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5.2

Manner and Timing of Designations.

Except as otherwise provided in this

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agreement (see, e.g., Paragraph 7.2(b) below), or as otherwise stipulated or ordered (such as when

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documents are produced for inspection at the party’s or its counsel’s facilities), disclosure or

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discovery material that qualifies for protection under this agreement must be clearly so designated

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before or when the material is disclosed or produced.

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(a)

Information in documentary form: (e.g., paper or electronic documents

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and deposition exhibits, but excluding transcripts of depositions or other pretrial or trial

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proceedings), the designating party must affix the word “CONFIDENTIAL” (for Confidential

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Material) or “ATTORNEY’S EYES ONLY” (for Attorney’s Eyes Only Material) to each page

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that contains material to be protected. If only a portion or portions of the material on a page

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qualifies for protection, the producing party also must clearly identify the protected portion(s)

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(e.g., by making appropriate markings in the margins or underlining text in red).

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(b)

Testimony given in deposition or in other pretrial or trial proceedings: the

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parties must identify on the record, during the deposition, hearing, or other proceeding, all

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protected testimony, without prejudice to their right to so designate other testimony after

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reviewing the transcript. Any party or non-party may, within thirty days after receiving a

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deposition transcript, designate portions of the transcript, or exhibits thereto, as Confidential

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Material or Attorney’s Eyes Only Material. Before the expiration of the thirty day period, the

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parties shall treat the entire deposition testimony, transcript, and exhibits as if they had been

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designated as Attorney’s Eyes Only Material.

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(c)

Other tangible items: the producing party must affix in a prominent place

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on the exterior of the container or containers in which the information or item is stored the word

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“CONFIDENTIAL” (if designating as Confidential Material) or the phrase “ATTORNEY’S

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EYES ONLY” (if designating as Attorney’s Eyes Only Material). If only a portion or portions

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of the information or item warrant protection, the producing party, to the extent practicable, shall

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identify the protected portion(s).

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5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to

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designate qualified information or items does not, standing alone, waive the designating party’s

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right to secure protection under this agreement for such material. Upon timely correction of a

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designation, the receiving party must make reasonable efforts to ensure that the material is treated

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in accordance with the provisions of this agreement.

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6.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges. Any party or non-party may challenge a designation of

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Confidential Material or Attorneys Eyes Only Material at any time. Unless a prompt challenge to

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a designating party’s designation is necessary to avoid foreseeable, substantial unfairness,

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unnecessary economic burdens, or a significant disruption or delay of the litigation, a party does

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not waive its right to challenge a designation by electing not to mount a challenge promptly after

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the original designation is disclosed.

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6.2

Meet and Confer. The parties, third parties, or non-parties must make every attempt

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to resolve any dispute regarding designations under this agreement without court involvement.

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Any motion regarding designations or for a protective order must include a certification, in the

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motion or in a declaration or affidavit, that the movant has engaged in a good faith meet and confer

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conference with other affected parties in an effort to resolve the dispute without court action. The

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certification must list the date, manner, and participants to the conference. A good faith effort to

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confer requires a face-to-face meeting or a telephone conference.

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6.3

Judicial Intervention. If the parties cannot resolve a challenge without court

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intervention, the designating party may file and serve a motion to retain the challenged designation

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under Local Civil Rule 7 (and in compliance with Local Civil Rule 5(g), if applicable). The burden

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of persuasion in any such motion shall be on the designating party. Frivolous challenges, and those

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made for an improper purpose (e.g., to harass or impose unnecessary expenses and burdens on

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other parties) may expose the challenging party to sanctions. All parties shall continue to maintain

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the material in question as designated until the court rules on the challenge.

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7.

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If a party is served with a subpoena or a court order issued in other litigation that compels
disclosure of any Protected Material, that party must:

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PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER
LITIGATION

(a)

promptly notify the designating party in writing and include a copy of the

subpoena or court order;

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(b)

promptly notify in writing the party who caused the subpoena or order to

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issue in the other litigation that some or all of the material covered by the subpoena or order is

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subject to this agreement. Such notification shall include a copy of this agreement; and

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(c)

cooperate with respect to all reasonable procedures sought to be pursued

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by the designating party whose Protected Material may be affected.

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8.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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If a receiving party learns that, by inadvertence or otherwise, it has disclosed Protected

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Material to any person or in any circumstance not authorized under this agreement or because of

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a subsequent correction of an inadvertent failure to designate under Paragraph 7.3, the receiving

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party must immediately (a) notify in writing the designating party of the unauthorized disclosures,

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(b) use its best efforts to retrieve all unauthorized copies of the protected material, (c) inform the

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person or persons to whom unauthorized disclosures were made of all the terms of this agreement,

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and (d) request that such person or persons execute the “Acknowledgment and Agreement to Be

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Bound” that is attached hereto as Exhibit A.

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9.

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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED
MATERIAL

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When a producing party gives notice to receiving parties that certain inadvertently

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produced material is subject to a claim of privilege or other protection, the obligations of the

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receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision

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is not intended to modify whatever procedure may be established in an e-discovery order or

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agreement that provides for production without prior privilege review. Parties shall confer on an

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appropriate non-waiver order under Fed. R. Evid. 502.

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Lufthansa is a German company, and its production of documents is subject to German

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data privacy laws and various employment agreements between Lufthansa and its employees.

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Lufthansa has represented that these laws and agreements prohibit production of and any public

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disclosure of Lufthansa’s employees’ personal data. “Personal data” means any information

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concerning the personal or material circumstances of an identified or identifiable individual (the

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data subject), as described in Sect. 3 (1) of the German Federal Data Protection Act in the version

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promulgated on 14 January 2003 (Federal Law Gazette I p. 66), as most recently amended by

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Article 1 of the Act of 14 August 2009 (Federal Law Gazette I p. 2814). Lufthansa will redact any

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such personal data from its document production and will provide AES with a summary of any

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such redactions that contains information sufficient for AES to determine whether or not the

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redaction was appropriate. The receiving party shall notify Lufthansa if it discovers any obviously

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(and without obligation on AES to perform a legal analysis) unredacted personal data relating to a

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custodian who has not consented to the release of his personal data in the Lufthansa production,

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and shall return any unredacted documents to Lufthansa within five (5) days of discovering them

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so that replacement documents can be produced. If Lufthansa discovers any unredacted personal

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data, it shall notify the receiving party. The receiving party shall return the unredacted documents

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upon request so that replacement documents can be produced. If the disclosing party has notified

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the receiving party that personal information should have been redacted, the receiving party shall

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not, under any circumstances, file or otherwise publicly disclose the personal information of any

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Lufthansa employee.

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10.

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DISCLOSURE TO CONSULTANTS AND EXPERTS
Protected Material shall be disclosed to consultants and experts only upon the following

terms:

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(a)

Prior to any disclosure, the consultant or expert shall be identified in

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writing to the other parties’ counsel by name, address, and corporate, business or other

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professional affiliation or employment, together with a copy of the expert’s curriculum vitae and

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a list of the expert’s litigation or consulting engagements for the past three years, provided that if

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the expert or consultant is prevented from disclosing the details of a consulting relationship

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because of a confidentiality or non-disclosure agreement, the expert or consultant shall be

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permitted instead to disclose generally the subject matter or industry involved in the consulting

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relationship;

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(b)

Unless another party notifies the proposing party of any objection in

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accordance with the parties’ service agreement within five (5) business days after notification ,

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the consultant or expert shall thereafter be allowed to have access to Protected Material pursuant

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to the terms and conditions of this Protective Order;

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(c)

In the event of a timely objection, which shall be based solely on whether

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the expert’s learning of Protected Materials would harm the opposing party’s ability to compete

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in the market place, the proposing party shall refrain from disclosure of Protected Material to the

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consultant or expert until the objection has been resolved between the parties or ruled upon by

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the Court;

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(d)

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The parties shall endeavor in good faith to resolve the dispute without

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calling upon the intervention of the Court. The burden is on the objecting party to seek the

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intervention of the Court by appropriate motion to preclude the proposing party from disclosing

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Protected Material to the consultant or expert. If no such motion is filed within ten business days

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of receipt of the objection, the proposing party may disclose Protected Material to the consultant

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or expert as if no objection had been raised; and

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(e)

No party shall use its right to object to a proposed consultant or expert to

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interfere with the ability of another party to prepare for trial through the use of consultants and

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experts.

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11.

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PROCEEDINGS

DISCLOSURE IN THE GERMAN PROCEEDINGS OR CONTEMPLATED

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Disclosure may be made to a court in the German Proceedings or Contemplated

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Proceedings, provided that the party making the disclosure shall give the producing party notice

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pursuant to the parties’ Service Agreement at least five (5) business days in advance of such

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disclosure. If, within five (5) business days after such notice is received, the producing party does

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not file a motion with this court objecting to the disclosure and showing good cause as to why the

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information shall be withheld, then such disclosure shall be made without further order of this

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Court. If this Court determines that there is good cause for keeping the documents or other

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information sought to be disclosed confidential in the German Proceedings or Contemplated

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Proceedings, then the party seeking to make the disclosure in the German Proceedings or

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Contemplated Proceedings may not do so unless it obtains specific authorization, in advance, from

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this Court to do so. In evaluating such a request, this Court will consider the extent to which

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additional protections (beyond those contained herein) are necessary to insure confidentiality for

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the documents or other information in the German Proceedings or Contemplated Proceedings.

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Second Amended Protective Order

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12.

PROSECUTION BAR

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Any and all persons, including outside trial counsel for the parties to this litigation, given

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access to Protected Material, the information contained therein, or any summaries, copies, abstract,

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or other documents derived in whole or in part from the material so designated, shall not participate

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in the patent prosecution of any patent application relating to the subject matter of this litigation

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during this litigation and for at least one year after the completion of this litigation (including all

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appeals). For purposes of this paragraph, “patent prosecution” includes, but is not limited to,

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drafting responses to office actions or other papers issued by the United States Patent and

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Trademark Office (“USPTO”) and/or any foreign patent office. This paragraph shall not prohibit

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merely administrative duties related to being a manager or supervisor of other attorneys who are

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engaged in patent prosecution. Notwithstanding anything to the contrary in this paragraph, if a

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reexamination, inter partes review, or other administrative review at the USPTO is instituted

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regarding the patent-in-suit, such persons may participate in such proceedings, despite the fact that

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they have received Protected Material.

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13.

NON TERMINATION AND RETURN OF DOCUMENTS

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Within 60 days after the last in time of (1) the termination of this action, (2) the termination

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of the German Proceedings, including all appeals, and (3) the termination of all Contemplated

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Proceedings that have been initiated, including all appeals, each receiving party must return all

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Protected Material to the producing party, including all copies, extracts and summaries thereof.

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Alternatively, the parties may agree upon appropriate methods of destruction.

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Notwithstanding this provision, counsel are entitled to retain one archival copy of all

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documents filed with the court, trial, deposition, and hearing transcripts, correspondence,

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deposition and trial exhibits, expert reports, attorney work product, and consultant and expert work

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product, even if such materials contain Protected Material.

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The obligations imposed by this agreement shall remain in effect until a designating party
agrees otherwise in writing or a court orders otherwise.

Second Amended Protective Order

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IT IS SO STIPULATED, ON THIS DAY THE 9TH OF MARCH, 2018, THROUGH
COUNSEL OF RECORD.
By /s/ Bradley S. Keller
Bradley S. Keller, WSBA #10665
By /s/ Keith D. Petrak
Keith D. Petrak, WSBA #19159
BYRNES KELLER CROMWELL LLP
1000 Second Avenue, 38th Floor
Seattle, WA 98104
Tel: [phone]
Email: [e-mail]
Email: [e-mail]

By: /s/ Stuart R. Dunwoody
Stuart R. Dunwoody, WSBA #13948
Davis Wright Tremaine LLP
1201 Third Avenue, Suite 2200
Seattle, WA 98101-3045
Tel: [phone]
Fax: [phone]
Email: [e-mail]

By /s/ Lawrence D. Rosenberg
Lawrence D. Rosenberg, DC Bar #462091
JONES DAY
51 Louisiana Avenue, N.W.
Washington, DC 20001-2113
Tel: [phone]
Email: [e-mail]
(admitted pro hac vice)
By /s/ David M. Maiorana
David M. Maiorana, OH Bar #0071440
By /s/ Susan M. Gerber
Susan M. Gerber, OH Bar #0070945
JONES DAY
North Point, 901 Lakeside Avenue
Cleveland, OH 44141
Tel: [phone]
Email: [e-mail]
(admitted pro hac vice)
Email: [e-mail]
(admitted pro hac vice)

By: /s/ Joseph M. Casino
Joseph M. Casino
Wiggin and Dana LLP
450 Lexington Avenue, 38th Floor
New York, NY 10017
Tel: [phone]
Fax: [phone]
Email: [e-mail]
(admitted pro hac vice)

Attorneys for Plaintiff
Lufthansa Technik AG
By: s/ Louis D. Peterson
Louis D. Peterson, WSBA #5776
By: s/ Michael R. Scott
Michael R. Scott, WSBA #12822
HILLIS CLARK MARTIN & PETERSON P.S.
1221 Second Avenue, Suite 500
Seattle, WA 98101-2925
Tel: [phone]
Fax: [phone]
Email: [e-mail]
Email: [e-mail]

Second Amended Protective Order

By: /s/ James H. Bicks
James H. Bicks
By: /s/ Benjamin M. Daniels
Benjamin M. Daniels
Wiggin and Dana LLP
Two Stamford Plaza
Tresser Boulevard
Stamford, CT 06901
Tel: [phone]
Fax: [phone]
Email: [e-mail]
(admitted pro hac vice)
Email: [e-mail]
(admitted pro hac vice)

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Attorneys for Defendant
Astronics Advanced Electronic Systems, Inc.

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By: s/ Mark A. Chapman
Mark A. Chapman
ANDREWS KURTH KENYON LLP
One Broadway
New York, NY 10004-1007
Tel: [phone]
Fax: [phone]
Email: [e-mail]
(admitted pro hac vice)
Attorneys for Defendant
KID-Systeme GmbH

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PURSUANT TO STIPULATION, IT IS SO ORDERED this 20 day of March, 2018.

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A

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RICARDO S. MARTINEZ
CHIEF UNITED STATES DISTRICT JUDGE

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I,

[print

or

type

full

name],

of

[print or type full address], declare under penalty of perjury that I have read
in its entirety and understand the Stipulated Protective Order that was issued by the United States
District Court for the Western District of Washington on [date] in the case of
Second Amended Protective Order

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38TH FLOOR
1000 SECOND AVENUE
SEATTLE, WASHINGTON 98104
[phone]

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Lufthansa Technik AG v. Astronics Advanced Electronic Systems Corp., No. 2:14-cv-01821-RSM.

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I agree to comply with and to be bound by all the terms of this Stipulated Protective Order and I

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understand and acknowledge that failure to so comply could expose me to sanctions and

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punishment in the nature of contempt. I solemnly promise that I will not disclose in any manner

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any information or item that is subject to this Stipulated Protective Order to any person or entity

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except in strict compliance with the provisions of this Order.

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I further agree to submit to the jurisdiction of the United States District Court for the

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Western District of Washington for the purpose of enforcing the terms of this Stipulated Protective

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Order, even if such enforcement proceedings occur after termination of this action.

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Date:

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City, State, and Country where sworn and signed:

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Printed name:

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Signature:

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Second Amended Protective Order

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38TH FLOOR
1000 SECOND AVENUE
SEATTLE, WASHINGTON 98104
[phone]