Harmony Gold U.S.A., Inc. v Harebrained Schemes LLC et al

Filing 41

STIPULATED PROTECTIVE ORDER re parties' 40 Stipulation, signed by Judge Thomas S. Zilly. (SWT)

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HONORABLE THOMAS S. ZILLY 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 HARMONY GOLD U.S.A., INC., 11 Plaintiff, 12 CASE NO. 2:17-CV-00327-TSZ STIPULATED PROTECTIVE ORDER v. HAREBRAINED SCHEMES LLC, HAREBRAINED HOLDINGS, INC., JORDAN WEISMAN, PIRANHA GAMES INC., INMEDIARES PRODUCTIONS, LLC and DOES 1-10, 13 14 15 16 Defendants. 17 18 1. PURPOSES AND LIMITATIONS 19 Discovery in this action is likely to involve production of confidential, proprietary, or 20 private information for which special protection may be warranted. Accordingly, the parties 21 hereby stipulate to and petition the court to enter the following Stipulated Protective Order 22 (“Order”). The parties acknowledge that this agreement is consistent with LCR 26(c). It does not 23 confer blanket protection on all disclosures or responses to discovery, the protection it affords 24 from public disclosure and use extends only to the limited information or items that are entitled 25 26 DORSEY & WHITNEY LLP STIPULATED PROTECTIVE ORDER CASE NO. 2:17-CV-00327-TSZ - 1 4847-4121-6841v.1 0096453-000003 COLUMBIA CENTER 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 1 to confidential treatment under the applicable legal principles, and it does not presumptively 2 entitle parties to file confidential information under seal. 3 Nothing in this Order shall be construed to effect an abrogation, waiver, or limitation on 4 the rights of the parties to assert any applicable privilege . 5 2. “CONFIDENTIAL” MATERIAL 6 “Confidential” material shall include the following documents and tangible things 7 produced or otherwise exchanged: trade secrets, confidential business information, and other 8 proprietary information, disclosure of which could cause harm to the producing Party; unreleased 9 or non-public intellectual property, including proprietary, non-public artwork, design concepts, 10 and narratives; sales and distribution information, financial reports, financial plans, and other 11 financial data; private account information of customers; business plans; confidential, non-public 12 marketing materials for future products and services; confidential business communications; 13 proprietary communications and materials regarding product and service development and 14 design; confidential contracts, agreements (including, but not limited to, settlement agreements 15 and business agreements) and licenses with third parties or between parties; materials designated 16 as confidential from other proceedings; and other materials which a party believes to be 17 “CONFIDENTIAL” OR “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” as defined herein. 18 3. SCOPE 19 The protections conferred by this agreement cover not only confidential material (as 20 defined above), but also (1) any information copied or extracted from confidential material; (2) 21 all copies, excerpts, summaries, or compilations of confidential material; and (3) any testimony, 22 conversations, or presentations by parties or their counsel that might reveal confidential material. 23 However, the protections conferred by this agreement do not cover information that is in 24 the public domain or becomes part of the public domain through trial or otherwise other than 25 through the fault of a receiving party to this proceeding. 26 4. ACCESS TO AND USE OF CONFIDENTIAL MATERIAL DORSEY & WHITNEY LLP STIPULATED PROTECTIVE ORDER CASE NO. 2:17-CV-00327-TSZ - 2 4847-4121-6841v.1 0096453-000003 COLUMBIA CENTER 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 1 4.1 Basic Principles. A receiving party may use confidential material that is disclosed 2 or produced by another party or by a non-party in connection with this case only for prosecuting, 3 defending, or attempting to settle this litigation. Confidential material may be disclosed only to 4 the categories of persons and under the conditions described in this agreement. Confidential 5 material must be stored and maintained by a receiving party at a location and in a secure manner 6 that ensures that access is limited to the persons authorized under this agreement. 7 4.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise 8 ordered by the court or permitted in writing by the designating party, a receiving party may 9 disclose any confidential material only to: 10 (a) the receiving party’s counsel of record in this action, as well as employees 11 of counsel to whom it is reasonably necessary to disclose the information for this litigation; 12 (b) the officers, directors, and employees (including in house counsel) of the 13 receiving party to whom disclosure is reasonably necessary for this litigation, unless the 14 designating party designates that a particular document or material produced is for Attorney’s 15 Eyes Only and is so designated under the label “CONFIDENTIAL – ATTORNEYS’ EYES 16 ONLY.”; 17 (c) experts and consultants to whom disclosure is reasonably necessary for 18 this litigation, provided that: (1) such experts or consultants are not presently employed by the 19 parties hereto for purposes other than this action; (2) before access is given, the consultant or 20 expert has signed, completed, and agreed to the “Acknowledgment and Agreement to Be 21 Bound” (Exhibit A) attached hereto and the same is served upon the producing party with a 22 current curriculum vitae of the consultant or expert to provide the producing party the 23 opportunity to object to, and notify, the receiving party in writing that it objects to disclosure of 24 confidential material to the consultant or expert. The parties agree to promptly confer in good 25 faith to resolve any such objection. If the parties are unable to resolve any objection, the 26 objecting party may file a motion with the court with fifteen (15) days of the notice, or within DORSEY & WHITNEY LLP STIPULATED PROTECTIVE ORDER CASE NO. 2:17-CV-00327-TSZ - 3 4847-4121-6841v.1 0096453-000003 COLUMBIA CENTER 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 1 such other time as the parties may agree, seeking a protective order with respect to the proposed 2 disclosure. The objecting party shall have the burden of proving the need for a protective order. 3 No disclosure shall occur until all such objections are resolved by agreement or court order.; 4 (d) the court, court personnel, and court reporters and their staff; 5 (e) independent litigation support services, including persons working for or 6 as court reporters, copy or imaging services, graphics or design services, services which assist 7 counsel in jury selection, trial consulting services, and photocopy, document imaging, and 8 database services retained by counsel and reasonably necessary to assist counsel with the 9 litigation of this action, provided that counsel for the party retaining the support service instructs 10 the service not to disclose any confidential material to third parties and to immediately return all 11 originals and copies of any confidential material; 12 (f) during their depositions, witnesses in the action to whom disclosure is 13 reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound” 14 (Exhibit A), unless otherwise agreed by the designating party or ordered by the court, or unless 15 otherwise objected to by the designating party, in which case disclosure shall not be made unless 16 and until the court rules on the objection. Pages of transcribed deposition testimony or exhibits 17 to depositions that reveal confidential material must be separately bound by the court reporter 18 and may not be disclosed to anyone except as permitted under this agreement; 19 (g) the author or recipient of a document containing the information or a 20 custodian or other person who otherwise possessed or knew the information. 21 (h) For confidential material designated “CONFIDENTIAL – ATTORNEYS’ 22 EYES ONLY,” access to, and disclosure of, such material shall be limited to individuals listed in 23 paragraphs 4.2(a) and (c-g). 24 (i) Each party shall also retain the right to file a motion with the court to 25 modify this Order to allow disclosure of confidential material to additional persons or entities if 26 DORSEY & WHITNEY LLP STIPULATED PROTECTIVE ORDER CASE NO. 2:17-CV-00327-TSZ - 4 4847-4121-6841v.1 0096453-000003 COLUMBIA CENTER 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 1 reasonably necessary to prepare and present this action and to apply for additional protection of 2 confidential material. 3 4.3 Filing Confidential Material. Before filing confidential material or discussing or 4 referencing such material in court filings, the filing party shall confer with the designating party 5 to determine whether the designating party will remove the confidential designation, whether the 6 document can be redacted, or whether a motion to seal or stipulation and proposed order is 7 warranted. Local Civil Rule 5(g) sets forth the procedures that must be followed and the 8 standards that will be applied when a party seeks permission from the court to file material under 9 seal. 10 5. DESIGNATING PROTECTED MATERIAL 11 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each party 12 or non-party that designates information or items for protection under this agreement must take 13 care to limit any such designation to specific material that qualifies under the appropriate 14 standards. The designating party must designate for protection only those parts of material, 15 documents, items, or oral or written communications that qualify, so that other portions of the 16 material, documents, items, or communications for which protection is not warranted are not 17 swept unjustifiably within the ambit of this agreement. 18 Mass, indiscriminate, or routinized designations are prohibited. Designations that are 19 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 20 unnecessarily encumber or delay the case development process or to impose unnecessary 21 expenses and burdens on other parties) expose the designating party to sanctions. 22 If it comes to a designating party’s attention that information or items that it designated 23 for protection do not qualify for protection, the designating party must promptly notify all other 24 parties that it is withdrawing the mistaken designation. 25 5.2 Manner and Timing of Designations. Except as otherwise provided in this 26 agreement (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or DORSEY & WHITNEY LLP STIPULATED PROTECTIVE ORDER CASE NO. 2:17-CV-00327-TSZ - 5 4847-4121-6841v.1 0096453-000003 COLUMBIA CENTER 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 1 ordered, disclosure or discovery material that qualifies for protection under this agreement must 2 be clearly so designated before or when the material that qualifies for protection under this 3 agreement is disclosed or produced. 4 (a) Information in documentary form: (e.g., paper or electronic documents 5 and deposition exhibits, but excluding transcripts of depositions or other pretrial or trial 6 proceedings), the designating party must affix the word(s) “CONFIDENTIAL” or 7 “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” to each page that contains confidential 8 material. If only a portion or portions of the material on a page qualify for protection, the 9 producing party also must clearly identify the protected portion(s) (e.g., by making appropriate 10 markings in the margins). 11 (b) Testimony given in deposition or in other pretrial proceedings: the parties 12 and any participating non-parties must identify on the record, during the deposition or other 13 pretrial proceeding, all protected testimony, without prejudice to their right to so designate other 14 testimony after reviewing the transcript. Any party or non-party may, within fifteen (15) days 15 after receiving the transcript of the deposition or other pretrial proceeding, designate portions of 16 the transcript, or exhibits thereto, as ”CONFIDENTIAL” or “CONFIDENTIAL – 17 ATTORNEYS’ EYES ONLY.” If a party or non-party desires to protect confidential 18 information at trial, the issue should be addressed during the pre-trial conference. 19 (c) Other tangible items: the producing party must affix in a prominent place 20 on the exterior of the container or containers in which the information or item is stored the word 21 “CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” If only a portion or 22 portions of the information or item warrant protection, the producing party, to the extent 23 practicable, shall identify the protected portion(s). 24 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 25 designate qualified information or items does not, standing alone, waive the designating party’s 26 right to secure protection under this agreement for such material. Upon timely correction of a DORSEY & WHITNEY LLP STIPULATED PROTECTIVE ORDER CASE NO. 2:17-CV-00327-TSZ - 6 4847-4121-6841v.1 0096453-000003 COLUMBIA CENTER 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 1 designation, the receiving party must make reasonable efforts to ensure that the material is 2 treated in accordance with the provisions of this agreement. 3 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 4 6.1 Timing of Challenges. Any party or non-party may challenge a designation of 5 confidentiality at any time. Unless a prompt challenge to a designating party’s confidentiality 6 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic 7 burdens, or a significant disruption or delay of the litigation, a party does not waive its right to 8 challenge a confidentiality designation by electing not to mount a challenge promptly after the 9 original designation is disclosed. 10 6.2 Meet and Confer. The parties must make every attempt to resolve any dispute 11 regarding confidential designations without court involvement. Any motion regarding 12 confidential designations or for a protective order must include a certification, in the motion or in 13 a declaration or affidavit, that the movant has engaged in a good faith meet and confer 14 conference with other affected parties in an effort to resolve the dispute without court action. The 15 certification must list the date, manner, and participants to the conference. A good faith effort to 16 confer requires a face-to-face meeting or a telephone conference. 17 6.3 Judicial Intervention. If the parties cannot resolve a challenge without court 18 intervention, the designating party may file and serve a motion to retain confidentiality under 19 Local Civil Rule 7 (and in compliance with Local Civil Rule 5(g), if applicable). The burden of 20 persuasion in any such motion shall be on the designating party. Frivolous challenges, and those 21 made for an improper purpose (e.g., to harass or impose unnecessary expenses and burdens on 22 other parties) may expose the challenging party to sanctions. All parties shall continue to 23 maintain the material in question as confidential until the court rules on the challenge. 24 7. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 25 LITIGATION 26 DORSEY & WHITNEY LLP STIPULATED PROTECTIVE ORDER CASE NO. 2:17-CV-00327-TSZ - 7 4847-4121-6841v.1 0096453-000003 COLUMBIA CENTER 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 1 If a party is served with a subpoena or a court order issued in other litigation that compels 2 disclosure of any information or items designated in this action as “CONFIDENTIAL” or 3 CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” that party must: 4 (a) promptly notify the designating party in writing and include a copy of the 5 subpoena or court order; 6 (b) promptly notify in writing the party who caused the subpoena or order to 7 issue in the other litigation that some or all of the material covered by the subpoena or order is 8 subject to this agreement. Such notification shall include a copy of this agreement; and 9 (c) cooperate with respect to all reasonable procedures sought to be pursued 10 by the designating party whose confidential material may be affected. 11 8. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 12 If a receiving party learns that, by inadvertence or otherwise, it has disclosed confidential 13 material to any person or in any circumstance not authorized under this agreement, the receiving 14 party must immediately (a) notify in writing the designating party of the unauthorized 15 disclosures, (b) use its best efforts to retrieve all unauthorized copies of the protected material, 16 (c) inform the person or persons to whom unauthorized disclosures were made of all the terms of 17 this agreement, and (d) request that such person or persons execute the “Acknowledgment and 18 Agreement to Be Bound” that is attached hereto as Exhibit A. 19 9. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED 20 MATERIAL 21 When a producing party gives notice to receiving parties that certain inadvertently 22 produced material is subject to a claim of privilege or other protection, the obligations of the 23 receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This 24 provision is not intended to modify whatever procedure may be established in an e-discovery 25 order or agreement that provides for production without prior privilege review. The parties 26 agree to the entry of a non-waiver order under Fed. R. Evid. 502(d) as set forth herein. DORSEY & WHITNEY LLP STIPULATED PROTECTIVE ORDER CASE NO. 2:17-CV-00327-TSZ - 8 4847-4121-6841v.1 0096453-000003 COLUMBIA CENTER 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 1 10. NON TERMINATION AND RETURN OF DOCUMENTS 2 Within 60 days after the termination of this action, including all appeals, each receiving 3 party must return all confidential material to the producing party, including all copies, extracts 4 and summaries thereof. Alternatively, the parties may agree upon appropriate methods of 5 destruction. 6 Notwithstanding this provision, counsel are entitled to retain one archival copy of all 7 documents filed with the court, trial, deposition, and hearing transcripts; correspondence; 8 deposition and trial exhibits; expert reports; attorney work product; and consultant and expert 9 work product, even if such materials contain confidential material. 10 The confidentiality obligations imposed by this agreement shall remain in effect until a 11 designating party agrees otherwise in writing or a court orders otherwise. 12 11. THIRD PARTIES 13 To the extent that any discovery is taken of persons who are not parties to this action 14 (“Third Parties”) and in the event that such Third Parties contend the discovery sought involves 15 trade secrets, confidential business information, or other proprietary information, then such Third 16 Parties may agree to produce confidential materials pursuant to this Order. To the extent that 17 discovery or testimony is taken of Third Parties, the Third Parties may designate as 18 “CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” any documents, 19 information, or other material, in whole or in part, produced or given by such Third Parties. The 20 Third Parties shall have five (5) days after production of such documents, information, or other 21 materials to make such a designation. Until that time period lapses or until such a designation has 22 been made, whichever occurs sooner, all documents, information, or other material so produced 23 or given shall be treated as “CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’ EYES 24 ONLY” in accordance with this Order. 25 26 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. DORSEY & WHITNEY LLP STIPULATED PROTECTIVE ORDER CASE NO. 2:17-CV-00327-TSZ - 9 4847-4121-6841v.1 0096453-000003 COLUMBIA CENTER 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 1 PURSUANT TO STIPULATION, IT IS SO ORDERED. 2 IT IS FURTHER ORDERED that pursuant to Fed. R. Evid. 502(d), the production of any 3 documents in this proceeding shall not, for the purposes of this proceeding or any other 4 proceeding in any other court, constitute a waiver by the producing party of any privilege 5 applicable to those documents, including the attorney-client privilege, attorney work-product 6 protection, or any other privilege or protection recognized by law. 7 8 DATED this 27th day of June, 2017. 9 A 10 11 Thomas S. Zilly United States District Judge 12 13 PRESENTED BY: 14 Dated: June 23, 2017 15 16 17 18 19 By /s/ Jason Koransky____________________ Damon C. Elder, WSBA #46754 Andrew R.W. Hughes, WSBA #49515 Calfo Eakes & Ostrovsky PLLC 1301 Second Avenue, Suite 2800 Seattle, WA 98101-3808 Phone: (206) 407-2200 Fax: (206) 407-2224 Email: damone@calfoeakes.com andrewh@calfoeakes.com 24 Brett A. August (admitted pro hac vice) Jason Koransky (admitted pro hac vice) Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP 200 South Wacker Drive, Suite 2900 Chicago, Illinois 60606 Telephone: (312) 554-8000 Facsimile: (312) 554-8015 Email: baa@pattishall.com jmk@pattishall.com 25 Attorneys for Plaintiff Harmony Gold U.S.A., Inc. 20 21 22 23 26 DORSEY & WHITNEY LLP STIPULATED PROTECTIVE ORDER CASE NO. 2:17-CV-00327-TSZ - 10 4847-4121-6841v.1 0096453-000003 COLUMBIA CENTER 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 7 By /s/ Ryan B. Meyer____________________ Paul T. Meiklejohn, WSBA No. 17477 J. Michael Keyes, WSBA No. 29215 Todd S. Fairchild, WSBA No. 17654 Ryan B. Meyer, WSBA No. 37832 Dorsey & Whitney LLP 701 Fifth Avenue, Suite 6100 Seattle, WA 98104 Phone: (206) 903-8746 Fax: (206) 299-3594 Email: meiklejohn.paul@dorsey.com keyes.mike@dorsey.com fairchild.todd@dorsey.com meyer.ryan@dorsey.com 8 Attorneys for Defendant Piranha Games Inc. 1 2 3 4 5 6 9 10 By /s/ James H. Corning____________________ Warren J. Rheaume, WSBA No. 13627 James H. Corning, WSBA No. 45177 Davis Wright Tremaine LLP 1201 Third Avenue, Suite 2200 Seattle, WA 98101 Phone: (206) 757-8265 Fax: (206) 757-7265 Email: warrenrheaume@dwt.com jamescorning@dwt.com 11 12 13 14 15 Attorneys for Defendants Harebrained Schemes LLC, Harebrained Holdings, Inc., and Jordan Weisman 16 17 18 19 20 21 22 23 24 25 26 DORSEY & WHITNEY LLP STIPULATED PROTECTIVE ORDER CASE NO. 2:17-CV-00327-TSZ - 11 4847-4121-6841v.1 0096453-000003 COLUMBIA CENTER 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, ____________________________________ [print or type full name], of 4 ____________________________________ [print or type full address], declare under penalty of 5 perjury that I have read in its entirety and understand the Stipulated Protective Order that was 6 issued by the United States District Court for the Western District of Washington on [date] in the 7 case of Harmony Gold U.S.A., Inc. v. Harebrained Schemes LLC, et.al., Case No. 2:17-cv8 00327-TSZ. I agree to comply with and to be bound by all the terms of this Stipulated Protective 9 Order and I understand and acknowledge that failure to so comply could expose me to sanctions 10 and punishment in the nature of contempt. I solemnly promise that I will not disclose in any 11 manner any information or item that is subject to this Stipulated Protective Order to any person 12 or entity except in strict compliance with the provisions of this Order. 13 I further agree to submit to the jurisdiction of the United States District Court for the 14 Western District of Washington for the purpose of enforcing the terms of this Stipulated 15 Protective Order, even if such enforcement proceedings occur after termination of this action. 16 Date: 17 City and State where sworn and signed: 18 Printed name: 19 Signature: 20 21 22 23 24 25 26 DORSEY & WHITNEY LLP STIPULATED PROTECTIVE ORDER CASE NO. 2:17-CV-00327-TSZ - 12 4847-4121-6841v.1 0096453-000003 COLUMBIA CENTER 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820

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