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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
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`In re Apple Inc. Securities Litigation
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`Case No. 4:19-cv-02033 (N.D. Cal.)
`[PROPOSED] STIPULATED PROTECTIVE
`ORDER
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`1.
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`PURPOSES AND LIMITATIONS
`Disclosure and discovery activity in this action are likely to involve production of
`confidential, proprietary, or private information for which special protection from public disclosure
`and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly,
`the parties hereby stipulate to and petition the court to enter the following Stipulated Protective
`Order. The parties acknowledge that this Order does not confer blanket protections on all disclosures
`or responses to discovery and that the protection it affords from public disclosure and use extends
`only to the limited information or items that are entitled to confidential treatment under the
`applicable legal principles. The parties further acknowledge, as set forth in Section 12.3, below, that
`this Stipulated Protective Order does not entitle them to file confidential information under seal;
`Civil Local Rule 79-5 sets forth the procedures that must be followed and the standards that will be
`applied when a party seeks permission from the court to file material under seal.
`2.
`DEFINITIONS
`2.1
`Challenging Party: a Party or Non-Party that challenges the designation of
`information or items under this Order.
`2.2
`“CONFIDENTIAL” Information or Items: information (regardless of how it is
`generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of
`Civil Procedure 26(c) or that are (i) prohibited from disclosure by statute; (ii) trade secrets; (iii)
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`Northern District of California
`United States District Court
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`Case 4:19-cv-02033-YGR Document 139 Filed 03/04/21 Page 2 of 18
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`confidential research, development, proprietary, or commercial information, the disclosure of which
`would cause competitive harm; or (iv) private individual identificatory information such as Social
`Security numbers, home telephone numbers and addresses, tax returns (including attached schedules
`and forms), W-2s, 1099s, and banking or credit information.
`2.3
`Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well
`as their support staff).
`2.4
`Designating Party: a Party or Non-Party that designates information or items that it
`produces in disclosures or in responses to discovery as “CONFIDENTIAL” Or “HIGHLY
`CONFIDENTIAL”
`2.5
`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 disclosures or responses to
`discovery in this matter.
`2.6
`Expert: a person with specialized knowledge or experience in a matter pertinent to
`the litigation who (1) has been retained by a Party or its counsel to serve as an expert witness or as a
`consultant in this action, (2) is not a current employee of a Party or of a Party’s competitor, (3) was
`not a past employee of a Party within the 18 months preceding the Expert’s retention, and (4) at the
`time of retention, is not anticipated to become an employee of a Party or of a Party’s competitor.
`2.7
`“HIGHLY CONFIDENTIAL” Information or Items: extremely sensitive
`“Confidential Information or Items,” disclosure of which to another Party or Non-Party would create
`a substantial risk of serious harm that could not be avoided by less restrictive means.
`2.8
`House Counsel: attorneys who are employees of a party to this action. House
`Counsel does not include Outside Counsel of Record or any other outside counsel.
`2.9
`Non-Party: any natural person, partnership, corporation, association, or other legal
`entity not named as a Party to this action.
`2.10 Outside Counsel of Record: attorneys who are not employees of a party to this action
`but are retained to represent or advise a party to this action and have appeared in this action on
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`behalf of that party or are affiliated with a law firm which has appeared on behalf of that party.
`2.11 Party: any party to this action, including all of its officers, directors, employees,
`consultants, retained experts, and Outside Counsel of Record (and their support staffs).
`2.12 Producing Party: a Party or Non-Party that produces Disclosure or Discovery
`Material in this action.
`2.13 Professional Vendors: persons or entities that provide litigation support services
`(e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing,
`storing, or retrieving data in any form or medium) and their employees and subcontractors.
`2.14 Protected Material: any Disclosure or Discovery Material that is designated as
`“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL”
`2.15 Receiving Party: a Party that receives Disclosure or Discovery Material from a
`Producing Party.
`3.
`SCOPE
`The protections conferred by this Stipulation and Order cover not only Protected Material (as
`defined above), but also (1) any information copied or extracted from Protected Material; (2) all
`copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony,
`conversations, or presentations by Parties or their Counsel that might reveal Protected Material.
`However, the protections conferred by this Stipulation and Order do not cover the following
`information: (a) any information that is in the public domain at the time of disclosure to a Receiving
`Party or becomes part of the public domain after its disclosure to a Receiving Party as a result of
`publication not involving a violation of this Order, including becoming part of the public record
`through trial or otherwise; and (b) any information known to the Receiving Party prior to the
`disclosure or obtained by the Receiving Party after the disclosure from a source who obtained the
`information lawfully and under no obligation of confidentiality to the Designating Party. Any use of
`Protected Material at trial shall be governed by a separate agreement or order.
`4.
`DURATION
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`Even after final disposition of this litigation, the confidentiality obligations imposed by this
`Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order
`otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and
`defenses in this action, with or without prejudice; and (2) final judgment herein after the completion
`and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, including the
`time limits for filing any motions or applications for extension of time pursuant to applicable law.
`5.
`DESIGNATING PROTECTED MATERIAL
`5.1
`Exercise of Restraint and Care in Designating Material for Protection. Each Party or
`Non-Party that designates information or items for protection under this Order must take care to
`limit any such designation to specific material that qualifies under the appropriate standards. To the
`extent it is practical to do so, the Designating Party must designate for protection only those parts of
`material, documents, items, or oral or written communications that qualify – so that other portions of
`the material, documents, items, or communications for which protection is not warranted are not
`swept unjustifiably within the ambit of this Order.
`Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown
`to be clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily
`encumber or retard the case development process or to impose unnecessary expenses and burdens on
`other parties) expose the Designating Party to sanctions.
`If it comes to a Designating Party’s attention that information or items that it designated for
`protection do not qualify for protection, that Designating Party must promptly notify all other Parties
`that it is withdrawing the mistaken designation.
`5.2 Manner and Timing of Designations. Except as otherwise provided in this Order
`(see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered,
`Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so
`designated before the material is disclosed or produced.
`Designation in conformity with this Order requires:
`(a) for information in documentary form (e.g., paper or electronic documents, but
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`excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party
`affix the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” to each page that contains
`protected material. If only a portion or portions of the material on a page qualifies for protection, the
`Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate
`markings in the margins) and must specify, for each portion, the level of protection being asserted.
`A Party or Non-Party that makes original documents or materials available for inspection need not
`designate them for protection until after the inspecting Party has indicated which material it would
`like copied and produced. During the inspection and before the designation, all of the material made
`available for inspection shall be deemed “HIGHLY CONFIDENTIAL.” After the inspecting Party
`has identified the documents it wants copied and produced, the Producing Party must determine
`which documents, or portions thereof, qualify for protection under this Order. Then, before
`producing the specified documents, the Producing Party must affix the appropriate legend
`(“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL”) to each page that contains Protected
`Material. If only a portion or portions of the material on a page qualifies for protection, the
`Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate
`markings in the margins) and must specify, for each portion, the level of protection being asserted.
`(b) for testimony given in deposition or in other pretrial or trial proceedings, that the
`Designating Party identify on the record, before the close of the deposition, hearing, or other
`proceeding, all protected testimony and specify the level of protection being asserted. When it is
`impractical to identify separately each portion of testimony that is entitled to protection and it
`appears that substantial portions of the testimony may qualify for protection, the Designating Party
`may invoke on the record (before the deposition, hearing, or other proceeding is concluded) a right
`to have up to 21 days to identify the specific portions of the testimony as to which protection is
`sought and to specify the level of protection being asserted. Only those portions of the testimony that
`are appropriately designated for protection within the 21 days shall be covered by the provisions of
`this Stipulated Protective Order. Alternatively, a Designating Party may specify, at the deposition or
`up to 21 days afterwards if that period is properly invoked, that the entire transcript shall be treated
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`as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL”
`Parties shall give the other parties notice if they reasonably expect a deposition, hearing
`or other proceeding to include Protected Material so that the other parties can ensure that only
`authorized individuals who have signed the “Acknowledgment and Agreement to Be Bound”
`(Exhibit A) are present at those proceedings. The use of a document as an exhibit at a deposition
`shall not in any way affect its designation as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.”
`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 the Designating Party. The Designating Party shall inform
`the court reporter of these requirements. Any transcript that is prepared before the expiration of a 21-
`day period for designation shall be treated during that period as if it had been designated “HIGHLY
`CONFIDENTIAL” in its entirety unless otherwise agreed. After the expiration of that period, the
`transcript shall be treated only as actually designated.
`(c) for information produced in some form other than documentary and for any other
`tangible items, that the Producing Party affix in a prominent place on the exterior of the container or
`containers in which the information or item is stored the legend “CONFIDENTIAL” or “HIGHLY
`CONFIDENTIAL.” If only a portion or portions of the information or item warrant protection, the
`Producing Party, to the extent practicable, shall identify the protected portion(s) and specify the level
`of protection being asserted.
`5.3
`Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to
`designate qualified information or items does not, standing alone, waive the Designating Party’s
`right to secure protection under this Order for such material. Upon timely correction of a
`designation, the Receiving Party must make reasonable efforts to assure that the material is treated in
`accordance with the provisions of this Order.
`6.
`CHALLENGING CONFIDENTIALITY DESIGNATIONS
`6.1
`Timing of Challenges. Any Party or Non-Party may challenge a designation of
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`confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality
`designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens,
`or a significant disruption or delay of the litigation, a Party does not waive its right to challenge a
`confidentiality designation by electing not to mount a challenge promptly after the original
`designation is disclosed.
`6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process
`by providing written notice 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 the Protective Order. The parties 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, the Challenging
`Party must explain the basis for its belief that the confidentiality designation was not proper and
`must give the Designating Party an opportunity to review the designated material, to reconsider the
`circumstances, and, if no change in designation is offered, to explain the basis for the chosen
`designation. A Challenging Party 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 the Designating Party is
`unwilling to participate in the meet and confer process in a timely manner.
`6.3
`Judicial Intervention. If the Parties cannot resolve a challenge without court
`intervention, the parties shall follow the Court’s Standing Order in Civil Cases regarding Discovery
`and Discovery Motions. The parties may file a joint letter brief regarding retaining confidentiality
`within 21 days of the initial notice of challenge or within 14 days of the parties agreeing that the
`meet and confer process will not resolve their dispute, whichever is earlier. Failure by a Designating
`Party to file such discovery dispute letter within the applicable 21- or 14-day period (set forth above)
`with the Court shall automatically waive the confidentiality designation for each challenged
`designation. If, after submitting a joint letter brief, the Court allows that a motion may be filed, any
`such motion must be accompanied by a competent declaration affirming that the movant has
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`complied with the meet and confer requirements imposed in the preceding paragraph. The Court, in
`its discretion, may elect to transfer the discovery matter to a Magistrate Judge.
`In addition, the parties may file a joint letter brief regarding a challenge to a confidentiality
`designation at any time if there is good cause for doing so, including a challenge to the designation
`of a deposition transcript or any portions thereof. If, after submitting a joint letter brief, the Court
`allows that a motion may be filed, any motion brought pursuant to this provision must be
`accompanied by a competent declaration affirming that the movant has complied with the meet and
`confer requirements imposed by the preceding paragraph. The Court, in its discretion, may elect to
`refer the discovery matter to a Magistrate Judge.
`The burden of persuasion in any such challenge proceeding shall be on the Designating
`Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose
`unnecessary expenses and burdens on other parties) may expose the Challenging Party to sanctions.
`Unless the Designating Party has waived the confidentiality designation by failing to file a letter
`brief to retain confidentiality as described above, all parties shall continue to afford the material in
`question the level of protection to which it is entitled under the Producing Party’s designation until
`the court rules on the challenge.
`7.
`ACCESS TO AND USE OF PROTECTED MATERIAL
`7.1
`Basic Principles. A Receiving Party may use Protected Material that is disclosed or
`produced by another Party or by a Non-Party in connection with this case only for prosecuting,
`defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to
`the categories of persons and under the conditions described in this Order. When the litigation has
`been terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL
`DISPOSITION).
`Protected Material must be stored and maintained by a Receiving Party at a location and in a
`secure manner that ensures that access is limited to the persons authorized under this Order.
`7.2
`Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by
`the court or permitted in writing by the Designating Party, a Receiving Party may disclose any
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`information or item designated “CONFIDENTIAL” only to:
`(a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees
`of said Outside Counsel of Record to whom it is reasonably necessary to disclose the information for
`this litigation and who have signed the “Acknowledgment and Agreement to Be Bound” that is
`attached hereto as Exhibit A;
`(b) the officers, directors, and employees (including House Counsel) of the Receiving
`Party to whom disclosure is reasonably necessary for this litigation and who have signed the
`“Acknowledgment and Agreement to Be Bound” (Exhibit A);
`(c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is
`reasonably necessary for this litigation and who have signed the “Acknowledgment and Agreement
`to Be Bound” (Exhibit A);
`(d) the court and its personnel;
`(e) court reporters and their staff, professional jury or trial consultants, and Professional
`Vendors to whom disclosure is reasonably necessary for this litigation and who have signed the
`“Acknowledgment and Agreement to Be Bound” (Exhibit A);
`(f) mock jurors who have signed an Undertaking, the content of which shall be agreed
`upon by the Parties; and
`(g) during their depositions, witnesses in the action to whom disclosure is reasonably
`necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A),
`unless otherwise agreed by the Parties or ordered by the 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; and
`(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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`7.3. Disclosure of “HIGHLY CONFIDENTIAL” Information or Items. Unless
`otherwise ordered by the Court or permitted in writing by the Designating Party, a Receiving Party
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`may disclose any information or item designated “HIGHLY CONFIDENTIAL” only to:
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`(a)
`the Receiving Party’s Outside Counsel of Record in this action, as well as
`employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the
`information for this litigation and who have signed the “Acknowledgment and Agreement to Be
`Bound” that is attached hereto as Exhibit A;
`(b) House Counsel of the Receiving Party to whom disclosure is reasonably
`necessary for this litigation and who have signed the “Acknowledgment and Agreement to Be
`Bound” (Exhibit A);
`Experts (as defined in the Order) of the Receiving Party to whom disclosure
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`(c)
`is reasonably necessary for this litigation and who have signed the “Acknowledgment and
`Agreement to Be Bound” (Exhibit A),
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`(d)
`the Court and its personnel;
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`(e)
`court reporters and their staff, professional jury or trial consultants, and
`Professional Vendors to whom disclosure is reasonably necessary for the litigation and who have
`signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
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`(f)
`mock jurors who have signed an Undertaking, the content of which shall be
`agreed upon by the Parties; and
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`(g)
`during their depositions, witnesses in the action to whom disclosure is
`reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound”
`(Exhibit A), unless otherwise agreed by the Parties or ordered by the 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; and
`(h)
`the author or recipient of a document containing the information or a
`custodian or other person who otherwise possessed or knew the information.
`8.
`PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER
`LITIGATION
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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 information or items designated in this action as “CONFIDENTIAL” or “HIGHLY
`CONFIDENTIAL” that Party must:
`(a) promptly notify in writing the Designating Party. Such notification shall include a
`copy of the subpoena or court order;
`(b) promptly notify in writing the party who 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
`Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and
`(c) cooperate with respect to all reasonable procedures sought to be pursued by the
`Designating Party whose Protected Material may be affected.
`If the Designating Party timely seeks a protective order, the Party served with the subpoena
`or court order shall not produce any information designated in this action as “CONFIDENTIAL” or
`“HIGHLY CONFIDENTIAL” before a determination by the court from which the subpoena or order
`issued, unless the Party has obtained the Designating Party’s permission. The Designating Party
`shall bear the burden and expense of seeking protection in that court of its confidential material –
`and nothing in these provisions should be construed as authorizing or encouraging a Receiving Party
`in this action to disobey a lawful directive from another court.
`9.
`A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS
`LITIGATION
`(a) The terms of this Order are applicable to information produced by a Non-Party in this
`action and designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” Such information
`produced by Non-Parties in connection with this litigation is protected by the remedies and relief
`provided by this Order. Nothing in these provisions should be construed as prohibiting a Non-Party
`from seeking additional protections.
`(b) In the event that a Party is required, by a valid discovery request, to produce a Non-
`Party’s confidential information in its possession, and the Party is subject to an agreement with the
`Non-Party not to produce the Non-Party’s confidential information, then the Party shall:
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`(1) promptly notify in writing the Requesting Party and the Non-Party that some or
`all of the information requested is subject to a confidentiality agreement with a Non-Party;
`(2) promptly provide the Non-Party with a copy of the Stipulated Protective Order in
`this litigation, the relevant discovery request(s), and a reasonably specific description of the
`information requested; and
`(3) make the information requested available for inspection by the Non-Party.
`(c) If the Non-Party fails to object or seek a protective order from this court within 14
`days of receiving the notice and accompanying information, the Receiving Party may produce the
`Non-Party’s confidential information responsive to the discovery request. If the Non-Party timely
`seeks a protective order, the Receiving Party shall not produce any information in its possession or
`control that is subject to the confidentiality agreement with the Non-Party before a determination by
`the court. Absent a court order to the contrary, the Non-Party shall bear the burden and expense of
`seeking protection in this court of its Protected Material.
`10.
`UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
`If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected
`Material to any person or in any circumstance not authorized under this Stipulated Protective Order,
`the Receiving Party must immediately (a) notify in writing the Designating Party 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.
`11.
`INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED
`MATERIAL
`When a Producing Party gives notice to Receiving Parties that certain inadvertently produced
`material is subject to a claim of privilege or other protection, the obligations of the Receiving Parties
`are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to
`modify whatever procedure may be established in an e-discovery order that provides for production
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`without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the
`parties reach an agreement on the effect of disclosure of a communication or information covered by
`the attorney-client privilege or work product protection, the parties may incorporate their agreement
`in the stipulated protective order submitted to the court.
`12. MISCELLANEOUS
`12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek
`its modification by the court in the future.
`12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective Order
`no Party waives any right it otherwise would have to object to disclosing or producing any
`information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no
`Party waives any right to object on any ground to use in evidence of any of the material covered by
`this Protective Order.
`12.3 Filing Protected Material. Without written permission from the Designating Party or a
`court order secured after appropriate notice to all interested persons, a Party may not file in the
`public record in this action any Protected Material. A Party that seeks to file under seal any Protected
`Material must comply with Civil Local Rule 79-5. Protected Material may only be filed under seal
`pursuant to a court order authorizing the sealing of the specific Protected Material at issue. Pursuant
`to Civil Local Rule 79-5, a sealing order will issue only upon a request establishing that the
`Protected Material at issue is privileged, protectable as a trade secret, or otherwise entitled to
`protection under the law. If a Receiving Party's request to file Protected Material under seal pursuant
`to Civil Local Rule 79-5(d) is denied by the court, then the Receiving Party may file the information
`in the public record pursuant to Civil Local Rule 79-5(e) unless otherwise instructed by the court.
`13.
`FINAL DISPOSITION
`Within 60 days after the final disposition of this action, as defined in paragraph 4, each
`Receiving Party must return all Protected Material to the Producing Party or destroy such material.
`As used in this subdivision, “all Protected Material” includes all copies, abstracts, compilations,
`summaries, and any other format reproducing or capturing any of the Protected Material. Whether
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`the Protected Material is returned or destroyed, the Receiving Party must submit a written
`certification to the Producing Party (and, if not the same person or entity, to the Designating Party)
`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 the Receiving Party has not retained any copies,
`abstracts, compilations, summaries or any other format reproducing or capturing any of the Protected
`Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy of all
`pleadings, motion papers, trial, deposition, and hearing transcript