Case 1:15-cv-04219-TWT Document 52 Filed 09/09/16 Page 1 of 29
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF GEORGIA
`ATLANTA DIVISION
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`Ironburg Inventions Ltd.,
`
`Plaintiff,
`
`v.
`
`Valve Corporation,
`
`Defendant.
`
`Case No. 1:15-cv-04219-TWT
`
`STIPULATED PROTECTIVE ORDER
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`1.
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`PURPOSES AND LIMITATIONS
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`Disclosure and discovery activity in this action are likely to involve
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`production of confidential, proprietary, or private information for which special
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`protection from public disclosure and from use for any purpose other than
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`prosecuting this litigation may be warranted. Accordingly, the parties hereby
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`stipulate to and petition the court to enter the following Stipulated Protective
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`Order. The parties acknowledge that this Order does not confer blanket protections
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`on all disclosures or responses to discovery and that the protection it affords from
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`public disclosure and use extends only to the limited information or items that are
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`entitled to confidential treatment under the applicable legal principles. The parties
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`further acknowledge, as set forth in Section 13.4, below, that this Stipulated
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`
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF GEORGIA
`ATLANTA DIVISION
`
`Ironburg Inventions Ltd.,
`
`Plaintiff,
`
`v.
`
`Valve Corporation,
`
`Defendant.
`
`Case No. 1:15-cv-04219-TWT
`
`STIPULATED PROTECTIVE ORDER
`
`1.
`
`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
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`stipulate to and petition the court to enter the following Stipulated Protective
`
`Order. The parties acknowledge that this Order does not confer blanket protections
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`on all disclosures or responses to discovery and that the protection it affords from
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`public disclosure and use extends only to the limited information or items that are
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`entitled to confidential treatment under the applicable legal principles. The parties
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`further acknowledge, as set forth in Section 13.4, below, that this Stipulated
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`Case 1:15-cv-04219-TWT Document 52 Filed 09/09/16 Page 2 of 29
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`Protective Order does not entitle them to file confidential information under seal.
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`2.
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`DEFINITIONS
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`2.1 Challenging Party: a Party or Non-Party that challenges the
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`designation of information or items under this Order.
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`2.2
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`“CONFIDENTIAL” Information or Items: information (regardless of
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`how it is generated, stored or maintained) or tangible things that qualify for
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`protection under Federal Rule of Civil Procedure 26(c).
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`2.3 Counsel (without qualifier): Outside Counsel of Record and House
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`Counsel (as well as their support staff).
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`2.4 Designating Party: a Party or Non-Party that designates information
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`or items that it produces in disclosures or in responses to discovery as
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`“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
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`ONLY”.
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`2.5 Disclosure or Discovery Material: all items or information, regardless
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`of the medium or manner in which it is generated, stored, or maintained (including,
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`among other things, testimony, transcripts, and tangible things), that are produced
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`or generated in disclosures or responses to discovery in this matter.
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`2.6
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`Expert: a person with specialized knowledge or experience in a
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`matter pertinent to the litigation who (1) has been retained by a Party or its counsel
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`to serve as an expert witness or as a consultant in this action, (2) is not a past or
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`current employee of a Party or of a Party’s competitor, and (3) at the time of
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`retention, is not anticipated to become an employee of a Party or of a Party’s
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`competitor.
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`2.7
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`“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
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`Information or Items: extremely sensitive “Confidential Information or Items,”
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`disclosure of which to another Party or Non-Party would create a substantial risk of
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`serious harm that could not be avoided by less restrictive means.
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`2.8 House Counsel: attorneys who are employees of a party to this action.
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`House Counsel does not include Outside Counsel of Record or any other outside
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`counsel.
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`2.9 Non-Party: any natural person, partnership, corporation, association,
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`or other legal entity not named as a Party to this action.
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`2.10 Outside Counsel of Record: attorneys who are not employees of a
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`party to this action but are retained to represent or advise a party to this action and
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`have appeared in this action on behalf of that party or are affiliated with a law firm
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`which has appeared on behalf of that party.
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`2.11 Party: any party to this action, including all of its officers, directors,
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`employees, consultants, retained experts, and Outside Counsel of Record (and their
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`support staffs).
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`2.12 Producing Party: a Party or Non-Party that produces Disclosure or
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`Discovery Material in this action.
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`2.13 Professional Vendors: persons or entities that provide litigation
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`support services (e.g., photocopying, videotaping, translating, preparing exhibits or
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`demonstrations, and organizing, storing, or retrieving data in any form or medium)
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`and their employees and subcontractors.
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`2.14 Protected Material: any Disclosure or Discovery Material that is
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`designated as “CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL –
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`ATTORNEYS’ EYES ONLY.”
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`2.15 Receiving Party: a Party that receives Disclosure or Discovery
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`Material from a Producing Party.
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`3.
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`SCOPE
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`The protections conferred by this Stipulation and Order cover not only
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`Protected Material (as defined above), but also (1) any information copied or
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`extracted from Protected Material; (2) all copies, excerpts, summaries, or
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`compilations of Protected Material; and (3) any testimony, conversations, or
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`presentations by Parties or their Counsel that might reveal Protected Material.
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`However, the protections conferred by this Stipulation and Order do not cover the
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`following information: (a) any information that is in the public domain at the time
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`of disclosure to a Receiving Party or becomes part of the public domain after its
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`disclosure to a Receiving Party as a result of publication not involving a violation
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`of this Order, including becoming part of the public record through trial or
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`otherwise; and (b) any information known to the Receiving Party prior to the
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`disclosure or obtained by the Receiving Party after the disclosure from a source
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`who obtained the information lawfully and under no obligation of confidentiality to
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`the Designating Party. Any use of Protected Material at trial shall be governed by
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`a separate agreement or order.
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`4.
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`DURATION
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`Even after final disposition of this litigation, the confidentiality obligations
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`imposed by this Order shall remain in effect until a Designating Party agrees
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`otherwise in writing or a court order otherwise directs. Final disposition shall be
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`deemed to be the later of (1) dismissal of all claims and defenses in this action,
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`with or without prejudice; and (2) final judgment herein after the completion and
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`exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,
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`including the time limits for filing any motions or applications for extension of
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`time pursuant to applicable law.
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`5.
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`DESIGNATING PROTECTED MATERIAL
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`5.1
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`Exercise of Restraint and Care in Designating Material for Protection.
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`Each Party or Non-Party that designates information or items for protection under
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`this Order must take care to limit any such designation to specific material that
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`qualifies under the appropriate standards. To the extent it is practical to do so, the
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`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
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`portions of the material, documents, items, or communications for which
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`protection is not warranted are not swept unjustifiably within the ambit of this
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`Order.
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`Mass, indiscriminate, or routinized designations are prohibited.
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`Designations that are shown to be clearly unjustified or that have been made for an
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`improper purpose (e.g., to unnecessarily encumber or retard the case development
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`process or to impose unnecessary expenses and burdens on other parties) expose
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`the Designating Party to sanctions.
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`If it comes to a Designating Party’s attention that information or items that it
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`designated for protection do not qualify for protection at all or do not qualify for
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`the level of protection initially asserted, that Designating Party must promptly
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`notify all other parties 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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`Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
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`stipulated or ordered, Disclosure or Discovery Material that qualifies for
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`protection under this Order must be clearly so designated before the material is
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`disclosed or produced.
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`Designation in conformity with this Order requires:
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`(a)
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`for information in documentary form (e.g., paper or electronic
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`documents, but excluding transcripts of depositions or other pretrial or trial
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`proceedings), that the Producing Party affix the legend “CONFIDENTIAL” or
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`“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” to each page that
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`contains protected material. If only a portion or portions of the material in a given
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`document qualifies for protection, and the Producing Party designates all of that
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`document as protected, upon a reasonable request from the Receiving Party, the
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`Producing Party must clearly identify the protected portion(s) (e.g., by making
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`appropriate markings in the margins) of the document and must specify, for each
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`portion, the level of protection being asserted.
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`A Party or Non-Party that makes original documents or materials available
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`for inspection need not designate them for protection until after the inspecting
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`Party has indicated which material it would like copied and produced. During the
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`inspection and before the designation, all of the material made available for
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`inspection shall be deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
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`ONLY.” After the inspecting Party has identified the documents it wants copied
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`and produced, the Producing Party must determine which documents, or portions
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`thereof, qualify for protection under this Order. Then, before producing the
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`specified documents, the Producing Party must affix the appropriate legend
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`(“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
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`ONLY”) to each page that contains Protected Material. If only a portion or
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`portions of the material in a given document qualifies for protection, and the
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`Producing Party designates all of that document as protected, upon a reasonable
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`request from the Receiving Party, the Producing Party must clearly identify the
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`protected portion(s) (e.g., by making appropriate markings in the margins) of the
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`document and must specify, for each portion, the level of protection being asserted.
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`(b)
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`for testimony given in deposition or in other pretrial or trial
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`proceedings, that the Designating Party identify on the record, before the close of
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`the deposition, hearing, or other proceeding, all protected testimony and specify
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`the level of protection being asserted. The Designating Party may invoke on the
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`record (before the deposition, hearing, or other proceeding is concluded) a right to
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`have up to 21 days to identify the specific portions of the testimony as to which
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`protection is sought and to specify the level of protection being asserted, in which
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`case only those portions of the testimony that are appropriately designated for
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`protection within the 21 days shall be covered by the provisions of this Stipulated
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`Protective Order. Alternatively, a Designating Party may specify, at the deposition
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`or up to 21 days afterwards if that period is properly invoked, that the entire
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`transcript shall be treated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL
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`– ATTORNEYS’ EYES ONLY.” If only a portion or portions of the testimony
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`qualifies for protection, and the Producing Party designates the entire transcript as
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`protected, upon a reasonable request from the Receiving Party, the Producing Party
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`must clearly identify the protected portion(s) of the testimony and must specify, for
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`each portion, the level of protection being asserted.
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`Parties shall give the other parties notice if they reasonably expect a
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`deposition, hearing or other proceeding to include Protected Material so that the
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`other parties can ensure that only authorized individuals who have signed the
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`“Acknowledgment and Agreement to Be Bound” (Exhibit A) are present at those
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`proceedings. The use of a document as an exhibit at a deposition shall not in any
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`way affect its designation as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL
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`– ATTORNEYS’ EYES ONLY.”
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`Transcripts containing Protected Material shall have an obvious legend on
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`the title page that the transcript contains Protected Material, and the title page shall
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`be followed by a list of all pages (including line numbers as appropriate) that have
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`been designated as Protected Material and the level of protection being asserted by
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`the Designating Party. The Designating Party shall inform the court reporter of
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`these requirements. Any transcript that is prepared before the expiration of a 21-
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`day period for designation shall be treated during that period as if it had been
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`designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its
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`entirety unless otherwise agreed. After the expiration of that period, the transcript
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`shall be treated only as actually designated.
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`(c)
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`for information produced in some form other than documentary
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`and for any other tangible items, that the Producing Party affix in a prominent
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`place on the exterior of the container or containers in which the information or
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`item is stored the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
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`ATTORNEYS’ EYES ONLY.” If only a portion or portions of the material in a
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`given document qualifies for protection, and the Producing Party designates all of
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`that document as protected, upon a reasonable request from the Receiving Party,
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`the Producing Party must clearly identify the protected portion(s) (e.g., by making
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`appropriate markings in the margins) of the document and must specify, for each
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`portion, the level of protection being asserted.
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`5.3
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`Inadvertent Failures to Designate. If timely corrected, an inadvertent
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`failure to designate qualified information or items does not, standing alone, waive
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`the Designating Party’s right to secure protection under this Order for such
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`material. Upon timely correction of a designation, the Receiving Party must make
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`reasonable efforts to assure that the material is treated in accordance with the
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`provisions of this Order.
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`6.
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`CHALLENGING CONFIDENTIALITY DESIGNATIONS
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`6.1
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`Timing of Challenges. Any Party or Non-Party may challenge a
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`designation of confidentiality at any time. Unless a prompt challenge to a
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`Designating Party’s confidentiality designation is necessary to avoid foreseeable,
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`substantial unfairness, unnecessary economic burdens, or a significant disruption
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`or delay of the litigation, a Party does not waive its right to challenge a
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`confidentiality designation by electing not to mount a challenge promptly after the
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`original designation is disclosed.
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`6.2 Meet and Confer. The Challenging Party shall initiate the dispute
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`resolution process by providing written notice of each designation it is challenging
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`and describing the basis for each challenge. To avoid ambiguity as to whether a
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`challenge has been made, the written notice must recite that the challenge to
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`confidentiality is being made in accordance with this specific paragraph of the
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`Protective Order. The parties shall attempt to resolve each challenge in good faith
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`and must begin the process by conferring directly (in voice to voice dialogue; other
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`forms of communication are not sufficient) within 14 days of the date of service of
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`notice. In conferring, the Challenging Party must explain the basis for its belief
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`that the confidentiality designation was not proper and must give the Designating
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`Party an opportunity to review the designated material, to reconsider the
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`circumstances, and, if no change in designation is offered, to explain the basis for
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`the chosen designation. A Challenging Party may proceed to the next stage of the
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`challenge process only if it has engaged in this meet and confer process first or
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`establishes that the Designating Party is unwilling to participate in the meet and
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`confer process in a timely manner.
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`6.3
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`Judicial Intervention. If the Parties cannot resolve a challenge without
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`court intervention, the Designating Party shall file and serve a motion to retain
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`confidentiality within 21 days of the initial notice of challenge or within 14 days of
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`the parties agreeing that the meet and confer process will not resolve their dispute,
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`whichever is earlier. Each such motion must be accompanied by a competent
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`declaration affirming that the movant has complied with the meet and confer
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`requirements imposed in the preceding paragraph. Failure by the Designating
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`Party to make such a motion including the required declaration within 21 days (or
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`14 days, if applicable) shall automatically waive the confidentiality designation for
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`each challenged designation. In addition, the Challenging Party may file a motion
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`challenging a confidentiality designation at any time if there is good cause for
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`doing so, including a challenge to the designation of a deposition transcript or any
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`portions thereof. Any motion brought pursuant to this provision must be
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`accompanied by a competent declaration affirming that the movant has complied
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`with the meet and confer requirements imposed by the preceding paragraph.
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`The burden of persuasion in any such challenge proceeding shall be on the
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`Designating Party. Frivolous challenges and those made for an improper purpose
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`(e.g., to harass or impose unnecessary expenses and burdens on other parties) may
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`expose the Challenging Party to sanctions. Unless the Designating Party has
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`waived the confidentiality designation by failing to file a motion to retain
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`confidentiality as described above, all parties shall continue to afford the material
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`in question the level of protection to which it is entitled under the Producing
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`Party’s designation until the court rules on the challenge.
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`7.
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`ACCESS TO AND USE OF PROTECTED MATERIAL
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`7.1 Basic Principles. A Receiving Party may use Protected Material that
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`is disclosed or produced by another Party or by a Non-Party in connection with this
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`case only for prosecuting, defending, or attempting to settle this litigation. Such
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`Protected Material may be disclosed only to the categories of persons and under
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`the conditions described in this Order. When the litigation has been terminated, a
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`Receiving Party must comply with the provisions of section 14 below (FINAL
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`DISPOSITION).
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`Protected Material must be stored and maintained by a Receiving Party at a
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`location and in a secure manner that ensures that access is limited to the persons
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`authorized under this Order.
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`7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless
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`otherwise ordered by the court or permitted in writing by the Designating Party, a
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`Receiving Party may disclose any information or item designated
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`“CONFIDENTIAL” only to:
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`(a)
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`the Receiving Party’s Outside Counsel of Record in this action,
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`as well as employees of said Outside Counsel of Record to whom it is reasonably
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`necessary to disclose the information for this litigation;
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`(b)
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`the Receiving Party’s outside counsel who are not Outside
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`Counsel of Record and who have signed the “Acknowledgment and Agreement to
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`Be Bound” that is attached hereto as Exhibit A;
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`(c)
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`the officers, directors, and employees (including House
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`Counsel) of the Receiving Party to whom disclosure is reasonably necessary for
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`this litigation and who have signed the “Acknowledgment and Agreement to Be
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`Bound” (Exhibit A);
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`(d)
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`Experts (as defined in this Order) of the Receiving Party (1) to
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`whom disclosure is reasonably necessary for this litigation, (2) who have signed
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`the “Acknowledgment and Agreement to Be Bound” (Exhibit A), and (3) as to
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`whom the procedures set forth in paragraph 7.4(a), below, have been followed;
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`(e)
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`(f)
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`the court, its personnel and court-appointed mediators;
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`court reporters and their staff, professional jury or trial
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`consultants, and Professional Vendors to whom disclosure is reasonably necessary
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`for this litigation and who have signed the “Acknowledgment and Agreement to
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`Be Bound” (Exhibit A);
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`(g)
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`during their depositions, witnesses in the action to whom
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`disclosure is reasonably necessary and who have signed the “Acknowledgment and
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`Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the Designating
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`Party or ordered by the court. Pages of transcribed deposition testimony or
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`exhibits to depositions that reveal Protected Material must be separately bound by
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`the court reporter and may not be disclosed to anyone except as permitted under
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`this Stipulated Protective Order; and
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`(h)
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`the author or recipient of a document containing the
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`information or a custodian or other person who otherwise possessed or knew the
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`information.
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`7.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
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`ONLY” Information or Items. Unless otherwise ordered by the court or permitted
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`in writing by the Designating Party, a Receiving Party may disclose any
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`information or item designated “HIGHLY CONFIDENTIAL – ATTORNEYS’
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`EYES ONLY” only to:
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`(a)
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`the Receiving Party’s Outside Counsel of Record in this action,
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`as well as employees of said Outside Counsel of Record to whom it is reasonably
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`necessary to disclose the information for this litigation;
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`(b)
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`the Receiving Party’s outside counsel who are not Outside
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`Counsel of Record and who have signed the “Acknowledgment and Agreement to
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`Be Bound” that is attached hereto as Exhibit A;
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`(c)
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`Experts of the Receiving Party (1) to whom disclosure is
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`reasonably necessary for this litigation, (2) who have signed the “Acknowledgment
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`and Agreement to Be Bound” (Exhibit A), and (3) as to whom the procedures set
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`forth in paragraph 7.4(a), below, have been followed];
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`(d)
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`(e)
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`the court, its personnel and court-appointed mediators;
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`court reporters and their staff, professional jury or trial
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`consultants, and Professional Vendors to whom disclosure is reasonably necessary
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`for this litigation and who have signed the “Acknowledgment and Agreement to
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`Be Bound” (Exhibit A); and
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`(f)
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`the author or recipient of a document containing the
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`information or a custodian or other person who otherwise possessed or knew the
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`information.
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`7.4
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`Procedures for Approving or Objecting to Disclosure of
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`“CONFIDENTIAL” and “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
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`ONLY” Information or Items to Experts.
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`(a)
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`Unless otherwise ordered by the court or agreed to in writing by
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`the Designating Party, a Party that seeks to disclose to an Expert (as defined in this
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`Order) any information or item that has been designated “CONFIDENTIAL” or
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`“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” pursuant to
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`paragraph 7.3(c) first must make a written request to the Designating Party that (1)
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`identifies the general categories of “CONFIDENTIAL” or “HIGHLY
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`CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information that the Receiving
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`Party seeks permission to disclose to the Expert, (2) sets forth the full name of the
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`Expert and the city and state of his or her primary residence, (3) attaches a copy of
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`the Expert’s current resume, (4) identifies the Expert’s current employer(s), (5)
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`identifies each person or entity from whom the Expert has received compensation
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`or funding for work in his or her areas of expertise or to whom the expert has
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`provided professional services, including in connection with a litigation, at any
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`time during the preceding five years,1 and (6) identifies (by name and number of
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`the case, filing date, and location of court) any litigation in connection with which
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`the Expert has offered expert testimony, including through a declaration, report, or
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`testimony at a deposition or trial, during the preceding five years.
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`(b) A Party that makes a request and provides the information
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`specified in the preceding respective paragraphs may disclose the subject Protected
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`Material to the identified Expert unless, within 14 days of delivering the request,
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`the Party receives a written objection from the Designating Party. Any such
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`objection must set forth in detail the grounds on which it is based.
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`(c)
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`A Party that receives a timely written objection must meet and
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`confer with the Designating Party (through direct voice to voice dialogue) to try to
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`resolve the matter by agreement within seven days of the written objection. If no
`
`agreement is reached, the Party seeking to make the disclosure to the Expert may
`
`1 If the Expert believes any of this information is subject to a confidentiality
`obligation to a third-party, then the Expert should provide whatever information
`the Expert believes can be disclosed without violating any confidentiality
`agreements, and the Party seeking to disclose to the Expert shall be available to
`meet and confer with the Designating Party regarding any such engagement.
`18
`
`
`
`Case 1:15-cv-04219-TWT Document 52 Filed 09/09/16 Page 19 of 29
`
`file a motion seeking permission from the court to do so. Any such motion must
`
`describe the circumstances with specificity, set forth in detail the reasons why the
`
`disclosure to the Expert is reasonably necessary, assess the risk of harm that the
`
`disclosure would entail, and suggest any additional means that could be used to
`
`reduce that risk. In addition, any such motion must be accompanied by a
`
`competent declaration describing the parties’ efforts to resolve the matter by
`
`agreement (i.e., the extent and the content of the meet and confer discussions) and
`
`setting forth the reasons advanced by the Designating Party for its refusal to
`
`approve the disclosure.
`
`In any such proceeding, the Party opposing disclosure to the Expert shall
`
`bear the burden of proving that the risk of harm that the disclosure would entail
`
`(under the safeguards proposed) outweighs the Receiving Party’s need to disclose
`
`the Protected Material to its Expert.
`
`8.
`
`SOURCE CODE
`
`The parties do not presently contemplate the need for source code discovery.
`
`9.
`
`PROTECTED MATERIAL SUBPOENAED OR ORDERED
`PRODUCED IN OTHER LITIGATION
`
`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 – ATTORNEYS’ EYES
`
`19
`
`
`
`Case 1:15-cv-04219-TWT Document 52 Filed 09/09/16 Page 20 of 29
`
`ONLY” 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.2
`
`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 –
`
`ATTORNEYS’ EYES ONLY” 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
`
`2 The purpose of imposing these duties is to alert the interested parties to the
`existence of this Protective Order and to afford the Designating Party in this case
`an opportunity to try to protect its confidentiality interests in the court from which
`the subpoena or order issued.
`
`20
`
`
`
`Case 1:15-cv-04219-TWT Document 52 Filed 09/09/16 Page 21 of 29
`
`provisions should be construed as authorizing or encouraging a Receiving Party in
`
`this action to disobey a lawful directive from another court.
`
`10. 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 – ATTORNEYS’ EYES ONLY”. 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:
`
`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
`
`21
`
`
`
`Case 1:15-cv-04219-TWT Document 52 Filed 09/09/16 Page 22 of 29
`
`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.3 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.
`
`11. 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
`
`3 The purpose of this provision is to alert the interested parties to the existence of
`confidentiality rights of a Non-Party and to afford the Non-Party an opportunity to
`protect its confidentiality interests in this court.
`22
`
`
`
`Case 1:15-cv-04219-TWT Document 52 Filed 09/09/16 Page 23 of 29
`
`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.
`
`12.
`
`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 without prior privilege review. Pursuant to Federal Rule of Evidenc
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