Case 1:16-cv-04110-TWT Document 37 Filed 09/25/17 Page 1 of 22
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF GEORGIA
`ATLANTA DIVISION
`
`IRONBURG INVENTIONS LTD. a
`United Kingdom Limited Company,
`
`Plaintiff,
`
`vs.
`
`COLLECTIVE MINDS GAMING
`CO. LTD.,
`
`Defendant.
`
`Civil Action No. 1:16-cv-04110-TWT
`
`1.(cid:1)
`
`PROTECTIVE ORDER
`
`
`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 Protective Order. The
`parties acknowledge that this Protective 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 13.4, below, that this Protective Order
`does not entitle them to file confidential information under seal. Standing Order
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`No. 16-01 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.(cid:1)
`
`DEFINITIONS
`2.1(cid:1) Challenging Party: a Party or Non-Party that challenges the
`designation of information or items under this Protective Order.
`2.2(cid:1)
`“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).
`2.3(cid:1) Counsel (without qualifier): Outside Counsel of Record and House
`Counsel (as well as their support staff).
`2.4(cid:1) Designated Outside Counsel: Outside Counsel not of Record who
`seek access to Designated Materials in this matter.
`2.5(cid:1) 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 – ATTORNEYS’ EYES
`ONLY”.
`2.6(cid:1) 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.
`2.7(cid:1) 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 past or
`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
`competitor.
`2.8(cid:1)
`“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
`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.
`2.9(cid:1) 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.
`2.10(cid:1) Non-Party: any natural person, partnership, corporation, association,
`or other legal entity not named as a Party to this action.
`2.11(cid:1) 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 behalf of that party or are affiliated with a law firm
`which has appeared on behalf of that party.
`2.12(cid:1) 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).
`2.13(cid:1) Producing Party: a Party or Non-Party that produces Disclosure or
`Discovery Material in this action.
`2.14(cid:1) 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.
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`2.15(cid:1) Protected Material: any Disclosure or Discovery Material that is
`designated as “CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL –
`ATTORNEYS’ EYES ONLY.”
`2.16(cid:1) Receiving Party: a Party that receives Disclosure or Discovery
`Material from a Producing Party.
`3.(cid:1)
`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 Protective 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.(cid:1)
`DURATION
`Even after final disposition of this litigation, the confidentiality obligations
`imposed by this Protective Order shall remain in effect until a Designating Party
`agrees otherwise in writing or a court order otherwise directs. Final disposition
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`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.(cid:1)
`DESIGNATING PROTECTED MATERIAL
`5.1(cid: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 Protective 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
`Protective Order.
`Mass, indiscriminate, or routinized designations are prohibited.
`Notwithstanding the foregoing, to facilitate the production of electronically-stored
`information (“ESI”), the parties may batch designate ESI produced in this matter as
`“Confidential” or “Highly Confidential – Attorneys’ Eyes Only.” Upon a
`reasonable request by the receiving party, the producing party will readily
`cooperate to de-designate, as appropriate, material previously produced as
`“Confidential” or “Highly Confidential – Attorneys’ Eyes Only” that may not
`warrant such designation.
`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
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`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 at all or do not qualify for
`the level of protection initially asserted, that Designating Party must promptly
`notify all other parties that it is withdrawing the mistaken designation.
`5.2(cid:1) Manner and Timing of Designations. Except as otherwise provided in
`this Protective 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 Protective Order must be clearly so designated before the
`material is disclosed or produced.
`Designation in conformity with this Protective Order requires:
`(a)(cid:1)
`for information in documentary form (e.g., paper or electronic
`documents, but excluding transcripts of depositions or other pretrial or trial
`proceedings), that the Producing Party affix the legend “CONFIDENTIAL” or
`“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” to each page that
`contains protected material. If only a portion or portions of the material in a given
`document qualifies for protection, and the Producing Party designates all of that
`document as protected, upon a reasonable request from the Receiving Party, the
`Producing Party must clearly identify the protected portion(s) (e.g., by making
`appropriate markings in the margins) of the document 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
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`inspection and before the designation, all of the material made available for
`inspection shall be deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
`ONLY.” 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 Protective Order. Then, before producing
`the specified documents, the Producing Party must affix the appropriate legend
`(“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
`ONLY”) to each page that contains Protected Material. If only a portion or
`portions of the material in a given document qualifies for protection, and the
`Producing Party designates all of that document as protected, upon a reasonable
`request from the Receiving Party, the Producing Party must clearly identify the
`protected portion(s) (e.g., by making appropriate markings in the margins) of the
`document and must specify, for each portion, the level of protection being asserted.
`(b)(cid:1)
`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. 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, in which
`case only those portions of the testimony that are appropriately designated for
`protection within the 21 days shall be covered by the provisions of this 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 as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’
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`EYES ONLY.” If only a portion or portions of the testimony qualifies for
`protection, and the Producing Party designates the entire transcript as protected,
`upon a reasonable request from the Receiving Party, the Producing Party must
`clearly identify the protected portion(s) of the testimony and must specify, for each
`portion, the level of protection being asserted.
`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– ATTORNEYS’ EYES ONLY.”
`Transcripts containing Protected Material shall have an obvious legend on
`the title page that the transcript contains Protected Material, and the title page shall
`be followed by a list of all pages (including line numbers as appropriate) that have
`been designated as Protected Material and the level of protection being asserted by
`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 – ATTORNEYS’ EYES ONLY” in its
`entirety unless otherwise agreed. After the expiration of that period, the transcript
`shall be treated only as actually designated.
`(c)(cid:1)
`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
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`item is stored the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
`ATTORNEYS’ EYES ONLY.” 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, for each portion, the level of
`protection being asserted.
`5.3(cid:1)
`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 Protective Order.
`6.(cid:1)
`CHALLENGING CONFIDENTIALITY DESIGNATIONS
`6.1(cid:1) Timing of Challenges. Any Party or Non-Party may challenge a
`designation of 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(cid:1) 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
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`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(cid:1)
`Judicial Intervention. If the Parties cannot resolve a challenge without
`court intervention, the Designating Party shall file and serve a motion to retain
`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. Each such motion must be accompanied by a competent
`declaration affirming that the movant has complied with the meet and confer
`requirements imposed in the preceding paragraph. Failure by the Designating Party
`to make such a motion including the required declaration within 21 days (or 14
`days, if applicable) shall automatically waive the confidentiality designation for
`each challenged designation. In addition, the Challenging Party may file a motion
`challenging 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. 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.
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`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 motion 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.(cid:1)
`ACCESS TO AND USE OF PROTECTED MATERIAL
`7.1(cid: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 Protective Order. When the litigation has been
`terminated, a Receiving Party must comply with the provisions of section 14 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 Protective Order.
`7.2(cid:1) 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 information or item designated
`“CONFIDENTIAL” only to:
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`(a)(cid:1)
`the Receiving Party’s Outside Counsel of Record in this action,
`as well as non-attorney support staff of said Outside Counsel of Record to whom it
`is reasonably necessary to disclose the information for this litigation;
`(b)(cid:1)
`the Receiving Party’s Designated Outside Counsel who have
`signed the “Acknowledgment and Agreement to Be Bound” that is attached hereto
`as Exhibit A;
`(c)(cid:1)
`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);
`(d)(cid:1) Experts (as defined in this Order) of the Receiving Party (1) to
`whom disclosure is reasonably necessary for this litigation, (2) who have signed
`the “Acknowledgment and Agreement to Be Bound” (Exhibit A), and (3) as to
`whom the procedures set forth in paragraph 7.4(a), below, have been followed;
`(e)(cid:1)
`the court, its personnel, and court-appointed mediators;
`(f)(cid:1)
`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);
`(g)(cid:1)
`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 Designating
`Party 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
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`reporter and may not be disclosed to anyone except as permitted under this
`Protective Order; and
`(h)(cid:1)
`the author or recipient of a document containing the
`information or a custodian or other person who otherwise possessed or knew the
`information.
`7.3(cid:1) Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
`ONLY” Information or Items. Unless otherwise ordered by the court or permitted
`in writing by the Designating Party, a Receiving Party may disclose any
`information or item designated “HIGHLY CONFIDENTIAL – ATTORNEYS’
`EYES ONLY” only to:
`(a)(cid:1)
`the Receiving Party’s Outside Counsel of Record in this action,
`as well as non-attorney staff of said Outside Counsel of Record to whom it is
`reasonably necessary to disclose the information for this litigation;
`(b)(cid:1) Designated Outside Counsel of the Receiving Party (i) who has
`no involvement in competitive decision-making, (2) to whom disclosure is
`reasonably necessary for this litigation, (3) who has signed the “Acknowledgment
`and Agreement to Be Bound,” and (4) as to whom the procedures set forth in
`paragraph 7.4(a)(i), below, have been followed (Exhibit A);
`(c)(cid:1) Experts of the Receiving Party (1) to whom disclosure is
`reasonably necessary for this litigation, (2) who have signed the “Acknowledgment
`and Agreement to Be Bound” (Exhibit A), and (3) as to whom the procedures set
`forth in paragraph 7.4(a)(ii), below, have been followed;
`(d)(cid:1)
`the court, its personnel and court-appointed mediators;
`(e)(cid:1)
`court reporters and their staff, professional jury or trial
`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
`Be Bound” (Exhibit A); and
`(f)(cid:1)
`the author or recipient of a document containing the
`information or a custodian or other person who otherwise possessed or knew the
`information.
`7.4(cid:1) Procedures for Approving or Objecting to Disclosure of
`“CONFIDENTIAL” and “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
`ONLY” Information or Items.
`
`
`(a)(i)(cid:1) Unless otherwise ordered by the court or agreed to in writing by
`the Designating Party, a Party that seeks to disclose to Designated Outside Counsel
`any information or item that has been designated “HIGHLY CONFIDENTIAL –
`ATTORNEYS’ EYES ONLY” pursuant to paragraph 7.3(b) first must make a
`written request to the Designating Party that (1) sets forth the full name of the
`Designated Outside Counsel and the city and state of his or her residence and (2)
`describes the Designated Outside Counsel’s current and reasonably foreseeable
`future primary job duties and responsibilities in sufficient detail to determine if
`Designated Outside Counsel is involved, or may become involved, in any
`competitive decision-making.
`(a)(ii)(cid:1)Unless otherwise ordered by the court or agreed to in writing by
`the Designating Party, a Party that seeks to disclose to an Expert (as defined in this
`Order) any information or item that has been designated “CONFIDENTIAL” or
`“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” pursuant to
`paragraph 7.3(c) first must make a written request to the Designating Party that (1)
`identifies the general categories of “CONFIDENTIAL” or “HIGHLY
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`CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information that the Receiving
`Party seeks permission to disclose to the Expert, (2) sets forth the full name of the
`Expert and the city and state of his or her primary residence, (3) attaches a copy of
`the Expert’s current resume, (4) identifies the Expert’s current employer(s), (5)
`identifies each person or entity from whom the Expert has received compensation
`or funding for work in his or her areas of expertise or to whom the expert has
`provided professional services, including in connection with a litigation, at any
`time during the preceding five years,1 and (6) identifies (by name and number of
`the case, filing date, and location of court) any litigation in connection with which
`the Expert has offered expert testimony, including through a declaration, report, or
`testimony at a deposition or trial, during the preceding five years.
`(b)(cid:1) A Party that makes a request and provides the information
`specified in the preceding respective paragraphs may disclose the subject Protected
`Material to the identified Expert unless, within 14 days of delivering the request,
`the Party receives a written objection from the Designating Party. Any such
`objection must set forth in detail the grounds on which it is based.
`(c)(cid:1) A Party that receives a timely written objection must meet and
`confer with the Designating Party (through direct voice to voice dialogue) to try to
`resolve the matter by agreement within seven days of the written objection. If no
`agreement is reached, the Party seeking to make the disclosure to the Expert may
`file a motion seeking permission from the court to do so. Any such motion must
`
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`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.
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`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.(cid:1)
`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
`ONLY” that Party must:
`(a)(cid:1)
`promptly notify in writing the Designating Party. Such
`notification shall include a copy of the subpoena or court order;
`(b)(cid:1)
`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 Protective Order; and
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`(c)(cid:1)
`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
`provisions should be construed as authorizing or encouraging a Receiving Party in
`this action to disobey a lawful directive from another court.
`9.(cid:1)
`A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
`PRODUCED IN THIS LITIGATION
`(a)(cid:1) The terms of this Protective 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)(cid:1)
`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:
`
`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.
`
`
`
`17
`
`

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`Case 1:16-cv-04110-TWT Document 37 Filed 09/25/17 Page 18 of 22
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`promptly notify in writing the Requesting Party and the
`1.
`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
`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)(cid:1)
`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.
`10.(cid:1) 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 ci