UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`TARGET CORPORATION
`Petitioner
`
`v.
`
`DESTINATION MATERNITY CORPORATION
`Patent Owner
`_____________
`
`Case No. IPR2014-00509
`(U.S. Patent No. RE43,531)
`_____________
`
`Dated: April 9, 2014
`
`Before JENNIFER S. BISK, MICHAEL J. FITZPATRICK, and
`MITCHELL G. WEATHERLY Administrative Patent Judges.
`
`JOINT MOTION TO ENTER STIPULATED PROTECTIVE ORDER
`
`EAST\74752861.1
`
`
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`TARGET CORPORATION
`Petitioner
`
`v.
`
`DESTINATION MATERNITY CORPORATION
`Patent Owner
`_____________
`
`Case No. IPR2014-00509
`(U.S. Patent No. RE43,531)
`_____________
`
`Dated: April 9, 2014
`
`Before JENNIFER S. BISK, MICHAEL J. FITZPATRICK, and
`MITCHELL G. WEATHERLY Administrative Patent Judges.
`
`JOINT MOTION TO ENTER STIPULATED PROTECTIVE ORDER
`
`EAST\74752861.1
`
`
`
`The parties agree to the Stipulated Protective Order (the “Protective Order”),
`
`attached as Exhibit “A” hereto, and respectfully request that it be entered in the
`
`above-referenced Inter Partes Review proceeding (the “Inter Partes Review
`
`Proceeding”). For the Board’s convenience, attached as Exhibit “B” is a marked-
`
`up version of the Default Protective Order provided in Appendix B of the Office
`
`Patent Trial Practice Guide, 77 FR 48756-01 (Aug. 14, 2012), which shows the
`
`differences between the parties’ proposed Protective Order and the Default
`
`Protective Order.
`
`The proposed revisions made by the parties to the Default Protective Order
`
`are intended to harmonize the protective order in this proceeding with the parties’
`
`protective order currently in force in the related district court litigation in the
`
`Eastern District of Pennsylvania, which is attached hereto Exhibit “C.” In
`
`particular, the revisions endeavor to avoid (1) differences between the protective
`
`orders in who may access certain documents; and (2) the expense of re-marking
`
`and re-producing documents that were already exchanged between the parties in
`
`the related district court litigation.
`
`The parties hereby jointly move the Board for an order entering the
`
`Protective Order in this Inter Partes Review Proceeding.
`
`EAST\74752861.1
`
`
`
`Date: April 9, 2014
`
`FAEGRE BAKER DANIELS LLP
`s/ Norman J. Hedges
`
`DLA PIPER LLP (US)
`s/ Paul A. Taufer
`
`Norman J. Hedges (Reg. No. 44,151)
`R. Trevor Carter (Reg. No. 40,549)
`Daniel M. Lechleiter (Reg. No. 58,254)
`Faegre Baker Daniels LLP
`300 N. Meridian Street, Suite 2700
`Indianapolis, Indiana 46204-1750
`norman.hedges@FaegreBD.com
`trevor.carter@FaegreBD.com
`daniel.lechleiter@FaegreBD.com
`Telephone: 317-237-0300
`Facsimile: 317-237-1000
`
`Attorneys for Petitioner, Target
`Corporation
`
`Paul A. Taufer (Reg. No. 35,703)
`Michael L. Burns (Reg. No. 57,593)
`DLA Piper LLP (US)
`One Liberty Place
`1650 Market Street, Suite 4900
`Philadelphia, PA 19103
`Phone: (215) 656-3385
`Facsimile: (215) 606-3385
`paul.taufer@dlapiper.com
`michael.burns@dlapiper.com
`
`Stuart Pollack (Reg. No. 43,862)
`DLA Piper LLP (US)
`1251 Avenue of the Americas
`27th Floor
`New York, NY 10020-1104
`Phone: (212) 335-4964
`Facsimile: (212) 884-
`stuart.pollack@dlapiper.com
`
`Attorneys for Patent Owner, Destination
`Maternity Corporation
`
`EAST\74752861.1
`
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned certifies that on April 9, 2014, a complete and entire copy
`
`of the Joint Motion to Enter Stipulated Protective Order was provided via email to
`
`the Petitioner by serving the email correspondence address of record as follows:
`
`Norman J. Hedges
`R. Trevor Carter
`Daniel M. Lechleiter
`Faegre Baker Daniels LLP
`300 N. Meridian Street, Suite 2700
`Indianapolis, Indiana 46204-1750
`Phone: (317) 237-0300
`Fax: (317) 237-1000
`Norman.Hedges@FaegreBD.com
`trevor.carter@FaegreBD.com
`daniel.lechleiter@FaegreBD.com
`
`/s/ Paul Taufer
`Paul A. Taufer
`
`EAST\74752861.1
`
`
`
`Exhibit A
`
`Exhibit A
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`TARGET CORPORATION
`Petitioner
`
`v.
`
`DESTINATION MATERNITY CORPORATION
`Patent Owner
`_____________
`
`Case No. IPR2014-00509
`(U.S. Patent No. RE43,531)
`
`_____________
`
`Dated: April 9, 2014
`
`Before JENNIFER S. BISK, MICHAEL J. FITZPATRICK, and
`MITCHELL G. WEATHERLY Administrative Patent Judges.
`
`STIPULATED PROTECTIVE ORDER
`
`EAST\74753589.1
`
`
`
`This protective order governs the treatment and filing of confidential information,
`
`including documents and testimony.
`
`1. Confidential Information shall be clearly marked either:
`
`(A)
`
`"HIGHLY CONFIDENTIAL – ATTORNEYS' EYES ONLY" if it (i)
`
`contains nonpublic technical, financial, and/or other commercially sensitive
`
`information (e.g., pricing, customer lists, business and/or marketing plans or
`
`analysis, license, manufacturing and/or design agreements; product research,
`
`development, design, and/or testing information and the like) and/or trade
`
`secrets; (ii) is subject to an express obligation of confidentiality owed by the
`
`producing party to a third-party; or (iii) is subject to the privacy interest of
`
`any individual; or
`
`(B)
`
`"CONFIDENTIAL" if it contains information not readily available to
`
`the general public.
`
`2. Access.
`
`(i) Access to "HIGHLY CONFIDENTIAL – ATTORNEYS' EYES ONLY"
`
`information is limited to the following individuals:
`
`(A) Outside Counsel. Outside counsel of record for the parties to this
`
`proceeding,
`
`including
`
`any
`
`attorneys,
`
`paralegals,
`
`technology
`
`specialists, and clerical employees of their respective law firms
`
`assisting in this proceeding.
`
`EAST\74753589.1
`
`2
`
`
`
`(B) Vendors. Professional litigation support vendors, including but
`
`not limited to copy, graphics, translation, database and/or trial support
`
`and/or
`
`trial
`
`consulting
`
`services, who
`
`have
`
`executed
`
`the
`
`Acknowledgment appended to this order.
`
`(C) Experts. Retained experts of a party to the proceeding who have
`
`executed the Acknowledgment appended to this order and who further
`
`certify in the Acknowledgement that they are not a competitor to any
`
`party, or a consultant for, or employed by, such a competitor with
`
`respect to the subject matter of the proceeding.
`
`(D) The Office. Employees and representatives of the Office who
`
`have a need for access to the confidential information shall have such
`
`access without the requirement to sign an Acknowledgement. Such
`
`employees and representatives shall include the Director, members of
`
`the Board and their clerical staff, other support personnel, court
`
`reporters, and other persons acting on behalf of the Office.
`
`(E) Support Personnel. Administrative assistants, clerical staff, court
`
`reporters and other support personnel of the foregoing persons who
`
`are reasonably necessary to assist those persons in the proceeding
`
`shall not be required to sign an Acknowledgement, but shall be
`
`informed of the terms and requirements of the Protective Order by the
`
`EAST\74753589.1
`
`3
`
`
`
`person they are supporting who receives confidential information.
`
`(ii) Access to "CONFIDENTIAL" information is limited to the following
`
`individuals:
`
`(A)
`
`Persons authorized to receive "HIGHLY CONFIDENTIAL –
`
`ATTORNEYS' EYES ONLY" material as specified in Paragraphs
`
`2(i)(A)–2(i)(E) above;
`
`(B) In-house counsel. In-house counsel of a party to this proceeding
`
`and such in-house counsel’s support staff; and
`
`(C) Other Employees of a Party. Employees, consultants or other
`
`persons performing work for a party to this proceeding, other than in-
`
`house counsel and in-house counsel's support staff, who sign the
`
`Acknowledgement.
`
`3. Persons receiving confidential
`
`information shall use reasonable efforts to
`
`maintain the confidentiality of the information, including:
`
`(A) Maintaining such information in a secure location to which persons not
`
`authorized to receive the information shall not have access;
`
`(B) Otherwise using reasonable efforts to maintain the confidentiality of the
`
`information, which efforts shall be no less rigorous than those the recipient
`
`uses to maintain the confidentiality of information not received from the
`
`disclosing party;
`
`EAST\74753589.1
`
`4
`
`
`
`(C) Ensuring that support personnel of the recipient who have access to the
`
`confidential information understand and abide by the obligation to maintain
`
`the confidentiality of information received that is designated as confidential;
`
`and
`
`(D) Limiting the copying of confidential information to a reasonable number
`
`of copies needed for conduct of the proceeding and maintaining a record of
`
`the locations of such copies.
`
`4. Persons receiving confidential information shall use the following procedures to
`
`maintain the confidentiality of the information:
`
`(A) Documents and Information Filed With the Board.
`
`(i) A party may file documents or information with the Board under
`
`seal, together with a non-confidential description of the nature of the
`
`confidential information that is under seal and the reasons why the
`
`information is confidential and should not be made available to the
`
`public. The submission shall be treated as confidential and remain
`
`under seal, unless, upon motion of a party and after a hearing on the
`
`issue, or sua sponte, the Board determines that the documents or
`
`information do not to qualify for confidential treatment.
`
`(ii) Where confidentiality is alleged as to some but not all of the
`
`information submitted to the Board, the submitting party shall file
`
`EAST\74753589.1
`
`5
`
`
`
`confidential and non-confidential versions of its submission, together
`
`with a Motion to Seal the confidential version setting forth the reasons
`
`why the information redacted from the non-confidential version is
`
`confidential and should not be made available to the public. The
`
`nonconfidential version of the submission shall clearly indicate the
`
`locations of information that has been redacted. The confidential
`
`version of the submission shall be filed under seal. The redacted
`
`information shall remain under seal unless, upon motion of a party
`
`and after a hearing on the issue, or sua sponte, the Board determines
`
`that some or all of the redacted information does not qualify for
`
`confidential treatment.
`
`(B) Documents and Information Exchanged Among the Parties. Information
`
`designated as confidential that is disclosed to another party during discovery
`
`or other proceedings before the Board shall be clearly marked as either
`
`"HIGHLY CONFIDENTIAL – ATTORNEYS' EYES ONLY"
`
`or
`
`"CONFIDENTIAL" and shall be produced in a manner that maintains its
`
`confidentiality. Pursuant to paragraph 29 of the protective order (Document
`
`No. 40) in the litigation styled Destination Maternity Corp. v. Target Corp.
`
`et al., Case No. 2:12-cv-05680-AB (E.D. Pa. Filed Oct. 4, 2012) (the
`
`“District Court Litigation”),
`
`the parties to this proceeding agree that
`
`EAST\74753589.1
`
`6
`
`
`
`documents and information previously exchanged between the parties, in the
`
`District Court Litigation, shall be deemed as having been produced in this
`
`proceeding for all purposes. The parties to this proceeding further agree,
`
`pursuant
`
`to paragraph 29 of the protective order in the District Court
`
`Litigation,
`
`that documents and information produced as
`
`"HIGHLY
`
`CONFIDENTIAL – ATTORNEYS' EYES ONLY" or "CONFIDENTIAL"
`
`in the District Court Litigation shall be treated under the equivalent
`
`designation set forth in this Protective Order.
`
`5. No Limitations on Party’s Own Confidential Information. Nothing in this
`
`Order shall restrict any party to this proceeding or its attorneys from disclosing or
`
`using,
`
`in any manner and for any purpose,
`
`the party’s own Confidential
`
`Information, as defined in Section 1, above.
`
`6. Acknowledgement of Protective Order. The following form shall be used to
`
`acknowledge a protective order and gain access to information covered by the
`
`protective order:
`
`EAST\74753589.1
`
`7
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`TARGET CORPORATION
`Petitioner
`
`v.
`
`DESTINATION MATERNITY CORPORATION
`Patent Owner
`_____________
`
`Case No. IPR2014-00509
`(U.S. Patent No. RE43,531)
`
`_____________
`
`Dated: _________
`
`Before JENNIFER S. BISK, MICHAEL J. FITZPATRICK, and
`MITCHELL G. WEATHERLY Administrative Patent Judges.
`
`STANDARD ACKNOWLEDGEMENT FOR ACCESS
`TO PROTECTIVE ORDER MATERIAL
`
`EAST\74753589.1
`
`1
`
`
`
`I ________________________________, affirm that I have read the Protective
`
`Order; that I will abide by its terms; that I will use the confidential information
`
`only in connection with this proceeding and for no other purpose; that I will only
`
`allow access to support staff who are reasonably necessary to assist me in this
`
`proceeding; that prior to any disclosure to such support staff I informed or will
`
`inform them of the requirements of the Protective Order; that I am personally
`
`responsible for the requirements of the terms of the Protective Order and I agree to
`
`submit to the jurisdiction of the Office and the United States District Court for the
`
`Eastern District of Virginia for purposes of enforcing the terms of the Protective
`
`Order and providing remedies for its breach.
`
`Date:
`
`Signature:
`
`EAST\74753589.1
`
`2
`
`
`
`Exhibit B
`
`Exhibit B
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`TARGET CORPORATION
`Petitioner
`
`v.
`
`DESTINATION MATERNITY CORPORATION
`Patent Owner
`_____________
`
`Case No. IPR2014-00509
`(U.S. Patent No. RE43,531)
`
`_____________
`
`Dated: April 9, 2014
`
`Before JENNIFER S. BISK, MICHAEL J. FITZPATRICK, and
`MITCHELL G. WEATHERLY Administrative Patent Judges.
`
`STIPULATED PROTECTIVE ORDER
`
`EAST\74753589.1
`
`
`
`This standing protective order governs the treatment and filing of confidential
`
`information, including documents and testimony.
`
`1. Confidential informationInformation shall be clearly marked “PROTECTIVE
`
`ORDER MATERIAL.”either:
`
`(A)
`
`"HIGHLY CONFIDENTIAL – ATTORNEYS' EYES ONLY" if it (i)
`
`contains nonpublic technical, financial, and/or other commercially sensitive
`
`information (e.g., pricing, customer lists, business and/or marketing plans or
`
`analysis, license, manufacturing and/or design agreements; product research,
`
`development, design, and/or testing information and the like) and/or trade
`
`secrets; (ii) is subject to an express obligation of confidentiality owed by the
`
`producing party to a third-party; or (iii) is subject to the privacy interest of
`
`any individual; or
`
`(B)
`
`"CONFIDENTIAL" if it contains information not readily available to
`
`the general public.
`
`2. Access to confidential information is limited to the following individuals .
`
`(i) Access to "HIGHLY CONFIDENTIAL – ATTORNEYS' EYES ONLY"
`
`information is limited to the following individuals:
`
`(A) Outside Counsel. Outside counsel of record for the parties to this
`
`proceeding,
`
`including
`
`any
`
`attorneys,
`
`paralegals,
`
`technology
`
`specialists, and clerical employees of their respective law firms
`
`EAST\74753589.1
`
`2
`
`
`
`assisting in this proceeding.
`
`(B) Vendors. Professional litigation support vendors, including but
`
`not limited to copy, graphics, translation, database and/or trial support
`
`and/or
`
`trial
`
`consulting
`
`services, who
`
`have
`
`executed
`
`the
`
`acknowledgmentAcknowledgment appended to this order:.
`
`(A) Parties. Persons who are owners of a patent involved in the proceeding and
`other persons who are named parties to the proceeding.
`(B) Party Representatives. Representatives of record for a party in the proceeding.
`(C) Experts. Retained experts of a party into the proceeding who have
`
`executed the Acknowledgment appended to this order and who further
`
`certify in the Acknowledgement that they are not a competitor to any
`
`party, or a consultant for, or employed by, such a competitor with
`
`respect to the subject matter of the proceeding.
`
`(D) In-house counsel. In-house counsel of a party.
`(E) Other Employees of a Party. Employees, consultants or other persons
`performing work for a party, other than in-house counsel and in-house counsel's
`support staff, who sign the Acknowledgement shall be extended access to
`confidential infor-mation only upon agreement of the parties or by order of the
`Board upon a motion brought by the party seeking to disclose confidential
`information to that person. The party opposing disclosure to that person shall have
`the burden of proving that such person should be restricted from access to
`confidential information.
`(FD) The Office. Employees and representatives of the Office who
`
`have a need for access to the confidential information shall have such
`
`access without the requirement to sign an Acknowledgement. Such
`
`employees and representatives shall include the Director, members of
`
`EAST\74753589.1
`
`3
`
`
`
`the Board and their clerical staff, other support personnel, court
`
`reporters, and other persons acting on behalf of the Office.
`
`(GE) Support Personnel. Administrative assistants, clerical staff,
`
`court reporters and other support personnel of the foregoing persons
`
`who are reasonably necessary to assist those persons in the proceeding
`
`shall not be required to sign an Acknowl-edgementAcknowledgement,
`
`but shall be informed of the terms and requirements of the Protective
`
`Order by the person they are supporting who receives confidential
`
`information.
`
`(ii) Access to "CONFIDENTIAL" information is limited to the following
`
`individuals:
`
`(A)
`
`Persons authorized to receive "HIGHLY CONFIDENTIAL –
`
`ATTORNEYS' EYES ONLY" material as specified in Paragraphs
`
`2(i)(A)–2(i)(E) above;
`
`(B) In-house counsel. In-house counsel of a party to this proceeding
`
`and such in-house counsel’s support staff; and
`
`(C) Other Employees of a Party. Employees, consultants or other
`
`persons performing work for a party to this proceeding, other than in-
`
`house counsel and in-house counsel's support staff, who sign the
`
`Acknowledgement.
`
`EAST\74753589.1
`
`4
`
`
`
`3. Persons receiving confidential
`
`information shall use reasonable efforts to
`
`maintain the confidentiality of the information, including:
`
`(A) Maintaining such information in a secure location to which persons not
`
`authorized to receive the information shall not have access;
`
`(B) Otherwise using reasonable efforts to maintain the confidentiality of the
`
`information, which efforts shall be no less rigorous than those the recipient
`
`uses to maintain the confidentiality of information not received from the
`
`disclosing party;
`
`(C) Ensuring that support personnel of the recipient who have access to the
`
`confidential information understand and abide by the obligation to maintain
`
`the confidentiality of information received that is designated as confidential;
`
`and
`
`(D) Limiting the copying of confidential information to a reasonable number
`
`of copies needed for conduct of the proceeding and maintaining a record of
`
`the locations of such copies.
`
`4. Persons receiving confidential information shall use the following procedures to
`
`maintain the confidentiality of the infor-mationinformation:
`
`(A) Documents and Information Filed With the Board.
`
`(i) A party may file documents or information with the Board under
`
`seal, together with a non-confidential description of the nature of the
`
`EAST\74753589.1
`
`5
`
`
`
`confidential information that is under seal and the reasons why the
`
`information is confidential and should not be made available to the
`
`public. The submission shall be treated as confidential and remain
`
`under seal, unless, upon motion of a party and after a hearing on the
`
`issue, or sua sponte, the Board determines that the documents or
`
`information do not to qualify for confidential treatment.
`
`(ii) Where confidentiality is alleged as to some but not all of the
`
`information submitted to the Board, the submitting party shall file
`
`confidential and non-confidential versions of its submission, together
`
`with a Motion to Seal the confidential version setting forth the reasons
`
`why the information redacted from the non-confidential version is
`
`confidential and should not be made available to the public. The
`
`nonconfidential version of the submission shall clearly indicate the
`
`locations of information that has been redacted. The confidential
`
`version of the submission shall be filed under seal. The redacted
`
`information shall remain under seal unless, upon motion of a party
`
`and after a hearing on the issue, or sua sponte, the Board determines
`
`that some or all of the redacted information does not qualify for
`
`confidential treatment.
`
`(B) Documents and Information Exchanged Among the Parties. Information
`
`EAST\74753589.1
`
`6
`
`
`
`designated as confidential that is disclosed to another party during discovery
`
`or other proceedings before the Board shall be clearly marked as
`
`“PROTECTIVE ORDER MATERIALeither "HIGHLY CONFIDENTIAL –
`
`ATTORNEYS' EYES ONLY" or "CONFIDENTIAL" and shall be produced
`
`in a manner that maintains its confidentiality. Pursuant to paragraph 29 of
`
`the protective order (Document No. 40) in the litigation styled Destination
`
`Maternity Corp. v. Target Corp. et al., Case No. 2:12-cv-05680-AB (E.D.
`
`Pa. Filed Oct. 4, 2012) (the “District Court Litigation”), the parties to this
`
`proceeding agree that documents and information previously exchanged
`
`between the parties, in the District Court Litigation, shall be deemed as
`
`having been produced in this proceeding for all purposes. The parties to this
`
`proceeding further agree, pursuant to paragraph 29 of the protective order in
`
`the District Court Litigation, that documents and information produced as
`
`"HIGHLY CONFIDENTIAL – ATTORNEYS' EYES ONLY"
`
`or
`
`"CONFIDENTIAL" in the District Court Litigation shall be treated under
`
`the equivalent designation set forth in this Protective Order.
`
`5. No Limitations on Party’s Own Confidential Information. Nothing in this
`
`Order shall restrict any party to this proceeding or its attorneys from disclosing or
`
`using,
`
`in any manner and for any purpose,
`
`the party’s own Confidential
`
`Information, as defined in Section 1, above.
`
`EAST\74753589.1
`
`7
`
`
`
`(j) Standard6. Acknowledgement of Protective Order. The following form
`
`mayshall be used to acknowledge a protective order and gain access to information
`
`covered by the protective order:
`
`[CAPTION]
`
`Standard Acknowledgment for Access to Protective Order Material
`
`EAST\74753589.1
`
`8
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`TARGET CORPORATION
`Petitioner
`
`v.
`
`DESTINATION MATERNITY CORPORATION
`Patent Owner
`_____________
`
`Case No. IPR2014-00509
`(U.S. Patent No. RE43,531)
`
`_____________
`
`Dated: _________
`
`Before JENNIFER S. BISK, MICHAEL J. FITZPATRICK, and
`MITCHELL G. WEATHERLY Administrative Patent Judges.
`
`STANDARD ACKNOWLEDGEMENT FOR ACCESS
`TO PROTECTIVE ORDER MATERIAL
`
`EAST\74753589.1
`
`1
`
`
`
`I ————________________________________, affirm that I have read the
`
`Protective Order; that I will abide by its terms; that I will use the confidential
`
`information only in connection with this proceeding and for no other purpose; that
`
`I will only allow access to support staff who are reasonably necessary to assist me
`
`in this proceeding; that prior to any disclosure to such support staff I informed or
`
`will inform them of the requirements of the Protective Order; that I am personally
`
`responsible for the requirements of the terms of the Protective Order and I agree to
`
`submit to the jurisdiction of the Office and the United States District Court for the
`
`Eastern District of Virginia for purposes of enforcing the terms of the Protective
`
`Order and providing remedies for its breach.
`
`[Signature]
`
`Date:
`
`Signature:
`
`EAST\74753589.1
`
`2
`
`
`
`Exhibit C
`
`Exhibit C
`
`
`
`Case 2:12-cv-05680-AB Document 40 Filed 04/05/13 Page 1 of 17
`Case 2:12—cv—O5680—AB Document 40 Filed 04/05/13 Page 1 of 17
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF PENNSYLVANIA
`
`DESTINATION MATERNITY
`
`CORPORATION
`
`Plaintiff,
`
`v.
`
`TARGET CORPORATION, CHEROKEE
`TNC. AND ELIZABETH LANGE LLC
`
`Defendants.
`
`CASE NO.'. 2:12-cv-05630-AB
`
`JURY TRIAL DEMANDED
`
`STIPULATED PROTECTIVE ORDER
`
`The parties agree that certain information subject to discovery in this Action may contain
`
`trade secrets or other confidential, proprietary, and/or commercially sensitive information.
`
`In the
`
`interest of protecting that
`
`information and permitting discovery to proceed without delay
`
`occasioned by disputes regarding such information, the parties agree to the protective provisions
`
`set forth below.
`
`in view of these stipulations, and good cause appearing, the Court enters this
`
`Stipulated Protective Order (“Order”) pursuant to "Rule 26(c) of the Federal Rules of Civil
`
`Procedure.
`
`IT IS HEREBY ORDERED:
`
`Scope and Definitions
`
`1.
`
`This Order applies to all information of any form or format, including, but not
`
`limited to, electronically stored information or other information stored on a tangible medium,
`
`documents, testimony, and tangible things subject to discovery i.n this Action, as well as any
`
`secondary material, such as pleadings, written discovery, expert reports, notes, summaries, and
`
`EAS'l\5504336?.l
`oMs_us 51370931»-1
`
`-1-
`
`
`
`Case 2:12-cv-05680-AB Document 40 Filed 04/05/13 Page 2 of 17
`Case 2:12—cv—O5680—AB Document 40 Filed 04/05/13 Page 2 of 17
`
`any other materials (collectively referred to herein as “Discovery Material”) that contain,
`
`describe, or reflect nonpublic, confidential information and/or trade secrets designated pursuant
`
`to the terms of this Order (collectively referred to herein as “Protected Material”).
`
`2.
`
`Protected Material may be designated by any Producing Party as:
`
`(a)
`
`“CONFIDENTIAL,” if it contains information not readily available to the
`
`general public; or
`
`(b)
`
`“HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY," if it
`
`contains (i) nonpublic technical, financial, and/or other commercially sensitive information (e.g.
`
`pricing; customer lists; business and/or marketing plans or analysis;
`
`license, manufacturing,
`
`andfor design agreements; product research, development, design, and/or testing information,
`
`and the like) and/or trade secrets; (ii) is subject to an express obligation of confidentiality owed
`
`by the Producing Party to a third party; or (iii) is subject to the privacy interest of any individual.
`
`3.
`
`As used herein, “Privileged Material” shall mean and refer to Discovery Material
`
`subject to a claim of attorney—client privilege, work—product
`
`immunity, joint-defense and/or
`
`common interest privilege, or any other privilege, immunity, or legal protection (apart from
`
`confidentiality alone).
`
`4.
`
`As used herein, “Producing Party" shall mean and refer to any party to this Action
`
`or to any third party who, whether voluntarily or pursuant to a subpoena or court order, discloses,
`
`testifies about, produces, or makes available for inspection any Protected Material. Further,
`
`solely for purposes of Paragraph 20, "Producing Party shall mean and refer to any party to this
`
`Action or to any third party who, whether voluntarily or pursuant to a subpoena or court order,
`
`inadvertently or unintentionally discloses,
`
`testifies about, produces, or makes available for
`
`EAS"l\SS04336'.'.l
`DMS_US SI ll7093lvl
`
`
`
`Case 2:12-cv-05680-AB Document 40 Filed 04/05/13 Page 3 of 17
`Case 2:12—cv—O5680—AB Document 40 Filed 04/05/13 Page 3 of 17
`
`inspection any Privileged Material, whether or not such Privileged Material is also Protected
`
`Material.
`
`5.
`
`“Receiving Party” shall mean and refer to any person who receives Protected
`
`Material from a Producing Party. Further, solely for purposes of Paragraph 20, Receiving Party
`
`shall mean and refer to any person who receives Privileged Material from a Producing Party,
`
`whether or not such Privileged Material is also Protected Material.
`
`6.
`
`“Action” shall mean and refer
`
`to the above-captioned action, Destination
`
`Maternity Corporation v. Target Corporation, Cherokee Inc. and Elizabeth Lange LLC, Case
`
`No. 2:l2—cv~05680 (filed Oct. 4, 2012), and any related appeal(s), remand(s), retria1(s), or other
`
`post—appeal proceedings under Case No. 2: l 2-cv-05680.
`
`7.
`
`“Exhibit A” shall mean and refer to the “Agreement to Be Bound by Protective
`
`Order," attached as Exhibit A to this Order. All definitions set forth in this Order shall apply
`
`equally to defined terms used in Exhibit A.
`
`Permitted Disclosure and Use of Protected Material
`
`8.
`
`Protected Material shall not be distributed, disclosed, or made available to anyone
`
`except as expressly provided in this Order.
`
`9.
`
`Protected Material shall be used solely for this Action, and shall not be used for
`
`litigation, patent
`limitation, any other
`including, without
`any other purpose whatsoever,
`prosecution or acquisition, or any business or competitive purpose or function of any kind.
`
`Persons Who May Access Protected Material
`
`10.
`
`“Confidential” Material. Only the following individuals shall have access to
`
`Protected Material designated “CON.FlDENTiAL," absent the express written consent of the
`
`Producing "Party or further court order:
`
`E!\ST\550433(i7.l
`DMS__US 5l8'7{J93lvl
`
`
`
`Case 2:12-cv-05680-AB Document 40 Filed 04/05/13 Page 4 of 17
`Case 2:12—cv—O5680—AB Document 40 Filed 04/05/13 Page 4 of 17
`
`(a)
`
`(b)
`
`The individuals specified in Paragraphs ll(a)—l l(f); and
`
`Subject to Paragraph 12, the Producing and Receiving Parties.
`
`11.
`
`“Highly Confidential — Attorneys’ Eyes Only” Material. Only the following
`
`individuals shall have access to Protected Material designated “HiGHLY CONFIDENTIAL e
`
`ATTORNEYS’ EYES ONLY,” absent the express written consent of the Producing Party, or as
`
`further limited by this O.rder or further court order:
`
`(a)
`
`Outside counsel of record for the parties to this Action,
`
`including any
`
`attorneys, paralegals,
`
`technology specialists,
`
`secretarial, and clerical employees of their
`
`respective law firms assisting in this Action;
`
`(b)
`
`Outside experts and consultants of the Receiving Party, whether or not
`
`testifying in this Action, who have been preapproved in accordance with Paragraph I3;
`
`(c)
`
`The Court, its technical advisor (if one is appointed), its clerk(s), court
`
`personnel,
`
`the jury, and court reporters and/or videographers who record and/or transcribe
`
`testimony or other proceedings in this Action;
`
`(d)
`
`Professional litigation support vendors, including, but not limited to, copy,
`
`graphics, translation, database, discovery, trial consultants, and trial support and/or consulting
`
`services (“Professional Vendor”), who shall be provided a copy of this Protective Order an.d
`
`execute Exhibit A, which executed version of Exhibit A shall be retained by outside counsel of
`
`record for the party that engages the Professional Vendor;
`
`(e)
`
`Mock jurors hired by trial consultants but only in accordance with
`
`Paragraph 14; and
`
`(f)
`
`While testifying at a deposition, hearing, or trial in this Action only: (i)
`
`any person who authored, previously received, or was directly involved in the specific subject
`
`F:I\ST\550-13367. I
`DMS_US 5l87093lvl
`
`-4-
`
`
`
`Case 2:12-cv-05680-AB Document 40 Filed 04/05/13 Page 5 of 17
`Case 2:12—cv—O5680—AB Document 40 Filed 04/05/13 Page 5 of 17
`
`matter of the Protected Material, as evident from its face or reasonably certain in view of other
`
`testimony or evidence; (ii) a party’s Rule 30(b)(6) designee as to Protected Material related to
`
`the party and which was provided by a current or former employee, attorney, agent, parent, or
`
`affiliate of the party; or (i.ii) any person who is or was an officer, director, member, partner,
`
`employee, or agent of the Producing Party or its predecessor.(s) and the Protected Material
`
`desired to be used during the deposition was created by the Producing Party or its predecessor(s)
`
`before or during the time of the person’s affiliation, employment, or agency with the Producing
`
`Party or its predecessor(s).
`
`Persons authorized to view Protected Material pursuant to this
`
`subparagraph (1) shall not retain or be given copies of another party’s Protected Material except
`
`while so testifying.
`
`Approval to Access Protected Material
`
`12.
`
`In-House Counsel, Party Representatives, and Professional Vendors. Any in-
`
`house
`
`counsel,
`
`party
`
`representative,
`
`or Professional Vendor
`
`authorized
`
`to
`
`access
`
`“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL —— ATTORNEYS’ EYES ONLY” pursuant
`
`to Paragraphs it) or I
`
`l ofthis Order shall read this Order and execute Exhibit A, which executed
`
`version of Exhibit A shall be retained by the signing party’s outside counsel of record in this
`
`Action.
`
`13.
`
`Outside Experts or Consultants.
`
`(a)
`
`Prior
`
`to disclosing Protected Material
`
`to any outside experts or
`
`consultants, the party seeking to disclose such information shall provide written notice to all
`
`parties to this Action that have produced Protected Material. Such written notice shall include:
`
`(i) the name of the person; (ii) the present employer and title of the person; (iii) an up-to-date
`
`F.AS'|‘\S504336'i'.i
`DMS_US 5 I 87093 I vl
`
`
`
`Case 2:12-cv-05680-AB Document 40 Filed 04/05/13 Page 6 of 17
`Case 2:12—cv—O5680—AB Document 40 Filed 04/05/13 Page 6 of 17
`
`curriculum vitae; (iv) a list of current and past consulting relationships undertaken within the last
`
`four years; and (v) an executed copy of Exhibit A.
`
`(b)
`
`Within five (5) business days of receiving the writte
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