UNITED STATES DISTRICT COURT
`FOR THE CENTRAL DISTRICT OF CALIFORNIA
`SOUTHERN DIVISION
`
`MASIMO CORPORATION,
`a Delaware corporation; and
`CERCACOR LABORATORIES, INC.,
`a Delaware corporation,
`Plaintiffs,
`
`v.
`APPLE INC.,
`a California corporation,
`Defendant.
`
`CASE NO. 8:20-cv-00048-JVS (JDEx)
`
`PROTECTIVE ORDER
`
`Based on Plaintiffs’ Motion for Protective Order (Dkt. 61, “Motion”), the
`Joint Stipulation of the parties (Dkt. 61-1), the evidence submitted in support of
`and in opposition to the Motion (Dkt. 61-2 to 61-5), including the parties’
`respective proposed protective orders (Dkt. 61-2, Exh. 2, and Dkt. 61-5, Exh.
`A), and the June 23, 2020 Order by the Honorable Judge James V. Selna, United
`States District Judge (Dkt. 59), and good cause appearing therefor, the Motion is
`granted, in part, and the Court finds and orders as follows.
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`MASIMO 2088
`Apple v. Masimo
`IPR2022-01299
`
`

`

`
`
`PURPOSES AND LIMITATIONS
`1.
`Discovery in this action is 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 pursuing this litigation may
`be warranted. The parties acknowledge that this Order does not confer blanket
`protections on all disclosures or responses to discovery, including disclosures
`under Rule 26, 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.
`2.
`GOOD CAUSE STATEMENT
`This action is likely to involve trade secrets, customer and pricing lists
`
`and other valuable research, development, commercial, financial, technical
`and/or proprietary information for which special protection from public
`disclosure and from use for any purpose other than prosecution of this action is
`warranted. Such confidential and proprietary materials and information consist
`of, among other things, confidential business or financial information,
`information regarding confidential business practices, or other confidential
`research, development, or commercial information (including information
`implicating privacy rights of third parties), information otherwise generally
`unavailable to the public, or which may be privileged or otherwise protected
`from disclosure under state or federal statutes, court rules, case decisions, or
`common law. Accordingly, to expedite the flow of information, to facilitate the
`prompt resolution of disputes over confidentiality of discovery materials, to
`adequately protect information the parties are entitled to keep confidential, to
`ensure that the parties are permitted reasonable necessary uses of such material
`in preparation for and in the conduct of trial, to address their handling at the end
`of the litigation, and serve the ends of justice, a protective order for such
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`MASIMO 2088
`Apple v. Masimo
`IPR2022-01299
`
`

`

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`information is justified in this matter, pursuant to Rule 26(c) of the Federal
`Rules of Civil Procedure or any other applicable authority. It is the intent of the
`parties that information will not be designated as confidential for tactical
`reasons and that nothing be so designated without a good faith belief that it has
`been maintained in a confidential, non-public manner, and there is good cause
`why it should not be part of the public record of this case.
`3.
`ACKNOWLEDGMENT OF UNDER SEAL FILING
`PROCEDURE
`The parties further acknowledge, as set forth in Section 14.3, below, that
`this Protective Order does not entitle them to file confidential information under
`seal; Local Civil Rule 79-5 sets forth the procedures that must be followed and
`the standards that will be applied when a party seeks permission from the court
`to file material under seal. There is a strong presumption that the public has a
`right of access to judicial proceedings and records in civil cases. In connection
`with non-dispositive motions, good cause must be shown to support a filing
`under seal. See Kamakana v. City and County of Honolulu, 447 F.3d 1172,
`1176 (9th Cir. 2006), Phillips v. Gen. Motors Corp., 307 F.3d 1206, 1210-11
`(9th Cir. 2002), Makar-Welbon v. Sony Electrics, Inc., 187 F.R.D. 576, 577
`(E.D. Wis. 1999) (even stipulated protective orders require good cause
`showing), and a specific showing of good cause with proper evidentiary support
`and legal justification, must be made with respect to Protected Material that a
`party seeks to file under seal. The parties’ mere designation of Disclosure or
`Discovery Material as CONFIDENTIAL does not—without the submission of
`competent evidence by declaration, establishing that the material sought to be
`filed under seal qualifies as confidential, privileged, or otherwise protectable—
`constitute good cause.
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`Apple v. Masimo
`IPR2022-01299
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`Further, if a party requests sealing related to a dispositive motion or trial,
`then compelling reasons, not only good cause, for the sealing must be shown,
`and the relief sought shall be narrowly tailored to serve the specific interest to
`be protected. See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th
`Cir. 2010). For each item or type of information, document, or thing sought to
`be filed or introduced under seal in connection with a dispositive motion or trial,
`the party seeking protection must articulate compelling reasons, supported by
`specific facts and legal justification, for the requested sealing order. Again,
`competent evidence supporting the application to file documents under seal
`must be provided by declaration.
`
`Any document
`that
`is not confidential, privileged, or otherwise
`protectable in its entirety will not be filed under seal if the confidential portions
`can be redacted. If documents can be redacted, then a redacted version for
`public viewing, omitting only the confidential, privileged, or otherwise
`protectable portions of the document, shall be filed. Any application that seeks
`to file documents under seal in their entirety should include an explanation of
`why redaction is not feasible.
`4.
`DEFINITIONS
`4.1 Action: this pending federal lawsuit.
`
`4.2 Challenging Party: a Party or Non-Party that challenges the
`
`designation of information or items under this Order.
`
`4.3
`“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, and as specified above in
`the Good Cause Statement.
`4.4
`“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
`Information or Items: extremely confidential and/or sensitive “Confidential
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`Apple v. Masimo
`IPR2022-01299
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`Information or Items,” disclosure of which to another Party or Non-Party is
`likely to cause harm or significant competitive disadvantage to the Producing
`Party.
`“HIGHLY CONFIDENTIAL – SOURCE CODE” Information or
`4.5
`Items: extremely sensitive “Confidential Information or Items” representing
`computer code, scripts, assembly, binaries, object code, source code listings
`(e.g., file names and path structure), source code comments, object code listings,
`and Hardware Description Language (HDL) or Register Transfer Level (RTL)
`files that describe the hardware design of any ASIC or other chip, disclosure of
`which to another Party or Non-Party is likely to cause harm or significant
`competitive disadvantage to the Producing Party. Other documents that quote
`source code or internal documents that contain specific descriptions of source
`code (e.g. descriptions of declarations, functions, and parameters) that describe
`how the source code operates, to be narrowly applied, may be designated
`pursuant to this Paragraph, provided that the Producing Party also produces a
`redacted version designated “HIGHLY CONFIDENTIAL – ATTORNEYS
`EYES ONLY,” which removes the quoted source code or specific descriptions
`of source code. Native Computer Aided Design (CAD) files may be designated
`pursuant to this Paragraph, provided that any printouts of CAD files shall be
`designated “HIGHLY CONFIDENTIAL – ATTORNEYS EYES ONLY” and
`will not be included in the page limits discussed in Section 11 below.
`
`4.6 Counsel: Outside Counsel of Record and House Counsel (as well
`as their support staff).
`
`4.7 Designating Party or Producing Party: a Party or Non-Party that
`designates information or items that it produces in disclosures or in responses to
`discovery
`as
`“CONFIDENTIAL,” HIGHLY CONFIDENTIAL
`–
`
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`Apple v. Masimo
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`ATTORNEYS’ EYES ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE
`CODE.”
`
`4.8 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.
`
`4.9 Expert: a person with specialized knowledge or experience in a
`matter pertinent to the litigation who has been retained by a Party or its counsel
`to serve as an expert witness or as a consultant in this Action.
`
`4.10
` 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.
`
`4.11 Non-Party: any natural person, partnership, corporation, association
`or other legal entity not named as a Party to this action.
`
`4.12 Outside Counsel of Record: attorneys who are not employees of a
`party to this Action but are retained to represent a party to this Action and have
`appeared in this Action on behalf of that party or are affiliated with a law firm
`that has appeared on behalf of that party, and includes support staff.
`
`4.13 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).
`
`4.14 Producing Party: a Party or Non-Party that produces Disclosure or
`Discovery Material in this Action.
`
`4.15 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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`4.16 Protected Material: any Disclosure or Discovery Material that is
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`designated
`as
`“CONFIDENTIAL,” HIGHLY CONFIDENTIAL
`–
`ATTORNEYS’ EYES ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE
`CODE.” Protected Material shall not include: (i) advertising materials that
`have been actually published or publicly disseminated; and (ii) materials that
`show on their face they have been disseminated to the public.
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`4.17
` Receiving Party: a Party that receives Disclosure or Discovery
`Material from a Producing Party.
`5.
`SCOPE
`5.1 All Protected Material shall be used solely for this case or any
`
`related appellate proceeding, and not for any other purpose whatsoever,
`including without limitation any other litigation, patent prosecution or
`acquisition, patent reexamination or reissue proceedings, or any business or
`competitive purpose or function. Protected Material shall not be distributed,
`disclosed or made available to anyone except as expressly provided in this
`Order.
`5.2 The protections conferred by this 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 in court or in other settings that might reveal Protected
`Material.
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`5.3 Nothing in this Protective Order shall prevent or restrict a
`Producing Party’s own disclosure or use of its own Protected Material to any
`person for any purpose.
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`5.4 This Order does not preclude any Party or Non-Party from using
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`Protected Material with the consent of the Producing Party or by order of the
`Court.
`5.5 This Order does not preclude any Party or Non-Party from moving
`the Court for additional protection of any Discovery Material or modification of
`this Order, including, without limitation, moving for an order that certain matter
`not be produced at all.
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`5.6 Any use of Protected Material at trial shall be governed by the
`orders of the trial judge and other applicable authorities. This Order does not
`govern the use of Protected Material at trial.
`6.
`DURATION
`Even after Final Disposition of this litigation, the confidentiality
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`obligations imposed by this Order shall remain in effect until a Designating
`Party agrees otherwise in writing, a court order otherwise directs, or the
`information was made public during trial. For purposes of this Order, “Final
`Disposition” occurs after an order, mandate, or dismissal finally terminating the
`above-captioned action with prejudice, including all appeals.
`7.
`DESIGNATING PROTECTED MATERIAL
`7.1 Exercise of Restraint and Care in Designating Material for
`
`Protection. Each Party or Non-Party that designates information or items for
`protection under this Order must take care to limit any such designation to
`specific material that qualifies under the appropriate standards.
`Mass,
`indiscriminate or
`routinized designations are prohibited.
`Designations that are shown to be clearly unjustified or that have been made for
`an improper purpose (e.g., to unnecessarily encumber the case development
`process or to impose unnecessary expenses and burdens on other parties) may
`expose the Designating Party to sanctions.
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`If it comes to a Designating Party’s attention that information or items
`that it designated for protection do not qualify for protection, that Designating
`Party must promptly notify all other Parties that it is withdrawing the
`inapplicable designation.
`7.2 Manner and Timing of Designations. Except as otherwise provided
`in this Order, or as otherwise stipulated or ordered, Disclosure of Discovery
`Material that qualifies for protection under this Order must be clearly so
`designated before the material is disclosed or produced.
`
`Designation in conformity with this Order requires:
`
`
`(a) for information in documentary form (e.g., paper or electronic
`documents, but excluding transcripts of depositions or other pretrial or trial
`proceedings), that the Producing Party affix at a minimum, the legend
`“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
`ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” (hereinafter
`“Confidentiality legend”), to each page that contains protected material. If only
`a portion of the material on a page qualifies for protection, the Producing Party
`also must clearly identify the protected portion(s) (e.g., by making appropriate
`markings in the margins). For digital files being produced, the Producing Party
`may mark each viewable page or image with the appropriate designation, and
`mark the medium, container, and/or communication in which the digital files
`were contained.
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`A Party or Non-Party that makes original documents available for
`inspection need not designate them for protection until after the inspecting Party
`has indicated which documents it would like copied and produced. During the
`inspection and before the designation, all of the material made available for
`inspection shall be deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’
`EYES ONLY.” After the inspecting Party has identified the documents it wants
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`copied and produced, the Producing Party must determine which documents, or
`portions thereof, qualify for protection under this Order. Then, before producing
`the specified documents, the Producing Party must affix the appropriate
`Confidentiality legend to each page that contains Protected Material. If only a
`portion of the material on a page qualifies for protection, the Producing Party
`also must clearly identify the protected portion(s) (e.g., by making appropriate
`markings in the margins).
`(b) for testimony given in depositions that the Designating Party
`identifies the Disclosure or Discovery Material on the record at the time the
`testimony is given or by sending written notice of which portions of the
`transcript of the testimony are designated within 30 days of receipt of the
`transcript of the testimony. During the 30-day period, the entire transcript will
`be treated as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”
`Any Protected Material that is used in the taking of a deposition shall remain
`subject to the provisions of this Protective Order, along with the transcript pages
`of the deposition testimony dealing with such Protected Material. In such cases
`the court reporter shall be informed of this Protective Order and shall be
`required to operate in a manner consistent with this Protective Order. In the
`event the deposition is recorded (by video or otherwise), the original and all
`copies of the recording shall be designated pursuant to the terms of this
`Protective Order. Counsel for any Producing Party shall have the right to
`exclude from oral depositions, other than the deponent, deponent’s counsel, the
`reporter and videographer (if any), any person who is not authorized by this
`Protective Order to receive or access Protected Material based on the
`designation of such Protected Material. Such right of exclusion shall be
`applicable only during periods of examination or testimony regarding such
`Protected Material.
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`(c) for information produced in some form other than documentary
`and for any other tangible items, that the Producing Party affix in a prominent
`place on the exterior of the container or containers in which the information is
`stored the appropriate Confidentiality legend. If only a portion or portions of the
`information warrants protection, the Producing Party, to the extent practicable,
`shall identify the protected portion(s).
`(d) When electronic files or documents are printed for use at
`deposition, in a court proceeding, or for provision in printed form to an expert or
`consultant pre-approved pursuant to Paragraph 9.2(c), the party printing the
`electronic files or documents shall affix a legend to the printed document
`corresponding to the designation of the Designating Party and including the
`production number and designation associated with the native file. The parties
`reserve the right to object to the use of any image format version of a document
`produced in native file format to the extent any information has been altered.
`7.3
`Inadvertent Failures to Designate. 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,
`provided that the Producing Party notifies all Receiving Parties that such
`Discovery Material is protected under one of the categories of this Order within
`fourteen (14) days of the Producing Party learning of the inadvertent failure to
`designate. Upon such timely correction of a designation, the Receiving Party
`must make reasonable efforts to assure that the material is treated in accordance
`with the provisions of this Order. The Producing Party shall reproduce the
`Protected Material with the correct confidentiality designation within seven (7)
`days upon its notification to the Receiving Parties. Upon receiving the
`Protected Material with the correct confidentiality designation, the Receiving
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`Parties shall return or securely destroy all Discovery Material that was not
`designated properly.
`A Receiving Party shall not be in breach of this Order for any use of such
`Discovery Material before the Receiving Party receives such notice that such
`Discovery Material is protected under one of the categories of this Order, unless
`an objectively reasonable person would have realized that the Discovery
`Material should have been appropriately designated with a confidentiality
`designation under this Order. Once a Receiving Party has received notification
`of the correct confidentiality designation for the Protected Material with the
`correct confidentiality designation, the Receiving Party shall treat such
`Discovery Material (subject to the exception in the following Paragraph below)
`at the appropriately designated level pursuant to the terms of this Order.
`A
`subsequent
`designation
`of
`“CONFIDENTIAL,”
`“HIGHLY
`CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or
`“HIGHLY
`CONFIDENTIAL – SOURCE CODE” shall apply on a going forward basis and
`shall not disqualify anyone who reviewed “CONFIDENTIAL,” “HIGHLY
`CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or
`“HIGHLY
`CONFIDENTIAL – SOURCE CODE” materials while the materials were not
`marked “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or
`“HIGHLY CONFIDENTIAL – SOURCE CODE” from engaging in the
`activities set forth in Paragraph 10.
`8
`CHALLENGING CONFIDENTIALITY DESIGNATIONS
`8.1. Timing and Form of Challenges. Any Party or Non-Party may
`
`challenge a designation of confidentiality at any time that is consistent with the
`Court’s Scheduling Order. Any challenge to a designation of Discovery
`Material under this Order shall comply with the procedures set forth in Local
`Rule 37-1.
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`8.2 Meet and Confer. It shall be the responsibility of the Challenging
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`Party to initiate the dispute resolution process under Local Rule 37-1 et seq.
`
`8.3
`Joint Stipulation. Any challenge submitted to the Court shall be via
`a joint stipulation pursuant to Local Rule 37-2.
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`8.4 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 or withdrawn the confidentiality designation, 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.
`ACCESS TO AND USE OF PROTECTED MATERIAL
`9
`9.1 Basic Principles. A Receiving Party may use Protected Material
`
`that is disclosed or produced by another Party or by a Non-Party in accordance
`with Section 5. Such Protected Material may be disclosed only to the categories
`of persons and under the conditions described in this Order. When the Action
`has been terminated, a Receiving Party must comply with the provisions of
`section 17 below (FINAL DISPOSITION).
`
`Protected Material must be stored and maintained by a Receiving Party in
`a secure manner at a location in the United States that ensures that access is
`limited to the persons authorized under this Order. For any Protected Material
`that is subject to export control, such material shall be so marked or designated
`by the Designating Party and the Receiving Party shall upon receipt be
`responsible
`for complying with all applicable United States Export
`Administration Regulations and shall take all reasonable steps to so comply,
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`Apple v. Masimo
`IPR2022-01299
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`including taking steps to ensure such material is not exported outside the United
`States or provided to foreign nationals to whom such assess is restricted.
`
`Nothing in this Protective Order shall be construed to prevent counsel
`from advising their clients with respect to this case based in whole or in part
`upon Protected Materials, provided counsel does not disclose the Protected
`Material itself except as provided in this Order.
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`Nothing in this Protective Order shall preclude a party from using
`material obtained lawfully from a source other than the Producing Party, even if
`the Producing Party also designated the material pursuant to this Protective
`Order.
`
`9.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless
`otherwise ordered by the court or permitted in writing by the Designating Party,
`a Receiving Party may disclose any information or item designated
`“CONFIDENTIAL” only to:
`
`
`(a) the Receiving Party’s Outside Counsel of Record in this Action,
`as well as employees of said Outside Counsel of Record to whom it is
`reasonably necessary to disclose the information for this Action;
`
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`(b) the officers, directors, and employees (including House
`Counsel) of the Receiving Party to whom disclosure is reasonably necessary for
`this Action and who have signed the “Acknowledgment and Agreement to Be
`Bound” (Exhibit A);
`
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`(c) Experts (as defined in this Order) of the Receiving Party to
`whom disclosure is reasonably necessary for this Action, including the expert’s
`support staff, provided that: (1) such consultants or experts are not presently an
`officer, director, or employee of a Party or of a competitor of a Party, nor
`anticipated at the time of retention to become an officer, director or employee of
`a Party or of a competitor of a Party and (2) such expert or consultant is not
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`MASIMO 2088
`Apple v. Masimo
`IPR2022-01299
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`involved in competitive decision-making, as defined by U.S. Steel v. United
`States, 730 F.2d 1465, 1468 n.3 (Fed. Cir. 1984), on behalf of a Party or a
`competitor of a Party. At least fourteen (14) days before access to the Protected
`Material is to be given to a consultant or expert, the consultant or expert shall
`complete the “Acknowledgment and Agreement to Be Bound” (Exhibit A) and
`the same shall be served upon the producing Party along with the following
`“Pre-Access Disclosure Requirements”:
`(i)
`a current curriculum vitae of the consultant or expert;
`(ii)
`identification of the consultant or expert’s present employer
`and job title;
`(iii)
`identification of all of the person’s past and current
`employment and consulting relationships in the past five years,
`including direct relationships and relationships through entities
`owned or controlled by the person, including but not limited to, an
`identification of any individual or entity with or for whom the
`person is employed or to whom the person provides consulting
`services relating to the design, development, operation, or patenting
`of non-invasive physiological monitoring technologies, or relating
`to the acquisition of intellectual property assets relating to non-
`invasive physiological monitoring;
`(iv)
`identification (by application number, title, and filing date)
`of all pending patent applications on which the person is named as
`an inventor, in which the person has any ownership interest, or as
`to which the person has had or anticipates in the future any
`involvement in advising on, consulting on, preparing, prosecuting,
`drafting, editing, amending, or otherwise affecting the scope of the
`claims; and
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`Apple v. Masimo
`IPR2022-01299
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`a listing (by name and number of the case, filing date, and
`(v)
`location of court) of any litigation in connection with which the
`person has offered expert
`testimony,
`including
`through a
`declaration, report, or testimony at a deposition or trial, during the
`preceding five years.
`The Party seeking to disclose Protected Material shall provide such other
`information regarding the person’s professional activities reasonably requested
`by the Producing Party for it to evaluate whether good cause exists to object to
`the disclosure of Protected Material to the outside expert or consultant.
`Objection Process: The producing party may object to and notify the receiving
`Party in writing that it objects to disclosure of Protected Material to the
`consultant or expert. In the absence of an objection within fourteen (14) days of
`the date on which the Producing Party receives notice that a consultant or expert
`will be given access to Protected Material, the person shall be deemed approved
`under this Protective Order. There shall be no disclosure of Protected Material
`to the person prior to expiration of this fourteen (14) day period. If an objection
`is received within that fourteen (14) day period, the Parties agree to meet and
`confer within seven (7) days following the objection and to use good faith to
`resolve any such objection. If the Parties are unable to resolve any objection,
`the objecting Party shall serve on the other Party a Joint Stipulation pursuant to
`Local Rule 37-2.1 within seven (7) days of the meet and confer. The objecting
`Party shall have the burden of proving the need for a protective order. No
`disclosure shall occur until all such objections are resolved by agreement or
`Court order;
`
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`(d) the court and its personnel;
`
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`(e) court reporters, videographers, and their staff;
`
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`Apple v. Masimo
`IPR2022-01299
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`(f) professional jury or trial consultants, mock jurors, and
`
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`Professional Vendors to whom disclosure is reasonably necessary for this
`Action and who have signed the “Acknowledgment and Agreement to Be
`Bound” (Exhibit A);
`(g) the author, recipient, or custodian of a document containing the
`information, or any other individual who appears to have had access to
`the specific information at issue based on the face of the document, the
`document’s metadata, other documents, or sworn witness testimony;
`
`
`(h) any mediators or settlement officers and their supporting
`personnel, mutually agreed upon by any of the parties engaged in settlement
`discussions;
`
`
`(i) any other person with the prior written consent of the Producing
`Party; and
`
`(j) during their depositions, witnesses, and attorneys for witnesses,
`in the Action to whom disclosure is reasonably necessary provided: (1) the
`deposing party requests that the witness sign the form attached as Exhibit A
`hereto; and (2) they will not be permitted to keep any confidential information
`unless they sign 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 may be separately bound by the court reporter and may not
`be disclosed to anyone except as permitted under this Protective Order. If a
`Designating Party believes a party is not acting in good faith in seeking to show
`Protected Material to a witness during a deposition, the Designating Party may
`seek a further protective order under Local Rule 37 to prevent the showing of
`Protected Material to the witness, with the Designating Party bearing the burden
`
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