Case 2:22-cv-01599-KKE Document 78 Filed 12/15/23 Page 1 of 22
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`The Honorable Kymberly K. Evanson
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
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`Case No. 2:22-cv-01599-KKE
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`PROTECTIVE ORDER
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`STEVEN FLOYD, individually and on behalf
`of all others similarly situated,
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`v.
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`AMAZON.COM, INC. and APPLE INC.,
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`Plaintiff,
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`Defendants.
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`PROTECTIVE ORDER
`(Case No. 2:22-cv-01599)
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`Case 2:22-cv-01599-KKE Document 78 Filed 12/15/23 Page 2 of 22
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`1.
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`PURPOSES AND LIMITATIONS
`Discovery in this action is likely to involve production of confidential, proprietary, trade
`secret, commercially sensitive, or private information for which special protection may be
`warranted. Accordingly, the parties hereby stipulate to and petition the court to enter the
`following Stipulated Protective Order. The parties acknowledge that this agreement is consistent
`with LCR 26(c). It does not confer blanket protection on all disclosures or responses to
`discovery, 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, and it does not presumptively entitle parties to file confidential information under
`seal. The availability of protection pursuant to this Stipulated Protective Order does not preclude
`a party from withholding information protected by any applicable privilege. Nothing in this
`Stipulated Protective Order shall restrict in any way the right of a Producing Party to disclose or
`make use of its own documents or Discovery Material. Under LCR 26(c)(2), the parties began
`with the District’s Model Protective Order, and have identified departures from the model in a
`redlined copy, attached as Exhibit 1.
`2.
`DEFINITIONS
`Challenging Party: A Party or Non-Party that challenges the designation of
`2.1
`information or items under this Order.
`Counsel (without qualifier): Outside Counsel of Record and In-House Counsel
`2.2
`(as well as their support staff) to whom it is reasonably necessary to disclose the information for
`this litigation.
`Designating Party: A Party, Non-Party, person, or entity designating documents
`2.3
`or information as Protected Information under this Order.
`Discovery Material: All items or information, including from any non-party,
`2.4
`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.
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`PROTECTIVE ORDER
`(Case No. 2:22-cv-01599)
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`Case 2:22-cv-01599-KKE Document 78 Filed 12/15/23 Page 3 of 22
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`Expert: A person with specialized knowledge or experience in an area pertinent
`2.5
`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 retention, is not anticipated to become an employee of a Party
`or of a Party’s competitor.
`In-House Counsel: Attorneys (and their support staff, including legal secondees
`2.6
`and economists) who are employees or contractors of a Party and whose responsibilities include
`overseeing, working on, or supporting this action. In-House Counsel does not include Outside
`Counsel of Record or any other outside counsel.
`Non-Party: Any natural person, partnership, corporation, association, or other
`2.7
`legal entity not named as a Party to this action.
`Outside Counsel of Record: Attorneys who are not employees of a Party to this
`2.8
`action but are retained to represent or advise a Party to this action and have appeared in this
`action or are affiliated with a law firm that has appeared on behalf of that Party in this action.
`Party: Any Party to this action, including all its officers, directors, employees,
`2.9
`consultants, vendors, retained Experts, and Outside Counsel of Record (and their support staff).
`2.10 Producing Party: A Party or Non-Party that produces Discovery Material in this
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`action.
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`2.11 Protected Material: Any Discovery Material that is designated as “Confidential”
`or “Highly Confidential – Attorneys’ Eyes Only.”
`2.12 Receiving Party: A Party that receives Discovery Material from a Producing
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`Party.
`3.
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`PROTECTED MATERIAL
`“CONFIDENTIAL” Material: Documents and tangible things that may be
`3.1
`produced or otherwise exchanged that 1) the Designating Party reasonably believes contain,
`describe, or disclose sensitive, non-public, confidential information, such as (a) court records,
`whether in this District or other courts, currently maintained under seal; (b) information subject
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`PROTECTIVE ORDER
`(Case No. 2:22-cv-01599)
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`Case 2:22-cv-01599-KKE Document 78 Filed 12/15/23 Page 4 of 22
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`to a non-disclosure or confidentiality agreement; (c) employee personnel information; (d) a Non-
`Party’s commercially sensitive information, trade secrets, or competitive or strategic initiatives
`that are not readily ascertainable and for which the Designating Party has taken reasonable steps
`to maintain confidentiality; and (e) personal identifying information subject to redaction under
`Local Rule 5.2, or 2) the Designating Party’s own commercially sensitive information, such as
`(a) financial or accounting information; (b) commercially sensitive internal communications or
`information; and (c) business negotiations, transactions, and dealings with Non-Parties.
`“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Material:
`3.2
`Extremely sensitive materials that qualify as “CONFIDENTIAL” and that the Designating Party
`reasonably believes contain highly sensitive business or personal information, the disclosure of
`which to another Party or Non-Party would create a risk of competitive or commercial
`disadvantage to the Designating Party.
`This Order does not envision the production of source code or object code.
`3.3
`Should the Parties agree to source code discovery, or be ordered to produce such discovery, they
`will enter a separate stipulated source code supplement to this Order.
`4.
`SCOPE
`The protections conferred by this agreement 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, Non-Parties, and/or Experts that
`might reveal Protected Material.
`However, the protections conferred by this agreement do not cover information that is in
`the public domain or becomes part of the public domain through trial or otherwise.
`5.
`ACCESS TO AND USE OF PROTECTED MATERIAL
`5.1
`Basic Principles. A Receiving Party may use Discovery 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. Apart from disclosures to the
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`PROTECTIVE ORDER
`(Case No. 2:22-cv-01599)
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`Case 2:22-cv-01599-KKE Document 78 Filed 12/15/23 Page 5 of 22
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`Producing Party and its current employees and agents, which nothing in this Protective Order
`prohibits, Protected Material may be disclosed only to the categories of persons and under the
`conditions described in this agreement. 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 agreement. For the avoidance of doubt, for purposes of this
`Section 5 of the Protective Order, Protected Material can be accessed from a physical location
`outside of the United States so long as the Protected Material is maintained on a server within the
`United States and in no way leaves the server within the United States (i.e., Protected Material
`must be accessed view-only, and cannot be downloaded, photographed, printed, or accessed in
`any other manner that would cause it to physically or electronically leave the United States
`server).
`Disclosure of “CONFIDENTIAL” Material. A Producing Party may designate
`5.2
`Discovery Material as “CONFIDENTIAL” if it contains or reflects confidential, proprietary,
`and/or commercially sensitive information. Unless otherwise ordered by the court or permitted in
`writing by the Designating Party, a Receiving Party may disclose any Confidential Material only
`to:
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`the Receiving Party’s Outside Counsel of Record, as well as employees of
`(a)
`Outside Counsel of Record to whom it is reasonably necessary to disclose the information for
`this litigation;
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`Experts and their staff to whom disclosure is reasonably necessary for this
`(b)
`litigation and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A),
`such expert or consultant is not a current 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. Such expert or consultant accesses the
`materials in the United States only, and does not transport them to or access them from any
`foreign jurisdiction, except though the method described in 5.1;
`(c)
`the court, court personnel, and court reporters and their staff;
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`PROTECTIVE ORDER
`(Case No. 2:22-cv-01599)
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`Case 2:22-cv-01599-KKE Document 78 Filed 12/15/23 Page 6 of 22
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`copy, imaging, document management, and electronic discovery services
`(d)
`retained by Counsel to assist in the management of Confidential Material and who execute the
`“Agreement to Be Bound by Protective Order” attached as Exhibit A, provided that counsel for
`the Party retaining such services instructs the service not to disclose any Confidential Material to
`third parties and to immediately return all originals and copies of any Confidential Material;
`(e)
`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 Confidential Material must
`be separately bound by the court reporter and may not be disclosed to anyone except as permitted
`under this agreement;
`(f)
`the author or recipient of a document containing the information or a
`custodian or other person who otherwise possessed or knew the information.
`(g)
`graphics, translation, design, and/or trial consulting personnel, having first
`agreed to be bound by the provisions of the Protective Order by signing a copy of Exhibit A;
`(h) mock jurors who have signed an undertaking or agreement agreeing not to
`publicly disclose Protected Material and to keep any information concerning Protected Material
`confidential;
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`any mediator who is assigned to hear this matter, and his or her staff,
`(i)
`subject to their agreement to maintain confidentiality to the same degree as required by this
`Protective Order;
`to assist in the defense of this litigation, in-house counsel and non-attorney
`(j)
`staff who assist them, including paralegals, economists, and support staff, who are not
`responsible for competitive decision making; and
`(k)
`any other person who has agreed to be bound by the provisions of the
`Protective Order by signing a copy of Exhibit A with the prior written consent of the Producing
`Party, and on such conditions as may be agreed or ordered, but such consent shall not be
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`PROTECTIVE ORDER
`(Case No. 2:22-cv-01599)
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`Case 2:22-cv-01599-KKE Document 78 Filed 12/15/23 Page 7 of 22
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`unreasonably withheld, or upon order of the Court.
`5.3
`Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
`Material. A Producing Party may designate Discovery Material as “HIGHLY CONFIDENTIAL
`– ATTORNEYS’ EYES ONLY” if it contains or reflects information that is extremely
`confidential and/or sensitive in nature and the Producing Party reasonably believes that the
`disclosure of such Discovery Material is likely to cause economic harm or significant
`competitive disadvantage to the Producing Party. Unless otherwise ordered by the court or
`permitted in writing by the Designating Party, a Receiving Party may disclose any Highly
`Confidential – Attorney’s Eyes Only Material only to:
`(a)
`the Receiving Party’s Outside Counsel of Record in this action, as well as
`employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the
`information for this litigation;
`(b)
`Experts, professional jury or trial consultants, and their employees and
`staff, to whom disclosure is reasonably necessary for this litigation and who have signed the
`“Acknowledgment and Agreement to Be Bound” (Exhibit A); such expert or consultant is not a
`current 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; such expert or consultant is not 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; and such expert or consultant accesses the materials in the United States
`only, and does not transport them to or access them from any foreign jurisdiction, except though
`the method described in 5.1;
`(c)
`the court, court personnel, jury, and court reporters and their staff;
`(d)
`the author or recipient of a document containing the information or a
`custodian or other person who otherwise possessed or knew the information;
`(e)
`copy, imaging, document management, and electronic discovery services
`retained by Counsel to assist in the management of Highly Confidential – Attorneys’ Eyes Only
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`PROTECTIVE ORDER
`(Case No. 2:22-cv-01599)
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`Case 2:22-cv-01599-KKE Document 78 Filed 12/15/23 Page 8 of 22
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`Material and who execute the “Agreement to Be Bound by Protective Order” attached as Exhibit
`A, provided that counsel for the Party retaining such services instructs the service not to disclose
`any Highly Confidential Material to third parties and to immediately return all originals and
`copies of any Confidential Material;
`(f)
` graphics, translation, design, and/or trial consulting personnel, having
`first agreed to be bound by the provisions of the Protective Order by signing a copy of Exhibit A;
`(g)
`any mediator who is assigned to hear this matter, and his or her staff,
`subject to their agreement to maintain confidentiality to the same degree as required by this
`Protective Order; and
`any other person who has agreed to be bound by the provisions of the
`(h)
`Protective Order by signing a copy of Exhibit A with the prior written consent of the Producing
`Party, and on such conditions as may be agreed or ordered, but such consent shall not be
`unreasonably withheld, or upon order of the Court.
`5.4
`Filing Protected Material. Before filing Protected Material or discussing or
`referencing such material in court filings, the filing Party shall confer with the Designating Party,
`in accordance with Local Civil Rule 5(g). Any motion to seal filed by the Receiving Party, where
`a Designating Party must make the showing required by Local Civil Rule 5(g)(3)(B) in response
`to the motion, must be noted for consideration no earlier than the fourth Friday after filing.
`Failure to satisfy these requirements will result in the motion to seal being denied, in accordance
`with the strong presumption of public access to the Court’s files.
`5.5 Disclosure of Protected Material at Hearings or Trial: Any person receiving
`Protected Material shall not reveal or discuss such information at any pre-trial hearing or hearing
`open to individuals not otherwise authorized to receive Protected Material except as follows: In
`the event a person receiving Protected Material intends to use Protected Material in any
`proceeding open to individuals not entitled to receive Protected Materials, such person shall, at
`least 14 days in advance, move to seal the proceeding or give the person that produced the
`Protected Material written notice. In the latter case, the Parties shall thereafter meet and confer to
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`PROTECTIVE ORDER
`(Case No. 2:22-cv-01599)
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`Case 2:22-cv-01599-KKE Document 78 Filed 12/15/23 Page 9 of 22
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`determine whether the Protected Material can be so used. If they cannot reach agreement, the
`person who produced the Protected Material may file a motion to seal the proceeding. If,
`however, the party that seeks to use the Protected Material at a hearing for which it had fewer
`than 21 days’ advance notice, the parties will meet and confer within a reasonable time before
`the hearing regarding moving to seal.
`5.6
`Secure Storage, No Export. Protected Material must be stored and maintained by a
`Receiving Party at a location in the United States and in a secure manner that ensures that access
`is limited to the persons authorized under this Order. To ensure compliance with applicable
`United States Export Administration Regulations, Protected Material may not be exported outside
`the United States or released to any foreign national (even if within the United States).
`5.7
`Legal Advice Based on Protected Material. Nothing in this Protective Order shall
`be construed to prevent Outside Counsel from advising their clients with respect to this case
`based in whole or in part upon Protected Materials, provided Outside Counsel does not disclose
`the Protected Material itself except as provided in this Order.
`5.8
`Limitations. Nothing in this Order shall restrict in any way a Producing Party’s
`use or disclosure of its own Protected Material. Nothing in this Order shall restrict in any way
`the use or disclosure of Discovery Material by a Receiving Party: (i) that is or has become
`publicly known through no fault of the Receiving Party; (ii) that is lawfully acquired by or
`known to the Receiving Party independent of the Producing Party; (iii) previously produced,
`disclosed and/or provided by the Producing Party to the Receiving Party or a non-party without
`an obligation of confidentiality and not by inadvertence or mistake; (iv) with the consent of the
`Producing Party; or (v) pursuant to order of the Court.
`6.
`DESIGNATING PROTECTED MATERIAL
`6.1
`Exercise of Restraint and Care in Designating Material for Protection. Each Party
`or Non-Party that designates information or items for protection under this agreement must take
`care to limit any such designation to specific material that qualifies under the appropriate
`standards. The Designating Party must designate for protection only those parts of material,
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`PROTECTIVE ORDER
`(Case No. 2:22-cv-01599)
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`Case 2:22-cv-01599-KKE Document 78 Filed 12/15/23 Page 10 of 22
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`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 agreement.
`Mass, indiscriminate, or routinized designations are prohibited. Designations that are
`shown to be clearly unjustified or that have been made for an improper purpose (e.g., to
`unnecessarily encumber or delay the case development process or to impose unnecessary
`expenses and burdens on other parties) expose the Designating Party to sanctions.
`If it comes to a Designating Party’s attention that information or items that it designated
`for protection do not qualify for protection, the Designating Party must promptly notify all other
`parties that it is withdrawing the mistaken designation.
`6.2 Manner and Timing of Designations. Except as provided in section 6.2 (a) below,
`or as otherwise stipulated or ordered, Discovery Material that qualifies for protection under this
`agreement must be clearly so designated before or when the material is disclosed or produced. In
`the event that original documents are produced for inspection, the original documents shall be
`presumed “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” during the inspection
`and re-designated, as appropriate during the copying process.
`(a)
`Information in documentary form: (e.g., paper or electronic documents
`and deposition exhibits, but excluding transcripts of depositions or other pretrial or trial
`proceedings), the Designating Party must affix the word(s) “CONFIDENTIAL” or “HIGHLY
`CONFIDENTIAL—ATTORNEY’S EYES ONLY” to each page that contains Protected
`Material. With respect to documents containing Protected Material produced in native format,
`the Designating Party shall include the appropriate designation at the end of the filename for
`each document. When native 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, the party printing
`the electronic files or documents shall affix a legend to the printed document corresponding to
`the designation of the Producing Party and including the production number and designation
`associated with the native file. If a Party uses at a deposition a .tiff, .pdf, or other image format
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`PROTECTIVE ORDER
`(Case No. 2:22-cv-01599)
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`version of a native document, that Party shall, upon request, provide a copy of the native file to
`counsel for the witness and all Parties in attendance who are entitled to review the document
`pursuant to this Protective Order.
`(b)
`Testimony given in deposition or in other pretrial or trial proceedings:
`The Parties and any participating Non-Parties must identify on the record, during the deposition,
`hearing, or other proceeding, all protected testimony, without prejudice to their right to so
`designate other testimony after reviewing the transcript. Any Party or Non-Party may, within 30
`days after receiving the transcript of the deposition or other pretrial proceeding, designate
`portions of the transcript, or exhibits thereto, as confidential. Transcripts containing Protected
`Material shall have an obvious legend on the title page that the transcript contains Protected
`Material and the title page shall be followed by a list of all pages (including line numbers as
`appropriate) that have been designated as Protected Material and the level of protection being
`asserted by the Designating Party. The Designating Party shall inform the court reporter of these
`requirements. Until the expiration of the 30-day period for designation, any deposition transcript
`shall be treated as if it had been designated “HIGHLY CONFIDENTIAL—ATTORNEY’S
`EYES ONLY” in its entirety, unless otherwise agreed. However, upon a showing of good cause
`by the Party seeking to rely on the transcript, e.g., for use in a scheduled filing with the Court,
`the Parties may mutually agree to shorten the designation period. Any Party that wishes to
`disclose the transcript, or information contained therein prior to the end of the 30-day period,
`may provide written notice of its intent to treat the transcript as non-confidential, after which
`time, any Party that wants to maintain any portion of the transcript as confidential must designate
`the confidential portions within fourteen (14) days, or else the transcript may be treated as non-
`confidential. 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.
`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
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`PROTECTIVE ORDER
`(Case No. 2:22-cv-01599)
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`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.
`If a Party or Non-Party desires to protect confidential information at trial, the
`issue should be addressed during the pre-trial conference.
`(c)
`Other tangible items: The Producing Party must affix in a prominent place
`on the exterior of the container or containers in which the information or item is stored the words
`“CONFIDENTIAL ” or “HIGHLY CONFIDENTIAL—ATTORNEY’S 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).
`6.3
`Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to
`designate qualified information or items does not, standing alone, waive the Designating Party’s
`right to secure protection under this agreement for such material. The Producing Party must
`notify 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. The Producing Party shall reproduce the Protected Material with the correct
`confidentiality designation within seven (7) days upon its notification to the Receiving Parties.
`Designations of protected materials that take place after initial production shall be subject to the
`same procedure and scrutiny applied to all other protective designations contemplated in this
`agreement. Upon receiving the Protected Material with the correct confidentiality designation,
`the Receiving Parties shall return or securely destroy, at the Producing Party’s option, all
`Discovery Material that was not designated properly.
`7.
`CHALLENGING CONFIDENTIALITY DESIGNATIONS
`7.1
`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
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`PROTECTIVE ORDER
`(Case No. 2:22-cv-01599)
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`challenge a confidentiality designation by electing not to mount a challenge promptly after the
`original designation is disclosed. Any challenge to a designation of Discovery Material under
`this Order shall be written, shall be served on outside counsel for the Producing Party, shall
`particularly identify the documents or information that the Receiving Party contends should be
`differently designated, and shall state the grounds for the objection.
`7.2 Meet and Confer. The Parties must make every attempt to resolve any dispute
`regarding confidential designations without court involvement. The Producing Party shall have
`the burden of justifying the disputed designation. Any motion regarding confidential
`designations or for a protective order must include a certification, in the motion or in a
`declaration or affidavit, that the movant has engaged in a good faith meet and confer conference
`with other affected Parties in an effort to resolve the dispute without court action. The
`certification must list the date, manner, and participants to the conference. A good faith effort to
`confer requires a face-to-face meeting or a telephone conference.
`7.3
`Judicial Intervention. If the Parties cannot resolve a challenge without court
`intervention, the Designating Party may file and serve a motion to retain confidentiality under
`Local Civil Rule 7 (and in compliance with Local Civil Rule 5(g), if applicable), or may request
`that the parties follow the expedited joint motion procedure set forth in Local Civil Rule
`37(a)(2). The burden of persuasion in any such motion 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. All Parties shall continue to maintain the material in question as confidential until the
`court rules on the challenge.
`8.
`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—ATTORNEY’S EYES ONLY,” that Party must:
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`PROTECTIVE ORDER
`(Case No. 2:22-cv-01599)
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`promptly notify the Designating Party in writing and include a copy of the
`(a)
`subpoena or court order;
`(b)
`promptly notify in writing the Party who caused the subpoena or order to
`issue in the other litigation that some or all of the material covered by the subpoena or order is
`subject to this agreement. Such notification shall include a copy of this agreement; and
`(c)
`cooperate with respect to all reasonable procedures sought to be pursued
`by the Designating Party whose Protected Material may be affected.
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`If the Designating Party timely seeks a protective order from the court from which the
`subpoena or order issued, 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 Protected 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.
` DATA SECURITY
`(1) Receiving Party shall in good faith implement an information security management system
`(“ISMS”) to safeguard Protected Materials, including reasonable and appropriate administrative,
`physical, and technical safeguards, and network security and encryption technologies governed by
`written policies and procedures, which shall comply with at least one of the then-curren