1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 11 Case No. C 12 13 Plaintiff, STIPULATED PROTECTIVE ORDER FOR STANDARD LITIGATION v. 14 15 Defendant. 16 17 18 1. PURPOSES AND LIMITATIONS 19 Disclosure and discovery activity in this action are likely to involve production of 20 confidential, proprietary, or private information for which special protection from public 21 disclosure and from use for any purpose other than prosecuting this litigation may be warranted. 22 Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulated 23 Protective Order. The parties acknowledge that this Order does not confer blanket protections on 24 all disclosures or responses to discovery and that the protection it affords from public disclosure 25 and use extends only to the limited information or items that are entitled to confidential treatment 26 under the applicable legal principles. The parties further acknowledge, as set forth in Section 27 12.3, below, that this Stipulated Protective Order does not entitle them to file confidential 28 information under seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and American LegalNet, Inc. www.FormsWorkFlow.com 1 the standards that will be applied when a party seeks permission from the court to file material 2 under seal. 3 2. 4 5 DEFINITIONS 2.1 Challenging Party: a Party or Non-Party that challenges the designation of information or items under this Order. 6 2.2 “CONFIDENTIAL” Information or Items: information (regardless of how 7 it is generated, stored or maintained) or tangible things that qualify for protection under Federal 8 Rule of Civil Procedure 26(c). 9 10 2.3 Outside Counsel of Record and House Counsel (as well as their support staff). 11 12 Counsel (without qualifier): 2.4 Designating Party: a Party or Non-Party that designates information or items that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 13 2.5 Disclosure or Discovery Material: all items or information, regardless of 14 the medium or manner in which it is generated, stored, or maintained (including, among other 15 things, testimony, transcripts, and tangible things), that are produced or generated in disclosures 16 or responses to discovery in this matter. 17 2.6 Expert: a person with specialized knowledge or experience in a matter 18 pertinent to the litigation who has been retained by a Party or its counsel to serve as an expert 19 witness or as a consultant in this action. 20 21 2.7 House Counsel does not include Outside Counsel of Record or any other outside counsel. 22 23 House Counsel: attorneys who are employees of a party to this action. 2.8 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 24 2.9 Outside Counsel of Record: attorneys who are not employees of a party to 25 this action but are retained to represent or advise a party to this action and have appeared in this 26 action on behalf of that party or are affiliated with a law firm which has appeared on behalf of 27 that party. 28 2.10 Party: any party to this action, including all of its officers, directors, American LegalNet, Inc. www.FormsWorkFlow.com 2 1 employees, consultants, retained experts, and Outside Counsel of Record (and their support 2 staffs). 3 2.11 4 Discovery Material in this action. 5 2.12 Producing Party: a Party or Non-Party that produces Disclosure or Professional Vendors: persons or entities that provide litigation support 6 services (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and 7 organizing, storing, or retrieving data in any form or medium) and their employees and 8 subcontractors. 9 2.13 10 designated as “CONFIDENTIAL.” 11 2.14 12 13 Protected Material: any Disclosure or Discovery Material that is Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing Party. 3. SCOPE 14 The protections conferred by this Stipulation and Order cover not only Protected 15 Material (as defined above), but also (1) any information copied or extracted from Protected 16 Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any 17 testimony, conversations, or presentations by Parties or their Counsel that might reveal Protected 18 Material. However, the protections conferred by this Stipulation and Order do not cover the 19 following information: (a) any information that is in the public domain at the time of disclosure 20 to a Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party 21 as a result of publication not involving a violation of this Order, including becoming part of the 22 public record through trial or otherwise; and (b) any information known to the Receiving Party 23 prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who 24 obtained the information lawfully and under no obligation of confidentiality to the Designating 25 Party. Any use of Protected Material at trial shall be governed by a separate agreement or order. 26 4. DURATION 27 Even after final disposition of this litigation, the confidentiality obligations 28 imposed by this Order shall remain in effect until a Designating Party agrees otherwise in writing American LegalNet, Inc. www.FormsWorkFlow.com 3 1 or a court order otherwise directs. Final disposition shall be deemed to be the later of (1) 2 dismissal of all claims and defenses in this action, with or without prejudice; and (2) final 3 judgment herein after the completion and exhaustion of all appeals, rehearings, remands, trials, or 4 reviews of this action, including the time limits for filing any motions or applications for 5 extension of time pursuant to applicable law. 6 7 5. DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. 8 Each Party or Non-Party that designates information or items for protection under this Order must 9 take care to limit any such designation to specific material that qualifies under the appropriate 10 standards. The Designating Party must designate for protection only those parts of material, 11 documents, items, or oral or written communications that qualify – so that other portions of the 12 material, documents, items, or communications for which protection is not warranted are not 13 swept unjustifiably within the ambit of this Order. 14 Mass, indiscriminate, or routinized designations are prohibited. Designations that 15 are shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 16 unnecessarily encumber or retard the case development process or to impose unnecessary 17 expenses and burdens on other parties) expose the Designating Party to sanctions. 18 If it comes to a Designating Party’s attention that information or items that it 19 designated for protection do not qualify for protection, that Designating Party must promptly 20 notify all other Parties that it is withdrawing the mistaken designation. 21 5.2 Manner and Timing of Designations. Except as otherwise provided in this 22 Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, 23 Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so 24 designated before the material is disclosed or produced. 25 Designation in conformity with this Order requires: 26 (a) for information in documentary form (e.g., paper or electronic documents, but 27 excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing 28 Party affix the legend “CONFIDENTIAL” to each page that contains protected material. If only American LegalNet, Inc. www.FormsWorkFlow.com 4 1 a portion or portions of the material on a page qualifies for protection, the Producing Party also 2 must clearly identify the protected portion(s) (e.g., by making appropriate markings in the 3 margins). 4 A Party or Non-Party that makes original documents or materials available for 5 inspection need not designate them for protection until after the inspecting Party has indicated 6 which material it would like copied and produced. 7 designation, 8 “CONFIDENTIAL.” After the inspecting Party has identified the documents it wants copied and 9 produced, the Producing Party must determine which documents, or portions thereof, qualify for 10 protection under this Order. Then, before producing the specified documents, the Producing 11 Party must affix the “CONFIDENTIAL” legend to each page that contains Protected Material. If 12 only a portion or portions of the material on a page qualifies for protection, the Producing Party 13 also must clearly identify the protected portion(s) (e.g., by making appropriate markings in the 14 margins). all of the material made During the inspection and before the available for inspection shall be deemed 15 (b) for testimony given in deposition or in other pretrial or trial proceedings, that 16 the Designating Party identify on the record, before the close of the deposition, hearing, or other 17 proceeding, all protected testimony. 18 (c) for information produced in some form other than documentary and for any 19 other tangible items, that the Producing Party affix in a prominent place on the exterior of the 20 container or containers in which the information or item is stored the legend “CONFIDENTIAL.” 21 If only a portion or portions of the information or item warrant protection, the Producing Party, to 22 the extent practicable, shall identify the protected portion(s). 23 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 24 failure to designate qualified information or items does not, standing alone, waive the Designating 25 Party’s right to secure protection under this Order for such material. Upon timely correction of a 26 designation, the Receiving Party must make reasonable efforts to assure that the material is 27 treated in accordance with the provisions of this Order. 28 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS American LegalNet, Inc. www.FormsWorkFlow.com 5 1 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 2 designation of confidentiality at any time. Unless a prompt challenge to a Designating Party’s 3 confidentiality designation is necessary to avoid foreseeable, substantial unfairness, unnecessary 4 economic burdens, or a significant disruption or delay of the litigation, a Party does not waive its 5 right to challenge a confidentiality designation by electing not to mount a challenge promptly 6 after the original designation is disclosed. 7 6.2 Meet and Confer. The Challenging Party shall initiate the dispute 8 resolution process by providing written notice of each designation it is challenging and describing 9 the basis for each challenge. To avoid ambiguity as to whether a challenge has been made, the 10 written notice must recite that the challenge to confidentiality is being made in accordance with 11 this specific paragraph of the Protective Order. 12 challenge in good faith and must begin the process by conferring directly (in voice to voice 13 dialogue; other forms of communication are not sufficient) within 14 days of the date of service 14 of notice. In conferring, the Challenging Party must explain the basis for its belief that the 15 confidentiality designation was not proper and must give the Designating Party an opportunity to 16 review the designated material, to reconsider the circumstances, and, if no change in designation 17 is offered, to explain the basis for the chosen designation. A Challenging Party may proceed to 18 the next stage of the challenge process only if it has engaged in this meet and confer process first 19 or establishes that the Designating Party is unwilling to participate in the meet and confer process 20 in a timely manner. 21 6.3 The parties shall attempt to resolve each Judicial Intervention. If the Parties cannot resolve a challenge without 22 court intervention, the Designating Party shall file and serve a motion to retain confidentiality 23 under Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) within 21 24 days of the initial notice of challenge or within 14 days of the parties agreeing that the meet and 25 confer process will not resolve their dispute, whichever is earlier. Each such motion must be 26 accompanied by a competent declaration affirming that the movant has complied with the meet 27 and confer requirements imposed in the preceding paragraph. Failure by the Designating Party to 28 make such a motion including the required declaration within 21 days (or 14 days, if applicable) American LegalNet, Inc. www.FormsWorkFlow.com 6 1 shall automatically waive the confidentiality designation for each challenged designation. In 2 addition, the Challenging Party may file a motion challenging a confidentiality designation at any 3 time if there is good cause for doing so, including a challenge to the designation of a deposition 4 transcript or any portions thereof. Any motion brought pursuant to this provision must be 5 accompanied by a competent declaration affirming that the movant has complied with the meet 6 and confer requirements imposed by the preceding paragraph. 7 The burden of persuasion in any such challenge proceeding shall be on the 8 Designating Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass 9 or impose unnecessary expenses and burdens on other parties) may expose the Challenging Party 10 to sanctions. Unless the Designating Party has waived the confidentiality designation by failing 11 to file a motion to retain confidentiality as described above, all parties shall continue to afford the 12 material in question the level of protection to which it is entitled under the Producing Party’s 13 designation until the court rules on the challenge. 14 7. 15 ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that is 16 disclosed or produced by another Party or by a Non-Party in connection with this case only for 17 prosecuting, defending, or attempting to settle this litigation. Such Protected Material may be 18 disclosed only to the categories of persons and under the conditions described in this Order. 19 When the litigation has been terminated, a Receiving Party must comply with the provisions of 20 section 13 below (FINAL DISPOSITION). 21 Protected Material must be stored and maintained by a Receiving Party at a 22 location and in a secure manner that ensures that access is limited to the persons authorized under 23 this Order. 24 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise 25 ordered by the court or permitted in writing by the Designating Party, a Receiving Party may 26 disclose any information or item designated “CONFIDENTIAL” only to: 27 (a) the Receiving Party’s Outside Counsel of Record in this action, as well as 28 employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the American LegalNet, Inc. www.FormsWorkFlow.com 7 1 information for this litigation and who have signed the “Acknowledgment and Agreement to Be 2 Bound” that is attached hereto as Exhibit A; 3 (b) the officers, directors, and employees (including House Counsel) of the 4 Receiving Party to whom disclosure is reasonably necessary for this litigation and who have 5 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 6 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is 7 reasonably necessary for this litigation and who have signed the “Acknowledgment and 8 Agreement to Be Bound” (Exhibit A); 9 (d) the court and its personnel; 10 (e) court reporters and their staff, professional jury or trial consultants, mock 11 jurors, and Professional Vendors to whom disclosure is reasonably necessary for this litigation 12 and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 13 (f) during their depositions, witnesses in the action to whom disclosure is 14 reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound” 15 (Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court. Pages of 16 transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be 17 separately bound by the court reporter and may not be disclosed to anyone except as permitted 18 under this Stipulated Protective Order. 19 20 21 22 (g) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information. 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION 23 If a Party is served with a subpoena or a court order issued in other litigation that 24 compels disclosure of any information or items designated in this action as “CONFIDENTIAL,” 25 that Party must: 26 27 28 (a) promptly notify in writing the Designating Party. Such notification shallinclude a copy of the subpoena or court order; (b) promptly notify in writing the party who caused the subpoena or order to issue American LegalNet, Inc. www.FormsWorkFlow.com 8 1 in the other litigation that some or all of the material covered by the subpoena or order is subject 2 to this Protective Order. Such notification shall include a copy of this Stipulated Protective 3 Order; and 4 5 (c) cooperate with respect to all reasonable procedures sought to be pursued by the Designating Party whose Protected Material may be affected. 6 If the Designating Party timely seeks a protective order, the Party served with the 7 subpoena or court order shall not produce any information designated in this action as 8 “CONFIDENTIAL” before a determination by the court from which the subpoena or order 9 issued, unless the Party has obtained the Designating Party’s permission. The Designating Party 10 shall bear the burden and expense of seeking protection in that court of its confidential material – 11 and nothing in these provisions should be construed as authorizing or encouraging a Receiving 12 Party in this action to disobey a lawful directive from another court. 13 14 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION 15 (a) The terms of this Order are applicable to information produced by a Non- 16 Party in this action and designated as “CONFIDENTIAL.” Such information produced by Non- 17 Parties in connection with this litigation is protected by the remedies and relief provided by this 18 Order. Nothing in these provisions should be construed as prohibiting a Non-Party from seeking 19 additional protections. 20 (b) In the event that a Party is required, by a valid discovery request, to 21 produce a Non-Party’s confidential information in its possession, and the Party is subject to an 22 agreement with the Non-Party not to produce the Non-Party’s confidential information, then the 23 Party shall: 24 1. promptly notify in writing the Requesting Party and the Non-Party 25 that some or all of the information requested is subject to a confidentiality agreement with a Non- 26 Party; 27 28 2. promptly provide the Non-Party with a copy of the Stipulated Protective Order in this litigation, the relevant discovery request(s), and a reasonably specific American LegalNet, Inc. www.FormsWorkFlow.com 9 1 description of the information requested; and 2 3 3. make the information requested available for inspection by the Non-Party. 4 (c) If the Non-Party fails to object or seek a protective order from this court 5 within 14 days of receiving the notice and accompanying information, the Receiving Party may 6 produce the Non-Party’s confidential information responsive to the discovery request. If the 7 Non-Party timely seeks a protective order, the Receiving Party shall not produce any information 8 in its possession or control that is subject to the confidentiality agreement with the Non-Party 9 before a determination by the court.1 Absent a court order to the contrary, the Non-Party shall 10 bear the burden and expense of seeking protection in this court of its Protected Material. 11 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 12 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 13 Protected Material to any person or in any circumstance not authorized under this Stipulated 14 Protective Order, the Receiving Party must immediately (a) notify in writing the Designating 15 Party of the unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of 16 the Protected Material, (c) inform the person or persons to whom unauthorized disclosures were 17 made of all the terms of this Order, and (d) request such person or persons to execute the 18 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A. 19 20 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL 21 When a Producing Party gives notice to Receiving Parties that certain 22 inadvertently produced material is subject to a claim of privilege or other protection, the 23 obligations of the Receiving Parties are those set forth in Federal Rule of Civil Procedure 24 26(b)(5)(B). This provision is not intended to modify whatever procedure may be established in 25 an e-discovery order that provides for production without prior privilege review. Pursuant to 26 27 28 1 The purpose of this provision is to alert the interested parties to the existence of confidentiality rights of a Non-Party and to afford the Non-Party an opportunity to protect its confidentiality interests in this court. American LegalNet, Inc. www.FormsWorkFlow.com 10 1 Federal Rule of Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of 2 disclosure of a communication or information covered by the attorney-client privilege or work 3 product protection, the parties may incorporate their agreement in the stipulated protective order 4 submitted to the court. 5 12. 6 7 MISCELLANOUS 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek its modification by the court in the future. 8 12.2 Right to Assert Other Objections. By stipulating to the entry of this 9 Protective Order no Party waives any right it otherwise would have to object to disclosing or 10 producing any information or item on any ground not addressed in this Stipulated Protective 11 Order. Similarly, no Party waives any right to object on any ground to use in evidence of any of 12 the material covered by this Protective Order. 13 12.3 Filing Protected Material. Without written permission from the 14 Designating Party or a court order secured after appropriate notice to all interested persons, a 15 Party may not file in the public record in this action any Protected Material. A Party that seeks to 16 file under seal any Protected Material must comply with Civil Local Rule 79-5. Protected 17 Material may only be filed under seal pursuant to a court order authorizing the sealing of the 18 specific Protected Material at issue. Pursuant to Civil Local Rule 79-5, a sealing order will issue 19 only upon a request establishing that the Protected Material at issue is privileged, protectable as a 20 trade secret, or otherwise entitled to protection under the law. If a Receiving Party's request to 21 file Protected Material under seal pursuant to Civil Local Rule 79-5(d) is denied by the court, then 22 the Receiving Party may file the information in the public record pursuant to Civil Local Rule 79- 23 5(e) unless otherwise instructed by the court. 24 13. FINAL DISPOSITION. Within 60 days after the final disposition of this action, 25 as defined in paragraph 4, each Receiving Party must return all Protected Material to the 26 Producing Party or destroy such material. As used in this subdivision, “all Protected Material” 27 includes all copies, abstracts, compilations, summaries, and any other format reproducing or 28 capturing any of the Protected Material. Whether the Protected Material is returned or destroyed, American LegalNet, Inc. www.FormsWorkFlow.com 11 1 the Receiving Party must submit a written certification to the Producing Party (and, if not the 2 same person or entity, to the Designating Party) by the 60 day deadline that (1) identifies (by 3 category, where appropriate) all the Protected Material that was returned or destroyed and 4 (2)affirms that the Receiving Party has not retained any copies, abstracts, compilations, 5 summaries or any other format reproducing or capturing any of the Protected Material. 6 Notwithstanding this provision, Counsel are entitled to retain an archival copy of all pleadings, 7 motion papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence, 8 deposition and trial exhibits, expert reports, attorney work product, and consultant and expert 9 work product, even if such materials contain Protected Material. Any such archival copies that 10 contain or constitute Protected Material remain subject to this Protective Order as set forth in 11 Section 4 (DURATION). 12 13 14 15 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 16 17 DATED: ________________________ _____________________________________ Attorneys for Plaintiff 18 19 20 DATED: ________________________ _____________________________________ Attorneys for Defendant PURSUANT TO STIPULATION, IT IS SO ORDERED. 21 22 23 DATED: ________________________ _____________________________________ [Name of Judge] United States District/Magistrate Judge 24 25 26 27 28 American LegalNet, Inc. www.FormsWorkFlow.com 12 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _____________________________ [print or type full name], of 4 _________________ [print or type full address], declare under penalty of perjury that I have read 5 in its entirety and understand the Stipulated Protective Order that was issued by the United States 6 District Court for the Northern District of California on [date] in the case of ___________ [insert 7 formal name of the case and the number and initials assigned to it by the court]. I agree to 8 comply with and to be bound by all the terms of this Stipulated Protective Order and I understand 9 and acknowledge that failure to so comply could expose me to sanctions and punishment in the 10 nature of contempt. I solemnly promise that I will not disclose in any manner any information or 11 item that is subject to this Stipulated Protective Order to any person or entity except in strict 12 compliance with the provisions of this Order. 13 I further agree to submit to the jurisdiction of the United States District Court for 14 the Northern District of California for the purpose of enforcing the terms of this Stipulated 15 Protective Order, even if such enforcement proceedings occur after termination of this action. 16 I hereby appoint __________________________ [print or type full name] of 17 _______________________________________ [print or type full address and telephone 18 number] as my California agent for service of process in connection with this action or any 19 proceedings related to enforcement of this Stipulated Protective Order. 20 21 Date: _________________________________ 22 City and State where sworn and signed: _________________________________ 23 Printed name: ______________________________ [printed name] 24 25 26 Signature: __________________________________ [signature] 27 28 American LegalNet, Inc. www.FormsWorkFlow.com 13