Spark Networks USA, LLC v. Humor Rainbow, Inc.
Filing
55
PROTECTIVE ORDER by Magistrate Judge John E. McDermott re Stipulation for Protective Order 54 . (san)
<![CDATA[
1 DYKEMA GOSSETT LLP
Craig N. Hentschel, SBN: 66178
chentschel@dykema.com
2
S. Christopher Winter, SBN: 190474
kwinter@dykema.com
3
333 South Grand Avenue
4 Suite 2100
Los Angeles, CA 90071
5 Telephone: (213) 457-1800
Facsimile: (213) 457-1850
6
ROPES & GRAY LLP
7 Laurence S. Rogers (Pro Hac Vice)
laurence.rogers@ropesgray.com
8 Ching-Lee Fukuda (Pro Hac Vice)
ching-lee.fukuda@ropesgray.com
9 1211 Avenue of the Americas
New York, NY 10036-8704
10 Telephone: (212) 596-9000
Facsimile: (212 596-9090
11
ROPES & GRAY LLP
12 Matthew J. Rizzolo (Pro Hac Vice)
matthew.rizzolo@ropesgray.com
13 700 12th Street, NW, Suite 900
Washington, DC 20005-3948
14 Telephone: (202) 508-4600
Facsimile: (202) 508-4650
15
Attorneys for Plaintiff
16 Spark Networks USA, LLC
17
Attorneys for Defendant
Zoosk Inc.
CENTRAL DISTRICT OF CALIFORNIA
19
WESTERN DIVISION
20
21
SPARK NETWORKS USA, LLC,
22
Plaintiff,
vs.
HUMOR RAINBOW, INC., ZOOSK,
24 INC.,
25
Defendants.
26
WILSON SONSINI GOODRICH &
ROSATI, P.C.
Natalie J. Morgan (SBN 211143)
nmorgan@wsgr.com
12235 El Camino Real, Suite 200
San Diego, CA 92130-3002
Telephone: (858) 350-2300
Facsimile: (858) 350-2399
UNITED STATES DISTRICT COURT
18
23
WILSON SONSINI GOODRICH &
ROSATI, P.C.
Stefani E. Shanberg (SBN 206717)
sshanberg@wsgr.com
Caroline E.Wilson (SBN 241031)
cwilson@wsgr.com
650 Page Mill Road
Palo Alto, CA 94304
Telephone: (650) 493-9300
Facsimile: (650) 493-6811
CASE NO. 2:11-CV-01430 JHN (JEM)
[PROPOSED] STIPULATED
PROTECTIVE ORDER
[Discovery Document: referred to
Magistrate Judge John E. McDermott]
Discovery Cutoff: November 15, 2011
Trial Date:
April 17, 2012
27
28
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1
PROTECTIVE ORDER
2
3
The parties to the above-captioned action desire to expedite the flow of
4 discovery materials, to facilitate the prompt resolution of disputes over
5 confidentiality of discovery materials, to adequately protect information the parties
6 are entitled to keep confidential, to ensure that only materials the parties are entitled
7 to keep confidential are subject to such treatment, and to ensure that the parties are
8 permitted reasonably necessary uses of such materials in preparation for and in the
9 conduct of trial. Accordingly, pursuant to Fed. R. Civ. P. 26(c) and any other
10 applicable rule of this Court, it is hereby stipulated by and between the parties
11 through their respective counsel of record, and ORDERED THAT the following
12 protective order (“Protective Order”) be entered to give effect to the agreed-upon
13 terms and conditions to protect confidential information during discovery and trial.
14 Unless modified, superseded or terminated pursuant to the terms contained in this
15 Order, this Protective Order shall remain in effect through the conclusion of this
16 litigation and thereafter as set forth below.
17
Good Cause Statement
18
The parties believe that good cause exists for the entry of this Protective
19 Order because they are competitors in the marketplace and because, in addition to
20 materials designated “Confidential Material,” materials designated as “Confidential
21 – Outside Counsel Only” or “Highly Restricted Confidential” (Computer Source
22 Code) constitute trade secret or other confidential information the disclosure of
23 which is likely to have the effect of harming the competitive position of the
24 Designating Party or violating an obligation of confidentiality to a third party.
25
26
27
28
2
1
2
In support of this Protective Order, THE COURT FINDS THAT:
I.
Documents and/or information containing confidential research,
3 development, business and/or commercial information and/or trade secrets within
4 the meaning of Rule 26(c) (“Confidential Information”) are likely to be disclosed or
5 produced during the course of discovery in this litigation;
6
II.
The parties to this litigation, Plaintiff Spark Networks USA, LLC
7 (“Plaintiff”) and Defendant Zoosk, Inc. (“Defendant”), may assert that public
8 dissemination and disclosure of Confidential Information could severely injure or
9 damage the party disclosing or producing the Confidential Information and/or could
10 place that party at a competitive disadvantage;
11
III.
Counsel for the party or parties receiving Confidential Information are
12 presently without sufficient information to accept the representation(s) made by the
13 party or parties producing Confidential Information as to the confidential,
14 proprietary, and/or trade secret nature of such Confidential Information; and
15
IV.
To protect the respective interests of the parties and to facilitate the
16 progress of disclosure and discovery in this case, the following Protective Order
17 should be entered.
18
IT IS THEREFORE ORDERED THAT:
19
1.
This Protective Order shall apply to all information, documents and
20 things subject to discovery in this Action produced either by a party or a non-party
21 in discovery in this Action (“Action” shall include without limitation this litigation
22 and any adjunct subpoena proceedings incident hereto before any tribunal)
23 including, without limitation, testimony adduced at deposition upon oral
24 examination or upon written questions, answers to interrogatories, documents and
25 things produced, information obtained from inspection of premises or things, and
26 answers to requests for admission, or information disclosed pursuant to subpoena
27 under Fed. R. Civ. P. 45 (“Discovery Material”). This Protective Order shall apply
28 to non-parties, who shall be treated for purposes of this Protective Order as parties.
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1
2.
Discovery Material containing Confidential Information is referred to
2 as “Confidential Material.” The following is not Confidential Material: (i) material
3 which, on its face, shows or which, through other evidence, the receiving party can
4 show has been published to the general public; (ii) information that the receiving
5 party can show was lawfully in the receiving party’s possession prior to being
6 designated as Confidential Material in this litigation and that the receiving party is
7 not otherwise obligated to treat as confidential; (iii) information that the receiving
8 party can show was obtained (without any benefit or use of Confidential Material)
9 from a third party having the right to disclose such information to the receiving
10 party without restriction or obligation of confidentiality; (iv) information which,
11 after its disclosure to a receiving party, is published to the general public by a party
12 having the right to publish such information; (v) information that the receiving party
13 can show by written record was independently developed by it after the time of
14 disclosure by personnel who did not have access to the producing party’s
15 Confidential Material, or (vi) information that was submitted to a governmental
16 entity without request for confidential treatment.
17
3.
In determining the scope of information which a party may designate as
18 its Confidential Material, each party acknowledges the importance of client access
19 to information necessary to client decision-making in the prosecution or defense of
20 litigation, and therefore agrees that designations of information as Confidential
21 Material and responses to requests to permit further disclosure of Confidential
22 Material shall be made in good faith and not (1) to impose burden or delay on an
23 opposing party or (2) for tactical or other advantage in litigation.
24
4.
The producing party shall label or mark each document and thing that it
25 deems to be Confidential Materials with the following term:
26
“CONFIDENTIAL”
27
28
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1
5.
The parties may designate as CONFIDENTIAL – OUTSIDE
2 COUNSEL ONLY those Confidential Materials that contain Confidential
3 Information that is especially sensitive and could cause significant competitive harm
4 if disclosed to an unauthorized person, including, without limitation, pending but
5 unpublished patent applications, information concerning research, development and
6 other activities related to unreleased products, license agreements and other highly
7 confidential technical, research and development, business strategy, and financial
8 information. These designations shall be made in good faith. The parties shall label
9 or mark each such document or thing with the following term:
10
11
“CONFIDENTIAL – OUTSIDE COUNSEL ONLY”
6.
The parties may designate as HIGHLY RESTRICTED
12 CONFIDENTIAL those Confidential Materials that contain Computer Source Code.
13 As used herein, the term “Computer Source Code” means computer source code or
14 similarly highly confidential programming statements and/or instructions that in
15 general are converted into machine language – or used in support of converting
16 source code into machine language – by compilers, assemblers, or interpreters, and
17 source code comments revision histories, and data that are held by a party within its
18 source code control system. These designations shall be made in good faith. Design
19 documents, product and program specifications, and similar documents such as flow
20 charts and functional diagrams, generally are not “Computer Source Code,” shall
21 not be designated as HIGHLY RESTRICTED CONFIDENTIAL, and shall be
22 treated and produced consistent with documents designated at levels of
23 confidentiality lower than the HIGHLY RESTRICTED CONFIDENTIAL
24 designation. The parties acknowledge that because of the highly sensitive nature of
25 Computer Source Code and because of the ease with which electronic media may be
26 copied, transported, or stolen, a distinct level of protection is required for Computer
27 Source Code as to which CONFIDENTIAL – OUTSIDE COUNSEL ONLY
28 designation would not provide adequate protection to the interests of the designating
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1 party and whose wrongful dissemination could result in irreparable harm to the
2 designating party. The parties shall label or mark each such document or thing with
3 the following term:
4
5
“HIGHLY RESTRICTED CONFIDENTIAL”
7.
The labeling or marking of a document or tangible thing with the
6 designation CONFIDENTIAL, CONFIDENTIAL – OUTSIDE COUNSEL ONLY,
7 or HIGHLY RESTRICTED CONFIDENTIAL shall be made when a copy of the
8 document or thing is provided to the receiving party by placing the legend
9 “CONFIDENTIAL,” “CONFIDENTIAL – OUTSIDE COUNSEL ONLY,” or
10 “HIGHLY RESTRICTED CONFIDENTIAL,” on the face of each such document
11 or thing. Any such designation that is inadvertently omitted or misdesignated may
12 be corrected by written notification to counsel for the receiving party, and the
13 receiving party shall thereafter mark and treat the materials as CONFIDENTIAL,
14 CONFIDENTIAL – OUTSIDE COUNSEL ONLY, or HIGHLY RESTRICTED
15 CONFIDENTIAL, as appropriate, and such material shall be subject to this
16 Protective Order as if it had been initially so designated. If, prior to receiving such
17 notice, the receiving party has disseminated the Confidential Material to individuals
18 not authorized to receive it hereunder, it shall make a reasonable effort to retrieve
19 the Confidential Material or to otherwise assure that the recipient(s) properly mark
20 the Confidential Material and maintain the confidentiality of the Confidential
21 Material, but shall have no other responsibility or obligation with respect to the
22 information disseminated.
23
8.
In the case of deposition upon oral examination or written questions,
24 such testimony shall be deemed CONFIDENTIAL – OUTSIDE COUNSEL ONLY
25 until the expiration of thirty (30) days after receipt by the designating party of the
26 final deposition transcript unless otherwise designated at the time of the deposition
27 or during the thirty (30) day period. Pages or entire transcripts of testimony given at
28 a deposition or hearing may be designated as containing CONFIDENTIAL,
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1 CONFIDENTIAL – OUTSIDE COUNSEL ONLY, or HIGHLY RESTRICTED
2 CONFIDENTIAL information by an appropriate statement either at the time of the
3 giving of such testimony or by written notification within thirty (30) days after
4 receipt by the designating party of the final the final deposition. If the testimony is
5 not otherwise designated at the time of the deposition or during the thirty (30) day
6 period after receipt by the designating party of the final deposition transcript, the
7 testimony will be deemed to not be Confidential Material.
8
9.
In the case of written discovery responses and the information
9 contained therein, the responses may be designated as containing CONFIDENTIAL,
10 CONFIDENTIAL – OUTSIDE COUNSEL ONLY, or HIGHLY RESTRICTED
11 CONFIDENTIAL information by means of a statement prominently associated with
12 each response that contains such information specifying the level of designation of
13 the Confidential Information and by placing a legend on the front page of such
14 discovery responses stating: “CONTAINS [the highest level of designation
15 contained in the answers].” Any such designation that is inadvertently omitted or
16 misdesignated may be corrected within thirty (30) days of service of such discovery
17 responses by written notification to counsel for the receiving party, and the
18 receiving party shall thereafter mark and treat the materials as CONFIDENTIAL,
19 CONFIDENTIAL – OUTSIDE COUNSEL ONLY, or HIGHLY RESTRICTED
20 CONFIDENTIAL, as appropriate, and such material shall be subject to this
21 Protective Order as if it had been initially so designated. If, prior to receiving such
22 notice, the receiving party has disseminated the Confidential Material to individuals
23 not authorized to receive it hereunder, it shall make a reasonable effort to retrieve
24 the Confidential Material or to otherwise assure that the recipient(s) properly mark
25 and maintain the confidentiality of the Confidential Material, but shall have no other
26 responsibility or obligation with respect to the information disseminated.
27
10.
In the case of Confidential Information not reduced to documentary or
28 tangible form or which cannot be conveniently designated as set forth above, such
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1 information may be designated CONFIDENTIAL, CONFIDENTIAL – OUTSIDE
2 COUNSEL ONLY, or HIGHLY RESTRICTED CONFIDENTIAL information by
3 informing the receiving party of the designation in writing either at the time of
4 transfer of such information or within thirty (30) days after the transfer of such
5 information.
6
11.
Any documents or tangible things made available for inspection prior
7 to producing copies of selected items shall initially be deemed CONFIDENTIAL –
8 OUTSIDE COUNSEL ONLY unless otherwise designated at the time of inspection
9 and shall be subject to this Protective Order. Thereafter, the producing party shall
10 have a reasonable time to review and designate the documents as set forth in
11 paragraph 7 above prior to furnishing copies to the receiving party.
12
12.
Disclosure of CONFIDENTIAL – OUTSIDE COUNSEL ONLY
13 Material. Material designated as CONFIDENTIAL – OUTSIDE COUNSEL ONLY
14 and any information contained therein shall be disclosed only to the following
15 persons:
16
17
18
a.
Counsel of record in this action for the receiving party, including
both local and trial counsel.
b.
Employees and agents of such counsel including paralegals,
19
litigation support services, secretarial and clerical staff as well as the
20
following categories of persons provided that such persons have no
21
involvement in addressing any matter regarding the substantive issues in the
22
case: independent legal translators retained to translate in connection with this
23
action; independent stenographic reporters and videographers retained to
24
record and transcribe testimony in connection with this action; graphics,
25
translation, or design services retained by counsel of record for purposes of
26
preparing demonstrative or other exhibits for deposition, trial, or other court
27
proceedings in this action; and non-technical jury or trial consulting services
28
(expressly excluding mock jurors);
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1
c.
The Court, its personnel and stenographic reporters (with such
2
CONFIDENTIAL – OUTSIDE COUNSEL ONLY Material having been filed
3
under seal or with other suitable precautions as determined by the Court);
4
d.
At a deposition or at trial, any person who authored or previously
5
received the Confidential Material and, subject to timely objection including
6
objection that such person is not internally authorized to receive such
7
information, any person currently employed by the designating party; and
8
e.
Any independent experts or consultants, and employees and
9
assistants under the control of such expert or consultant, who (1) are engaged
10
by counsel of record in this action, whether or not such expert or consultant is
11
paid directly by a party, and (2) are not regularly employed by or associated
12
with a party hereto, other than by the designating party, provided however
13
that disclosure to such persons shall be made only on the conditions set forth
14
in paragraphs 15 and 16 below.
15
13.
Disclosure of CONFIDENTIAL Material. CONFIDENTIAL material
16 and any information contained therein may be disclosed to the persons designated in
17 paragraphs 12(a)-(e) above.
18
14.
Disclosure of HIGHLY RESTRICTED CONFIDENTIAL Material.
19 HIGHLY RESTRICTED CONFIDENTIAL material and any information contained
20 therein may be disclosed only to the following persons and in strict accordance with
21 the following procedures:
22
a.
HIGHLY RESTRICTED CONFIDENTIAL material, to the
23
extent in electronic format, may at the option of the producing party be
24
provided on two standalone computers with all ports, software and other
25
avenues that could be used to copy or transfer such data blocked (“Standalone
26
Computers”). The Standalone Computers will enable two persons separately
27
to access simultaneously copies of the Computer Source Code. The
28
Standalone Computers shall be maintained in the sole control and custody of
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1
counsel of record for the producing party and shall be maintained in the
2
United States at an office of counsel of record for the producing party that is
3
at a convenient location for the receiving party or at such other location as
4
shall be mutually agreed to by the parties. A designating party shall make its
5
Computer Source Code available for inspection by those individuals acting
6
for the receiving party who are authorized under this Order to have access to
7
information designated HIGHLY RESTRICTED CONFIDENTIAL.
8
b.
HIGHLY RESTRICTED CONFIDENTIAL material, to the
9
extent not in electronic format, shall be designated using the same processes
10
applied to CONFIDENTIAL and CONFIDENTIAL – OUTSIDE COUNSEL
11
ONLY materials described in paragraphs 7-10 above.
12
c.
Only persons designated under paragraph 12(a) and 12(e) above
13
shall have access to the Standalone Computers, provided, however, that the
14
following additional restrictions shall apply to such access:
15
i.
The designating party must allow access to the Standalone
16
Computers containing its Computer Source Code on reasonable terms
17
and after reasonable notice by the requesting party. Generally,
18
reasonable terms and notice are as follows: the Computer Source Code
19
should be made available during regular business hours (9:00 a.m. to
20
6:00 p.m. local time), so long as notice is provided to the designating
21
party by not later than 10:00 a.m. local time two days prior to the day
22
upon which access is desired. The requesting party shall make its best
23
efforts to restrict its access to normal business hours. Counsel of record
24
for the receiving party shall provide with the notice a list of individuals,
25
including attorneys, seeking to access such Standalone Computers and
26
the designating party shall have the right to object to such access in
27
accordance with paragraph 16 herein; and
28
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1
ii.
Each time a person accesses the Standalone Computers,
2
the person shall sign a sign-in sheet prior to, and a sign-out sheet
3
subsequent to, accessing the Standalone Computers, including the name
4
of the person accessing, the date and time in and out, and whether any
5
hard copies were made.
6
d.
The receiving party shall not have the right to, and agrees not to,
7
copy, transmit or duplicate HIGHLY RESTRICTED CONFIDENTIAL
8
materials in any manner, including scanning or otherwise creating an
9
electronic image of the HIGHLY RESTRICTED CONFIDENTIAL materials,
10
except as set forth herein:
11
i.
A laser printer with an adequate paper supply shall be
12
attached to the Standalone Computers and the receiving party shall
13
make no more than 500 total pages of hard copies of HIGHLY
14
RESTRICTED CONFIDENTIAL material that they in good faith
15
consider to be necessary to proving the elements of their case. In the
16
event that the receiving party feels that this disclosure is inadequate, it
17
may ask the producing party to permit additional pages of hard copies
18
of HIGHLY RESTRICTED CONFIDENTIAL materials. If the
19
producing party refuses, the receiving party may petition the Court for
20
additional pages after reasonable time for review by the receiving
21
party’s expert.
22
ii.
Whenever hard copies are made, copies of the hard copies
23
shall be provided to counsel for the producing party along with an
24
identification of when the copies were made and who made them.
25
iii.
Any hard copies shall be conspicuously marked HIGHLY
26
RESTRICTED CONFIDENTIAL in conformity with paragraphs 6-10
27
above, and the producing party shall have the right to annotate the hard
28
copies with production Bates numbers.
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1
iv.
The receiving party shall keep a log including: (a) the
2
custodian of each copy of any HIGHLY RESTRICTED
3
CONFIDENTIAL materials; and (b) the name of all persons accessing
4
the HIGHLY RESTRICTED CONFIDENTIAL materials.
5
e.
All HIGHLY RESTRICTED CONFIDENTIAL materials,
6
including all copies, in the possession of the receiving party shall be
7
maintained in a secured, locked area.
8
9
f.
All HIGHLY RESTRICTED CONFIDENTIAL materials
utilized during a deposition or marked as an exhibit at a deposition will be
10
retrieved by the party conducting the deposition at the end of each day. At no
11
time will any HIGHLY RESTRICTED CONFIDENTIAL material be given
12
to or left with the Court Reporter or any other individual.
13
g.
The receiving party shall not convert any of the information
14
contained in the hard copies into an electronic format, except when
15
reproducing excerpts of the information in an expert report or a court filing,
16
and then only according to the additional restrictions on HIGHLY
17
RESTRICTED CONFIDENTIAL materials contained in this Order.
18
h.
At least sixty (60) days prior to the scheduled trial date, the
19
parties shall meet and confer to discuss whether alternative arrangements
20
should be made for the production of the Computer Source Code just prior to,
21
and during, trial.
22
i.
Modification of Source Code Provisions. The parties stipulated
23
to the treatment of Computer Source Code in an effort to balance the parties’
24
security concerns against their burdens in having to review and produce the
25
information. Should one or more of the parties come to believe that these
26
provisions do not achieve this objective after a reasonable trial period, they
27
may seek to modify these provisions pursuant to paragraph 24 and the trial
28
period shall not prejudice their rights to seek such relief.
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1
15.
Any person employed by the Plaintiff or Defendant and any of their
2 officers, any attorney representing or who acts in a legal capacity for a party,
3 whether in-house or outside counsel, and any person retained by a party or attorneys
4 of a party, who obtains, receives, has access to, or otherwise learns, in whole or in
5 part, technical information (which includes pending but unpublished patent
6 applications, information concerning research, development and other activities
7 related to unreleased products, and confidential product development, design and
8 operation information) designated by another party as CONFIDENTIAL,
9 CONFIDENTIAL – OUTSIDE COUNSEL ONLY, or HIGHLY RESTRICTED
10 CONFIDENTIAL under this Protective Order shall not prepare, prosecute,
11 supervise, or assist in the prosecution of any patent application pertaining to the
12 subject matter of the patent-in-suit during the pendency of the litigation and for two
13 (2) years after conclusion of the litigation (including any appeals). Notwithstanding
14 the foregoing, outside litigation counsel of record subject to this provision may
15 participate in any reexaminations of the patent-in-suit, unless such reexamination is
16 initiated by or on behalf of Spark during the pendency of this litigation, with the
17 understanding that such persons may in no way utilize any information designated
18 by another party as CONFIDENTIAL, CONFIDENTIAL – OUTSIDE COUNSEL
19 ONLY, or HIGHLY RESTRICTED CONFIDENTIAL under this Protective Order
20 for any purpose related to the reexamination.
21
16.
Trial counsel desiring to disclose Confidential Materials to experts or
22 consultants specified in paragraphs 12(e) or 13 above shall first obtain a signed
23 undertaking, in the form of Exhibit A attached hereto, from each such expert or
24 consultant, and such counsel shall retain in his/her files the original of each such
25 signed undertaking. A copy of the proposed undertaking shall be forwarded to
26 opposing counsel with the current curriculum vitae (including a disclosure of prior
27 expert trial or deposition testimony given over the last four (4) years) for such expert
28 or consultant and a list identifying all persons or entities for whom or for which such
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1 expert or consultant has been engaged during the past four (4) years and the general
2 subject matter and nature of such engagements. No Confidential Materials shall be
3 disclosed to such expert or consultant until after the expiration of a five (5) business
4 day period commencing with the service of a copy of the proposed undertaking and
5 curriculum vitae, provided, however, that if during that five (5) business day period
6 opposing counsel makes an objection to such disclosure, there shall be no disclosure
7 of Confidential Materials to such expert or consultant, except by mutual agreement
8 of the parties or further order of the Court. The party desiring disclosure of such
9 Confidential Materials shall have the burden of filing a motion with the Court
10 seeking leave to make such disclosure.
11
17.
The restrictions on the use of Confidential Materials established by this
12 Protective Order are applicable only to the use of information received by a party
13 from another party or from a nonparty. A party is free to use its own information as
14 it pleases.
15
18.
Any party may file or lodge with the Court documents or tangible items
16 designated as CONFIDENTIAL, CONFIDENTIAL – OUTSIDE COUNSEL
17 ONLY, or HIGHLY RESTRICTED CONFIDENTIAL. Any briefs, transcripts,
18 exhibits, depositions, or documents which are filed with the Court which comprise,
19 embody, summarize, discuss, or quote from documents or tangible things designated
20 as CONFIDENTIAL, CONFIDENTIAL – OUTSIDE COUNSEL ONLY, or
21 HIGHLY RESTRICTED CONFIDENTIAL material shall be sealed pursuant to the
22 Court’s Civil Local Rules. Where reasonably practicable, only the portions of
23 documents consisting of such items or information shall be lodged under seal. Such
24 items or information shall be filed or lodged in sealed envelopes or other appropriate
25 sealed containers. Each sealed envelope or container shall be endorsed with the title
26 and case number of this action, and a statement in substantially the following form:
27
CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER.
28
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1
THE MATERIALS CONTAINED HEREIN HAVE BEEN
2
DESIGNATED AS CONFIDENTIAL [CONFIDENTIAL –
3
OUTSIDE COUNSEL ONLY or HIGHLY RESTRICTED
4
CONFIDENTIAL] PURSUANT TO PROTECTIVE ORDER AND
5
MAY NOT BE EXAMINED OR COPIED EXCEPT BY THE
6
COURT OR PURSUANT TO COURT ORDER.
7
19.
The acceptance by a party of documents designated as
8 CONFIDENTIAL, CONFIDENTIAL – OUTSIDE COUNSEL ONLY, or HIGHLY
9 RESTRICTED CONFIDENTIAL shall not constitute an agreement, admission or
10 concession, or permit an inference, that the material(s) are in fact properly the
11 subject for protection under Fed. R. Civ. P.26 (c), or some other basis. Documents
12 designated CONFIDENTIAL, CONFIDENTIAL – OUTSIDE COUNSEL ONLY,
13 or HIGHLY RESTRICTED CONFIDENTIAL shall be treated in accordance with
14 the provisions of this Protective Order, except that any party may at any time seek
15 an Order from the Court determining that specified information or categories of
16 information are not properly designated as CONFIDENTIAL, CONFIDENTIAL –
17 OUTSIDE COUNSEL ONLY, or HIGHLY RESTRICTED CONFIDENTIAL,
18 provided that prior to making such a motion the parties shall meet and confer in
19 good faith to resolve any differences over the designation. In response to the filing
20 of such a motion, the party claiming confidentiality shall have the burden of proving
21 that the Confidential Material in question is protectable under Fed. R. Civ. P.26 (c)
22 or some other basis, or, as the case may be, that the designation of
23 CONFIDENTIAL, CONFIDENTIAL – OUTSIDE COUNSEL ONLY, or HIGHLY
24 RESTRICTED CONFIDENTIAL is not necessary under the circumstances. A party
25 shall not be obligated to challenge the propriety of a designation of Confidential
26 Material at the time made, and failure to do so shall not preclude subsequent
27 challenge. Should any party (or non-party) seek an Order from the Court to
28 determine whether specified information or categories of information are not
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1 properly designated as CONFIDENTIAL, CONFIDENTIAL – OUTSIDE
2 COUNSEL ONLY, or HIGHLY RESTRICTED CONFIDENTIAL, the claimed
3 designation shall remain operative and respected by all the parties and non-parties
4 pending the Court’s ruling.
5
20.
Nothing in this Protective Order shall require disclosure of material that
6 a party contends is protected from disclosure by the attorney-client privilege or the
7 attorney work-product immunity or any other applicable privilege. This shall not
8 preclude any party from moving the Court for an Order directing the disclosure of
9 such material.
10
21.
Inadvertent disclosure, by production, inspection, or otherwise, of
11 documents or information subject to the attorney-client privilege, work product
12 immunity or any other applicable privilege shall not constitute a waiver of, nor a
13 prejudice to, any claim that such or related material is privileged or protected by the
14 work product immunity or any other applicable privilege, provided that the
15 disclosing party promptly notifies the receiving party in writing after discovery of
16 such disclosure. Such disclosed documents or information, including all copies
17 thereof, shall be returned to the producing party immediately upon request, except
18 that the receiving party may maintain one (1) copy of the disclosed documents or
19 information solely for the purpose of challenging any claim that such material is
20 privileged or protected by the work product immunity or any other applicable
21 privilege. Such documents shall be segregated from the other documents produced
22 in this litigation. No use shall be made of such documents or information during
23 deposition or at trial, nor shall such documents or information be shown to anyone
24 who has not already been given access to them subsequent to the request that they
25 be returned. In the case of a produced document, the producing party shall then
26 provide or amend a privilege log identifying such produced document. The
27 receiving party may move the Court for an Order compelling production of any
28
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1 disclosed document or information in accordance with Rule 26(b)(5)(B), Fed. R.
2 Civ. P.
3
22.
In the event of any accidental or inadvertent disclosure of Confidential
4 Material other than in a manner authorized by this Protective Order, counsel for the
5 party responsible for the disclosure shall immediately notify opposing counsel of all
6 the pertinent facts, and make every effort to prevent further unauthorized disclosure
7 including retrieving all copies of the Confidential Material from the recipient(s)
8 thereof and securing the agreement of the recipients not to further disseminate the
9 Confidential Material in any form. Compliance with the foregoing shall not prevent
10 a party from seeking further relief from the Court.
11
23.
In addition the specific requirements set forth in paragraph 14 hereof
12 regarding the handling of HIGHLY RESTRICTED CONFIDENTIAL materials, the
13 recipient of any Confidential Material shall maintain such information in a secure
14 and safe place, and shall exercise at least the same degree of care in handling the
15 Confidential Material as is exercised by the recipient with respect to its own
16 Confidential Material and to confidential information of a similar nature, but in no
17 event less than due care. Each recipient of any Confidential Material hereby agrees
18 to be subject to the jurisdiction of this Court for purposes of the implementation and
19 enforcement of this Protective Order.
20
24.
This Protective Order shall not prevent the parties from applying to the
21 Court for relief therefrom or modification thereto, or from applying to the Court for
22 further or additional relief by way of protective orders or otherwise, or from
23 agreeing between themselves to modifications of this Protective Order.
24
25.
Confidential Materials shall be used solely for the purposes of this
25 Action and shall not be used for any other purpose except as expressly provided
26 herein or by further Order of the Court.
27
26.
In the event that a party desires to provide access to or disseminate
28 Confidential Materials to any person not entitled to access under this Protective
- 17 -
1 Order, it may move the Court for an order that such person be given access thereto if
2 the parties cannot, after negotiating in good faith, agree to such additional access or
3 dissemination.
4
27.
Within thirty (30) days after the dismissal or other conclusion of this
5 Action (“Termination of Action”) with respect to a producing party, including any
6 appeals, all Confidential Materials (except HIGHLY RESTRICTED
7 CONFIDENTIAL materials) produced by that party, and all copies of such
8 information, shall be returned to the producing party, or counsel of record shall
9 certify in writing that such material has been destroyed. Within ten (10) days after
10 the final dismissal or other conclusion of this Action with respect to a producing
11 party, including any appeals, all HIGHLY RESTRICTED CONFIDENTIAL
12 materials produced by that party shall be returned to the producing party along with
13 certification by outside counsel of record and any other individuals who accessed
14 such materials that all such materials have been returned. Counsel of record may
15 retain a copy of all correspondence, pleadings, motion papers, discovery responses,
16 deposition and trial transcripts, legal memoranda and work product.
17
28.
This Protective Order shall survive the final termination of this Action
18 with respect to any retained Confidential Materials.
19
29.
Nothing in this Protective Order shall prevent or otherwise restrict
20 outside counsel from rendering advice to their clients and, in the course thereof,
21 relying generally on Confidential Material; provided, however, that in rendering
22 such advice counsel shall not disclose, reveal or describe any such materials except
23 insofar as allowed (if allowed at all) under the terms of this Order.
24
30.
If a party wishes to use Confidential Material at the examination at
25 deposition or trial of any witness not entitled to have access to such Confidential
26 Materials, such Party shall obtain the consent of the producing party, in advance,
27 and the failure of the examining attorney to obtain such consent or order of the
28 Court shall not be grounds for delaying the deposition or trial or their progress,
- 18 -
1 unless, in the case of a deposition, all persons attending the deposition consent, and
2 in the case of trial the Court so rules. Where Confidential Material may be revealed
3 or referred to in a question that will be put to the witness at a deposition upon oral
4 examination or Confidential Materials will be used as exhibits during the
5 examination, the producing party may require that all persons in attendance who are
6 not entitled access to such Confidential Material under this Protective Order leave
7 the room until such line of inquiry is completed. Where Confidential Material may
8 be revealed or referred to in a question that will be put to the witness at trial upon
9 oral examination or Confidential Materials will be used as exhibits during the
10 examination, the producing party may request that the Court require that all persons
11 in attendance who are not entitled access to such Confidential Material under this
12 Protective Order leave the courtroom until such line of inquiry is completed
13
31.
No copy of any transcript of any deposition which is designated, in part
14 or in whole, as CONFIDENTIAL, CONFIDENTIAL – OUTSIDE COUNSEL
15 ONLY, or HIGHLY RESTRICTED CONFIDENTIAL shall be furnished by the
16 court reporter to any person other than to counsel of record and counsel for a non17 party, if the furnished transcript is of the non-party’s own deposition. The original
18 of any transcript of any deposition designated as CONFIDENTIAL,
19 CONFIDENTIAL – OUTSIDE COUNSEL ONLY, or HIGHLY RESTRICTED
20 CONFIDENTIAL, if required to be filed, shall be filed with the Court under seal in
21 accordance with paragraph 18 hereof, unless otherwise agreed by the producing
22 party.
23
24
25
26
27
28
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1
32.
The terms of this Protective Order may be applied to the Confidential
2 Materials of a non-party, as long as that non-party agrees in writing to be bound by
3 the terms of this Protective Order.
4
5
6
IT IS SO ORDERED
7
8 DATED: September 22, 2011
9
10
_______________________________
Hon. John E. McDermott
United States Magistrate Judge
11
12
13
Dated: September 14, 2011
14
DYKEMA GOSSETT LLP
Craig N. Hentschel
S. Christopher Winter
ROPES & GRAY LLP
Laurence S. Rogers
Ching-Lee Fukuda
15
16
17
By:/s/ Craig N. Hentschel
Craig N. Hentschel
Attorneys for Plaintiff
SPARK NETWORKS USA, LLC
18
19
20
21
22
23
Dated: September 14, 2011
WILSON SONSINI GOODRICH &
ROSATI
Stefani E. Shanberg
Natalie J. Morgan
Caroline E. Wilson
24
25
26
27
By:/s/ Natalie J. Morgan
Natalie J. Morgan
Attorneys for Defendant
ZOOSK, INC.
28
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1
EXHIBIT A
2
UNDERTAKING CONCERNING RECEIPT OF
3
CONFIDENTIAL MATERIALS SUBJECT TO PROTECTIVE ORDER
4
5
I, _______________________________________ declare that:
6
1.
My present residential address is
7 ___________________________________________________________________.
8
2.
My present employer is _____________________________________.
9 and the address of my present employer is
10 ___________________________________________________________________.
11
3.
My present occupation or job description is
12 ___________________________________________________________________.
13
4.
I have received and carefully read the Protective Order in this Action
14 dated ________________, and understand its provisions. As a condition precedent
15 to receiving any Confidential Materials, as such are defined in the Protective Order,
16 I agree to subject myself to the personal jurisdiction of this Court with respect to the
17 enforcement of the provisions of the attached Protective Order. I understand that I
18 am obligated, under Order of the Court, to hold in confidence and not to disclose the
19 contents of any document marked or later designated pursuant to the Protective
20 Order as CONFIDENTIAL, CONFIDENTIAL – OUTSIDE COUNSEL ONLY, or
21 HIGHLY RESTRICTED CONFIDENTIAL to anyone other than those persons
22 identified in paragraphs 12, 13, and 14 of the Protective Order to the extent that such
23 persons are qualified to review such information. I further understand that I am not
24 to disclose to persons other than those persons identified in paragraphs 12, 13, and
25 14 of the Protective Order any words, substances, summaries, abstracts or indices of
26 Confidential Materials or transcripts disclosed to me. In addition to the foregoing, I
27 understand that I must abide by all of the provisions of the Protective Order.
28
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1
5.
At the termination of this Action or at any time requested by counsel of
2 record in this Action, I will return to counsel of record in this Action all documents
3 and other materials, including notes, computer data, summaries, abstracts, or any
4 other materials including or reflecting Confidential Materials which have come into
5 my possession, and will return all documents or things I have prepared relating to or
6 reflecting such information.
7
6.
I understand that if I violate the provisions of this Protective Order, I
8 will be in violation of a Court Order and subject to sanctions or other remedies that
9 may be imposed by the Court and potentially liable in a civil Action for damages by
10 the disclosing party.
11
7.
I declare under penalty of perjury of the laws of the United States that
12 the foregoing is true and correct.
13
14
15 Executed on:________________
Signed:______________________________
16
17
18
19
20
21
22
23
24
25
26
27
28
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