American Induction Technologies Inc v. KBK Inc et al
Filing
41
PROTECTIVE ORDER by Magistrate Judge Robert N. Block re Stipulation for Protective Order 40 : The Court, having read and considered the Stipulation re: Protective Order submitted by plaintiff American Induction Technologies, Inc., defendant and third party plaintiff KBK, Inc, and third-party defendant Adaptive Energy Systems, Inc., and good cause appearing therefore, hereby orders as follows:(See Order for details). (wr)
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BINGHAM MCCUTCHEN LLP
Michael A. Sherman (SBN 94783)
Yoshihide Ito (pro hac vice)
Jay P. Barron (SBN 245654)
355 South Grand Avenue, Suite 4400
Los Angeles, CA 90071-3106
Telephone: 213.680.6400
Facsimile: 213.680.6499
Email: michael.sherman@bingham.com
Attorneys for Defendant and
Third-Party Plaintiff
KBK, Inc., a New York Corporation
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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AMERICAN INDUCTION
TECHNOLOGIES, INC., a California
corporation,
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Plaintiff,
KBK, INC., a New York corporation and
DOES 1 through 25, inclusive,
Defendant.
KBK, INC., a New York corporation,
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[PROPOSED] PROTECTIVE
ORDER
V.
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No. SACV11-00350 JAK (RNBx)
Third-Party Plaintiff,
V.
ADAPTIVE ENERGY SYSTEMS, INC.,
a California corporation,
Third-Party Defendant.
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[PROPOSED] PROTECTIVE ORDER
CASE NO. SACVII-00350 JAK (RNBX)
The Court, having read and considered the Stipulation re: Protective Order
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submitted by plaintiff American Induction Technologies, Inc., defendant and third-
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party plaintiff KBK, Inc, and third-party defendant Adaptive Energy Systems, Inc.,
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and good cause appearing therefore, hereby orders as follows:
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I.
DEFINITIONS
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The following definitions apply to this Protective Order. These definitions
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are specific to this Protective Order and have no bearing on the interpretation of
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words used in the parties' agreements at issue in the litigation.
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A.
"Designating Party" means any Party or any non-party from whom
discovery is sought in this action, invoking the protections of this Protective Order.
B.
"Receiving Party" means any Party who has received discovery from
any Party or any non-party to this action.
C.
"Outside Counsel" means the outside counsel of record for each Party,
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including all attorneys, staff, and clerical and support personnel affiliated with or
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employed by such outside counsel, as well as copy services, translators, and other
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similar vendors providing clerical, administrative or litigation support to such
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outside counsel in connection with this matter.
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D.
"In-House Counsel" means in-house counsel for each of the corporate
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Parties who are attorneys actively involved in this dispute for their employers, as
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well as their direct clerical, and support staff, copy services, translators, and other
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similar vendors providing clerical, administrative or litigation support to such In-
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House Counsel in connection with this matter.
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E.
"Party" means every party to this action and every director, officer,
employee, and agent of every party to this action.
F.
"Communicate" means disclose, provide, show, or make available in
any way to another person or entity.
G.
"CONFIDENTIAL" is a designation that, for purposes of expediency
only, may be applied to any document or thing produced in the above-captioned
[PROPOSED] PROTECTIVE ORDER
CASE NO. SACV11-00350 JAK (RNBX)
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action. However, if such designation is challenged, the Designating Party shall
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bear the burden of showing that such document or thing constitutes, contains, or
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reveals its confidential research, trade secrets, development, technical, commercial,
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financial, or personnel information relating to its business, whereby the
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unrestricted disclosure or dissemination of such information to third parties could
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adversely impact its or a non-party's business, or other information of a
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confidential, proprietary, private, or personal nature. Information designated as
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"CONFIDENTIAL" may only be used and disclosed as provided in this Protective
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Order.
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H.
"HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY" is a
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designation that shall be limited to (1) trade secrets or other highly sensitive
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information that the disclosing Party or any non-party reasonably and in good faith
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believes will result in significant risk of competitive disadvantage or harm if
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disclosed to another Party in this action without restriction on use or further
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disclosure; or (2) any other highly sensitive material upon agreement of the Parties
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or by order of the Court for good cause shown that disclosure of the material will
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result in significant risk of competitive disadvantage or harm if disclosed to
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another Party in this action without restriction on use or further disclosure.
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Information designated as "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES
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ONLY" may only be used and disclosed as provided in this Protective Order.
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I.
"Confidential Information" is any document or thing designated with
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the "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES
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ONLY" legend.
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J.
"Copy" means any reproduction, depiction, or sample of any
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document, material, tangible thing, audio or video tape, computer disk, or
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information, regardless of format, by photographic, scanning, imaging, recording,
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manual input, or other electronic, magnetic, optical, or manual reproduction means.
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[PROPOSED] PROTECTIVE ORDER
CASE NO. SACV11-00350 JAK (RNBX)
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II.
METHODS OF PROTECTION
A.
Materials Subject to Designation. Any Party or non-party from whom
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discovery is sought may designate any of the following as Confidential
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Information under the terms of this Protective Order: deposition testimony; written
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discovery; responses to any discovery request; documents and things produced
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pursuant to the parties' document-production requests, or non-party subpoenas;
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expert-witness reports; briefs or argument submitted to the Court or from one Party
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to another; and facilities or other physical locations made available for inspection
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(and the material inspected within those facilities or other physical locations). A
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Party may designate as Confidential Information any document, information, or
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deposition testimony produced or given by any non-party, or any portion thereof,
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at any time up to thirty (30) days after actual receipt of copies of the documents by
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counsel for the Party asserting the confidentiality privilege or, in the case of
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deposition testimony, at any time up to thirty (30) days after the transcript is
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received by counsel for the Party asserting the confidentiality privilege by
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notifying all counsel in writing of those portions which are to be stamped or
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otherwise treated as Confidential Information. Prior to the expiration of such thirty
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(30) day period (or until a designation is made by counsel, if such a designation is
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made in a shorter period of time), all such documents shall be treated as Highly
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Confidential—Attorneys Eyes Only.
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B.
Derivative Materials. Any extract, summary, compilation or other
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material derived in whole or in part from Confidential Information shall itself be
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deemed to be Confidential Information, and the dissemination and use thereof shall
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be governed by this Protective Order.
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C.
Manner of Designation of Confidential Information.
1.
Designation of Documents and Things. A Designating Party
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shall designate Confidential Information by placing a clear, permanent
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legend on each page of any document being designated or, in the case of
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[PROPOSED] PROTECTIVE ORDER
CASE NO. SACVII-00350 JAK (RNBX)
physical objects, computer disks, or other tangible things, on the thing itself
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or on the container in which it is produced. The legend shall bear the word
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"CONFIDENTIAL" or "HIGHLY CONFIDENTIAL — ATTORNEYS'
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EYES ONLY" as appropriate. All documents and things shall be so
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designated by the Designating Party prior to their production or delivery,
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except as set forth in Section D.
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2.
To expedite discovery in this action, a Designating Party may
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make documents and things available for inspection prior to the placement
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of a legend thereon, without thereby waiving the protections of this
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Protective Order. Thus, the Designating Party may advise the requesting
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Party that some or all of the documents or things to be produced for
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inspection are designated as "CONFIDENTIAL" or "HIGHLY
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CONFIDENTIAL — ATTORNEYS' EYES ONLY" pursuant to this
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Protective Order and that the information or materials may only be inspected
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by a Party consistent with the terms of this Protective Order. After the
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inspection, the Designating Party may then designate the documents and
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things by marking them with the "CONFIDENTIAL" or "HIGHLY
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CONFIDENTIAL — ATTORNEYS' EYES ONLY" legend prior to delivery
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of copies to the requesting Party's counsel. In such cases, permitting such
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initial inspections shall not constitute waiver of confidentiality with respect
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to any document or thing so inspected.
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3.
Designation of Deposition Testimony. If in the course of a
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deposition any Confidential Information is used (whether as an exhibit or
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otherwise) with or elicited from a witness, the portion of the transcript in
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which such Confidential Information is contained may be designated as
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Confidential Information under this Protective Order. To so designate such
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portion of a transcript, the witness (or his/her counsel) or Party intending to
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invoke this Protective Order shall state on the record that the testimony or
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[PROPOSED] PROTECTIVE ORDER
CASE NO. SACVII-00350 JAK (RNBX)
portion thereof is being designated as "CONFIDENTIAL" or "HIGHLY
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CONFIDENTIAL — ATTORNEYS' EYES ONLY," or alternatively state
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that the entire testimony is being designated as "CONFIDENTIAL" or
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"HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY" as
appropriate, subject to a good faith obligation to identify any non-
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confidential portions of the testimony upon receipt of the transcript of the
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testimony. The reporter shall separately transcribe and bind the testimony so
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designated as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL —
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ATTORNEYS' EYES ONLY" as appropriate and shall mark the face of the
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separate bound transcript containing such testimony with the term
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"CONFIDENTIAL" or "HIGHLY CONFIDENTIAL — ATTORNEYS'
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EYES ONLY" as appropriate. In the alternative, any Party or the witness
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(or his/her counsel) may advise all other Parties in writing, and with page
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and line identifications, of the designation of such testimony, within thirty
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(30) days after receipt of the transcript of a deposition.
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D.
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Inadvertent Production or Failure to Designate.
1.
In the event that any document or thing qualifying for
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designation as Confidential Information is inadvertently produced without
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the proper designation, the disclosing Party or non-party shall identify such
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document or thing promptly after its inadvertent production is discovered
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and provide a copy of such document or thing with the proper designation to
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counsel for the Receiving Party, upon receipt of which the Receiving Party
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shall promptly return or destroy all copies of the undesignated document or
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thing. Upon written request by the Designating Party, the Receiving Party
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will provide written verification of compliance with this provision.
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2.
In the event that any document or thing containing or
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constituting privileged attorney-client communications or work product is
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inadvertently produced, the disclosing Party or non-party shall notify the
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[PROPOSED] PROTECTIVE ORDER
CASE NO. SACV II-00350 JAK (RNBX)
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Receiving Party promptly after it is discovered that the privileged material or
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work product was inadvertently produced for inspection or provided, and
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upon receipt of such notification the Receiving Party shall promptly return to
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counsel for the disclosing Party or non-party any and all copies of such
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document or thing and thereafter refrain from any use whatsoever, in this
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case or otherwise of such document or thing. Nothing herein shall prevent
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the Receiving Party from contending that any such document or thing was
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not inadvertently produced, or that privilege or work product was waived for
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reasons other than the mere inadvertent production thereof, or that no
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privilege or work product protection ever applied to such document or thing.
3.
In the event that a Receiving Party receives a document or thing
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containing privileged attorney-client communications or work product that
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the Receiving Party believes has been inadvertently produced, the Receiving
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Party shall notify the disclosing Party or non-party promptly after it is
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discovered that the privileged material or work product may have been
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inadvertently produced for inspection or provided. If a disclosing Party or
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non-party has notified the Receiving Party of inadvertent production
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hereunder, or has confirmed the inadvertent production called to its attention
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by the Receiving Party, the Receiving Party shall promptly return to counsel
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for the disclosing Party or non-party any and all copies of such document or
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thing and thereafter refrain from any use whatsoever, in this case or
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otherwise of such document or thing. Nothing herein shall prevent the
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Receiving Party from contending that any such document or thing was not
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inadvertently produced, or that privilege or work product was waived for
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reasons other than the mere inadvertent production thereof or that no
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privilege or work product protection ever applied to such document or thing.
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[PROPOSED] PROTECTIVE ORDER
CASE NO. SACV11-00350 JAK (RNBX)
E.
Treatment of Confidential Information.
1.
"CONFIDENTIAL." All information designated with this
legend, and all information derived from the information so designated
(excluding such information as is derived lawfully from an independent
source without reference to, or use of, the Confidential Information of a
Party), shall be used only for the purposes of the above-captioned action,
and not for any business, commercial or other purpose whatsoever (except as
specifically outlined below in Section II(G)). Such information shall not be
Communicated to any person or entity other than:
a.
Any Party;
b.
Outside Counsel for any Party;
c.
In-House Counsel to whom it is necessary to disclose
Confidential Information for purposes of the abovecaptioned action;
d.
In the case of a corporate Parties, any natural person who
is a current or former officer, director or other employee
or agent of a Party, but: (i) only to the extent necessary to
assist in the conduct or preparation of the abovecaptioned action; and (ii) only after that individual has
been advised by counsel of record of the requirements of
this Protective Order and has agreed to be bound by it
and in such a case that corporate Party assumes
responsibility for ensuring that its current or former
officer, director, employee, or agent complies with the
terms of this Protective Order;
e.
Subject to Section F below, any person who is expressly
retained or sought to be retained by a Party as a
consultant or as a testifying expert, provided that
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[PROPOSED] PROTECTIVE ORDER
CASE NO. SACV I I -00350 JAK (RNBX)
Confidential Information shall be disclosed to any such
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person only to the extent necessary for that person to
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perform his or her work in connection with the above-
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captioned action;
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f.
With respect to any particular document that has been
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designated as "CONFIDENTIAL," the author, addressee,
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or copyee of that particular document, or any person who
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prepared or reviewed that document prior to the date this
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action was filed;
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g.
With respect to any particular document that has been
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designated as "CONFIDENTIAL," any person who may
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be referred to in the document, or any potential witnesses
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who are reasonably believed to have discoverable
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information that relates to the information designated
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"CONFIDENTIAL";
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h.
Any person who is designated to receive Confidential
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Information by order of the Court or by written
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stipulation of the Parties;
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The Court, court personnel, any court or deposition
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reporters or videographers used in connection with the
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above-captioned action, and any such reporter's support
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personnel; and
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j.
Outside litigation support vendors, including commercial
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photocopying vendors, scanning service vendors, coders,
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and keyboard operators who are employed in connection
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with the above-captioned action.
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[PROPOSED] PROTECTIVE ORDER
CASE NO. SACV11-00350 JAK (RNBX)
2. "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY."
All information designated with this legend, and all information derived
from the information so designated (excluding such information as is
derived lawfully from an independent source without reference to, or use of,
the Confidential Information of a Party), shall be used only for the purposes
of this litigation, and not for any business, commercial, patent prosecution,
or other purpose whatsoever (except as specifically outlined below in
Section II(G)). Such information shall not be Communicated to any person
or entity other than:
a.
Outside Counsel for any Party;
b.
In-House Counsel to whom it is necessary to disclose
Confidential Information for purposes of the abovecaptioned action;
c.
Subject to Section F below, any person who is expressly
retained or sought to be retained by a Party as a
consultant or as a testifying expert, provided that such
"HIGHLY CONFIDENTIAL — ATTORNEYS' EYES
ONLY" information shall be disclosed to any such
person only to the extent necessary for that person to
perform his or her work in connection with the abovecaptioned action;
d.
Any natural person who is a current officer, director, or
other employee or agent of the Designating Party;
e.
With respect to any particular document that has been
designated as "HIGHLY CONFIDENTIAL —
ATTORNEYS' EYES ONLY," the author, addressee, or
copyee of that particular document, and any person who
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[PROPOSED] PROTECTIVE ORDER
CASE NO. SACV11-00350 JAK (RNBX)
prepared or reviewed that document prior to the date this
action was filed;
f.
Any person who is designated to receive Highly
Confidential—Attorneys' Eyes Only information by order
of the Court or by written stipulation of the Parties;
g.
The Court, court personnel, any court or deposition
reporters used in connection with this action, and any
such reporter's support personnel; and
Outside litigation support vendors, including commercial
photocopying vendors, scanning service vendors, coders,
and keyboard operators who are employed in connection
with the above-captioned action.
F.
Outside Experts and Consultants.
1.
Pursuant to subsection E (1) and E (2) above, Confidential
Information may be communicated to outside experts or consultants retained
by a Party in connection with preparation for the above-captioned action or,
with respect to any particular document that has been designated as
"CONFIDENTIAL" any person who may be referred to in the document, or
any potential witnesses who are reasonably believed to have discoverable
information that relates to the information designated "CONFIDENTIAL,"
provided that before any Confidential Information is disclosed to any expert
or consultant, the Party seeking to disclose such information shall provide a
copy of this Protective Order to the proposed expert or consultant and shall
cause that person or entity to execute a Confidentiality Agreement in the
form attached hereto as Exhibit A. The signed Confidentiality Agreement
shall be provided to the Designating Party upon agreement of the Parties or
by order of the Court for good cause shown.
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[PROPOSEDI PROTECTIVE ORDER
CASE NO. SACV 1 1-00350 JAK (RNBX)
2.
Before any information designated as "HIGHLY
CONFIDENTIAL - ATTORNEYS' EYES ONLY" is disclosed to any
expert or consultant, the Party seeking to disclose such information shall
provide the Designating Party with (i) the name of the person; (ii) the
present employer and title of the person; (iii) an up-to-date curriculum vitae
of the person; and (iv) an identification of any work performed for or on
behalf of the other party by that person within the five (5) year period before
the filing of the above-captioned action. Within five (5) business days of
receipt of this information, the Designating Party may object to the proposed
outside expert or consultant on any reasonable basis. If objection to
disclosure is made within the time required, the parties shall meet and confer
within five (5) business days; and, if not resolved, the Designating Party
shall move for a protective order precluding the disclosure of the
information to the designated expert or consultant within five (5) business
days after completion of the meet and confer. Where objection is made, no
such information shall be disclosed to the consultant or expert until the day
after the last day to file a motion for a protective order (where no protective
order is sought), or upon entry of the Judge's order denying the producing
party's motion for protection. Failure to object to a proposed outside expert
or consultant shall not preclude the non-objecting party from later objecting
to continued access by that outside expert or consultant where facts
suggesting a basis for objection could not have been discovered by the
objecting party or its counsel, exercising due diligence, within the period for
making a timely objection. If a later objection is made, no further "HIGHLY
CONFIDENTIAL — ATTORNEYS' EYES ONLY" information shall be
disclosed to the outside expert or consultant until the matter is resolved by
the Judge or the producing party withdraws its objection.
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[PROPOSED] PROTECTIVE ORDER
CASE NO. SACVII-00350 JAK (RNBX)
G.
Persons Referenced in a Document and Potential Witnesses Who May
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Have Discoverable Information. Pursuant to subsection E (1) and E (2) above,
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Confidential Information may be communicated to any person who may be
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referred to in a particular document that has been designated as
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"CONFIDENTIAL," or any potential witnesses who are reasonably believed to
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have discoverable information that relates to the information designated
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"CONFIDENTIAL," provided that before any Confidential Information is
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disclosed to such person, the Party seeking to disclose such information shall
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provide a copy of this Protective Order to such person shall cause that person to
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execute a Confidentiality Agreement in the form attached hereto as Exhibit A. The
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signed Confidentiality Agreement shall be provided to the Designating Party upon
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agreement of the Parties or by order of the Court for good cause shown.
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H.
Request for Additional Disclosure. If any counsel of record desires to
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Communicate a Designating Party's Confidential Information to any person other
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than those otherwise permitted access to such information under the terms of this
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Protective Order, such counsel shall first obtain written consent of the Designating
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Party or the Judge authorizing such disclosure. Except as expressly agreed in
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writing by the Designating Party or ordered by the Judge, each person to whom the
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Confidential Information is to be communicated pursuant to this paragraph must
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execute a written Confidentiality Agreement, in the form attached hereto as Exhibit
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A.
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I.
Maintenance of Designated Information. Counsel to the parties in the
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above-captioned action and those persons to whom disclosure is permitted under
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the terms of this Protective Order who have received Confidential Information that
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is provided pursuant to this Protective Order shall maintain such Confidential
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Information in a secure and safe location and shall exercise due and proper care
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with respect to the storage, custody, use, and disposal of all Confidential
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Information, so as to prevent the unauthorized or inadvertent disclosure of any of
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[PROPOSED] PROTECTIVE ORDER
CASE NO. SACV I 1-00350 JAK (RNEX)
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it. Nothing herein imposes any affirmative obligations on the Court or court
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personnel, who are subject to the Court's internal procedures regarding the
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handling of material filed or lodged under seal.
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J.
Stenographers and Videographers. Any stenographer or videographer
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shall be entitled to hear Confidential Information and receive and handle exhibits
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containing Confidential Information as necessary or appropriate for the
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performance of his or her duties, provided that either (a) the stenographer or the
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videographer, or (b) the company or business providing stenographic or
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videographic services, has been provided with a copy of this Protective Order, or
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its terms have been communicated to them, and they have orally or in writing
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agreed to maintain the confidentiality of Confidential Information consistent with
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the terms of this Protective Order. The stenographer may allow a deponent (or his
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or her counsel) to review the original transcript or may deliver the original
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transcript for such review to the attorney for a deponent, if that attorney has
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executed and delivered to the Party's counsel of record a Confidentiality
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Agreement in the form attached hereto as Exhibit A or is one of the Outside
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Counsel or In-House Counsel defined above.
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III. ADDITIONAL PROVISIONS
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A.
Filing Documents with the Court. In accordance with Local Rule 79-
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5.1, if any papers to be filed with the Court contain information and/or documents
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that have been designated as "Confidential Information," the proposed filing shall
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be accompanied by an application to file the papers or the portion thereof
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containing the designated information or documents (if such portion is segregable)
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under seal; and the application shall be directed to the judge to whom the papers
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are directed. For motions, the parties shall publicly file a redacted version of the
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motion and supporting papers.
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CASE NO. SACV11-00350 JAK (RNEX)
B.
No Effect on Party's Own Use. A Designating Party's designation of
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information as Confidential Information shall not affect its own right to
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Communicate or use any of its information so designated.
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C.
Information Excluded From This Protective Order. The restrictions
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set forth in this Protective Order shall not apply to any information which the
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Receiving Party can demonstrate:
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1.
is available to the public at the time of disclosure hereunder; or
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2.
becomes available to the public after disclosure hereunder
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through no act, or failure to act, by the Receiving Party.
D.
Additional Parties. In the event additional parties join or are joined in
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this litigation, they shall be deemed to have executed, and agreed to be bound by,
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this Protective Order.
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E.
No Legal Effect of Confidentiality Designations. The designation by
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a Designating Party of any document, material, tangible thing, or information as
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Confidential Information is intended solely to facilitate discovery in the above-
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captioned action, and neither such designation nor treatment in conformity with
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such designation shall be construed in any way as an admission or agreement by a
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Receiving Party that the designated disclosure constitutes or contains any trade
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secret or proprietary information.
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F.
Legal Process Seeking Production of Confidential Information. In the
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event a Receiving Party is served with legal process seeking production of
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Confidential Information obtained through discovery and protected under the terms
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of this Protective Order, the Receiving Party shall promptly notify the Designating
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Party or non-party whose material is sought of the service of legal process, as well
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as provide the Designating Party or non-party a copy of the legal process. The
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Designating Party or non-party may then seek relief as deemed appropriate.
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However, nothing in this Protective Order is intended or should be construed as
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authorizing a party to disobey a lawful subpoena issued in another action.
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CASE NO. SACV11-00350 JAK (RNBX)
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G.
Final Disposition of Litigation. Upon the conclusion of the above-
2
captioned action, including confirmation of the judgment, each counsel of record
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shall: (a) within forty-five (45) days return to counsel of record for the Designating
4
Party, or confirm to the Designating Party the destruction of all Confidential
5
Information provided by that Designating Party, and all copies made of such
6
materials; and (b) within forty-five (45) days destroy or see to the destruction of all
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materials related to Confidential Information, including, but not limited to notes,
8
analyses, memoranda, or reports provided to or by other persons, and certify to the
9
Designating Party that such destructions have been done. As an exception to the
10
above, counsel of record may retain a single file copy of any document filed with
11
the Court, a copy of any written discovery response, a transcript of any deposition
12
or trial, along with all exhibits to that transcript, and a copy of any notes, analyses,
13
memoranda or other work product prepared by counsel, the Parties, witnesses, or
14
experts retained in the Litigation. Upon the conclusion of the above-captioned
15
action, including confirmation of the judgment, counsel of record may not disclose
16
these retained documents to any individual or entity, including, but not limited to,
17
the Parties. Counsel of record shall immediately notify opposing counsel of record
18
or counsel for the Designating Party of any attempt by third parties to inspect or
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copy said documents.
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H.
Motion for Relief from Designation. If, after a Party receives
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information designated as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL —
22
ATTORNEYS' EYES ONLY," it appears to the Receiving Party that any such
23
information is not entitled to the protection afforded under this Protective Order,
24
such Receiving Party shall first notify counsel of record for the Designating Party,
25
in writing, providing its reasons for challenging the designation. Any motion
26
challenging the designation will be governed by Local Rules 37-1 and 37-2. The
27
Designating Party shall bear the burden of proving that the designated information
28
warrants its designated level of protection under this Protective Order, which may
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[PROPOSED] PROTECTIVE ORDER
CASE NO, SACV11-00350 JAK (RNBX)
1
include showing the information constitutes, contains, reveals, or reflects trade
2
secrets or other confidential research, development, commercial, financial, or
3
personnel information that relates to the Designating Party's business or that was
4
disclosed to it in confidence by any third party, and that disclosure of the
5
designated information to competitors, customers, or others (including the general
6
public) would adversely prejudice the Designating Party or its business or would
7
violate an obligation of confidentiality to a third party. No Party to this action,
8
however, shall be obligated to challenge the propriety of any designation by any
9
other Party or non-party, and a failure to do so shall not constitute a waiver or in
10
any way preclude a subsequent challenge in this or any other action of the
11
propriety of such designations.
12
I.
Survival of Terms. Absent written modification by the Parties, the
13
provisions of this Protective Order that restrict the disclosure and use of
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Confidential Information shall survive the final disposition of this matter and
15
continue to be binding on all persons and entities subject to the terms of this
16
Protective Order.
17
J.
Effect on Discovery. This Protective Order shall not preclude or limit
18
the right of any Party to object to or resist discovery on any ground that would
19
otherwise be available, except that no Party shall object to or resist discovery
20
conducted in accordance with this Protective Order on the ground that such
21
information is of a sensitive, trade secret or confidential nature. This Protective
22
Order shall not relieve the Party of the necessity of proper response or objection to
23
discovery requests. This Protective Order shall be without prejudice to the right of
24
the Parties to bring before the Court at any time the question of whether any
25
particular document or information constitutes Confidential Information. This
26
Protective Order shall not be deemed to prejudice the Parties in any way in any
27
future application or modification of the Protective Order.
28
16
[PROPOSED] PROTECTIVE ORDER
CASE NO. SACV11-00350 JAK (RNBX)
1
K.
Modification. This Protective Order may be modified by further order
2
of the Court. Counsel for all Parties and any other Designating Party who has
3
designated any documents or information as Confidential Information may execute
4
a stipulation modifying this stipulation. However, no amendment or modification
5
pursuant to such a stipulation shall have the force or effect of a Court order unless
6
the Court approves the amendment or modification.
7
L.
Entire Agreement. This Protective Order contains the entire
8
agreement and understanding between the parties with respect to the Protective
9
Order's subject matter. This Protective Order completely replaces and supersedes
10
any prior understanding or agreement between the parties with respect to this
11
Protective Order's subject matter.
12
M.
Submitting to the Jurisdiction of the Court. Outside Counsel, In-
13
House Counsel, the Parties, and every person to whom Confidential Information is
14
disclosed pursuant to the terms of this Protective Order agrees to submit to the in
15
personam jurisdiction of the United States District Court, Central District of
16
California solely for purposes of enforcing his or her obligations under this
17
Protective Order.
18
N.
Violation of Order. The Parties stipulated that this Protective Order
19
shall be entered by United States District Court, Central District of California and
20
may be enforced according to its terms by the Court. The Parties further stipulated
21
that in the event of any violation or threatened violation of this Protective Order,
22
the Court may impose any civil or criminal penalties that would otherwise be
23
available if that Court had entered the Protective Order in the first instance,
24
including, but not limited to, injunctive relief and/or an order in aid of litigation
25
against any Party, person, or entity violating or threatening to violate this
26
Protective Order. The Party, person, or entity committing or threatening to commit
27
such violation shall not argue or otherwise employ as a defense that the
28
Designating Party has an adequate remedy at law.
17
[PROPOSED] PROTECTIVE ORDER
CASE NO. SACV I 1-00350 JAK (RNBX)
1
2
Effective Date. This Protective Order shall become effective among the
parties when executed, with or without the Court's entry of the same.
3
4
5
IT IS SO ORDERED.
6
Dated: 9/7/2011
United States Magistrate Judge
7
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18
[PROPOSED] PROTECTIVE ORDER
CASE NO. SACV11-00350 JAK (RNI3X)
1
EXHIBIT A
2
CONFIDENTIALITY AGREEMENT
3
4
5
, declare under penalty of perjury under
the laws of the United States and California that:
1.
My address is
2.
My present employer is
3.
My present occupation or job description is
4.
I HEREBY CERTIFY AND AGREE that I have read and understand
6
7
8
9
10
11
12
13
14
15
16
the terms of the Protective Order in the matter of American Induction
17
Technologies, Inc. v. KBK, Inc. et al., Case No. SACV11-00350 JAK (RNBx),
18
pending before the United States District Court, Central District of California; that
19
I will not use or disclose to anyone any of the contents of any Confidential
20
Information received under the protection of the Protective Order except in
21
accordance with the Protective Order; that I will comply with and be bound by the
22
terms and conditions of the Protective Order; and that I hereby submit to the
23
jurisdiction of the United States District Court, Central District of California solely
24
for the purposes of enforcement of the Protective Order.
25
5.
I understand and agree that, pursuant to the Protective Order, I am
26
required to retain all Copies of any of the materials that I receive that have been so
27
designated as containing Confidential Information in a container, cabinet, drawer,
28
room or other safe place in a manner consistent with this Protective Order, and that
19
[PROPOSED] PROTECTIVE ORDER
CASE NO. SACV11-00350 JAK (RNBX)
all Copies are to remain in my custody until they are to be returned or destroyed as
2
specified in the Protective Order. I acknowledge that such return or the destruction
3
of such materials shall not relieve me from any of the continuing obligations
4
imposed on me by the Protective Order.
5
6
7
8
Dated:
(Signature)
9
10
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12
13
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20
[PROPOSED] PROTECTIVE ORDER
CASE NO. SACV11-00350 JAK (RNBX)
CERTIFICATE OF SERVICE
I hereby certify that on September 2, 2011, I electronically filed the foregoing
with the clerk of the court for the U.S. District Court, Central District of California, using the
electronic case filing system of the court. The electronic case filing system sent a "Notice of
Electronic filing" to the following attorneys of record who have consent in writing to accept this
notice of service of this document by electronic means:
William B. Hanley, Esq.
Law Offices of William B. Hanley
5000 Birch Street
Suite 9400
Newport Beach, CA 92660
Phone: 949.263.0040
Fax: 949.263.0077
Email: wbh@hanley-law.com
Laura M. Sullivan, Esq.
La Flam Sullivan LLP
5000 Birch Street
Suite 9400
Newport Beach, CA 92660
Phone: 949.252.4610
Fax: 949.203.6201
Email: laura.sullivan@laflarnsullivan.com
Victor E. Hobbs, Esq.
Victor E. Hobbs Law Offices
17981 Sky Park Circle
Suite C
Irvine, CA 92614
Phone: 949.221.9700
Fax: 949.221.9707
Email:
victorhobbs@hobbslegalsolutions.com
/s/ Michael A. Sherman
Michael A. Sherman
Counsel for KBK, Inc., a New York
Corporation
1
CERTIFICATE OF SERVICE
Ad74453789.1/0776938-0000354161
PROOF OF SERVICE
I am over eighteen years of age, not a party in this action, and employed in Los
Angeles County, California at The Water Garden, Fourth Floor, North Tower, 1620 26th Street,
Santa Monica, California 90404-4060. I am readily familiar with the practice of this office for
collection and processing of correspondence for mail/fax/hand delivery/next business day
delivery, and they are deposited that same day in the ordinary course of business.
On September 2, 2011, I served the attached:
IPROPOSED1 PROTECTIVE ORDER
E3
(EXPRESS MAIL/OVERNIGHT DELIVERY) by causing a true and correct copy
of the document(s) listed above to be delivered by Federal Express in sealed
envelope(s) with all fees prepaid at the address(es) set forth below.
E3
(BY UNITED STATES DISTRICT COURT ELECTRONIC FILING SERVICE)
on the parties as set forth below:
SEE ATTACHED SERVICE LIST
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct and that this declaration was executed on September 2, 2011, at
Santa Monica, California.
Marina Sulkhan
1
PROOF OF SERVICE
fid74313002.1/07769384000354161
SERVICE LIST
William 13. Hanley, Esq.
Law Offices of William B. Hanley
5000 Birch Street
Suite 9400
Newport Beach, CA 92660
Phone: 949.263.0040
Fax: 949.263.0077
Email: wbh@hanley-law.corn
Laura M. Sullivan, Esq.
La Flam Sullivan LLP
5000 Birch Street
Suite 9400
Newport Beach, CA 92660
Phone: 949.252.4610
Fax: 949.203.6201
Email: laura.sullivan@laflamsullivan.com
Victor E. Hobbs, Esq.
Victor E. Hobbs Law Offices
17981 Sky Park Circle
Suite C
Irvine, CA 92614
Phone: 949.221.9700
Fax: 949.221.9707
Email:
victorhobbs@hobbslegalsolutions.com
2
PROOF OF SERVICE
PJ74313002.1/0776938-0000354161
]]>
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