Anderson v. Intel Corporation Investment Policy Committee et al, No. 5:2019cv04618 - Document 133 (N.D. Cal. 2021)
Court Description: Order granting 131 Joint Proposed Protective Order as Modified by the Court. Signed by Judge Susan van Keulen on 8/26/2021. (svklc2S, COURT STAFF) (Filed on 8/26/2021)
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Anderson v. Intel Corporation Investment Policy Committee et al Doc. 133 Case 5:19-cv-04618-LHK Document 133 Filed 08/26/21 Page 1 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Joseph Creitz (Cal Bar. No. 169552) Lisa Serebin (Cal Bar No. 146312) joe@creitzserebin.com lisa@creitzserebin.com CREITZ & SEREBIN LLP 100 Pine Street, Suite 1250 San Francisco, CA 94111 Telephone: (415) 466-3090 Facsimile: (415) 513-4475 R. Joseph Barton (Cal. Bar No. 212340) jbarton@blockesq.com BLOCK & LEVITON LLP 1735 20th St NW Washington DC 20009 Telephone: (202) 734-7046 Facsimile: (617) 507-6020 Gregory Y. Porter (pro hac vice) Ryan Thomas Jenny (pro hac vice) gporter@baileyglasser.com rjenny@baileyglasser.com BAILEY & GLASSER LLP 1055 Thomas Jefferson Street, NW, Suite 540 Washington, D.C. 20007 Telephone: (202) 463-2101 Facsimile: (202) 463-2103 Mark George Boyko (pro hac vice) mboyko@baileyglasser.com BAILEY & GLASSER LLP 8012 Bonhomme Avenue, Suite 300 Clayton, MO 63105 Telephone: (304) 345-6555 Dane H. Butswinkas (pro hac vice) Daniel F. Katz (pro hac vice) Vidya Atre Mirmira (pro hac vice) David S. Kurtzer-Ellenbogen (pro hac vice) WILLIAMS & CONNOLLY LLP 725 Twelfth Street, N.W. Washington, DC 20005 dbutswinkas@wc.com dkatz@wc.com vmirmira@wc.com dkurtzer@wc.com Telephone: (202) 434-5000 Facsimile: (202) 434-5029 Scott P. Cooper (Cal. Bar No. 96905) Jennifer L. Jones (Cal. Bar No. 284624) PROSKAUER ROSE LLP 2029 Century Park East, Suite 2400 Los Angeles, CA 90067-3010 scooper@proskauer.com jljones@proskauer.com Telephone: (310) 557-2900 Facsimile: (310) 557-2193 Myron D. Rumeld (pro hac vice) PROSKAUER ROSE LLP Eleven Times Square New York, NY 10036-8299 mrumeld@proskauer.com Telephone: 212.969.3000 Facsimile: 212.969.2900 Attorneys for Defendants Major Khan (to be admitted pro hac vice) mk@mk-llc.com MAJOR KHAN LLC 1120 Avenue of the Americas Suite 4100 New York, NY 10036 Telephone: (646) 546-5664 Facsimile: (646) 546-5755 26 27 28 [JOINT PROPOSED] PROTECTIVE ORDER CASE NO. 5:19-CV-04618-LHK Dockets.Justia.com Case 5:19-cv-04618-LHK Document 133 Filed 08/26/21 Page 2 of 18 4 Vincent Cheng (Cal. Bar No. 230827) vincent@blockesq.com BLOCK & LEVITON LLP 100 Pine St., Suite 1250 San Francisco, CA 94111 Telephone: (415) 968-8999 Facsimile: (617) 50-6020 5 Attorneys for Plaintiff 1 2 3 6 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION 7 8 9 10 WINSTON R. ANDERSON, CHRISTOPHER M. SULYMA, and all others similarly situated, 11 Plaintiffs, 12 [JOINT PROPOSED] PROTECTIVE ORDER AS MODIFIED BY THE COURT v. 13 14 15 16 17 18 19 20 21 22 INTEL CORPORATION INVESTMENT POLICY COMMITTEE, INTEL RETIREMENT PLANS ADMINISTRATIVE COMMITTEE, FINANCE COMMITTEE OF THE INTEL CORPORATION BOARD OF DIRECTORS, CHRISTOPHER C. GECZY, RAVI JACOB, DAVID S. POTTRUCK, ARVIND SODHANI, RICHARD TAYLOR, TERRA CASTALDI, RONALD D. DICKEL, TIFFANY DOON SILVA, TAMI GRAHAM, CARY KLAFTER, STUART ODELL, CHARLENE BARSHEFSKY, SUSAN L. DECKER, JOHN J. DONAHOE, REED E. HUNDT, JAMES D. PLUMMER, FRANK D. YEARY, STACY SMITH, ROBERT H. SWAN, TODD UNDERWOOD, AND GEORGE S. DAVIS Defendants, 23 24 and 25 INTEL 401(K) SAVINGS PLAN AND INTEL RETIREMENT CONTRIBUTION PLAN, 26 27 28 Case No: 5:19-cv-04618-LHK (Consolidated with No. 15-cv-04977-NC & No. 16-cv-00522) Nominal Defendants. [JOINT PROPOSED] PROTECTIVE ORDER CASE NO. 5:19-CV-04618-LHK Case 5:19-cv-04618-LHK Document 133 Filed 08/26/21 Page 3 of 18 1 1. 2 PURPOSES AND LIMITATIONS Disclosure and discovery activity in this action are likely to involve production of 3 confidential, proprietary, or private information for which special protection from public disclosure 4 and from use for any purpose other than prosecuting this litigation may be warranted. 5 Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulated 6 Protective Order. The parties acknowledge that this Order does not confer blanket protections on 7 all disclosures or responses to discovery and that the protection it affords from public disclosure 8 and use extends only to the limited information or items that are entitled to confidential treatment 9 under the applicable legal principles. The parties further acknowledge, as set forth in Section 12.3, 10 below, that this Stipulated Protective Order does not entitle them to file confidential information 11 under seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and the standards 12 that will be applied when a party seeks permission from the court to file material under seal. 13 2. 14 15 16 DEFINITIONS 2.1 Challenging Party: a Party or Non-Party that challenges the designation of information or items under this Order. 2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is 17 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of 18 Civil Procedure 26(c). 19 20 21 22 23 2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well as their support staff). 2.4 Designated House Counsel: House Counsel who seek access to “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information in this matter. 2.5 Designating Party: a Party or Non-Party that designates information or items that it 24 produces in disclosures or in responses to discovery as “CONFIDENTIAL” or “HIGHLY 25 CONFIDENTIAL – ATTORNEYS’ EYES ONLY”. 26 27 28 2.6 Disclosure or Discovery Material: all items or information, regardless of the medium or manner in which it is generated, stored, or maintained (including, among other things, [JOINT PROPOSED] PROTECTIVE ORDER CASE NO. 5:19-CV-04618-LHK Case 5:19-cv-04618-LHK Document 133 Filed 08/26/21 Page 4 of 18 1 testimony, transcripts, and tangible things), that are produced or generated in disclosures or 2 responses to discovery in this matter. 3 2.7 Expert: a person with specialized knowledge or experience in a matter pertinent to 4 the litigation who (1) has been retained by a Party or its counsel to serve as an expert witness or as 5 a consultant in this action, (2) is not a past or current employee of a Party or of a Party’s 6 competitor, and (3) at the time of retention, is not anticipated to become an employee of a Party or 7 of a Party’s competitor. 8 9 2.8 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items: extremely sensitive “Confidential Information or Items,” disclosure of which to another 10 Party or Non-Party would create a substantial risk of serious harm that could not be avoided by less 11 restrictive means. 12 2.9 13 14 15 16 House Counsel: attorneys who are employees of a party to this action. House Counsel does not include Outside Counsel of Record or any other outside counsel. 2.10 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 2.11 Outside Counsel of Record: attorneys who are not employees of a party to this 17 action but are retained to represent or advise a party to this action and have appeared in this action 18 on behalf of that party or are affiliated with a law firm which has appeared on behalf of that party. 19 20 21 22 23 2.12 Party: any party to this action, including all of its officers, directors, employees, consultants, retained experts, and Outside Counsel of Record (and their support staffs). 2.13 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this action. 2.14 Professional Vendors: persons or entities that provide litigation support services 24 (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, 25 storing, or retrieving data in any form or medium) and their employees and subcontractors. 26 2.15 Protected Material: any Disclosure or Discovery Material that is designated as 27 -2- 28 [JOINT PROPOSED] PROTECTIVE ORDER CASE NO. 5:19-CV-04618-LHK Case 5:19-cv-04618-LHK Document 133 Filed 08/26/21 Page 5 of 18 1 “CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” 2.16 2 Receiving Party: a Party that receives Disclosure or Discovery Material from a 3 Producing Party. 4 3. SCOPE The protections conferred by this Stipulation and Order cover not only Protected Material 5 6 (as defined above), but also (1) any information copied or extracted from Protected Material; (2) all 7 copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 8 conversations, or presentations by Parties or their Counsel that might reveal Protected Material. 9 However, the protections conferred by this Stipulation and Order do not cover the following 10 information: (a) any information that is in the public domain at the time of disclosure to a 11 Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as a 12 result of publication not involving a violation of this Order, including becoming part of the public 13 record through trial or otherwise; and (b) any information known to the Receiving Party prior to the 14 disclosure or obtained by the Receiving Party after the disclosure from a source who obtained the 15 information lawfully and under no obligation of confidentiality to the Designating Party. Any use 16 of Protected Material at trial shall be governed by a separate agreement or order. 17 4. 18 19 20 21 22 23 24 25 DURATION Even after final disposition of this litigation, the confidentiality obligations imposed by this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and defenses in this action, with or without prejudice; (2) final judgment herein after the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, including the time limits for filing any motions or applications for extension of time pursuant to applicable law; or (3) the distribution of all monies by settlement or judgment to all participants or members of the Class entitled to receive a distribution. 26 27 -3- 28 [JOINT PROPOSED] PROTECTIVE ORDER CASE NO. 5:19-CV-04618-LHK Case 5:19-cv-04618-LHK Document 133 Filed 08/26/21 Page 6 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 5. DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party or Non-Party that designates information or items for protection under this Order must take care to limit any such designation to specific material that qualifies under the appropriate standards. To the extent it is practical to do so, the Designating Party must designate for protection only those parts of material, documents, items, or oral or written communications that qualify – so that other portions of the material, documents, items, or communications for which protection is not warranted are not swept unjustifiably within the ambit of this Order. Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown to be clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily encumber or retard the case development process or to impose unnecessary expenses and burdens on other parties) expose the Designating Party to sanctions. Notwithstanding the above, it shall not be a violation of this Order for a Designating Party to designate all documents within a particular subset or category of documents where the entirety of all such documents qualify for protection under this Order. If it comes to a Designating Party’s attention that information or items that it designated for protection do not qualify for protection at all or do not qualify for the level of protection initially asserted, that Designating Party must promptly notify all other parties that it is withdrawing the mistaken designation. 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so designated before the material is disclosed or produced. Designation in conformity with this Order requires: (a) for information in documentary form (e.g., paper or electronic documents, but excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party affix the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 27 -4- 28 [JOINT PROPOSED] PROTECTIVE ORDER CASE NO. 5:19-CV-04618-LHK Case 5:19-cv-04618-LHK Document 133 Filed 08/26/21 Page 7 of 18 1 2 ONLY” to each page that contains protected material. A Party or Non-Party that makes original documents or materials available for inspection 3 need not designate them for protection until after the inspecting Party has indicated which material 4 it would like copied and produced. During the inspection and before the designation, all of the 5 material made available for inspection shall be deemed “HIGHLY CONFIDENTIAL – 6 ATTORNEYS’ EYES ONLY.” After the inspecting Party has identified the documents it wants 7 copied and produced, the Producing Party must determine which documents, or portions thereof, 8 qualify for protection under this Order. Then, before producing the specified documents, the 9 Producing Party must affix the appropriate legend (“CONFIDENTIAL” or “HIGHLY 10 CONFIDENTIAL – ATTORNEYS’ EYES ONLY”) to each page that contains Protected Material. 11 (b) for testimony given in deposition or in other pretrial or trial proceedings, that the 12 Designating Party identify on the record, before the close of the deposition, hearing, or other 13 proceeding, all protected testimony and specify the level of protection being asserted. When it is 14 impractical to identify separately each portion of testimony that is entitled to protection and it 15 appears that substantial portions of the testimony may qualify for protection, the Designating Party 16 may invoke on the record (before the deposition, hearing, or other proceeding is concluded) a right 17 to have up to 21 days to identify the specific portions of the testimony as to which protection is 18 sought and to specify the level of protection being asserted. Only those portions of the testimony 19 that are appropriately designated for protection within the 21 days shall be covered by the 20 provisions of this Stipulated Protective Order. Alternatively, a Designating Party may specify, at 21 the deposition or up to 21 days afterwards if that period is properly invoked, that the entire 22 transcript shall be treated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – 23 ATTORNEYS’ EYES ONLY.” 24 Parties shall give the other parties notice if they reasonably expect a deposition, hearing or 25 other proceeding to include Protected Material so that the other parties can ensure that only 26 authorized individuals who have signed the “Acknowledgment and Agreement to Be Bound” 27 -5- 28 [JOINT PROPOSED] PROTECTIVE ORDER CASE NO. 5:19-CV-04618-LHK Case 5:19-cv-04618-LHK Document 133 Filed 08/26/21 Page 8 of 18 1 (Exhibit A) are present at those proceedings. The use of a document as an exhibit at a deposition 2 shall not in any way affect its designation as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL 3 – ATTORNEYS’ EYES ONLY.” Transcripts containing Protected Material shall have an obvious legend on the title page that 4 5 the transcript contains Protected Material, and the title page shall be followed by a list of all pages 6 (including line numbers as appropriate) that have been designated as Protected Material and the 7 level of protection being asserted by the Designating Party. The Designating Party shall inform the 8 court reporter of these requirements. Any transcript that is prepared before the expiration of a 21- 9 day period for designation shall be treated during that period as if it had been designated “HIGHLY 10 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its entirety unless otherwise agreed. After 11 the expiration of that period, the transcript shall be treated only as actually designated. 12 (c) for information produced in some form other than documentary and for any 13 other tangible items, that the Producing Party affix in a prominent place on the exterior of the 14 container or containers in which the information or item is stored the legend “CONFIDENTIAL” 15 or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”. If only a portion or portions of 16 the information or item warrant protection, the Producing Party, to the extent practicable, shall 17 identify the protected portion(s) and specify the level of protection being asserted. 5.3 18 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 19 designate qualified information or items does not, standing alone, waive the Designating Party’s 20 right to secure protection under this Order for such material. Upon timely correction of a 21 designation, the Receiving Party must make reasonable efforts to assure that the material is treated 22 in accordance with the provisions of this Order. 23 6. 24 CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 25 confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality 26 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic 27 -6- 28 [JOINT PROPOSED] PROTECTIVE ORDER CASE NO. 5:19-CV-04618-LHK Case 5:19-cv-04618-LHK Document 133 Filed 08/26/21 Page 9 of 18 1 burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to 2 challenge a confidentiality designation by electing not to mount a challenge promptly after the 3 original designation is disclosed. 4 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process 5 by providing written notice of each designation it is challenging and describing the basis for each 6 challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must 7 recite that the challenge to confidentiality is being made in accordance with this specific paragraph 8 of the Protective Order. The parties shall attempt to resolve each challenge in good faith and must 9 begin the process by conferring directly (in voice to voice dialogue; other forms of communication 10 are not sufficient) within 14 days of the date of service of notice. In conferring, the Challenging 11 Party must explain the basis for its belief that the confidentiality designation was not proper and 12 must give the Designating Party an opportunity to review the designated material, to reconsider the 13 circumstances, and, if no change in designation is offered, to explain the basis for the chosen 14 designation. A Challenging Party may proceed to the next stage of the challenge process only if it 15 has engaged in this meet and confer process first or establishes that the Designating Party is 16 unwilling to participate in the meet and confer process in a timely manner. 17 18 19 20 21 22 23 24 25 26 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court parties must submit the dispute in accordance with Judge van Keulen's Civil and intervention, the Designating Party shall file and serve a motion to retain confidentiality under Discovery Referral Matters Standing Order Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) within 21 days of the initial notice of challenge or within 14 days of the parties agreeing that the meet and confer submission must affirm that process will not resolve their dispute, whichever is earlier. Each such motion must be the parties have accompanied by a competent declaration affirming that the movant has complied with the meet and confer requirements imposed in the preceding paragraph. Failure by the Designating Party to make submission such a motion including the required declaration within 21 days (or 14 days, if applicable) shall automatically waive the confidentiality designation for each challenged designation. In addition, initiate a submission in accordance with Judge van Keulen's standing order the Challenging Party may^file a motion challenging a confidentiality designation at any time if 27 -7- 28 [JOINT PROPOSED] PROTECTIVE ORDER CASE NO. 5:19-CV-04618-LHK Case 5:19-cv-04618-LHK Document 133 Filed 08/26/21 Page 10 of 18 3 there is good cause for doing so, including a challenge to the designation of a deposition transcript submission affirm that the or any portions thereof. Any motion brought pursuant to this provision must be accompanied by a parties have competent declaration affirming that the movant has complied with the meet and confer 4 requirements imposed by the preceding paragraph. 1 2 The burden of persuasion in any such challenge proceeding shall be on the Designating 5 6 Party. Frivolous challenges and those made for an improper purpose (e.g., to harass or impose 7 8 unnecessary expenses and burdens on other parties) may expose the Challenging Party to sanctions. initiate a joint submission Unless the Designating Party has waived the confidentiality designation by failing to file a motion 9 to retain confidentiality as described above, all parties shall continue to afford the material in 10 question the level of protection to which it is entitled under the Producing Party’s designation until 11 the court rules on the challenge. 12 7. 13 ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or 14 produced by another Party or by a Non-Party in connection with this case only for prosecuting, 15 defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to 16 the categories of persons and under the conditions described in this Order. When the litigation has 17 been terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL 18 DISPOSITION). 19 20 21 Protected Material must be stored and maintained by a Receiving Party at a location and in a secure manner that ensures that access is limited to the persons authorized under this Order. 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered 22 by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any 23 information or item designated “CONFIDENTIAL” only to: 24 (a) the Receiving Party’s Outside Counsel of Record in this action, as well as 25 employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the 26 information for this litigation; 27 -8- 28 [JOINT PROPOSED] PROTECTIVE ORDER CASE NO. 5:19-CV-04618-LHK Case 5:19-cv-04618-LHK Document 133 Filed 08/26/21 Page 11 of 18 (b) the officers, directors, and employees (including House Counsel) of the 1 2 Receiving Party to whom disclosure is reasonably necessary for this litigation; (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is 3 4 reasonably necessary for this litigation and who have signed the “Acknowledgment and Agreement 5 to Be Bound” (Exhibit A); 6 (d) the court and its personnel; 7 (e) court reporters and their staff, professional jury or trial consultants, and 8 Professional Vendors to whom disclosure is reasonably necessary for this litigation; 9 (f) during their depositions, witnesses in the action to whom disclosure is reasonably 10 necessary, unless otherwise agreed by the Designating Party or ordered by the court. In such cases, 11 such witnesses who have not previously executed the “Acknowledgment and Agreement to Be 12 Bound” (Exhibit A) shall be presented with that acknowledgment for execution at the outset of the 13 deposition. Pages of transcribed deposition testimony or exhibits to depositions that reveal 14 Protected Material must be separately bound by the court reporter and may not be disclosed to 15 anyone except as permitted under this Stipulated Protective Order. (g) the author or recipient of a document containing the information or a custodian 16 17 18 or other person who otherwise possessed or knew the information. 7.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” 19 Information or Items. Unless otherwise ordered by the court or permitted in writing by the 20 Designating Party, a Receiving Party may disclose any information or item designated “HIGHLY 21 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to: 22 (a) the Receiving Party’s Outside Counsel of Record in this action, as well as 23 employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the 24 information for this litigation; 25 26 (b) Designated House Counsel of the Receiving Party (1) who has no involvement in competitive decision-making and (2) to whom disclosure is reasonably necessary for this 27 -9- 28 [JOINT PROPOSED] PROTECTIVE ORDER CASE NO. 5:19-CV-04618-LHK Case 5:19-cv-04618-LHK Document 133 Filed 08/26/21 Page 12 of 18 1 litigation; (c) Experts of the Receiving Party (1) to whom disclosure is reasonably necessary 2 3 for this litigation and (2) who have signed the “Acknowledgment and Agreement to Be Bound” 4 (Exhibit A); 5 (d) the court and its personnel; 6 (e) court reporters and their staff, professional jury or trial consultants, and 7 Professional Vendors to whom disclosure is reasonably necessary for this litigation; (f) the author or recipient of a document containing the information or a custodian 8 9 10 or other person who otherwise possessed or knew the information. 8. 11 PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION If a Party is served with a subpoena or a court order issued in other litigation that 12 compels disclosure of any information or items designated in this action as “CONFIDENTIAL” or 13 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” that Party must: 14 15 (a) promptly notify in writing the Designating Party. Such notification shall include a copy of the subpoena or court order; 16 17 18 19 20 21 22 23 24 25 26 (b) promptly notify in writing the party who caused the subpoena or order to issue in the other litigation that some or all of the material covered by the subpoena or order is subject to this Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and (c) cooperate with respect to all reasonable procedures sought to be pursued by the Designating Party whose Protected Material may be affected. If the Designating Party timely seeks a protective order, the Party served with the subpoena or court order shall not produce any information designated in this action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” before a determination by the court from which the subpoena or order issued, unless the Party has obtained the Designating Party’s permission. The Designating Party shall bear the burden and expense of 27 - 10 - 28 [JOINT PROPOSED] PROTECTIVE ORDER CASE NO. 5:19-CV-04618-LHK Case 5:19-cv-04618-LHK Document 133 Filed 08/26/21 Page 13 of 18 1 seeking protection in that court of its confidential material – and nothing in these provisions should 2 be construed as authorizing or encouraging a Receiving Party in this action to disobey a lawful 3 directive from another court. 4 9. 5 A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION (a) The terms of this Order are applicable to information produced by a Non- 6 Party in this action and designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – 7 ATTORNEYS’ EYES ONLY”. Such information produced by Non-Parties in connection with this 8 9 10 litigation is protected by the remedies and relief provided by this Order. Nothing in these provisions should be construed as prohibiting a Non-Party from seeking additional protections. (b) In the event that a Party is required, by a valid discovery request, to produce 11 a Non-Party’s confidential information in its possession, and the Party is subject to an agreement 12 with the Non-Party not to produce the Non-Party’s confidential information, then the Party shall: 13 14 1. promptly notify in writing the Requesting Party and the Non-Party that some or all of the information requested is subject to a confidentiality agreement with a Non-Party; 15 16 17 2. promptly provide the Non-Party with a copy of the Stipulated Protective Order in this litigation, the relevant discovery request(s), and a reasonably specific description of the information requested; and 18 19 20 21 22 23 24 25 3. make the information requested available for inspection by the Non-Party. (c) If the Non-Party fails to object or seek a protective order from this court within 60 days of receiving the notice and accompanying information, the Receiving Party may produce the Non-Party’s confidential information responsive to the discovery request. If the NonParty timely seeks a protective order, the Receiving Party shall not produce any information in its possession or control that is subject to the confidentiality agreement with the Non-Party before a determination by the court. Absent a court order to the contrary, the Non-Party shall bear the burden and expense of seeking protection in this court of its Protected Material. 26 27 - 11 - 28 [JOINT PROPOSED] PROTECTIVE ORDER CASE NO. 5:19-CV-04618-LHK Case 5:19-cv-04618-LHK Document 133 Filed 08/26/21 Page 14 of 18 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 1 2 3 4 5 6 7 8 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected Material to any person or in any circumstance not authorized under this Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform the person or persons to whom unauthorized disclosures were made of all the terms of this Order, and (d) request such person or persons to execute the “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A. 11. 9 INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL 10 If information is produced in discovery that is subject to a claim of privilege or of 11 protection as trial preparation material, the party making the claim may notify any party that 12 received the information of the claim and the basis for it. After being notified, a party must 13 promptly return or destroy the specified information and any copies it has and may not sequester, 14 use or disclose the information until the claim is resolved. This includes a restriction against 15 presenting the information to the court for determination of the claim. This provision is not 16 intended to modify whatever procedure may be established in an e-discovery order that provides 17 for production without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and 18 (e), insofar as the parties reach an agreement on the effect of disclosure of a communication or 19 information covered by the attorney-client privilege or work product protection, the parties may 20 incorporate their agreement in the stipulated protective order submitted to the court. 21 12. 22 23 24 MISCELLANEOUS 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek its modification by the court in the future. 12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective 25 Order no Party waives any right it otherwise would have to object to disclosing or producing any 26 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no 27 - 12 - 28 [JOINT PROPOSED] PROTECTIVE ORDER CASE NO. 5:19-CV-04618-LHK Case 5:19-cv-04618-LHK Document 133 Filed 08/26/21 Page 15 of 18 1 Party waives any right to object on any ground to use in evidence of any of the material covered by 2 this Protective Order. 12.3 3 Filing Protected Material. Without written permission from the Designating Party 4 or a court order secured after appropriate notice to all interested persons, a Party may not file in the 5 public record in this action any Protected Material. A Party that seeks to file under seal any 6 Protected Material must comply with Civil Local Rule 79-5. Protected Material may only be filed 7 under seal pursuant to a court order authorizing the sealing of the specific Protected Material at 8 issue. Pursuant to Civil Local Rule 79-5, a sealing order will issue only upon a request establishing 9 that the Protected Material at issue is privileged, protectable as a trade secret, or otherwise entitled 10 to protection under the law. If a Receiving Party’s request to file Protected Material under seal 11 pursuant to Civil Local Rule 79-5(e) is denied by the court, then the Receiving Party may file the 12 Protected Material in the public record pursuant to Civil Local Rule 79-5(e)(2) unless otherwise 13 instructed by the court. 14 13. 15 FINAL DISPOSITION Within 60 days after the final disposition of this action, as defined in paragraph 4, 16 each Receiving Party must return all Protected Material to the Producing Party or destroy such 17 material. As used in this subdivision, “all Protected Material” includes all copies, abstracts, 18 compilations, summaries, and any other format reproducing or capturing any of the Protected 19 Material. Whether the Protected Material is returned or destroyed, the Receiving Party must 20 submit a written certification to the Producing Party (and, if not the same person or entity, to the 21 Designating Party) by the 60-day deadline that (1) identifies (by category, where appropriate) all 22 the Protected Material that was returned or destroyed and (2) affirms that the Receiving Party has 23 not retained any copies, abstracts, compilations, summaries or any other format reproducing or 24 capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled to 25 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, 26 legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work 27 - 13 - 28 [JOINT PROPOSED] PROTECTIVE ORDER CASE NO. 5:19-CV-04618-LHK Case 5:19-cv-04618-LHK Document 133 Filed 08/26/21 Page 16 of 18 1 product, and consultant and expert work product, even if such materials contain Protected Material. 2 Any such archival copies that contain or constitute Protected Material remain subject to this 3 Protective Order as set forth in Section 4 (DURATION). 4 5 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. DATED: August 25, 2021 BLOCK & LEVITON LLP 6 By: /s/ R. Joseph Barton R. Joseph Barton 7 8 Counsel for Plaintiffs 9 10 DATED: August 25, 2021 WILLIAMS AND CONNOLLY LLP 11 By: /s/ David S. Kurtzer-Ellenbogen David S. Kurtzer-Ellenbogen 12 13 Counsel for Defendants 14 I attest that my firm has obtained the concurrence of David S. Kurtzer-Ellenbogen in the 15 filing of this document. 16 17 DATED: August 25, 2021 R. Joseph Barton 18 By: /s/ R. Joseph Barton 19 20 IT IS SO ORDERED. 21 22 DATED: ________________________ August 26, 2021 _____________________________________ Honorable Susan van Keulen United States Magistrate Judge 23 24 25 26 27 - 14 - 28 [JOINT PROPOSED] PROTECTIVE ORDER CASE NO. 5:19-CV-04618-LHK Case 5:19-cv-04618-LHK Document 133 Filed 08/26/21 Page 17 of 18 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION 1 2 3 WINSTON R. ANDERSON, CHRISTOPHER M. SULYMA, and all others similarly situated, 4 Case No: 5:19-cv-04618-LHK (Consolidated with No. 15-cv-04977-NC & No. 16-cv-00522) Plaintiffs, 5 v. 6 7 8 9 10 11 12 13 14 15 INTEL CORPORATION INVESTMENT POLICY COMMITTEE, INTEL RETIREMENT PLANS ADMINISTRATIVE COMMITTEE, FINANCE COMMITTEE OF THE INTEL CORPORATION BOARD OF DIRECTORS, CHRISTOPHER C. GECZY, RAVI JACOB, DAVID S. POTTRUCK, ARVIND SODHANI, RICHARD TAYLOR, TERRA CASTALDI, RONALD D. DICKEL, TIFFANY DOON SILVA, TAMI GRAHAM, CARY KLAFTER, STUART ODELL, CHARLENE BARSHEFSKY, SUSAN L. DECKER, JOHN J. DONAHOE, REED E. HUNDT, JAMES D. PLUMMER, FRANK D. YEARY, STACY SMITH, ROBERT H. SWAN, TODD UNDERWOOD, AND GEORGE S. DAVIS 16 Defendants, 17 18 19 and INTEL 401(K) SAVINGS PLAN AND INTEL RETIREMENT CONTRIBUTION PLAN, 20 Nominal Defendants. 21 22 EXHIBIT A 23 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 24 I, _____________________________ [print or type full name], of 25 ______________________________ [print or type full address], declare under penalty of perjury 26 that I have read in its entirety and understand the Stipulated Protective Order that was issued by the 27 28 -1- [JOINT PROPOSED] PROTECTIVE ORDER CASE NO. 5:19-CV-04618-LHK Case 5:19-cv-04618-LHK Document 133 Filed 08/26/21 Page 18 of 18 1 United States District Court for the Northern District of California on [date] in the above captioned 2 case. I agree to comply with and to be bound by all the terms of this Stipulated Protective Order 3 and I understand and acknowledge that failure to so comply could expose me to sanctions and 4 punishment in the nature of contempt. I solemnly promise that I will not disclose in any manner 5 any information or item that is subject to this Stipulated Protective Order to any person or entity 6 except in strict compliance with the provisions of this Order. 7 I further agree to submit to the jurisdiction of the United States District Court for the 8 Northern District of California for the purpose of enforcing the terms of this Stipulated Protective 9 Order, even if such enforcement proceedings occur after termination of this action. 10 I hereby appoint __________________________ [print or type full name] of 11 _______________________________________ [print or type full address and telephone number] 12 as my California agent for service of process in connection with this action or any proceedings 13 related to enforcement of this Stipulated Protective Order. 14 15 Date: _________________________________ 16 City and State where sworn and signed: _________________________________ 17 Printed name: ______________________________ [printed name] 18 19 Signature: __________________________________ [signature] 20 21 22 23 24 25 26 27 28 -2- [JOINT PROPOSED] PROTECTIVE ORDER CASE NO. 5:19-CV-04618-LHK
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