NTCH-WA Inc v. ZTE Corporation et al, No. 2:2012cv03110 - Document 129 (E.D. Wash. 2014)
Court Description: ORDER DENYING 127 PLAINTIFF'S MOTION FOR RECONSIDERATION. Signed by Judge Thomas O. Rice. (BF, Judicial Assistant)
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NTCH-WA Inc v. ZTE Corporation et al Doc. 129 1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 NTCH-WA, INC., NO: 12-CV-3110-TOR 8 9 10 11 Plaintiff, ORDER DENYING MOTION FOR RECONSIDERATION v. ZTE CORPORATION, Defendant. 12 13 BEFORE THE COURT is Plaintiff NTCH-WA’s “Motion for Clarification 14 and/or Reconsideration of Protective Order” (ECF No. 127). This matter was 15 submitted for consideration without oral argument. The Court has reviewed the 16 record and files herein and is fully informed. 17 DISCUSSION 18 Plaintiff NTCH-WA has moved for “clarification and/or reconsideration” of 19 Paragraph No. 22 of the Protective Order entered on May 13, 2014 (ECF No. 126). 20 The motion is styled as a motion for “reconsideration” because the inclusion of ORDER DENYING MOTION FOR CLARIFICATION AND/OR RECONSIDERATION ~ 1 Dockets.Justia.com 1 Paragraph No. 22 in the protective order was previously the subject of a dispute 2 which the parties submitted for informal resolution via letter briefs. As Plaintiff 3 has now sought formal reconsideration of the Court’s prior informal ruling, the 4 Court has appended to this Order the parties’ letter briefs (Attachments A and B) 5 which were considered by the Court prior to entering the protective order. 6 Plaintiff’s arguments are not well-taken. Paragraph No. 22 of the protective 7 order is designed to streamline the discovery process by eliminating the hassle and 8 expense of physically re-producing documents that were made part of the trial 9 record in the arbitration proceedings, and are already within the possession of both 10 11 12 13 14 15 16 parties to this proceeding: The trial record in the arbitration . . . specifically including the transcript of the arbitration trial, all related briefing and memoranda, and the documents identified on the parties’ trial exhibit lists which were deemed admitted in the arbitration trial, shall be deemed produced and designated as CONFIDENTIAL MATERIALS for purposes of this action (the “Arbitration Materials”). The Arbitration Materials need not be produced again by any party in response to discovery requests, unless otherwise specifically requested. It is expressly understood and agreed by the parties that this paragraph is without prejudice to the parties’ respective positions regarding the relevance and/or admissibility of such documents, the scope of this action, and the effect, if any, of the Arbitration on this action. 17 ECF No. 126 at 10-11 (emphasis added). Contrary to Plaintiff’s assertions, there is 18 no danger that this paragraph will allow Defendant to “circumvent the relevancy 19 requirements of the Federal Rules and improperly introduce Plaintiff’s and the 20 non-party Arbitration Claimants’ documents into this litigation.” ECF No. 127 at ORDER DENYING MOTION FOR CLARIFICATION AND/OR RECONSIDERATION ~ 2 1 2. Indeed, Paragraph No. 22 specifically states that it cannot operate to waive any 2 objection to the relevance of a particular document contained within the arbitration 3 trial record. As counsel for Defendant explained in her letter brief, this paragraph 4 simply ensures that “neither side [will] be put to the expense of re-producing the 5 same documents, which were already within the other party’s possession, custody 6 and control, by virtue of [having been exchanged during] the arbitration.” 7 Lest there be any lingering confusion about the scope of Paragraph No. 22, 8 the Court offers the following interpretation: If a document responsive to a 9 discovery request is part of the arbitration trial record—“specifically including the 10 transcript of the arbitration trial, all related briefing and memoranda, and the 11 documents identified on the parties’ trial exhibit lists which were deemed admitted 12 in the arbitration trial”—that document need not be photocopied and mailed to 13 opposing counsel again. Pursuant to Paragraph No. 22, the document is 14 automatically “produced” in the sense that it is deemed to have been already 15 provided. To the extent that the “producing” party has a specific objection to the 16 admissibility of that document in these proceedings, it shall so notify the other 17 party. If the parties cannot agree about the admissibility of the document—after 18 meeting and conferring in good faith—then they may seek a ruling from the Court 19 in the ordinary course (preferably by way of an informal discovery conference). 20 ORDER DENYING MOTION FOR CLARIFICATION AND/OR RECONSIDERATION ~ 3 1 Because the Court recognizes the confidential nature of the arbitration trial 2 record it deemed these records “CONFIDENTIAL.” With that label, paragraph 10 3 of the Order Governing Confidential Material (ECF No. 126) requires that if 4 counsel seeks to use such evidence, it must be filed under seal. This not only 5 preserves the confidential nature of the records, but also allows the opposing party 6 to challenge the propriety of their use. 7 IT IS HEREBY ORDERED: 8 9 10 11 12 Plaintiff’s “Motion for Clarification and/or Reconsideration of Protective Order” (ECF No. 127) is DENIED. The District Court Executive is hereby directed to enter this Order and provide copies to counsel. DATED June 3, 2014. 13 14 THOMAS O. RICE United States District Judge 15 16 17 18 19 20 ORDER DENYING MOTION FOR CLARIFICATION AND/OR RECONSIDERATION ~ 4 ATTACHMENT A Exhibit A Exhibit B ATTACHMENT B I-Jogaii Lovells Hogan Love Ms US LLP 600 Brickell Avenue Suite 2700 Miami, FL 33131 T +1 305 459 6500 F +1 305 459 6550 www.hoganlovells.com May 8, 2014 Via Electronic Mail The Honorable Judge Thomas 0. Rice United States District Court Eastern District of Washington Thomas S. Foley U.S. Court House Re: NTCH-WA, Inc. v. ZTE Corporation Case No. 2:12-cv-03110-TOR Dear Judge Rice: This firm represents defendant ZTE Corporation in the above-referenced matter. This letter responds to Ms. Sofio’s letter to your Honor dated May 7, 2014. As your Honor will recall, Ms. Soflo previously wrote to you on April 7, 2014, to raise issues regarding defendant’s responses and objections to plaintiffs discovery requests, which had been timely served six weeks earlier. Plaintiff sent the April 7 letter to you having made no effort to meet and confer with counsel for defendant regarding the issues raised. Defendant responded to the April 7 letter on April II, 2014, and suggested that most, if not all, of the issues raised by the April 7 letter could be resolved if the parties simply met and conferred as required by the rules. On April 16, 2014, the Court, through Ms. Fortenberry, “direct[ed] the parties to meet and confer and agree on a protective order.” We are pleased to report that, in fact, the parties were able to resolve almost all of the issues related to specific document requests raised by the April 7 letter. At this juncture, defendant is considering several requests that plaintiff has agreed to clarify or narrow to determine whether the newly-revised requests satisfy defendant’s previously-stated concerns. Otherwise, all of the specific document request issues have been resolved. The issue that remains is the scope of the confidentiality order. As the Court is aware, voluminous documents were previously produced in the arbitration between the parties. To facilitate production in the arbitration, the parties agreed to treat all of the documents produced as confidential. Plaintiff NTCH-WA was a claimant in the arbitration and its counsel in this matter, Mr. Gallagher, was counsel to all claimants, including NTCH-WA, in the arbitration. (In fact, Mr. Gallagher was lead counsel for claimants in the arbitration trial.) Defendant ZTE Corporation was a respondent in the arbitration and its counsel in this matter, Ms. Besvinick, was counsel for respondents, including ZTE Corporation, in the arbitration. Consequently, both the parties to this case and their counsel already have possession, custody and control of the universe of documents at issue. Sensitive to this Court’s directive that the parties “economically view the case and determine what discovery, under either theory of the arbitration award, would be due either side,” we proposed that the parties agree to continue to treat the documents previously produced (between the parties) as confidential in the arbitration as confidential in this case. We also suggested that neither side be put to the expense of re-producing the same documents, which were already within the other party’s possession, custody and control, by virtue of the arbitration. Finally, we proposed that the confidentiality order include a provision reflecting these agreements. Hogan Lovells US LLP is a limited liability partnership registered in the District of Columbia. Hogan Lovells’ is an international legal practice that includes Hogan Lovells US LLP and Hogan Lovells International LLP, with offices in: Alicante Amsterdam Baltimore Beijing Brussels Caracas Colorado Springs Denver Dubai Dusseldorf Frankfurt Hamburg Hanoi Ho Chi Minh City Hong Kong Houston Johannesburg London Los Angeles Luxembourg Madrid Miami Milan Moscow Munich New York Northern Virginia Paris Philadelphia Prague Rio de Janeiro Rome San Francisco SSo Paulo Shanghai Silicon Valley Singapore Tokyo ulaanbaatar Warsaw Washington DC Associated offices. Budapest Jakarta Jeddah Riyadh Zagreb. For more information see wew.hoganlovells.com \tMl - 03888B/000004 - 184463 vi Plaintiff has objected to proceeding in this fashion. In support of its objection, plaintiff claims that it “cannot agree to lift the arbitration confidentiality order on behalf of other parties.” But this claim has no basis in fact. Continuing to treat the documents previously produced in the arbitration as confidential in a case between a subset of the parties to the arbitration does not expand the universe of persons with access to the documents. Moreover, the “other parties” to whom plaintiff refers are not strangers to plaintiff or this case they are Eric Steinmann, NTCH-WA’s “development manager,” and ClearTalk affiliates Daredevil, Inc., PTA-FLA, Inc., and NTCH-West Tenn, Inc. Plaintiff also claims that “plaintiffs counsel in this action has not had the opportunity to review all of plaintiff’s documents,” but this claim also rings hollow. As noted, Mr. Gallagher, counsel to plaintiff in this case, was lead counsel in the arbitration trial. Finally, plaintiff claims the “sensitive and irrelevant information was produced in the arbitration on the understanding that arbitration was a confidential procedure.” As noted above, defendant proposes to continue to treat the documents at issue as confidential in this case. Accordingly, it is unclear what harm our proposal could possibly cause to plaintiff or any of the other ClearTalk claimants. — . . . Nonetheless, in an effort to keep this case moving forward, we proposed a compromise solution to plaintiff. We proposed that, rather than agreeing to treat all documents produced in the arbitration as produced and confidential in this case, the parties agree to treat only the arbitration trial record (i.e., the transcript of the arbitration trial, the related briefing and memoranda, and the documents identified on the parties’ trial exhibit lists which were deemed admitted in the arbitration trial) accepted as produced and confidential in this case. The compromise proposal was intended to directly address plaintiff’s stated concerns regarding the breadth of claimants’ production in the arbitration and whether plaintiffs counsel had had the opportunity to review it in full. Plaintiff declined the compromise proposal without explanation. In a further effort to meet plaintiffs concerns, we also agreed to include specific language in the protective order to make clear that production of documents pursuant to the confidentiality order would not be deemed a waiver of either party’s objections based on relevance or admissibility. Accordingly, Defendant respectfully urges the Court to enter the proposed Confidentiality Order attached hereto as Exhibit A. The proposed Confidentiality Order reflects the agreement of the parties, with the sole exception of paragraph 22, which reflects the defendant’s compromise proposal. As the Court knows, the question of the preclusive impact of the arbitration on these proceedings will need to be addressed by the Court at the appropriate time. In order for the Court to do that, the Court will need to have complete access to the arbitration trial record, at minimum. Moreover, defendant previously identified the documents “already produced by NTCH-WA and ZTE USA in the Arbitration” in its Rule 26 initial disclosures as the documents that “may be used to support ZTE Corporation’s defenses.” Lastly, the documents are responsive to plaintiffs document requests to defendant. Defendant needs to produce them to plaintiff. . . . Based on the foregoing, we are prepared to make a full production to plaintiff, including the arbitration trial record, and intend to do so absent contrary direction from the Court. Thank you for your attention to this matter. We are available at the Court’s convenience should the Court determine a hearing is appropriate. Res ecifully submitted Laura Besvinick Partner laura.besvinick@hoganlovells.com D 305-459-6622 cc: All counsel of record \\MI - 038886/000004 - 184463 vi 2 6 THOMAS D. COCHRAN, WSBA 5910 MICHAEL J. KAPAUN, WSBA 36864 WITHERSPOON KELLEY 422 West Riverside Avenue, Suite 1100 Spokane, Washington 99201 Phone: (509) 624-5265 Fax: (509) 458-2728 The Honorable Thomas 0. Rice Email: tdc@witherspoonkelley.com mjk@witherspoonkelly.com 8 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 10 11 NTCH-WA, INC., a Washington Corporation, Case No. 2:12-cv-03110-TOR 12 Plaintiff, 13 14 v. 15 16 18 19 ZTE CORPORATION, a business incorporated under the laws of the People’s Republic of China; and DOES 1 through 10, inclusive [PROPOSED] ORDER GOVERNING CONFIDENTIAL MATERIAL Defendants. 20 21 IT IS HEREBY ORDERED THAT certain materials containing the 22 23 24 parties’ confidential and proprietary trade secrets, financial data, proprietary standards, guidelines and practices; employee contracts and compensation 25 information, personal or private information regarding customers, and other 26 27 28 [PROPOSED] ORDER GOVERNTNG CONFIDENTIAL MATERIAL: WITHERSPO ONKELLEY Attorneys & Counselors 422 W. Riverside Avenue, Suite 1100 Spokane, Washington 9920 1-0300 Phone: 509,624.5265 Fax: 509.458.2728 business information the release of which could pose a significant risk of 2 personal, business or competitive harm if made public, which are produced by the Plaintiffs or the Defendants in this action in response to discovery requests, or are 5 6 8 produced by third parties to the Plaintiffs or the Defendants in connection with this action, and which the party or third party producing such information designates as CONFIDENTIAL, shall be protected as described in this ORDER (hereinafter referred to as the “CONFIDENTIAL MATERIALS”). 1. 12 Any materials or CONFIDENTIAL MATERIALS exchanged or obtained in discovery shall be used by the receiving party solely for the 13 prosecution and/or defense of the lawsuit and for purposes of evaluation of 14 15 settlement and for settlement negotiations, and not for any other purpose, including without limitation, any competitive or business purpose. Nothing 18 19 contained herein shall restrict or prevent any party from disclosing or otherwise using any information or documents not obtained under this Order. 20 2. Any party may designate the information it produces as 2) 22 23 “CONFIDENTIAL” if it believes, in its good faith judgment, that the material . . . . . . contains confidential, sensitive or proprietary information that falls within the 24 25 26 foregoing description of CONFIDENTIAL MATERIALS. The party shall make this designation by placing on every document or other material containing such 27 28 [PROPOSED] ORDER GOVERNING CONFIDENTIAL MATERIAL: 2 WITHERS P0 ON• K EL L EY Attorneys & Counselors 422 W. Riverside Avenue, Suite 1100 Spokane, Washington 99201-0300 Phone: 509.624.5265 Fax: 509.458.2728 information the legend “CONFIDENTIAL” prior to providing such document or 2 other material or, if such method of designation is not feasible by providing other written notice of such designation. 5 6 8 ‘ 3. In the case of depositions, designation of the portion of the transcript, including exhibits, which contains “Confidential” information shall be made by a statement to such effect on the record in the course of the deposition. All copies of deposition transcripts that contain material designated as “CONFIDENTIAL” shall be prominently marked “CONFIDENTIAL” on the 12 cover thereof and, if and when filed with the Clerk, the portions of such transcript 13 designated “CONFIDENTIAL” shall be filed under seal. 14 15 4. If, at any time, a party disagrees with the designation of a document or other information as “Confidential” and protected by this Order, the parties 18 19 must first attempt to resolve the dispute by conferring pursuant to Rule 26. Failure to challenge a “Confidential” designation shall not constitute an 20 admission that such designation is appropriate. If the dispute is not resolved 21 22 through the conference process, then the designator will have fourteen (14) days to move the Court for protection. As provided in Rule 26(c), the burden of 25 26 27 28 establishing that any information or material should be designated and treated as “Confidential” shall be on the party seeking to uphold the designation. Any [PROPOSED] ORDER GOVERNING CONFIDENTIAL MATERIAL: 3 WITHERSPOON•KELLEY Attorneys & Counselors 422 W. Riverside Avenue, Suite 1100 Spokane, Washington 99201-0300 Phone: 509.624.5265 Fax: 509.458.2728 disputed document or information will be treated as protected under this Order 2 unless and until the Court enters an order otherwise, or until the time period for seeking such a ruling expires. 5 6 8 Under no circumstances, other than those specifically provided for in 5. this AGREEMENT or subsequent agreement or a court order or with the explicit consent in writing of the producing party with respect to specifically identified CONFIDENTIAL MATERIALS, shall CONFIDENTIAL MATERIALS or their contents in any way whatsoever be revealed, published, disclosed or otherwise 12 made known to persons other than the following: 13 a. the parties to this action; ‘4 b. inside and outside counsel for the parties, as well as their employees assisting with this action; 18 19 c. Outside photocopying, data processing, graphic production services or other vendors retained by counsel for a Party to assist in this 20 litigation; 21 22 73 - d. experts or consultants retained in good faith to assist counsel in this litigation, but only upon the prior execution of an agreement to be 24 25 bound by this AGREEMENT in the form attached hereto as Appendix 26 A; 27 28 [PROPOSED] ORDER GOVERNING CONFIDENTIAL MATERIAL: 4 WITHERS P0 0N KE L L EY Attorneys & Counselors 422 W. Riverside Avenue, Suite I 100 Spokane, Washington 99201-0300 Phone: 509.624.5265 Fax: 509.458.2728 e. court reporters who record testimony taken in the course of this 2 litigation, f. the Court, pursuant to paragraph 10 of this AGREEMENT; g. any deponent or witness to whom counsel for a Party determines in 5 6 the exercise ofjudgment reasonably exercised disclosure is necessary for the prosecution or defense of this litigation, including preparation 8 for deposition or other testimony, provided that prior to disclosure such deponent agrees, in writing to be bound by the terms of this Order. 12 6. Any deposition or portion thereof during which Information ‘3 designated as “Confidential” is being disclosed by any party shall be taken as if in 14 15 camera without any persons in attendance other than the deposition witness, and those identified in paragraph 5 (for “Confidential” Information). The court 18 19 reporter shall be provided with a copy of this Stipulated Confidentiality Agreement and Protective Order. 20 7. Each person given access to the CONFIDENTIAL MATERIALS 21 22 23 pursuant to paragraph 5 of this AGREEMENT shall be advised by counsel for the . . . party giving access that the material or information is subject to the terms of this 24 25 AGREEMENT and may not be disclosed other than pursuant to the terms thereof. 26 27 28 [PROPOSED] ORDER GOVERNING CONFIDENTIAL MATERIAL: 5 WITHERS P00 N K EL L E Y Attorneys & Counselors 422 W. Riverside Avenue, Suite I 100 Spokane, Washington 99201-0300 Phone: 509624.5265 Fax: 509.458.2728 8. 2 Prior to disclosure of the CONFIDENTIAL MATERIALS to the parties in this action, counsel for the party seeking to make such disclosure shall provide to its client(s) a copy of this AGREEMENT and explain the terms and 5 6 8 conditions thereof. 9. Prior to disclosure of CONFIDENTIAL MATERIALS to any of the persons described in paragraph 4.c, d, and g. of this AGREEMENT, such persons shall first: a. read this AGREEMENT; and b. sign a copy of the Confidentiality Agreement attached hereto as 12 13 Appendix A and thereby become subject to this AGREEMENT. Copies 14 of the signed Confidentiality Agreement are to be retained by counsel 15 for the party making the disclosure. 18 19 In addition, upon request, persons described in paragraph 5.c, d and g. of this AGREEMENT must destroy or promptly return all CONFIDENTIAL 20 MATERIALS to the producing party. 21 22 10. In the event that counsel for any party files with this Court any CONFIDENTIAL MATERIALS or any papers containing or making reference to 25 such material or information, such documents shall be filed under seal pursuant to 26 27 28 [PROPOSED] ORDERGOVERNING CONFIDENTIAL MATERIAL: 6 WITHERSPOON•KELLEY Attorneys & Counselors 422 W. Riverside Avenue, Suite 1100 Spokane, Washington 99201-0300 Phone: 509.624.5265 Fax: 509.458.2728 the E.D. Wa. instructions available at 2 http ://www.waed .uscourts .gov/sites/default/files/u90/sealed handout civil .pdf. 11. 5 Entering into, agreeing to and/or producing or receiving materials or otherwise complying with the terms of this AGREEMENT shall not: 6 a. prejudice in any way the rights of a party to object to the future production of documents it considers not subject to discovery; 8 b. prejudice in any way the rights of a party to attempt to introduce into evidence the CONFIDENTIAL MATERIALS, subject to any and all objections made thereto; 12 13 c. prejudice in any way the rights of a party to apply to the Court for a 14 protective order or an in camera inspection relating to any 15 CONFIDENTIAL MATERIALS or other discovery materials; or d. prejudice in any way the rights of a party to apply to the Court at any 18 19 time for an order removing a party’s confidential designation. 20 12. This AGREEMENT has no effect upon, and its scope shall not 21 22 extend to, a party’s use of its own CONFIDENTIAL MATERIALS. 13. 25 26 Counsel for the parties will maintain, for in camera inspection by the Court, copies of all Confidentiality Agreements signed pursuant to the provisions of this AGREEMENT. 27 28 [PROPOSED] ORDER GOVERNING CONFIDENTIAL MATERIAL: 7 WITHERSPOON•KELLEY Attorneys & Counselors 422 W. Riverside Avenue, Suite 1100 Spokane, Washington 99201-0300 Phone: 509.624.5265 Fax: 509.458.2728 14. 2 The inadvertent production of CONFIDENTIAL MATERIALS subject to the attorney-client, work-product or other privilege or doctrine shall not waive any such privilege or doctrine. In addition, the fact that privileged 5 6 8 CONFIDENTIAL MATERIALS were inadvertently produced shall not be used in any manner to support a claim of waiver. Upon receiving notice from a party that privileged or otherwise protected CONFIDENTIAL MATERIALS have been inadvertently produced, any person or entity receiving such CONFIDENTIAL MATERIALS shall return them and all copies, and all documents or other 12 material containing all or any portion of information contained in or derived from 13 such CONFIDENTIAL MATERIALS shall be destroyed, within seven (7) 14 15 business days to the producing party, unless the receiving party intends to ‘ challenge the producing party’s claim(s) of attorney-client, work-product or other 18 19 privilege or doctrine. If the receiving party intends to challenge the producing party’s claim(s) the receiving party nevertheless shall treat the CONFIDENTIAL 20 MATERIALS as confidential, subject to this Order, and may not use the 21 22 CONFIDENTIAL MATERIALS for any purpose other than making a motion to the Court that challenges the producing party’s claim(s) of attorney-client, work- 25 product or other privilege or doctrine. 26 27 28 [PROPOSED] ORDER GOVERNING CONFIDENTIAL MATERIAL: 8 WITHERS P00 N KE L L EY Attorneys & Counselors 422 W. Riverside Avenue, Suite 1100 Spokane, Washington 99201-0300 Phone: 509.6245265 Fax: 509.458.2728 15. 2 The inadvertent failure by a Party to designate CONFIDENTIAL MATERIALS as CONFIDENTIAL shall not be a waiver of such designation provided that the party who fails to make such designation informs the receiving 5 6 8 party within seven (7) business days from when the failure to designate first became known to the producing party. The party receiving CONFIDENTIAL MATERIALS that the producing party inadvertently failed to designate as CONFIDENTIAL shall not be in breach of this Order for any use made of such information before the receiving party is informed of the inadvertent failure to 12 designate pursuant to this Paragraph. Upon receipt of such notice, the receiving 13 party shall immediately take reasonable steps to ensure that any 14 15 CONFIDENTIAL MATERIALS disclosed to persons or entities not authorized to receive it pursuant to this Order, and all copies thereof, are retrieved and secured 18 19 as required by this Order, and that the unauthorized persons or entities provided with such CONFIDENTIAL MATERIALS agree, in writing, to be bound by the 20 provisions of this Order. 21 22 16. In the event additional parties to this litigation desire to have access 73 to the CONFIDENTIAL MATERIALS, neither such parties or their counsel or 24 25 26 27 28 their experts or consultants retained to assist said counsel shall have access to the CONFIDENTIAL MATERIALS until said party or their counsel has executed [PROPOSED] ORDER GOVERNTNG WITHERSPOON•KELLEY CONFIDENTIAL MATERIAL: 9 Attorneys & Counselors 422 W, Riverside Avenue. Suite 1100 Spokane, Washington 99201-0300 Phone: 509.624.5265 Fax: 509.458.2728 and filed with the Court a copy of this AGREEMENT, and has served a copy of 2 same on all counsel of record. 17. 5 6 8 After the termination of this proceeding, this AGREEMENT shall continue to be binding upon the parties hereto and their successors and assigns, and upon all persons to whom the CONFIDENTIAL MATERIALS has been disclosed or communicated and the parties hereto agree that the Court shall retain jurisdiction over the parties for enforcement of its provisions. 18. 12 Upon conclusion of this litigation and upon request of the producing party, all the CONFIDENTIAL MATERIALS and all copies thereof (including 13 copies provided to testifying or consulting experts) shall either be destroyed or 14 15 returned to the producing party along with an affidavit of counsel indicating that ‘ counsel has made a good faith effort to destroy or return all such CONFIDENTAL MATERIALS, and believes in good faith that all such copies 19 have been destroyed or returned. 20 19. 21 22 If any party (or their counsel) to this action receives a subpoena or other compulsory process demanding information, documents or materials considered “CONFIDENTIAL” pursuant to this AGREEMENT, the party or 25 26 27 28 counsel receiving the subpoena or other compulsory process shall give written notice of the subpoena or other compulsory process to counsel for the producing [PROPOSED] ORDERGOVERNING WITHERSPOONKELLEY CONFIDENTIAL MATERIAL: 10 Attorneys & Counselors 422 W. Riverside Avenue, Suite 1100 Spokane, Washington 99201-0300 Phone: 509.624.5265 Fax: 509.458.2728 party at least 14 days prior to the return date, or, if the subpoena or other 2 compulsory process has a return date of less than 14 days, notice shall be given to the designating person by facsimile as soon as possible but in no event later than 5 6 8 72 hours prior to the return date. 20. Absent notification in writing that the producing party has taken (or intends to take) action to protect the confidentiality of the requested information, document or material, the party or counsel subject to the subpoena or other compulsory process may produce the requested information, document or 12 material on the return date provided it makes clear that such information, 13 documents and material were provided with the understanding that they would be 14 Is 16 maintained confidentially pursuant to this AGREEMENT. 21. The failure of either party to enforce any provision or provisions of 17 18 19 this AGREEMENT shall not be in any way construed as a waiver of any such provision or provisions, nor prevent that party from thereafter enforcing each and 20 every other provision of this AGREEMENT. 21 22 22. The trial record in the arbitration between Daredevil, Inc., PTA FLA, Inc., NTCH-West Tenn, Inc., NTCH-WA, Inc., and Eric Steinmann, and 25 26 ZTE Corporation and ZTE USA, Inc., ICDR N 50 494 T 00665 11 (the “Arbitration”), specifically including the transcript of the arbitration trial, all 27 28 [PROPOSED] ORDER GOVERNTNG CONFIDENTIAL MATERIAL: 11 WITHERSPOONKELLEY Attorneys & Counselors 422 W. Riverside Avenue, Suite 1100 Spokane, Washington 99201-0300 Phone: 509.624.5265 Fax: 509.458.2728 related briefing and memoranda, and the documents identified on the parties’ trial 2 exhibit lists which were deemed admitted in the arbitration trial, shall be deemed produced and designated as CONFIDENTIAL MATEALS for puoses of this 5 6 8 action (the “Arbitration Materials”). The Arbitration Materials need not be produced again by any party in response to discovery requests, unless otherwise specifically requested. It is expressly understood and agreed by the parties that this paragraph is without prejudice to the parties’ respective positions regarding the relevance and/or admissibility of such documents, the scope of this action, 12 and the effect, if any, of the Arbitration on this action. 13 14 DONE IN OPEN COURT, this day of May, 2014. 15 16 17 18 HONORABLE THOMAS 0. RICE 19 20 21 22 23 24 25 26 27 28 [PROPOSED] ORDER GOVERNING CONFIDENTIAL MATERIAL: 12 WITHERS P0 ON• K EL L E Y Attorneys & Counselors 422 W. Riverside Avenue, Suite 1100 Spokane, Washington 99201-0300 Phone: 509.624.5265 Fax: 509.458.2728 APPENDIX A 2 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 3 5 NTCH-WA, INC., a Washington Corporation, Case No. 2:1 2-cv-03 11 0-TOR 6 Plaintiff, 7 8 10 V. ZTE CORPORATION, a business incorporated under the laws of the People’s Republic of China; and DOES 1 through 10, inclusive STIPULATED AGREED ORDER GOVERNING CONFIDENTIAL MATERIAL 12 Defendants. 13 14 15 WHEREAS, the Court in the above-captioned matter has entered an Order ‘ Governing Confidential Material (hereinafter “Order”) governing the disclosure 18 of Confidential Information in the above-captioned matter; and 19 WHEREAS, pursuant to the Order, the parties have determined that the undersigned is a person and/or entity to whom it may be necessary to disclose 21 22 23 designated CONFIDENTIAL MATERIAL that may contain Confidential . . Information and/or may be privileged, confidential, proprietary and/or 24 25 inappropriate for disclosure as set forth in the Order; and 26 27 28 [PROPOSED] ORDER GOVERNTNG CONFIDENTIAL MATERIAL: 13 WITHERSPOON•KELLEY Attorneys & Counselors 422 W. Riverside Avenue, Suite 1100 Spokane, Washington 99201-0300 Phone: 509.624.5265 Fax: 509.458.2728 WHEREAS, pursuant to the Order all designated CONFIDENTIAL 2 MATERIAL are required to be kept confidential and may not be disclosed or disseminated except as set forth in the Order; and 5 6 8 WHEREAS, the Order requires the execution of this Confidentiality Agreement which is referred to as “Appendix A” in the Order; and WHEREAS, the undersigned has fully read and understands the terms and conditions contained in the Order and this Confidentiality Agreement; NOW THEREFORE, the undersigned acknowledges, agrees and affirms 12 13 that it/he/she has read the Order and this Confidentiality Agreement; fully understands all the terms and conditions contained in the Order and this 14 15 Confidentiality Agreement; and shall be bound by and shall comply with the 16 terms and conditions of the Order and any penalties and/or liability that may exist 17 18 19 for breach of the Order by the undersigned. IN WITNESS WHEREOF, the undersigned executes this Confidentiality 20 Agreement as of the date written below. 21 22 23 SIGNATURE 24 25 26 27 28 [PROPOSED] ORDER GOVERNING CONFIDENTIAL MATERIAL: 14 WITHERS P0 ON- K EL L E Y Attorneys & Couns&ors 422W. Riverside Avenue, Suite 1100 Spokane, Washington 99201-0300 Phone: 509.624.5265 Fax: 509.458.2728 Name: (Please Print) 2 3 Title: 4 5 6 Address: 7 8 9 Telephone: 12 13 Date: 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED] ORDER GOVERNING CONFIDENTIAL MATERIAL: 15 WITHERS P0 0N K EL L EY Attorneys & Counselors 422 W. Riverside Avenue, Suite 1100 Spokane, Washington 99201-0300 Phone: 509.624.5265 Fax: 509.458.2728
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