Lang Van, Inc. v. VNG Corporation et al, No. 8:2014cv00100 - Document 169 (C.D. Cal. 2019)
Court Description: ORDER GRANTING STIPULATED PROTECTIVE ORDER 168 by Magistrate Judge John D. Early. (see document for details) (hr)
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Lang Van, Inc. v. VNG Corporation et al Doc. 169 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SOUTHERN DIVISION 11 12 LANG VAN, INC., a California 13 Corporation, [Discovery Document: Referred to Magistrate Judge John D. Early] 14 Case No. 8:14-cv-00100-AG (JDEx) Plaintiff, 15 16 v. 17 VNG CORPORATION, a Vietnamese 18 Corporation, 19 Defendant. ORDER GRANTING STIPULATED PROTECTIVE ORDER Hon. Andrew J. Guilford Courtroom: 10D 20 21 22 23 24 25 26 27 28 Case No. 8:14-CV-00100-AG (JDEx) STIPULATED PROTECTIVE ORDER Dockets.Justia.com 1 Pursuant to Federal Rule of Civil Procedure 26(c), Plaintiff Lang Van, Inc. 2 (“Lang Van”) and Defendant VNG Corporation (“VNG”) (collectively the 3 “Parties”), by and through their undersigned counsel of record, hereby stipulate 4 and agree to the request for, and entry of, the following Stipulated Protective Order 5 governing the production, use, and disclosure of confidential information in this 6 action, which replaces and supersedes the Protective Order that is currently 7 operative in this action (ECF 40): 8 1. PURPOSES AND LIMITATIONS 9 Discovery in this action is likely to involve production of confidential, 10 proprietary, or private information for which special protection from public 11 disclosure and from use for any purpose other than prosecuting this litigation may 12 be warranted. Accordingly, the Parties hereby stipulate to and petition the Court to 13 enter the following Stipulated Protective Order. The Parties acknowledge that this 14 Order does not confer blanket protections on all disclosures or responses to 15 discovery and that the protection it affords from public disclosure and use extends 16 only to the limited information or items that are entitled to confidential treatment 17 under the applicable legal principles. The Parties further acknowledge, as set forth 18 in Section 14.3, below, that this Stipulated Protective Order does not entitle them 19 to file confidential information under seal; Civil Local Rule 79-5 sets forth the 20 procedures that must be followed and the standards that will be applied when a 21 party seeks permission from the court to file material under seal. 22 2. GOOD CAUSE STATEMENT 23 Lang Van has brought an action claiming that VNG infringed Lang Van’s 24 copyrighted works. This action is likely to involve valuable research, 25 development, commercial, financial, technical, and/or proprietary information, 26 including such information from or regarding third parties, for which special 27 protection from public disclosure and from use for any purpose other than 28 1 Case No. 8:14-CV-00100-AG (JDEx) STIPULATED PROTECTIVE ORDER 1 prosecution of this action is warranted. 2 Such confidential and proprietary materials and information consist of, 3 among other things, confidential business or financial information, including 4 business plans; information regarding confidential business practices, including 5 marketing plans and confidential license agreements and other contracts, many of 6 which contain confidentiality clauses that restrict the disclosure of the contracts; 7 and information otherwise generally unavailable to the public, or which may be 8 privileged or otherwise protected from disclosure under state or federal statutes, 9 court rules, case decisions, or common law. The Parties consider the 10 aforementioned information to be proprietary, commercially sensitive, and/or 11 private. And third parties, some of whom have indicated that they view Lang Van 12 as a competitor, have expressed reservations regarding production in the litigation 13 of confidential information that they have, or that the Parties have, for the same 14 reasons. To address these concerns and avoid lengthy and expensive litigation 15 over the issue, the Parties agree that a mutually appropriate protective order will 16 speed the discovery and litigation processes. 17 Accordingly, to expedite the flow of information, to facilitate the prompt 18 resolution of disputes over confidentiality of discovery materials, to adequately 19 protect information the Parties and Non-Parties are entitled to keep confidential, to 20 ensure that the Parties are permitted reasonable necessary uses of such material in 21 preparation for and in the conduct of trial, to address their handling at the end of 22 the litigation, and serve the ends of justice, a protective order for such information 23 is justified in this matter. It is the intent of the Parties that information will not be 24 designated as confidential for tactical reasons and that nothing be so designated 25 without a good faith belief that it has been maintained in a confidential, non-public 26 manner, and there is good cause why it should not be part of the public record of 27 this case. 28 Case No. 8:14-CV-00100-AG (JDEx) 2 STIPULATED PROTECTIVE ORDER 1 2 3 3. ACKNOWLEDGMENT OF UNDER SEAL FILING PROCEDURE The parties further acknowledge, as set forth in Section 14.3, below, that this 4 Stipulated Protective Order does not entitle them to file confidential information 5 under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed 6 and the standards that will be applied when a party seeks permission from the court 7 to file material under seal. There is a strong presumption that the public has a right 8 of access to judicial proceedings and records in civil cases. In connection with 9 motions unrelated to the merits of the case, good cause must be shown to support a 10 filing under seal. See Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 11 1097 (9th Cir. 2016); Kamakana v. City and County of Honolulu, 447 F.3d 1172, 12 1176 (9th Cir. 2006), Phillips v. Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th 13 Cir. 2002), Makar-Welbon v. Sony Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 14 1999) (even stipulated protective orders require good cause showing), and a 15 specific showing of good cause or compelling reasons with proper evidentiary 16 support and legal justification, must be made with respect to Protected Material 17 that a party seeks to file under seal. The parties’ mere designation of Disclosure or 18 Discovery Material as CONFIDENTIAL or HIGHLY CONFIDENTIAL – 19 ATTORNEYS’ EYES ONLY does not— without the submission of competent 20 evidence by declaration, establishing that the material sought to be filed under seal 21 qualifies as confidential, privileged, or otherwise protectable—constitute good 22 cause. 23 Further, if a party requests sealing related to matters that are more than 24 tangentially related to the merits of the litigation, then compelling reasons, not only 25 good cause, for the sealing must be shown, and the relief sought shall be narrowly 26 tailored to serve the specific interest to be protected. See Ctr. For Auto Safety, 809 27 F.3d at 1099; Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir. 28 2010). For each item or type of information, document, or thing sought to be filed Case No. 8:14-CV-00100-AG (JDEx) 3 STIPULATED PROTECTIVE ORDER 1 or introduced under seal, the party seeking protection must articulate compelling 2 reasons, supported by specific facts and legal justification, for the requested sealing 3 order. Again, competent evidence supporting the application to file documents 4 under seal must be provided by declaration. 5 Any document that is not confidential, privileged, or otherwise protectable 6 in its entirety will not be filed under seal if the confidential portions can be 7 redacted. If documents can be redacted, then a redacted version for public 8 viewing, omitting only the confidential, privileged, or otherwise protectable 9 portions of the document, shall be filed. Any application that seeks to file 10 documents under seal in their entirety should include an explanation of why 11 redaction is not feasible. 12 For the avoidance of doubt, a Non-Party may file motions to seal 13 information in this litigation. 14 4. DEFINITIONS 15 4.1 Action: Lang Van, Inc. v. VNG Corporation, Central District of 16 California, Case No. 18:14-CV-00100-AG (JDEx). 17 4.2 Challenging Party: a Party or Non-Party that challenges the 18 designation of information or items under this Order. 19 4.3 “CONFIDENTIAL” Information or Items: information (regardless of 20 how it is generated, stored or maintained) or tangible things that qualify for 21 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 22 the Good Cause Statement. 23 4.4 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” 24 Information or Items: information (regardless of how it is generated, stored or 25 maintained) or tangible things that qualify for protection under Federal Rule of 26 Civil Procedure 26(c), and as specified above in the Good Cause Statement, which 27 is so highly sensitive and confidential as to require the possession of such 28 information to be limited to those persons set forth in Paragraph 9.3. Trade secret Case No. 8:14-CV-00100-AG (JDEx) 4 STIPULATED PROTECTIVE ORDER 1 information qualifies as Highly Confidential – Attorneys Eyes Only information. 2 The information that may be designated as HIGHLY CONFIDENTIAL – 3 ATTORNEYS’ EYES ONLY is only that produced and so-designated by Non4 Parties and/or that for which such a designation is required of a Party pursuant to a 5 confidentiality agreement with a Non-Party in order for the materials to be 6 produced. The Parties shall encourage the Non-Parties to make and/or request this 7 designation as sparingly as possible, and, consistent with Paragraph 7.1 herein, the 8 designation shall only be made to those parts of material, documents, items, or oral 9 or written communications that qualify so that other portions of the material, 10 documents, items, or communications shall not be restricted by the designation. 11 Any designation of information as HIGHLY CONFIDENTIAL – ATTORNEYS’ 12 EYES ONLY shall be a certification to the Court and the other Parties that such 13 information is believed subject to this more restrictive classification within the 14 meaning of this Stipulated Protective Order. Any Certified Translation (as defined 15 in Paragraph 4.5 below) of material designated as HIGHLY CONFIDENTIAL – 16 ATTORNEYS’ EYES ONLY shall also be designated as HIGHLY 17 CONFIDENTIAL – ATTORNEYS’ EYES ONLY. 18 4.5 Certified Translation: This term shall mean and refer to an English- 19 language version, as translated by a translation service certified in the United 20 States and/or Vietnam, of each document or material that is not in English and that 21 is designated as HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY. In 22 the event that a Party not responsible for providing the Certified Translation (as 23 specified in Paragraph 7.4 herein) objects to the admissibility of the Certified 24 Translation on grounds of lack of authenticity or the accuracy of the translation, 25 then counsel for such Party must provide notice of such objection, together with 26 the grounds for such objection and/or a proposed alternative Certified Translation 27 of the applicable document, within thirty (30) days of receipt of the Certified 28 Translation (the “Translation Objection”). If no Translation Objection is timely Case No. 8:14-CV-00100-AG (JDEx) 5 STIPULATED PROTECTIVE ORDER 1 made, then any Party not responsible for providing the Certified Translation shall 2 be deemed to have waived any objection to the Certified Translation. 3 4.6 Counsel: Outside Counsel of Record and In-House Counsel (as well 4 as their support staff). 5 4.7 Designating Party: a Party or Non-Party that designates information 6 or items that it produces in disclosures or in responses to discovery as 7 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 8 ONLY,” as applicable. 9 4.8 Disclosure or Discovery Material: all items or information, regardless 10 of the medium or manner in which it is generated, stored, or maintained (including, 11 among other things, testimony, transcripts, and tangible things), that are produced 12 or generated in disclosures or responses to discovery requests in this matter. 13 4.9 Expert: a person with specialized knowledge or experience in a 14 matter pertinent to the litigation who has been retained by a Party or its counsel to 15 serve as an expert witness or as a consultant in this Action. 16 4.10 In-House Counsel: attorneys who are employees of a party to this 17 Action. In-House Counsel does not include Outside Counsel of Record or any 18 other outside counsel. 19 4.11 Non-Party: any natural person, partnership, corporation, association, 20 or other legal entity not named as a Party to this action. 21 4.12 Outside Counsel of Record: attorneys who are not employees of a 22 party to this Action but are retained to represent or advise a party to this Action 23 and have appeared in this Action on behalf of that party or are affiliated with a law 24 firm that has appeared on behalf of that party, and includes support staff. 25 4.13 Party: any party to this Action, including all of its officers, directors, 26 employees, consultants, retained experts, and Outside Counsel of Record (and their 27 support staffs). 28 4.14 Producing Party: a Party or Non-Party that produces Disclosure or Case No. 8:14-CV-00100-AG (JDEx) 6 STIPULATED PROTECTIVE ORDER 1 Discovery Material in this Action. 2 4.15 Professional Vendors: persons or entities that provide litigation 3 support services (e.g., photocopying, videotaping, translating, preparing exhibits or 4 demonstrations, and organizing, storing, analyzing, or retrieving data in any form 5 or medium) and their employees and subcontractors. 6 4.16 Protected Material: any Disclosure or Discovery Material that is 7 designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – 8 ATTORNEYS’ EYES ONLY.” 9 4.17 Receiving Party: a Party that receives Disclosure or Discovery 10 Material from a Producing Party. 11 5. SCOPE 12 The protections conferred by this Stipulation and Order cover not only 13 Protected Material (as defined above), but also (1) any information copied or 14 extracted from Protected Material; (2) all copies, excerpts, summaries, or 15 compilations of Protected Material; and (3) any testimony, conversations, or 16 presentations by Parties or their Counsel that might reveal Protected Material. 17 Any use of Protected Material at trial shall be governed by the orders of the 18 trial judge. This Order does not govern the use of Protected Material at trial. 19 6. DURATION 20 Even after final disposition of this litigation, the confidentiality obligations 21 imposed by this Order shall remain in effect until a Designating Party agrees 22 otherwise in writing or a court order otherwise directs. Final disposition shall be 23 deemed to be the later of (1) dismissal of all claims and defenses in this Action, 24 with or without prejudice; and (2) final judgment herein after the completion and 25 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action, 26 including the time limits for filing any motions or applications for extension of 27 time pursuant to applicable law. 28 In the event any person in receipt of Protected Material receives a written Case No. 8:14-CV-00100-AG (JDEx) 7 STIPULATED PROTECTIVE ORDER 1 request, subpoena, or Court Order seeking disclosure of another party’s Protected 2 Material, such person shall promptly upon receipt of such request, subpoena, or 3 Court Order, notify counsel for the designating party of the request, subpoena, or 4 Court Order, and shall provide counsel for the designating party with a copy of the 5 same, unless prohibited by law. 6 Following final disposition, counsel of record for each party receiving 7 Protected Material shall, upon written request by the party that produced the 8 Protected Material, and except as provided herein, either assemble and return to the 9 disclosing party all Documents designated as “Confidential” or “Highly 10 Confidential – Attorneys’ Eyes Only” or shall assemble and destroy all Documents 11 so designated, including all summaries or other material containing or disclosing 12 Protected Material, the destruction of which shall be confirmed in writing to the 13 party that produced the Protected Information within thirty (30) days of a request 14 for such return or destruction made by that party. All materials returned to the 15 Parties or their counsel by the Court likewise shall be disposed of in accordance 16 with this paragraph. However, nothing herein shall require any party or counsel to 17 disclose to any other Party or counsel any materials protected by the attorney-client 18 privilege or attorney-work product doctrine even if they contain another party’s 19 Protected Material. Such materials shall be destroyed, not returned, in response to 20 a request made pursuant to this Paragraph. Also, nothing herein shall preclude 21 counsel of record from maintaining one copy of all case files in connection with 22 the action even if they contain Protected Material, but such counsel of record shall 23 continue to treat such filings containing Protected Material according to the 24 protections afforded by this Protective Order. 25 7. DESIGNATING PROTECTED MATERIAL 26 7.1 Exercise of Restraint and Care in Designating Material for Protection. 27 Each Party or Non-Party that designates information or items for protection under 28 this Order must take care to limit any such designation to specific material that Case No. 8:14-CV-00100-AG (JDEx) 8 STIPULATED PROTECTIVE ORDER 1 qualifies under the appropriate standards. The Designating Party must designate 2 for protection only those parts of material, documents, items, or oral or written 3 communications that qualify so that other portions of the material, documents, 4 items, or communications for which protection is not warranted are not swept 5 unjustifiably within the ambit of this Order. 6 Mass, indiscriminate, or routinized designations are prohibited. 7 Designations that are shown to be clearly unjustified or that have been made for an 8 improper purpose (e.g., to unnecessarily encumber the case development process 9 or to impose unnecessary expenses and burdens on other parties) may expose the 10 Designating Party to sanctions. 11 If it comes to a Designating Party’s attention that information or items that it 12 designated for protection do not qualify for protection, that Designating Party must 13 promptly notify all other Parties that it is withdrawing the inapplicable designation. 14 7.2 Manner and Timing of Designations. Except as otherwise provided in 15 this Order, or as otherwise stipulated or ordered, Disclosure or Discovery Material 16 that qualifies for protection under this Order must be clearly so designated before 17 the material is disclosed or produced. 18 Designation in conformity with this Order requires: 19 (a) for information in documentary form (e.g., paper or electronic 20 documents, but excluding transcripts of depositions or other pretrial or trial 21 proceedings), that the Producing Party affix at a minimum, the legend 22 “CONFIDENTIAL”(hereinafter “CONFIDENTIAL legend”) or the legend 23 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” (hereinafter 24 “HIGHLY CONFIDENTIAL legend”) to each page that contains protected 25 material. If only a portion or portions of the material on a page qualifies for 26 protection, the Producing Party shall, to the extent reasonably possible, clearly 27 identify the protected portion(s) (e.g., by making appropriate markings in the 28 margins). Case No. 8:14-CV-00100-AG (JDEx) 9 STIPULATED PROTECTIVE ORDER 1 A Party or Non-Party that makes original documents available for inspection 2 need not designate them for protection until after the inspecting Party has indicated 3 which documents it would like copied and produced. During the inspection and 4 before the designation, all of the material made available for inspection shall be 5 deemed “CONFIDENTIAL.” After the inspecting Party has identified the 6 documents it wants copied and produced, the Producing Party must determine 7 which documents, or portions thereof, qualify for protection under this Order. 8 Then, before producing the specified documents, the Producing Party must affix 9 the “CONFIDENTIAL legend” or “HIGHLY CONFIDENTIAL legend” to each 10 page that contains Protected Material. If only a portion or portions of the material 11 on a page qualifies for protection, the Producing Party shall, to the extent 12 reasonably possible, clearly identify the protected portion(s) (e.g., by making 13 appropriate markings in the margins). 14 (b) for testimony given in depositions, within 30 days of receipt of a 15 transcript, that the Designating Party identify the Disclosure or Discovery Material 16 on the record, before the close of the deposition all protected testimony. 17 (c) for information produced in some form other than documentary 18 and for any other tangible items, that the Producing Party affix in a prominent 19 place on the exterior of the container or containers in which the information is 20 stored the legend “CONFIDENTIAL” or the legend “HIGHLY CONFIDENTIAL 21 – ATTORNEYS’ EYES ONLY.” If only a portion or portions of the information 22 warrants protection, the Producing Party, to the extent practicable, shall identify 23 the protected portion(s). 24 7.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 25 failure to designate qualified information or items does not, standing alone, waive 26 the Designating Party’s right to secure protection under this Order for such 27 material. Upon timely correction of a designation, the Receiving Party must make 28 reasonable efforts to assure that the material is treated in accordance with the Case No. 8:14-CV-00100-AG (JDEx) 10 STIPULATED PROTECTIVE ORDER 1 provisions of this Order. 2 7.4 Translation of HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 3 ONLY materials. If a Party designates and produces any non-English-language 4 document or material, or a portion thereof, as HIGHLY CONFIDENTIAL – 5 ATTORNEYS’ EYES ONLY, then a Certified Translation must accompany the 6 production. If, in response to a subpoena from a Party, a Non-Party designates and 7 produces any non-English-language document or material, or a portion thereof, as 8 HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY, then any Party may, 9 at its election, choose to obtain a Certified Translation. If the Certified Translation 10 is then served on the other Party, the requirements for objecting to the Certified 11 Translation contained in Paragraph 4.5 herein shall apply. 12 8. CHALLENGING CONFIDENTIALITY DESIGNATIONS 13 8.1 Timing of Challenges. Any Party or Non-Party may challenge a 14 designation of confidentiality at any time that is consistent with the Court’s 15 Scheduling Order. 16 8.2 Meet and Confer. The Challenging Party shall initiate the dispute 17 resolution process under Local Rule 37.1 et seq. 18 8.3 The burden of persuasion in any such challenge proceeding shall be 19 on the Designating Party. Frivolous challenges, and those made for an improper 20 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 21 parties) may expose the Challenging Party to sanctions. Unless the Designating 22 Party has waived or withdrawn the confidentiality designation, all parties shall 23 continue to afford the material in question the level of protection to which it is 24 entitled under the Producing Party’s designation until the Court rules on the 25 challenge. 26 9. ACCESS TO AND USE OF PROTECTED MATERIAL 27 9.1 Basic Principles. A Receiving Party may use Protected Material that 28 is disclosed or produced by another Party or by a Non-Party in connection with this Case No. 8:14-CV-00100-AG (JDEx) 11 STIPULATED PROTECTIVE ORDER 1 Action only for prosecuting, defending, or attempting to settle this Action. Such 2 Protected Material may be disclosed only to the categories of persons and under 3 the conditions described in this Order. When the Action has been terminated, a 4 Receiving Party must comply with the provisions of Section 6 above and Section 5 15 below (FINAL DISPOSITION). 6 Protected Material must be stored and maintained by a Receiving Party at a 7 location and in a secure manner that ensures that access is limited to the persons 8 authorized under this Order. 9 9.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 10 otherwise ordered by the court or permitted in writing by the Designating Party, a 11 Receiving Party may disclose any information or item designated 12 “CONFIDENTIAL” only to: 13 (a) Counsel for any party hereto, including In-House Counsel, and all 14 partners, associates, of-counsel attorneys of Counsel’s law firm, and paralegals, 15 assistants, and stenographic and clerical employees thereof when operating under 16 the direct supervision of such partners, associates, or of-counsel attorneys; 17 (b) Court and Mediator personnel, including stenographic reporters 18 engaged in such proceedings as are necessarily incident to the preparation for trial 19 and/or trial of this action; 20 (c) The officers, directors, and employees (including In-House 21 Counsel) of the Receiving Party to whom disclosure is reasonably necessary for 22 this Action; 23 (d) Persons whose depositions are being taken in this action, who 24 have, prior to the commencement of their deposition, signed the statement attached 25 hereto as Exhibit “A” (which is to be made part of the official transcript of that 26 deposition) attesting to the fact that they have reviewed and agreed to be bound by 27 the provisions of this Stipulated Protective Order. In the event a deponent does not 28 sign Exhibit “A” prior to the commencement of his or her deposition, no Case No. 8:14-CV-00100-AG (JDEx) 12 STIPULATED PROTECTIVE ORDER 1 information designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – 2 ATTORNEYS’ EYES ONLY” shall be shown to the deponent and his or her 3 deposition shall not be considered complete until the deposing party has an 4 opportunity to raise the issue with the Court; 5 (e) Experts or consultants (not regularly employed by or otherwise 6 associated with a party) who are retained to assist in the handling of this action to 7 furnish technical or expert advice or to give expert testimony at trial, only to the 8 extent that the information is pertinent to the Expert’s or consultant’s opinions, 9 provided that disclosure of Confidential Information to such Experts or consultants 10 shall be made only on the following conditions: 11 i. Prior to any Confidential Information being disclosed to any 12 expert or consultant, Counsel shall be required to obtain from said expert or 13 consultant a signed statement, in the form of Exhibit “A” attached hereto (which 14 shall be maintained by counsel of record for that party), attesting to the fact that the 15 expert or consultant has reviewed and agreed to be bound by the provisions of this 16 Stipulated Protective Order. 17 ii. In the event a consulting Expert becomes a testifying Expert, 18 a copy of the Expert’s executed statement in the form of Exhibit “A” must be 19 provided to opposing counsel in advance of the Expert testifying at deposition or 20 trial; and 21 (f) Outside copy and litigation support vendors who have, prior to the 22 disclosure of such information, signed the statement attached hereto as Exhibit 23 “A.” 24 9.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 25 ONLY” Information or Items. Unless otherwise ordered by the court or permitted 26 in writing by the Designating Party, a Receiving Party may disclose any 27 information or item designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ 28 EYES ONLY” only to: Case No. 8:14-CV-00100-AG (JDEx) 13 STIPULATED PROTECTIVE ORDER 1 (a) Outside Counsel for any party hereto, all partners, associates, or 2 of-counsel attorneys of Outside Counsel’s law firm, and paralegals, assistants, and 3 stenographic and clerical employees thereof when operating under the direct 4 supervision of such partners, associates, or of-counsel attorneys. 5 (b) Court and Mediator personnel, including stenographic reporters 6 engaged in such proceedings as are necessarily incident to the preparation for trial 7 and/or trial of this action. 8 (c) Experts or consultants (not regularly employed by or otherwise 9 associated with a party) who are retained to assist in the handling of this action to 10 furnish technical or expert advice or to give expert testimony at trial, only to the 11 extent that the information is pertinent to the Expert’s or consultant’s opinions, 12 provided that disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 13 ONLY” Information to such Experts or consultants shall be made only on the 14 following conditions: 15 i. Prior to any “HIGHLY CONFIDENTIAL – 16 ATTORNEYS’ EYES ONLY” Information being disclosed to any Expert or 17 consultant, Counsel shall be required to obtain from said expert or consultant a 18 signed statement, in the form of Exhibit “A” attached hereto (which shall be 19 maintained by counsel of record for that party), attesting to the fact that the expert 20 or consultant has reviewed and agreed to be bound by the provisions of this 21 Stipulated Protective Order. 22 ii. In the event a consulting expert becomes a testifying 23 expert, a copy of the expert’s executed statement in the form of Exhibit “A” must 24 be provided to opposing counsel in advance of the expert testifying at deposition or 25 trial. 26 (d) Any other person agreed to in writing by the Designating Party or 27 allowed through Court Order, who has, prior to the disclosure of such information, 28 signed the statement attached hereto as Exhibit “A.” Case No. 8:14-CV-00100-AG (JDEx) 14 STIPULATED PROTECTIVE ORDER 1 9.4 A copy of any signed Exhibit “A” shall be provided by the Receiving 2 Party’s counsel to the Designating Party’s counsel. 3 4 5 10. 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 6 that compels disclosure of Protected Material from this Action, that Party must: 7 (a) promptly notify in writing the Designating Party. Such 8 notification shall include a copy of the subpoena or court order; 9 (b) promptly notify in writing the party who caused the subpoena or 10 order to issue in the other litigation that some or all of the material covered by the 11 subpoena or order is subject to this Protective Order. Such notification shall 12 include a copy of this Stipulated Protective Order; and 13 (c) cooperate with respect to all reasonable procedures sought to be 14 pursued by the Designating Party whose Protected Material may be affected. 15 If the Designating Party timely seeks a protective order, the Party 16 served with the subpoena or court order shall not produce any Protected Material 17 before a determination by the court from which the subpoena or order issued, 18 unless the Party has obtained the Designating Party’s permission. The Designating 19 Party shall bear the burden and expense of seeking protection in that court of its 20 confidential material and nothing in these provisions should be construed as 21 authorizing or encouraging a Receiving Party in this Action to disobey a lawful 22 directive from another court. 23 11. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 24 PRODUCED IN THIS LITIGATION 25 The terms of this Order are applicable to information produced by a Non- 26 Party in this Action and designated as “CONFIDENTIAL” or “HIGHLY 27 CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Such information produced 28 by Non-Parties in connection with this litigation is protected by the remedies and Case No. 8:14-CV-00100-AG (JDEx) 15 STIPULATED PROTECTIVE ORDER 1 relief provided by this Order. Nothing in these provisions should be construed as 2 prohibiting a Non-Party from seeking additional protections. 3 12. MATERIAL 4 5 UNAUTHORIZED DISCLOSURE OF PROTECTED If a Receiving Party learns that, by inadvertence or otherwise, it has 6 disclosed Protected Material to any person or in any circumstance not authorized 7 under this Stipulated Protective Order, the Receiving Party must immediately 8 (a) notify in writing the Designating Party of the unauthorized disclosures, (b) use 9 its best efforts to retrieve all unauthorized copies of the Protected Material, 10 (c) inform the person or persons to whom unauthorized disclosures were made of 11 all the terms of this Order, and (d) request such person or persons to execute the 12 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit 13 “A.” 14 15 16 13. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL When a Producing Party gives notice to Receiving Parties that certain 17 inadvertently produced material is subject to a claim of privilege or other 18 protection, the obligations of the Receiving Parties are those set forth in Federal 19 Rule of Civil Procedure 26(b)(5)(B). 20 This Order shall be interpreted to provide the maximum protection allowed 21 by Federal Rule of Evidence 502(d): 22 (a) No Waiver by Disclosure. Information disclosed by the Disclosing 23 Party to the Receiving Party that contains privileged matter or attorney work24 product (the “Protected Information”) shall be immediately returned by the 25 Receiving Party to the Disclosing Party. The disclosure of Protected Information 26 shall not constitute or be deemed a waiver or forfeiture—in this or any other 27 action—of any claim of privilege or work product protection pursuant to Federal 28 Rule of Evidence 502(d); Case No. 8:14-CV-00100-AG (JDEx) 16 STIPULATED PROTECTIVE ORDER 1 (b) The Receiving Party must—unless it contests the claim of attorney- 2 client privilege or work product protection in accordance with paragraph (c)— 3 promptly (i) notify the Disclosing Party that it will make best efforts to identify 4 and return, sequester, or destroy (or, in the case of electronically stored 5 information, delete) the Protected Information and any reasonably accessible 6 copies it has and (ii) provide a certification that it will cease further review, 7 dissemination, and use of the Protected Information; 8 (c) Contesting Claim of Privilege or Work Product Protection. If the 9 Receiving Party contests the claim of privilege or work product protection, the 10 Receiving Party must—within fifteen (15) business days of the Disclosing Party 11 asserting privilege or work product protection—move the Court for an Order 12 compelling disclosure of the information claimed as unprotected (a “Disclosure 13 Motion”). The Disclosure Motion must be filed under seal and must not assert as a 14 ground for compelling disclosure the fact or circumstances of the disclosure. 15 Pending resolution of the Disclosure Motion, the receiving party must not use the 16 challenged Protected Information in any way or disclose it to any person other than 17 those required by law to be served with a copy of the sealed Disclosure Motion; 18 (d) Stipulated Time Periods. The parties may stipulate to extend the time 19 periods set forth in paragraphs (b) and (c); 20 (e) Attorney’s Ethical Responsibilities. Nothing in this Order overrides any 21 attorney’s ethical responsibilities to refrain from examining or disclosing materials 22 that the attorney knows or reasonably should know to be privileged and to inform 23 the disclosing party that such materials have been produced; 24 (f) Burden of Proving Privilege or Work-Product Protection. The 25 Disclosing Party retains the burden—upon challenge pursuant to paragraph (c)—of 26 establishing the privileged or protected nature of the Protected Information; 27 (g) In camera Review. Nothing in this Order limits the right of any party to 28 petition the Court for an in camera review of the Protected Information; and Case No. 8:14-CV-00100-AG (JDEx) 17 STIPULATED PROTECTIVE ORDER 1 (h) Voluntary and Subject Matter Waiver. This Order does not preclude a 2 party from voluntarily waiving the attorney-client privilege or work product 3 protection. 4 14. MISCELLANEOUS 5 14.1 Right to Further Relief. Nothing in this Order abridges the right of 6 any person to seek its modification by the Court in the future. 7 14.2 Right to Assert Other Objections. By stipulating to the entry of this 8 Protective Order no Party waives any right it otherwise would have to object to 9 disclosing or producing any information or item on any ground not addressed in 10 this Stipulated Protective Order. Similarly, no Party waives any right to object on 11 any ground to use in evidence of any of the material covered by this Protective 12 Order. 13 14.3 Filing Protected Material. A Party or Non-Party that seeks to file 14 under seal any Protected Material must comply with Civil Local Rule 79-5. 15 Protected Material may only be filed under seal pursuant to a court order 16 authorizing the sealing of the specific Protected Material at issue. If a Party’s or 17 Non-Party’s request to file Protected Material under seal is denied by the Court, 18 then the Receiving Party may file the information in the public record unless 19 otherwise instructed by the Court. 20 15. FINAL DISPOSITION 21 After the final disposition of this Action, as defined in paragraph 6, within 22 60 days of a written request by the Designating Party, and except as provided 23 herein and in Section 6, each Receiving Party must return all Protected Material to 24 the Producing Party or destroy such material. As used in this subdivision, “all 25 Protected Material” includes all copies, abstracts, compilations, summaries, and 26 any other format reproducing or capturing any of the Protected Material. Whether 27 the Protected Material is returned or destroyed, the Receiving Party must submit a 28 written certification to the Producing Party (and, if not the same person or entity, to Case No. 8:14-CV-00100-AG (JDEx) 18 STIPULATED PROTECTIVE ORDER 1 the Designating Party) by the 60 day deadline that (1) identifies (by category, 2 where appropriate) all the Protected Material that was returned or destroyed and 3 (2) affirms that the Receiving Party has not retained any copies, abstracts, 4 compilations, summaries or any other format reproducing or capturing any of the 5 Protected Material. Notwithstanding this provision, Counsel are entitled to retain 6 an archival copy of all pleadings, motion papers, trial, deposition, and hearing 7 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert 8 reports, attorney work product, and consultant and expert work product, even if 9 such materials contain Protected Material. Any such archival copies that contain 10 or constitute Protected Material remain subject to this Protective Order as set forth 11 in Section 6 (DURATION). 12 16. VIOLATION 13 Any violation of this Order may be punished by appropriate measures 14 including, without limitation, contempt proceedings and/or monetary sanctions. 15 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 16 17 Date: August 6, 2019 18 19 20 21 22 23 Date: August 6, 2019 24 25 26 27 28 By: /s/ Kelly L. Perigoe BOIES SCHILLER FLEXNER LLP Quyen L. Ta Kelly L. Perigoe James A. Unger Counsel for Defendant, VNG Corporation By: /s/ Cory A. Baskin witkow | baskin Cory A. Baskin Brandon J. Witkow Counsel for Plaintiff, Lang Van, Inc. Case No. 8:14-CV-00100-AG (JDEx) 19 STIPULATED PROTECTIVE ORDER SIGNATURE ATTESTATION 1 2 Pursuant to Local Rule 5-4.3.4(a)(2)(i), I attest under penalty of perjury that 3 concurrence in filing this document has been obtained from all signatories to this 4 document. 5 By: /s/ Kelly L. Perigoe Kelly L. Perigoe 6 7 8 9 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 10 11 DATED: August 06, 2019 12 13 14 15 _________________________________ JOHN D. EARLY United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. 8:14-CV-00100-AG (JDEx) 20 STIPULATED PROTECTIVE ORDER 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _____________________________________ [print or type full name], of 4 ____________________________________________ [print or type full address], 5 declare under penalty of perjury that I have read in its entirety and understand the 6 Stipulated Protective Order that was issued by the United States District Court for 7 the Central District of California on August 6, 2019 in the case of Lang Van, Inc. v. 8 VNG Corporation, Case No. 8:14-cv-00100-AG (JDEx) (C.D. Cal.). I agree to 9 comply with and to be bound by all the terms of this Stipulated Protective Order 10 and I understand and acknowledge that failure to so comply could expose me to 11 sanctions and punishment in the nature of contempt. I solemnly promise that I will 12 not disclose in any manner any information or item that is subject to this Stipulated 13 Protective Order to any person or entity except in strict compliance with the 14 provisions of this Order. 15 I further agree to submit to the jurisdiction of the United States District 16 Court for the Central District of California for the purpose of enforcing the terms 17 of this Stipulated Protective Order, even if such enforcement proceedings occur 18 after termination of this action. I hereby appoint __________________________ 19 [print or type full name] of __________________________________________ 20 [print or type full address and telephone number] as my California agent for 21 service of process in connection with this action or any proceedings related to 22 enforcement of this Stipulated Protective Order. 23 24 Date: ______________________________________ 25 City and State where sworn and signed: _________________________________ 26 Printed name: _______________________________ 27 Signature: __________________________________ 28 Case No. 8:14-CV-00100-AG (JDEx) 21 STIPULATED PROTECTIVE ORDER
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