Iguacu, Inc. v. Filho, No. 3:2009cv00380 - Document 129 (N.D. Cal. 2011)
Court Description: ORDER Granting 127 Stipulation for Entry of Amended Protective Order with Exhibit A (Amended Stipulated Protective Order). Signed by Judge Edward M. Chen on 2/8/2011. (emcsec, COURT STAFF) (Filed on 2/8/2011)
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Iguacu, Inc. v. Filho Doc. 129 :DWARD P. SANGSTER (State Bar No.121041) d.sangster@klgates.com :LAUDIA A. QuIROz (State Bar No. 254419) laudia.quiroz@klgates.com :&L GATES LLP Embarcadero Center, Suite 1200 an Francisco, CA 941 11 'elephone: 415.882.8200 'acsimile: 415.882.8220 Lttorneys for Defendant ANTONIO CABRERA MAN0 FILHO UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA Case No. C 09-0380 RS (EMC) GUACU, INC., STIPULATION FOR ENTRY OF AMENDEE PROTECTIVE ORDER, [PROPOSED] ORDER Plaintiff, v. ANTONIO CABRERA MAN0 FILHO, Defendant. I STIPULATION FOR ENTRY OF AMENDED PROTECTIVE ORDER; [PROPOSED] ORDER Dockets.Justia.com Plaintiff Iguagu, Inc. and Defendant Antonio Cabrera Mano Filho by and through their espective counsel of record, hereby STIPULATE AND AGREE that the Court may enter the imended Stipulated Protective Order for Litigation Involving Highly Sensitive Confidential nformation (the "Protective Order") attached hereto as Exhibit A. The Protective Order tracks the anguage of the Northern District of California's Model Stipulated Protective Order for Litigation nvolving Highly Sensitive Confidential Information with the exception of paragraph 1 1-which is :onsistentwith the provisions of Federal Rule of Civil Procedure 26(b)(5)(B) and Federal Rule of 3vidence 502(d) and (e). IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. K&L GATES LLP Iated: February 4,201 1 By: /s/ Claudia A. Quiroz Edward P. Sangster ed.sangster@klgates.com Claudia A. Quiroz claudia.quiroz@klgates.com Attorneys for Defendant ANTONIO CABRERA MAN0 FILHO SIDEMAN & BANCROFT, LLP lated: February 4,201 1 By: /./Robert R. Cross Robert R. Cross rcross@sideinan.com Attorney for Plaintiff IGUACU, INC. 1 STIPULATION FOR ENTRY OF AMENDED PROTECTIVE ORDER; [PROPOSED] ORDER ECF ATTESTATION I, Claudia A. Quiroz, attest that concurrence in e-filing this STIPULATION FOR ENTRY OF AMENDED PROTECTIVE ORDER; [PROPOSED] ORDER, has been obtained from signatory Robert R. Cross, in colnpliance with General Order 45, X.B. K&L GATES LLP By: /s/ Claudia A. Quiroz Edward P. Sangster ed.sangster@klgates.com Claudia A. Quiroz claudia.quiroz@klgates.com Attorneys for Defendant ANTONIO CABRERA MAN0 FILHO By: UNIT ED 201 1 O IT IS S E ORDER RT U O , Dated: February -8 ISTRIC ES D TC AT T D R NIA IT IS SO ORDERED. S /I JPROPOSEDI ORDER NO Honorable Edward M. Chen UNITED STATES MAGISTRATE JUDGE hen rd M. C I1 FO A H ER LI RT dwa Judge E N F D IS T IC T O R C 2 STIPULATION FOR ENTRY OF AMENDED PROTECTIVE ORDER; [PROPOSED] ORDER EDWARD SANGSTER P. (State Bar No. 121041) ed.sangster@klgates.com CLAUDIA QUROZ(State Bar No. 254419) A. claudia.quiroz@klgates.com K&L GATES LLP 4 Einbarcadero Center, Suite 1200 San Francisco, CA 941 11 Telephone: 41 5.882.8200 Facsimile: 415.882.8220 1 Attorneys for Defendant ANTONIO CABRERA MAN0 FILHO UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA Case No. C 09-0380 RS (EMC) IGUACU, INC., Plaintiff, AMENDED STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING HIGHLY SENSITIVE CONFIDENTIAL INFORMATION; ORDER THEREON V. ANTONIO CABRERA MAN0 FILHO, Defendant. I STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING HIGHLY SENSITIVE CONFlDENTIAL INFORMATION 1 Plaintiff Igua~u, ("Plaintiff") and Defendant Antonio Cabrera Mano Filho ("Defendant" Inc. or "Mr. Cabrera") hereby stipulate pursuant to Federal Rule of Civil Procedure 26(c), subject to the approval of the Court, to the entry of a protective order in the above-captioned action as follows: 1. PURPOSES AND LIMITATIONS Disclosure and discovery activity in this action are likely to involve production of //11 1 // 11 confidential, proprietary, or private information for which special protection from public disclosure and fiom use for any purpose other than prosecuting this litigation may be warranted. Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulated Protective Order. The parties acknowledge that this Order does not confer blanket protections on all disclosures or responses so discovery and that the protection it affords from public disclosure and use II extends only to the limited information or items that are entitled to confidential treatment under the applicable legal principles. The parties further acknowledge, as set forth in Section 12.3, below, that this Stipulated Protective Order does not entitle them to file confidential information II under seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and the standards that will be applied when a party seeks pennission from the court to file material under seal. 2. DEFINITIONS 2.1 Chaileneiilg Party: a Party or Non-Party that challenges the designation of illformation or items under this Order. 2.2 "CONFIDENTIAL" Information or Items: information (regardless of how it is generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of Civil Procedure 26(c). 2.3 Counsel (without ~ualifier): Outside Counsel of Record and House Counsel (as well as their support staff). 2.4 Designating Party: a Party or Non-Party that designates information or items that it produces in disclosures or in responses to discovery as "CONFIDENTIAL." or "HIGHLY CONFIDENTIAL-ATTORNEYS' 1III 2.5 EYES ONLY." Disclosure or Discoverv Material: all items or information, regardless of the medium or manner in which it is generated, stored, or maintained (including, among 1 STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING HIGHLY SENSITIVE CONFIDENTIAL INFORMATION other things, testimony, transcripts, and tangible things), that are produced or generated in disclosures or responses to discovery in this matter. 2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a consultant in this action. 2.7 "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY" Information or m:extremely sensitive "Confidential Information or Items," disclosure of which to another Party or Non-Party would create a substantial risk of serious harm that could not be avoided by less restrictive means. 2.8 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. 2.9 Non-Partv: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 2.10 Outside Counsel of Record: attorneys who are not employees of a party to this action but are retained to represent or advise a party to this action and have appeared in this action on behalf of that party or are affiliated with a law firm which has appeared on behalf of that party. 2.11 m:any party to this action, including all of its officers, directors, employees, consultants, retained experts, and Outside Counsel of Record (and their support staffs). 2.12 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this action. 2.13 Professional Vendors: persons or entities that provide litigation support services (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, storing, or retrieving data in any form or medium) and their employees and subcontractors. 2.14 Protected Material: any Disclosure or Discovery Material that is designated as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL-ATTORNEYS' 2.1 5 EYES ONLY." Receiving Party: a Party that receives Disclosure or Discovery 2 STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING HIGHLY SENSITIVE CONFIDENTIAL INFORMATION Material from a Producing Party. 3. SCOPE The protections conferred by this Stipulation and Order cover not only Protected Material (as defined above), but also (1) any information copied or extracted from Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, conversations, or presentations by Parties or their Counsel that might reveal Protected Material However, the protections conferred by this Stipulation and Order do not cover the followiilg information: (a) any information that is in the public domain at the time of disclosure to a Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as a result of publication not involving a violation of this Order, including becoining part of the public record through trial or otherwise; and (b) any information known to the Receiving Party prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who obtained the information lawfully and under no obligation of confidentiality to the Designating Party. Any use of Protected Material at trial shall be governed by a separate agreement or order. 4. 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 (I) dismissal of all claims and defenses in this action, with or without prejudice; and (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. 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 rnust 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 3 STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING HIGEILY SENSITIVE CONFIDENTIAL INFORMATION [at other portions of the material, documents, items, or co~n~nunications which protection is for 3t warranted are not swept unjustifiably within the ambit of this Order. Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown tl c clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily ~lcumber retard the case development process or to impose unnecessary expenses and or urdens on other parties) expose the Designating Party to sanctions. If it comes to a Designating Party's attention that information or items that it designated for rotection do not qualify for protection, that Designating Party must promptly notify all ther Parties that it is withdrawing the mistaken designation. 5.2 Manner and Timing of Desianations. Except as otherwise provided in this kder (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, )isclosure or Discovery Material that qualifies for protection under this Order must be clearly so esignated 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 zxcluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party xffix the legend "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL-ATTORNEYS' EYES 3NLY" to each page that contains protected material. If only a portion or portions of the material oi I page qualifies for protection, the Producing Party also must clearly identify the protected portion0 [e.g., by malting appropriate markings in the margins) and must specify, for each portion, the level 3f protectioil being asserted (either "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY"). A Party or Non-Party that inakes original documents or inaterials available f o ~ inspection need not designate them for protection until after the inspecting Party has indicated whid material it would like copied and produced. During the inspection and before the designation, all of the material made available for inspection shall be deemed "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY." After the inspecting Party has identified the documents it wants copied and produced, the Producing Party must determine which documents, or 4 STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING HIGHLY SENSITIVE CONFIDENTIAL INFORMATION portions thereof, qualify for protection ullder this Order. Then, before producing the specified documents, the Producing Party must affix the appropriate legend ("CONFIDENTIAL" or "HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY") to each page that contains Protected Material. If only a portion or portions of the material on a page qualifies for protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate markings in the margins) and must specify, for each portion, the level of protection being asserted (either "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY"). (b) for testimony given in deposition or in other pretrial or trial proceedings, that the Party or non-party offering or sponsoring the testimony identify on the record, before the close of the deposition, hearing, or other proceeding, all protected testimony, and specify any portions of the testimony that qualify as "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY." When it is impractical to identify separately each portion of testimony that is entitled to protection, and when it appears that substantial portions of the testimony may qualify for protection, Party or a non-party that sponsors, offers, or gives the testimony or exhibits may invoke on the recorc (before the deposition or proceeding is concluded) a right to have up to twenty-one (21) days from the date of service of the deposition transcript to identify the specific portions of the testimony as to which protection is sought and to specify the level of protection being asserted ("CONFIDENTIAL" or "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY"). Only those portions of the testimony that are appropriately designated for protection within twenty-one (21) days shall be covered by the provisions of this Protective Order. Alternatively, a Designating Party may specify, at the deposition or up to 21 days afterwards if that period is properly invoked, that the entire transcript shal be treated as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY." Parties shall give the other parties notice if they reasonably expect a deposition, hearing or other proceeding to include Protected Material so that the other parties can ensure that only authorized individuals who have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A) are present at those proceedings. The use of a document as an exhibit at a deposition shal not in any way affect its designation as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY." 5 STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING HIGHLY SENSITIVE CONFIDENTIAL INFORMATION I Transcripts containing Protected Material shall have an obvious legend on the title page that the transcript contains Protected Material, and the title page shall be followed by a list of all pages // (including line numbers as appropriate) that have been designated as Protected Material and the level of piotection being asserted by the Designating Party The Designating Party shall inform the court reporter of these requirements. Any transcript that is prepared before the expiration of a 21-day period for designation shall be treated during that period as if it had been designated "HIGI-ILY CONFIDENTIAL - ATTORNEYS' EYES ONLY" in its entirety unless otherwise agreed. After the expiration of that period, the transcript shall be treated only as actually designated. A Designating Party shall have the right to exclude from attendance during any part of a I II deposition any person other than those persons identified in Section 7.2 and/or 7.3 upon an objection that the Protected Information and/or Materials subject to testimony is "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY," if it is reasonably expected that the testimony during that part of the deposition will disclose such information andlor materials. Notwithstanding anything to the contrary in this Order, any deponent may review the transcript of his own deposition in compliance with the Federal Rules of Civil Procedure. (c) for information produced in some form other than documentary and for anj other tandble items, that the Producing Party affix in a prominent place on the exterior of the container or containers in which the information or item is stored the legend "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY." If o d y a portion or portions of the information or item warrant protection, the Producing Party, to the extent practicable, shall identify the protected portion(s), specifying whether they qualify as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY." 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to designate qualified information or items as "CONFIDENTIAL" or "HIGHLY CONFIDENTIALATTORNEYS' EYES ONLY" does not, standing alone, waive the Designating Party's right to I/ 1I 1I secure protection under this Order for such material. If material is appropriately designated after the material was initially produced, the Receiving Party, on timely notitication of the designation, must make reasonable efforts to assure that the material is treated in accordance with the provisions of this h " STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING HIGHLY SENSITIVE CONFIDENTIAL INFORMATION )rder, and must use its best efforts to retrieve any Protected Material from any person not eligible to eceive Protected Material under this Order. If a Receiving Party receives materials that have not been designated CONFIDENTIAL" or "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY," but which he Receiving Party has reason to believe are subject to such a designation, the Receiving Party shall ~otify Producing Party of its receipt of such materials and inquire as to its proper designation the ~nder Order. If any person required to produce documents inadvertently produces any Protected this vlaterial without marking it with an appropriate legend, the Producing Party may give written notice o the Receiving Party, including appropriately stamped copies of the Protected Material, that the locument, thing, or response is deemed Protected Material and should be treated as such in iccordance with the provisions of this Order. 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of :onfidentiality at any time. Unless a prompt challenge to a Designating Party's confidentiality iesignation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens, sr a significant disruption or delay of the litigation, a Party does not waive its right to challenge a ;onfidentiality designation by electing not to mount a challenge promptly after the original ciesignation is disclosed. 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process by providing written notice of each designation it is challenging and describing the basis for each challenge. To avoid ambiguity as to whether a challenge has been made, the written notice mus recite that the challenge to confidentiality is being made in accordance with this specific paragraph c the Protective Order. The parties shall attempt to resolve each challenge in good faith and must begi~ the process by conferring directly (in voice to voice dialogue; other forms of communication are not sufficient) within 14 d q s of the date of service of notice. In conferring, the Challenging Party must explain the basis for its belief that the confidentiality designation was not proper and must give the Designating Party an opportunity to review the designated material, to reconsider the circumstances, and, if no change in designation is offered, to explain the basis for the chosen designation. A 7 STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING HIGHLY SENSITIVE CONFIDENTIAL INFORMATION 1 Challenging Party may proceed to the next stage of the challenge process only if it has engaged in 2 this meet and confer process first or establishes that the Designating Party is unwilling to participate 3 in the meet and confer process in a timely manner. 4 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court 5 intervention, the Designating Party shall file and serve a motioil to retain confidentiality under Civil 6 Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) within 21 days of the 7 initial notice of challenge or within 14 days of the parties agreeing that the meet and confer process 8 will not resolve their dispute, whichever is earlier. Each such motion must be accompanied by a 9 competent declaration affirming that the lnovant has complied with the meet and confer requirements 10 imposed in the preceding paragraph. Failure by the Designating Party to make such a motion 11 including the required declaration within 21 days (or 14 days, if applicable) shall automatically waive 12 the confidentiality designation for each challenged designation. In addition, the Challenging Party 13 may file a motion challenging a confidentiality designation at any time if there is good cause for 14 doing so, including a challenge to the designation of a deposition transcript or any portions thereof. 15 Any motion brought pursuant to this provision must be accompanied by a competent declaration 16 affirming that the movant has complied with the meet and confer requirements imposed by the 17 preceding paragraph. 18 The burden of persuasion in any such challenge proceeding shall be on the Designating Party. 19 Frivolous challenges, and those made for an inlproper purpose (e.g., to harass or impose unnecessary 20 expenses and burdens on other parties) may expose the Challenging Party to sanctions. Unless the 21 Designating Party has waived the confidentiality designation by failing to file a motion to retain 22 confidentiality as described above, all parties shall continue to afford the material in question the 23 level of protection to which it is entitled under the Producing Party's designation until the court rules 24 on the challenge. 25 7. 26 ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Princioles. A Receiving Party may use Protected Material that is disclosed 27 or produced by another Party or by a Non-Party in connection with this case only for prosecuting, 28 defending, or altenlpting to settle this litigation. Suc11 Protected Material may be disclosed only to the 8 STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING HIGHLY SENSITlVE CONFIDENTIAL INFORMATION ategories of persons and under the conditions described in this Order. When the litigation has been :rminated, a Receiving Party must comply with the provisions of section 13 below (FINAL )ISPOSITION). 'rotected Material must be stored and maintained by a Receiving Party at a location and in a secure nanner that ensures that access is limited to the persons authorized under this Order. 7.2 Disclosure of "CONFIDENTIAL" Information or Items. Unless otherwise ordered )y the court or permitted in writing by the Designating Party, a Receiving Party may disclose any nformation or item designated "CONFIDENTIAL" only to: (a) the Receiving Party's Outside Counsel of Record in this action, as well as :mployees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the nformation for this litigation and who have signed the "Acknowledgment and Agreement to Be 3ound" that is attached hereto as Exhibit A, (b) the officers, directors, and employees (including House Counsel) of the Xeceiving Party to whom disclosure is reasonably necessary for this litigation and who have signed he "Acknowledgment and Agreement to Be Bound" (Exhibit A); (c) Experts (as defined in this Order) of the Receiving Party to whom iisclosure is reasonably necessary for this litigation and who have signed the "Acknowledgment and 4greement to Be Bound" (Exhibit A); (d) the court and its personnel; (e) court reporters and their staff, professional jury or trial consultants, mock jurors, and Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A); (f) during their depositions, witnesses in the action to whom disclosure is reasonably necessary and who have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be separately bound by the court reporter and may not be disclosed to anyone except as permitted unde: this Stipulated Protective Order. n (g) the author or recipient of a document containing the information or a custodian or other person who othenvise possessed or knew the information. 7.3 Disclosure of "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY" Infonnation or Items. Unless otherwise ordered by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any information or item designated "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY" only to: (a) the Receiving Party's Outside Counsel of Record in this action, as well as employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the information for this litigation and who have signed the "Acknowledgment and Agreement to Be Bound" that is attached hereto as Exhibit A; (b) Experts (as defined in this order) of the Receiving Party to whom disclosure is reasonably necessary for this litigation and who have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A); (c) the court and its personnel; (d) court reporters and their staff, professional jury or trial consultants, mock jurors, and Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A); 7.4 Procedures for Approving Disclosure of "HIGHLY CONFIDENTIAL -ATTORNEYS' EYES ONLY" Information or Items to "Experts" Unless otherwise ordered by the court or agreed in writing by the Designating Party, a Party that seeks to disclose to an "Expert" (as defined in this Order) any information or item that has been designated "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY" must first make a written request to the Designating Party that: (1) sets forth the full name of the Expert and thc city and state of his or her primary residence, (2) attaches a copy of the Expert's current resume, (3) identifies the Expert's current employer(s), and (4) certifies that the Expert is not, and within the pas three years has not, been retained in connection with: (a) any proposed bio-fuel development project in Brazil; (b) any competitor of Archer Daniels Midland for foreign bio-fuel projects; or (c) any competitor of Mr. Cabrera or Grupo Cabrera for bio-fuel projects or sugarcane production and sales. 10 STIPULATED PROTECTIVE 0RI)ER FOR LITIGATION INVOLVING HIGHLY SENSITIVE CONFIDENTIAL INFORMATION A Party that makes a request and provides the information specified in the preceding paragraph may disclose the subject Protected Material to the identified Expert unless, within fourteen (14) days of delivering the request, the Party receives a written objection from the Designating Party. Any such objection must set forth in detail the grounds on which it is based. A Party that receives a timely written objection must meet and confer with the Designating Party (through direct voice to voice dialogue) to try to resolve the matter by agreement within seven (7) days of the written objection. If no agreement is reached, the Party seeking to make the disclosure to the Expert may file a motion as provided in Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) seeking permission from the Court to do so. Any such motion must describe the circuinstances with specificity, set forth in detail the reasons for which the disclosure to the Expert is reasonably necessary, assess the risk of harm that the disclosure would entail and suggest any additional means that might he used to reduce that risk. In addition, any such motion must be accompanied by a competent declaration in which the movant describes the parties' efforts to resolve the matter by agreement (i.e., the extent and the content of the meet and confer discussions) and sets forth the reasons advanced by the Designating Party for its refusal to approve the disclosure. In any such proceeding, the Party opposing disclosure to the Expert shall bear the burden of proving that the risk of harm that the disclosure would entail (under the safeguards proposed) outweighs the Receiving Party's need to disclose the Protected Material to its Expert. In addition to the foregoing, each Expert to whom any Protected Material will be disclosed shall, prior to disclosure of such material, execute the Certification of Expert/Consultanl in the form attached as Exhibit B hereto. Outside Counsel who makes any disclosure of Protected Materials shall retain each original executed Certification of Consultant and, upon written request, shall circulate copies to all Outside Counsel at the termination of this action. 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION 11 STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING HIGHLY SENSITIVE CONFIDENTIAL INFORMATION If a Party is served with a subpoena or a court order issued in other litigation that compels disclosure of any information or items designated in this action as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY" that Party must: (a) promptly notify in writing the Designating Party. Such notification shall include a copy of the subpoena or court order; (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 subjec to this Protective Order. Such notification shall include a copy of this Stipulated Protective Order; 11 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 01 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 seeking protection in that court of its confidential material - and nothing in these provisions should be construed as authorizing or encouraging a Receiving Party in this action to disobey a lawful directive from another court. 9. 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 NonParty in this action and designated as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY." Such information produced by Non-Parties in connection with this 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 a Non-Party's confidential information in its posscssion, and the Party is subject to an II 11 12 STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING HIGHLY SENSITIVE CONFIDENTIAL INFORMATION agreement with the Non-Party not to produce the Non-Party's confidential information, then the Party shall: 1. promptly notify in writing the Requesting Party and the Non-Party that some or all of the infonnation requested is subject to a confidentiality agreement with a NonParty; 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 spccific description of the information requested; and 3. make the infonnation 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 14 days of receiving the notice and accompanying information, the Receiving Party may produce the Non-Party's confidential information responsive to the dtscovery 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. Abscnt a court ordcr to the contrary, the Non-Party shall bear the burden and expense of seeking protection in this court of its Protected Material. 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL If a Receiving Party lcanls 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) infonn 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 Bt Bound" that is attached hereto as Exhibit A. 11. INADVERTENT OR UNINTENTIONAL DISCLOSURE OF DISCOVERY MATERIALS SUBJECT TO WORK PRODUCT PROTECTION OR PRIVILEGE 13 STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING HIGHLY SENSITWE CONFIDENTIAL INFORMATION The production of any documents, information or other materials shall not constitute a waiver of the attorney-client privilege, attorney work product doctrine, or any olher legal privilege or immunity if, as soon as reasonably possible after the Producing Party becomes aware of its inadvertent or unintentional disclosure of privileged materials, the Producing Party designates such materials as within the attorney-client privilege, work product immunity or other legal privilege or immunity and requests return of those materials to the Producing Party. Upon request by the Producing Party, the Receiving Party shall immediately return all copies of such inadvertently produced inaterials and shall destroy all notes or other work product reflecting the contents of such materials, and shall delete such materials from any litigation-support or other database. Within five (5) business days of receiving such notification, the Receiving Party shall return or confirm destruction of all such materials, including any summaries thereof. Such return or confirmation of destruction shall not preclude the Receiving Party from seeking to compel production of the material for reasons other than the inadvertent production and shall not constitute an admission by the receiving party that the materials were, in fact, privileged in any way. If a Party receives from the other Party any document or information that the Receiving Party reasonably believes is subject to the attorney-client privilege or attorney work product doctrine, the Receiving Party should promptly notify the Producing Party of the potential inadvertent disclosure. Upon request by the Producing Party, the Receiving Party shall immediately return all copies of suclr inadvertently produced materials and shall destroy all notes or other work product reflecting the contents of such materials, and shall delete such materials from any litigation-support or other database. Such return or confirmation of destruction shall not preclude the Receiving Party from seeking to compel production of the materials for reasons other than the inadvertent production and shall not constitute an admission by the receiving party that the materials were, in fact, privileged in any way. 12. MISCELLANOUS 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person t seek its modification by the court in the hture. II II ., STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING HIGHLY SENSITIVE CONFIDENTIAL INFORMATION 12.2 Right to Assert Other Obiections. By stipulating to the entry of this Protective Irder no Party waives any right it otherwise would have to object to disclosing or producing any nformation or item on any ground not addressed in this Stipulated Protective Order. Similarly, no 'arty waives any right to object on any ground to use in evidence of any of the material covered by his Protective Order. 12.3 Filing Protected Material. Without written permission from the Designating 'arty or a court order secured after appropriate notice to all interested persons, a Party may not file in he public record in this action any Protected Material. A Party that seeks to file under seal any 'rotected Material must comply with Civil Local Rule 79-5. Protected Material may only he filed lnder seal pursuant to a court order authorizing the sealing of the specific Protected Material at issue. ?ursuant to Civil Local Rule 79-5, a sealing order will issue only upon a request establishing that the Protected Material at issue is privileged, protectable as a trade secret, or otherwise entitled to protection under the law. If a Receiving Party's request to file Protected Material under seal pursuant to Civil Local Rule 79-5(d) is denied by the court, then the Receiving Party may file the information in the public record pursuant to Civil Local Rule 79-5(e) unless otherwise instructed by the court. 13. FINAL DISPOSITION. Within 60 days after the final disposition of this action, a: defined in paragraph 4, each Receiving Party must return all Protected Material to the Producing Party or destroy such material. As used in this subdivision, "all Protected Material" includes all copies, abstracts, compilations, summaries, and any other format reproducing or capturing any of the Protected Material. Whether the Protected Material is returned or destroyed, the Receiving Party mu: submit a written certification to the Producing Party (and, if not the same person or entity, to the Designating Party) by the 60 day deadline that (1) identifies (by category, where appropriate) all the Protected Material that was returned or destroyed and (2) affirms that the Receiving Party has not retained any copies, abstracts, compilations, summaries or any other forinat reproducing or capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work product, an( consultant and expert work product, even if such materials contain Protected Material. Any such 15 STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING HIGKLY SENSITIVE CONFIDENTIAL MFORMATION rchival copies that contain or constitute Protected Material remain subject to this Protective Order a 8 st forth in Section 4 (DURATION). r IS SO STIPULATED, THROUGH COUNSEL OF RECORD. ed.smg~ter@k~~ates.com Claudia A. Quiroz claudia.quiroz@klgates.com Attorneys for Defendant ANTONIO CABRERA MAN0 FILHO SIDEMAN & BANCROFT, LLP Iated: February &,2011 By: Robert R. Cross rcross@sidemm.com Attorney for Plaintiff IGUACU, INC. 201 1 By: OO IT IS S D RDERE R NIA 9 UNIT ED bated: February 8 ISTRIC ES D TC AT T RT U O S URSUANT TO STIPULATION, IT IS SO ORDERED Honorable Edward M. Chen UNITED STATES MAGISTRATE JUDGE hen .C A H LI RT ER FO NO dward M Judge E N F D IS T IC T O R C 16 STIPULATED PROTECTIVE ORDER FOR LITIGATION N O L V I N G HIGHLY SENSITIVE CONFIDENTIAL rn0RMATION EXHIBIT A ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND [print or type full name], of 1, [print or type full address], declare under penalty of perjury that I have read ,n its entirety and understand the Stipulated Protective Order that was issued by the United States District Court for the Northern District of California on [date] in the case of Iguap, Inc. v. 4ntonio Cabrera Mano Fillzo, Case No. 09-0380 RS (EMC). I agree to comply with and to be bound ~y all the terms of this Stipulated Protective Order and I understand and acknowledge that failure to so comply could expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I will not disclose in any manner any information or item that is subject to this Stipulated Protective Order to any pcrson or entity except in strict compliance with the provisions of this Order. 1 further agree to submit to the jurisdiction of the United States District Court for the Northen District of California for the purpose of enforcing the terms of this Stipulated Protective Order, even if such enforcement proceedings occur after termination of this action. [print or type full name] of I hereby appoint [print or type f i l l address and telephone number] as my California agent for service of process in connection with this action or any proceedings related to enforcement of this Stipulated Protective Order. Date: City and State where sworn and signed: Printed name: Signature: 17 STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING HIGHLY SENSITIVE CONFIDENTIAL INFORMATION EXHIBIT B CERTIFICATION OF EXPERTICONSULTANT I, the undersigned, hereby certify that I have read the Protective Order entered in the United States District Court for the Northern District of California, in the case of I p a p Inc. v. Antonio Cabrera Mano Filho, Northern District of California, San Francisco Division, Case No. C 09-0380 RS (EMC), and that I have executed a copy of Exhibit A-the Acknowledgement And Agreement To Be Bound. I further certify that 1 am not, and within the past three years have not been retained in connection with: (1) any proposed bio-fuel development project in Brazil; (2) any co~npetitor of of Archer Daniels Midland for foreign bio-fuel projects; or (3) any co~npetitor Mr. Cabrera or Grupo Cabrera for bio-fuel projects or sugarcane production and sales, nor do I have a current expectation o such engagement, and 1 will accept no such engagement nor discuss same during the pendency of thir action. If at any time after I execute this Consultant Certification and during the pendency of the Action I become engaged in business in connection with any proposed bio-fuel development project in Brazil, any competitor of Archer Daniels Midland for foreign bio-fuel projects, or any competitor of Mr. Cabrera or Grupo Cabrera for bio-fuel projects or sugarcane production and sales, I will promptly inform the counsel for the party who retained me in the Action, and I will not thereafter review any Protected Materials unless and until the Court in the Action orders otherwise. I further understand and agree that all Protected Material and work product generated there froin must be stored and maintained at a location in a secure manner that ensures that access is limited to the persons authorized under this Order. Finally, I understand and agree that within ten (10) business days after a request by Outside Counsel for the party for which I have provided services, the termination of my consultancy or the termination of this action, which ever occurs first, I must return andlor destroy all Designated Material in my possession, custody or control to Outside Counsel for the party for which I have provided services. 1 further understand and agree that I shall certify my compliance with this requirement and shall deliver such certification to Outside Counsel for the party that 1have provided services for no more than ten (10) business days after complying with the aforementioned obligation 15 I STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING HIGHLY SENSITIVE CONFIDENTIAL INFORMATION I declare under penalty of perjury under the laws of the United States of Ainerica that the regoing is true and correct. ame of Individual: ompany or Firm: .ddress: elephone No.: elationship to this action and its parties: )ated: Signature: 19 STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING HIGHLY SENSITIVE CONFIDENTIAL INFORMATION
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