Westland Giftware Inc. v. Product Design Corporation et al, No. 3:2011cv01307 - Document 66 (N.D. Cal. 2011)
Court Description: ORDER GRANTING 65 Stipulation RE: PROTECTIVE ORDER. Signed by Judge Jeffrey S. White on 11/28/11. (jjoS, COURT STAFF) (Filed on 11/28/2011)
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Westland Giftware Inc. v. Product Design Corporation et al Doc. 66 Case3:11-cv-01307-JSW Document65 1 2 3 Filed11/15/11 Page1 of 19 Anne Hiaring Hocking, Cal. Bar No. 88639 anne@hiaringsmith.com Vijay K. Toke, Cal. Bar No. 215079 vijay@hiaringsmith.com Kathy Dong, Cal. Bar No. 267611 kathy@hiaringsmith.com 4 5 6 HIARING + SMITH, LLP 101 Lucas Valley Road, Suite 300 San Rafael, CA 94903 Telephone: (415) 457-2040 Facsimile: (415) 457-2822 7 8 Attorneys for Plaintiff WESTLAND GIFTWARE, INC. 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE NORTHERN DISTRICT OF CALIFORNIA 11 12 13 14 15 16 17 18 19 20 21 22 23 WESTLAND GIFTWARE, INC. a California ) Case No.: 3:11-cv-01307 JSW Corporation ) ) STIPULATED PROTECTIVE ORDER Plaintiff, ) ) vs. ) ) PRODUCT DESIGN CORPORATION a ) California Corporation, MICHAEL ) DOWDALL, an individual, JAMES ) BRADSHAW, an individual and G C & S CO. ) (TRANSPACIFIC INC.) dba PACIFIC ) TRADING an Oklahoma Corporation, and ) DOES 1 – 100. ) ) Defendants. ) Defendants. ) ) ) AND RELATED COUNTERCLAIMS AND ) CROSSCLAIMS ) ) ) 24 1. 25 Disclosure and discovery activity in this action are likely to involve production of PURPOSES AND LIMITATIONS 26 confidential, proprietary, or private information for which special protection from public 27 disclosure and from use for any purpose other than prosecuting this litigation may be warranted. 28 Accordingly, the parties hereby stipulate to and petition the court to enter the following STIPULATED PROTECTIVE ORDER Case No. C 3:11-cv-01307 JSW 1 Dockets.Justia.com Case3:11-cv-01307-JSW Document65 Filed11/15/11 Page2 of 19 1 Stipulated Protective Order. The parties acknowledge that this Order does not confer blanket 2 protections on all disclosures or responses to discovery and that the protection it affords from 3 public disclosure and use extends only to the limited information or items that are entitled to 4 confidential treatment under the applicable legal principles. The parties further acknowledge, as 5 set forth in Section 13.3, below, that this Stipulated Protective Order does not entitle them to file 6 confidential information under seal; Civil Local Rule 79-5 sets forth the procedures that must be 7 followed and the standards that will be applied when a party seeks permission from the Court to 8 file material under seal. 9 10 11 12 2. DEFINITIONS 2.1 Challenging Party: A Party or Non-Party that challenges the designation of information or items under this Order. 2.2 “CONFIDENTIAL” Information or Items: Information (regardless of 13 how it is generated, stored, or maintained) or tangible things that qualify for protection under 14 Federal Rule of Civil Procedure 26(c). 15 2.3 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”: 16 Information or Items: extremely sensitive “CONFIDENTIAL Information or Items,” disclosure 17 of which to another Party or Non-Party would create a substantial risk of serious harm that could 18 not be avoided by less restrictive means. 19 20 21 2.4 Counsel (without qualifier): Outside Counsel of Record and In-House Counsel (as well as their support staff). 2.5 Designating Party: A Party or Non-Party that designates information or 22 items that it produces in disclosures or in responses to discovery as “CONFIDENTIAL” or 23 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” 24 2.6 Disclosure or Discovery Material: All items or information, regardless of 25 the medium or manner in which it is generated, stored, or maintained (including, among other 26 things, testimony, transcripts, and tangible things), that are produced or generated in disclosures 27 or responses to discovery in this matter. 28 STIPULATED PROTECTIVE ORDER Case No. C 3:11-cv-01307 JSW 2 Case3:11-cv-01307-JSW Document65 1 2.7 Filed11/15/11 Page3 of 19 Expert: A person with specialized knowledge or experience in a matter 2 pertinent to the litigation who has been retained by a Party or its counsel to serve as an expert 3 witness or as a consultant in this action. 4 5 2.8 In-House Counsel does not include Outside Counsel of Record or any other outside counsel. 6 7 2.9 Non-Party: Any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 8 9 In-House Counsel: Attorneys who are employees of 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 10 this action on behalf of that Party or are affiliated with a law firm which has appeared on behalf 11 of that Party. 12 2.11 Party: Any party to this action, including all of its officers, directors, 13 employees, consultants, retained experts, and Outside Counsel of Record (and their support 14 staffs). 15 2.12 16 Discovery Material in this action. 17 2.13 Producing Party: A Party or Non-Party that produces Disclosure or Professional Vendors: Persons or entities that provide litigation support 18 services (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and 19 organizing, storing, or retrieving data in any form or medium) and their employees and 20 subcontractors. 21 2.14 Protected Material: Any Disclosure or Discovery Material that is 22 designated as “CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 23 ONLY.” 24 25 2.15 Receiving Party: A Party that receives Disclosure or Discovery Material from a Producing Party. 26 3. 27 The protections conferred by this Stipulation and Order cover not only Protected Material 28 (as defined above), but also (1) any information copied or extracted from Protected Material; (2) SCOPE STIPULATED PROTECTIVE ORDER Case No. C 3:11-cv-01307 JSW 3 Case3:11-cv-01307-JSW Document65 Filed11/15/11 Page4 of 19 1 all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 2 conversations, or presentations by Parties or their Counsel that might reveal Protected Material. 3 However, the protections conferred by this Stipulation and Order do not cover the following 4 information: (a) any information that is in the public domain at the time of disclosure to a 5 Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as 6 a result of publication not involving a violation of this Order, including becoming part of the 7 public record through trial or otherwise; and (b) any information known to the Receiving Party 8 prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who 9 obtained the information lawfully and under no obligation of confidentiality to the Designating 10 Party. Any use of Protected Material at trial shall be governed by a separate agreement or order. 11 4. 12 Even after final disposition of this litigation, the confidentiality obligations imposed by 13 this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court 14 order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all 15 claims and defenses in this action, with or without prejudice; and (2) final judgment or entry of 16 stipulated consent decree herein after the completion and exhaustion of all appeals, rehearings, 17 remands, trials, or reviews of this action, including the time limits for filing any motions or 18 applications for extension of time pursuant to applicable law. 19 20 5. DURATION DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. 21 Each Party or Non-Party that designates information or items for protection under this Order 22 must take care to limit any such designation to specific material that qualifies under the 23 appropriate standards. The Designating Party must designate for protection only those parts of 24 material, documents, items, or oral or written communications that qualify – so that other 25 portions of the material, documents, items, or communications for which protection is not 26 warranted are not swept unjustifiably within the ambit of this Order. 27 28 Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown to be clearly unjustified or that have been made for an improper purpose (e.g., to STIPULATED PROTECTIVE ORDER Case No. C 3:11-cv-01307 JSW 4 Case3:11-cv-01307-JSW Document65 Filed11/15/11 Page5 of 19 1 unnecessarily encumber or retard the case development process or to impose unnecessary 2 expenses and burdens on other parties) expose the Designating Party to potential sanctions. 3 If it comes to a Designating Party’s attention that information or items that it 4 designated for protection do not qualify for protection, Designating Party must promptly notify 5 all other Parties that it is withdrawing the mistaken designation. 6 5.2 Manner and Timing of Designations. Except as otherwise provided in 7 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or 8 ordered, Disclosure or Discovery Material that qualifies for protection under this Order must be 9 clearly so designated before the material is disclosed or produced. 10 Designation in conformity with this Order requires: 11 (a) Designation of Information in Documentary Form. For 12 information in documentary form (e.g., paper or electronic documents, but excluding transcripts 13 of depositions or other pretrial or trial proceedings), the Producing Party must affix the legend 14 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” to each 15 page that contains protected material. If only a portion or portions of the material on a page 16 qualifies for protection, the Producing Party also must clearly identify the protected portion(s) 17 (e.g., by making appropriate markings in the margins). 18 A Party or Non-Party that makes original documents or materials available for 19 inspection need not designate them for protection until after the inspecting Party has indicated 20 which material it would like copied and produced. During the inspection and before the 21 designation, all of the material made available for inspection shall be deemed “HIGHLY 22 CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” After the inspecting Party has identified the 23 documents it wants copied and produced, the Producing Party must determine which documents, 24 or portions thereof, qualify for protection under this Order. Then, before producing the specified 25 documents, the Producing Party must affix the appropriate legend (“CONFIDENTIAL” or 26 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”) to each page that contains 27 Protected Material. If only a portion or portions of the material on a page qualifies for 28 STIPULATED PROTECTIVE ORDER Case No. C 3:11-cv-01307 JSW 5 Case3:11-cv-01307-JSW Document65 Filed11/15/11 Page6 of 19 1 protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by 2 making appropriate markings in the margins). 3 (b) Designation of Deposition Testimony. For testimony given in 4 deposition or in other pretrial or trial proceedings, deposition, hearing, or other proceeding 5 testimony may be designated as Protected Material by oral designation on the record, in which 6 case the designated portions of the deposition transcript shall be separately bound and stamped 7 with the words “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 8 ONLY” as appropriate on each page. 9 Parties shall give the other parties notice if they reasonably expect a 10 deposition, hearing or other proceeding to include Protected Material so that the other parties can 11 ensure that only authorized individuals who have signed the “Acknowledgment and Agreement 12 to Be Bound” (Exhibit A) are present at those proceedings. The use of a document as an exhibit 13 at a deposition shall not in any way affect its designation as “CONFIDENTIAL” or “HIGHLY 14 CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” 15 To the extent such notice is not possible, where testimony is designated at a 16 deposition, the designating party may exclude from the deposition, while such designated 17 testimony is being given, all persons other than those to whom the Protected Material may be 18 disclosed under paragraph 7 of this order. 19 Any party may mark Protected Material as a deposition exhibit and examine any 20 witness thereon, provided that the deposition witness is one to whom the exhibit may be 21 disclosed under paragraph 7 of this Protective Order and the exhibit and related transcript pages 22 receive the same confidentiality designation as the original material. 23 Transcripts containing Protected Material shall have an obvious legend on the title 24 page that the transcript contains Protected Material, and the title page shall be followed by a list 25 of all pages (including line numbers as appropriate) that have been designated as Protected 26 Material and the level of protection being asserted by the Designating Party. The Designating 27 Party shall inform the court reporter of these requirements. Any transcript including all Exhibits 28 thereto shall be treated as if it had been designated “HIGHLY CONFIDENTIAL – STIPULATED PROTECTIVE ORDER Case No. C 3:11-cv-01307 JSW 6 Case3:11-cv-01307-JSW Document65 Filed11/15/11 Page7 of 19 1 ATTORNEYS’ EYES ONLY” in its entirety unless otherwise agreed, until after the period of 2 subsequent designation set forth in subsection 5.4(a). 3 (c) Designation of Information in Some Form Other than 4 Documentary. For information produced in some form other than documentary and for any 5 other tangible items, that the Producing Party affix in a prominent place on the exterior of the 6 container or containers in which the information or item is stored the legend “CONFIDENTIAL” 7 or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” If only a portion or portions of 8 the information or item warrant protection, the Producing Party, to the extent practicable, shall 9 identify the protected portion(s). 10 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 11 failure to designate qualified information or items does not, standing alone, waive the 12 designating Party’s right to secure protection under this Order for such material. Upon timely 13 correction of a designation, the Receiving Party must make reasonable efforts to assure that the 14 material is treated in accordance with the provisions of this Order. 15 5.4 Subsequent Designation. Documents and computer files may be 16 designated as Protected Material after they have been produced without having been so 17 designated, and deposition testimony may be designated as Protected Material after the 18 testimony has been given, without having been so designated, as follows: 19 (a) The designating party must provide written notice of the new 20 designation to all parties (and the person who produced the documents or other materials if not a 21 party) within twenty (20) days of production of the documents or delivery of the deposition 22 transcript. Persons to whom the designating party has disclosed such documents, computer files, 23 or testimony must be advised in writing of the new designation by the designating party. Upon 24 receipt of such written notice, the notified person shall be obligated to promptly notify all other 25 persons to whom such notified person has disclosed such information of the new designation; 26 (b) 27 of the original production or date of testimony; The new designation applies retroactively as of the date and time 28 STIPULATED PROTECTIVE ORDER Case No. C 3:11-cv-01307 JSW 7 Case3:11-cv-01307-JSW Document65 1 (c) Filed11/15/11 Page8 of 19 All Parties and all Non-Parties producing documents or other 2 materials in connection with this lawsuit shall maintain the confidentiality of all documents and 3 other materials produced under the standards for Protected Materials established in this 4 Protective Order for at least twenty (20) days after production (or date of delivery of a deposition 5 transcript for a witness’s testimony on a particular date), by the conclusion of which time any 6 notice of designation pursuant to subparagraph 5.4(a) will have to have been provided by the 7 designating party; 8 9 (d) The Designating Party shall provide all persons whom it notifies of the new designation with another copy of the documents, computer files, or deposition testimony 10 that bears the new designation within twenty (20) days of the date of the written notice of the 11 new designation described in paragraph 5.4(a); and 12 (e) The Designating Party making the new designation, all counsel of 13 record, and counsel for any Non-Party shall make all reasonable efforts to retrieve all copies of 14 the undesignated documents, computer files, or testimony from the persons to whom such 15 undesignated copies have been disclosed. If the receipt of such undesignated copies is a party to 16 this Protective Order or a signatory of the Acknowledgement Form described below and attached 17 as Exhibit A, then that recipient shall have an affirmative duty to return to the Designating Party 18 all such undesignated copies which that party received from the Producing Party otherwise. 19 20 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 21 designation of confidentiality at any time. Unless a prompt challenge to a Designating Party’s 22 confidentiality designation is necessary to avoid foreseeable, substantial unfairness, unnecessary 23 economic burdens, or a significant disruption or delay of the litigation, a Party or Non-Party does 24 not waive its right to challenge a confidentiality designation by electing not to mount a challenge 25 promptly after the original designation is disclosed. 26 6.2 Meet and Confer. The Challenging Party shall initiate the dispute 27 resolution process by providing written notice of each designation it is challenging and 28 describing the basis for each challenge. To avoid ambiguity as to whether a challenge has been STIPULATED PROTECTIVE ORDER Case No. C 3:11-cv-01307 JSW 8 Case3:11-cv-01307-JSW Document65 Filed11/15/11 Page9 of 19 1 made, the written notice must recite that the challenge to confidentiality is being made in 2 accordance with this specific paragraph of the Protective Order. The parties shall attempt to 3 resolve each challenge in good faith and must begin the process by conferring directly (in voice 4 to voice dialogue; other forms of communication are not sufficient) within fourteen (14) days of 5 the date of service of notice. In conferring, the Challenging Party must explain the basis for its 6 belief that the confidentiality designation was not proper and must give the Designating Party an 7 opportunity to review the designated material, to reconsider the circumstances, and, if no change 8 in designation is offered, to explain the basis for the chosen designation. A Challenging Party 9 may proceed to the next stage of the challenge process only if it has engaged in this meet and 10 confer process first or establishes that the Designating Party is unwilling to participate in the 11 meet and confer process in a timely manner. 12 6.3 Judicial Intervention. If the parties cannot resolve a challenge without 13 court intervention, the Designating Party shall file and serve a motion to retain confidentiality 14 under Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) within 15 twenty-one (21) days of the initial notice of challenge or within fourteen (14) days of the parties 16 agreeing that the meet and confer process will not resolve their dispute, whichever is earlier. 17 Each such motion must be accompanied by a competent declaration affirming that the movant 18 has complied with the meet and confer requirements imposed in the preceding paragraph. 19 Failure by the Designating Party to make such a motion including the required declaration within 20 twenty-one (21) days (or fourteen (14) days, if applicable) shall automatically waive the 21 confidentiality designation for each challenged designation. In addition, the Challenging Party 22 may file a motion challenging a confidentiality designation at any time if there is good cause for 23 doing so, including a challenge to the designation of a deposition transcript or any portions 24 thereof. Any motion brought pursuant to this provision must be accompanied by a competent 25 declaration affirming that the movant has complied with the meet and confer requirements 26 imposed by the preceding paragraph. 27 28 The burden of persuasion in any such challenge proceeding shall be on the Designating Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass STIPULATED PROTECTIVE ORDER Case No. C 3:11-cv-01307 JSW 9 Case3:11-cv-01307-JSW Document65 Filed11/15/11 Page10 of 19 1 or impose unnecessary expenses and burdens on other parties) may expose the Challenging Party 2 to sanctions. Unless the Designating Party has waived the confidentiality designation by failing 3 to file a motion to retain confidentiality as described above, all parties shall continue to afford the 4 material in question the level of protection to which it is entitled under the Producing Party’s 5 designation until the court rules on the challenge. 6 7 7. ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that is 8 disclosed or produced by another Party or by a Non-Party in connection with this case only for 9 prosecuting, defending, or attempting to settle this litigation. Such Protected Material may be 10 disclosed only to the categories of persons and under the conditions described in this Order. 11 When the litigation has been terminated, a Receiving Party must comply with the provisions of 12 section 14 below (FINAL DISPOSITION). 13 Protected Material must be stored and maintained by a Receiving Party at a 14 location and in a secure manner that ensures that access is limited to the persons authorized 15 under this Order. 16 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 17 otherwise ordered by the Court or permitted in writing by the Designating Party, a Receiving 18 Party may disclose any information or item designated “CONFIDENTIAL” only to: 19 (a) the Receiving Party’s Outside Counsel of Record in this action, as 20 well as employees of said Outside Counsel of Record to whom it is reasonably necessary to 21 disclose the information for this litigation and who have signed the “Acknowledgment and 22 Agreement to Be Bound” that is attached hereto as Exhibit A; 23 (b) the officers, directors, and employees (including In-House 24 Counsel) of the Receiving Party to whom disclosure is reasonably necessary for this litigation 25 and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 26 (c) Experts (as defined in this Order) of the Receiving Party to whom 27 disclosure is reasonably necessary for this litigation and who have signed the “Acknowledgment 28 and Agreement to Be Bound” (Exhibit A); STIPULATED PROTECTIVE ORDER Case No. C 3:11-cv-01307 JSW 10 Case3:11-cv-01307-JSW Document65 Filed11/15/11 Page11 of 19 1 (d) the Court and its personnel; 2 (e) court reporters and their staff, professional jury or trial consultants, 3 mock jurors, and Professional Vendors to whom disclosure is reasonably necessary for this 4 litigation and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 5 (f) during their depositions, witnesses in the action to whom 6 disclosure is reasonably necessary and who have signed the “Acknowledgment and Agreement to 7 Be Bound” (Exhibit A), unless otherwise agreed by the Designating Party or ordered by the 8 Court. Pages of transcribed deposition testimony or exhibits to depositions that reveal Protected 9 Material must be separately bound by the court reporter and may not be disclosed to anyone 10 except as permitted under this Stipulated Protective Order. 11 12 (g) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information. 13 7.3 14 ONLY” Information or Items. 15 (a) Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES Unless otherwise ordered by the court or permitted in writing by the 16 Designating Party, a Receiving Party may disclose any information or item designated “HIGHLY 17 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to: 18 1) the Receiving Party’s Outside Counsel of Record in this action, as 19 well as employees of said Outside Counsel of Record to whom it is reasonably necessary to 20 disclose the information for this litigation and who have signed the “Acknowledgment and 21 Agreement to Be Bound” that is attached hereto as Exhibit A; 22 2) Experts of the Receiving Party (1) to whom disclosure is 23 reasonably necessary for this litigation, and (2) who have signed the “Acknowledgment and 24 Agreement to Be Bound” (Exhibit A); 25 3) the court and its personnel; 26 4) court reporters and their staff, professional jury or trial consultants, 27 and Professional Vendors to whom disclosure is reasonably necessary for this litigation and who 28 have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); and STIPULATED PROTECTIVE ORDER Case No. C 3:11-cv-01307 JSW 11 Case3:11-cv-01307-JSW Document65 1 2 5) Filed11/15/11 Page12 of 19 the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information. 3 (b) Pro se litigants are bound by all the terms of this Stipulated Protective 4 Order. Pro se litigants may only use information or items designated “HIGHLY 5 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” for purposes of the above-captioned 6 litigation. Pro se litigants agree not to disclosure such information or items designated 7 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” to any third parties, except as so 8 provided in this Stipulated Protective Order. Pro se litigants agree not to use any competitive 9 information gleaned from such information or items designated “CONFIDENTIAL” or 10 “HIGHLY CONFIEDENTIAL – ATTORNEYS’ EYES ONLY” in their own businesses or to 11 their own personal or financial advantage. Once pro se litigants retain counsel, the Receiving 12 Party must return to the Designating Party all physical embodiments of such information or items 13 (including paper, compact discs, dvds, etc.) and delete all electronic embodiments of such 14 information or items (e-mails, electronic-files, etc.) designated “HIGHLY CONFIDENTIAL – 15 ATTORNEYS’ EYES ONLY.” Moreover, once pro se litigants retain counsel, the terms set forth 16 in subsection 7.3(a) specifically apply to them, such that the Receiving Party will no longer have 17 access to information or items designed “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 18 ONLY.” 19 20 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION 21 If a Party or Non-Party is served with a subpoena or a court order issued in other 22 litigation that compels disclosure of any information or items designated in this action as 23 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” that Party 24 or Non-Party must: 25 26 27 28 (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 STIPULATED PROTECTIVE ORDER Case No. C 3:11-cv-01307 JSW 12 Case3:11-cv-01307-JSW Document65 Filed11/15/11 Page13 of 19 1 order is subject to this Protective Order. Such notification shall include a copy of this Stipulated 2 Protective Order; and 3 (c) cooperate with respect to all reasonable procedures sought to be 4 pursued by the Designating Party whose Protected Material may be affected. If the Designating 5 Party timely seeks a protective order, the Party served with the subpoena or court order shall not 6 produce any information designated in this action as “CONFIDENTIAL” or “HIGHLY 7 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” before a determination by the court from 8 which the subpoena or order issued, unless the Party has obtained the Designating Party’s 9 permission. The Designating Party shall bear the burden and expense of seeking protection in 10 that court of its confidential material – and nothing in these provisions should be construed as 11 authorizing or encouraging a Receiving Party in this action to disobey a lawful directive from 12 another court. 13 9. 14 A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION 15 (a) The terms of this Order are applicable to information produced by 16 a Non-Party in this action and designated as “CONFIDENTIAL” or “HIGHLY 17 CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Such information produced by Non-Parties 18 in connection with this litigation is protected by the remedies and relief provided by this Order. 19 Nothing in these provisions should be construed as prohibiting a Non-Party from seeking 20 additional protections. 21 (b) In the event that a Party is required, by a valid discovery request, 22 to produce a Non-Party’s confidential information in its possession, and the Party is subject to an 23 agreement with the Non-Party not to produce the Non-Party’s confidential information, then the 24 Party shall: 25 1. promptly notify in writing the Requesting Party and the 26 Non-Party that some or all of the information requested is subject to a confidentiality agreement 27 with a Non-Party; 28 STIPULATED PROTECTIVE ORDER Case No. C 3:11-cv-01307 JSW 13 Case3:11-cv-01307-JSW Document65 1 2. Filed11/15/11 Page14 of 19 promptly provide the Non-Party with a copy of the 2 Stipulated Protective Order in this litigation, the relevant discovery request(s), and a reasonably 3 specific description of the information requested; and 4 5 3. make the information requested available for inspection by the Non-Party. 6 (c) If the Non-Party fails to object or seek a protective order from this 7 Court within 14 days of receiving the notice and accompanying information, the Receiving Party 8 may produce the Non-Party’s confidential information responsive to the discovery request. If the 9 Non-Party timely seeks a protective order, the Receiving Party shall not produce any information 10 in its possession or control that is subject to the confidentiality agreement with the Non-Party 11 before a determination by the Court.1 Absent a court order to the contrary, the Non-Party shall 12 bear the burden and expense of seeking protection in this court of its Protected Material. 13 10. 14 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 15 Material to any person or in any circumstance not authorized under this Stipulated Protective 16 Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the 17 unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the 18 Protected Material, (c) inform the person or persons to whom unauthorized disclosures were 19 made of all the terms of this Order, and (d) request such person or persons to execute the 20 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A. 21 11. 22 This Protective Order is entered into solely for the purpose of facilitating the exchange of NO WAIVER 23 documents and information between the Parties to this action without involving the Court 24 unnecessarily in the process. The production of materials designated as Protected Material 25 pursuant to this Protective Order shall in no way constitute: (a) a waiver of any right to object to 26 27 28 The purpose of this provision is to alert the interested parties to the existence of confidentiality rights of a Non-Party and to afford the Non-Party an opportunity to protect its confidentiality interests in this court. 1 STIPULATED PROTECTIVE ORDER Case No. C 3:11-cv-01307 JSW 14 Case3:11-cv-01307-JSW Document65 Filed11/15/11 Page15 of 19 1 the production or use of the same information on other grounds; (b) a general or limited waiver 2 of the attorney-client, attorney work product or any other privilege or legal protection; or (c) a 3 waiver of any right to object to the production of or use of other documents in this litigation or in 4 any other litigation. By agreeing to the terms of this Protective Order, a party shall not be 5 deemed to have waived any objection to the production of admissibility of any document. The 6 placing of any confidentiality designation on the face of a document shall have no bearing on the 7 question of the authenticity or admissibility of that document at trial. 8 12. 9 10 INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL When a Producing Party gives notice to Receiving Parties that certain inadvertently 11 produced material is subject to a claim of privilege or other protection, the obligations of the 12 Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This 13 provision is not intended to modify whatever procedure may be established in an e-discovery 14 order that provides for production without prior privilege review. 15 In the event that any privileged materials are inadvertently produced, such production 16 shall not be deemed a waiver of the attorney-client privilege, work-product doctrine, or any other 17 privilege or immunity. Upon notification of such inadvertent disclosure, the Receiving Party 18 shall immediately make every effort to prevent further disclosure of the materials, collect, and 19 return any copies of the privileged materials and inform any person(s) having received or 20 reviewed such materials as to the privileged natured of the materials. 21 22 23 24 13. MISCELLANOUS 13.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek its modification by the court in the future. 13.2 Right to Assert Other Objections. By stipulating to the entry of this 25 Protective Order no Party waives any right it otherwise would have to object to disclosing or 26 producing any information or item on any ground not addressed in this Stipulated Protective 27 Order. Similarly, no Party waives any right to object on any ground to use in evidence of any of 28 the material covered by this Protective Order. STIPULATED PROTECTIVE ORDER Case No. C 3:11-cv-01307 JSW 15 Case3:11-cv-01307-JSW Document65 1 13.3 Filed11/15/11 Page16 of 19 Filing Protected Material. Without written permission from the 2 Designating Party or a court order secured after appropriate notice to all interested persons, a 3 Party may not file in the public record in this action any Protected Material. A Party that seeks to 4 file under seal any Protected Material must comply with Civil Local Rule 79-5. Protected 5 Material may only be filed under seal pursuant to a court order authorizing the sealing of the 6 specific Protected Material at issue. Pursuant to Civil Local Rule 79-5, a sealing order will issue 7 only upon a request establishing that the Protected Material at issue is privileged, protectable as a 8 trade secret, or otherwise entitled to protection under the law. If a Receiving Party's request to 9 file Protected Material under seal pursuant to Civil Local Rule 79-5(d) is denied by the Court, 10 then the Receiving Party may file the information in the public record pursuant to Civil Local 11 Rule 79-5(e) unless otherwise instructed by the Court. 12 14. FINAL DISPOSITION. Within sixty (60) days after the final disposition of this 13 action, as defined in paragraph 4, each Receiving Party must return all Protected Material to the 14 Producing Party or destroy such material. As used in this subdivision, “all Protected Material” 15 includes all copies, abstracts, compilations, summaries, and any other format reproducing or 16 capturing any of the Protected Material. Whether the Protected Material is returned or destroyed, 17 the Receiving Party must submit a written certification to the Producing Party (and, if not the 18 same person or entity, to the Designating Party) by the sixty (60) day deadline that (1) identifies 19 (by category, where appropriate) all the Protected Material that was returned or destroyed and (2) 20 affirms that the Receiving Party has not retained any copies, abstracts, compilations, 21 summaries or any other format reproducing or capturing any of the Protected Material. 22 Notwithstanding this provision, Counsel are entitled to retain an archival copy of all pleadings, 23 motion papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence, 24 deposition and trial exhibits, expert reports, attorney work product, and consultant and expert 25 work product, even if such materials contain Protected Material. Any such archival copies that 26 contain or constitute Protected Material remain subject to this Protective Order as set forth in 27 Section 4 (DURATION). 28 STIPULATED PROTECTIVE ORDER Case No. C 3:11-cv-01307 JSW 16 Case3:11-cv-01307-JSW Document65 1 Filed11/15/11 Page17 of 19 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 2 3 4 Dated: November 15, 2011 /s/ Vijay K. Toke Vijay K. Toke Attorney for Plaintiff Westland Giftware Dated: November 15, 2011 /s/ Julie Turner Julie Turner Attorney for Defendants Product Design Corporation and Michael Dowdall Dated: November 15, 2011 /s/ Peter M. Hart Peter M. Hart Attorney for Defendant Pacific Trading Dated: November 15, 2011 /s/ Lawrence Grable Lawrence Grable Attorney for Defendant Pacific Trading Dated: November 15, 2011 /s/ James Bradshaw James Bradshaw Defendant in Pro Per 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 /// 27 /// 28 /// STIPULATED PROTECTIVE ORDER Case No. C 3:11-cv-01307 JSW 17 Case3:11-cv-01307-JSW Document65 1 Filed11/15/11 Page18 of 19 PURSUANT TO STIPULATION, IT IS SO ORDERED. 2 3 4 5 6 7 8 November 28 Dated: ______________, 2011 The Honorable Jeffrey S. White United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STIPULATED PROTECTIVE ORDER Case No. C 3:11-cv-01307 JSW 18 Case3:11-cv-01307-JSW Document65 Filed11/15/11 Page19 of 19 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 4 I, ____________________________[print or type full name], of [print or type full 5 address], 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 the Northern 7 District of California on [date] in the case of [formal name of the case and the number and 8 initials assigned to it by the court]. I agree to comply with and to be bound by all the terms of 9 this Stipulated Protective Order and I understand and acknowledge that failure to so comply 10 could expose me to sanctions and punishment in the nature of contempt. I solemnly promise that 11 I will not disclose in any manner any information or item that is subject to this Stipulated 12 Protective Order to any person or entity except in strict compliance with the provisions of this 13 Order. 14 I further agree to submit to the jurisdiction of the United States District Court for the 15 Northern District of California for the purpose of enforcing the terms of this Stipulated 16 Protective Order, even if such enforcement proceedings occur after termination of this action. I 17 hereby appoint ____________________________[print or type full name] of 18 ________________________[print or type full address and telephone number] as my 19 California agent for service of process in connection with this action or any proceedings related 20 to enforcement of this Stipulated Protective Order. 21 22 23 24 Date: _________________________ City and State where sworn and signed: __________________________ 25 Printed name: __________________________________ [printed name] 26 Signature: 27 __________________________________ [signature] 28 STIPULATED PROTECTIVE ORDER Case No. C 3:11-cv-01307 JSW 19
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